Will the member take an intervention?

On a point of order, Presiding Officer. The app did not load. I would have voted yes.

Thank you, Deputy Presiding Officer. I will try to keep my comments reasonably brief.

I will support Mr Mason on amendment 122. On amendment 57, my colleague Pam Gosal spoke very clearly about some of the issues that could arise that I am sure are unintended. I totally recognise that most of us in the chamber do not follow a belief or religion that will be impacted. However, we are also here to protect minority religious groups and to allow individuals to worship in freedom and in a way that they believe to be right. Pam Gosal pointed to examples from the Muslim faith. It is true to say that people from the Jewish faith and some from the Christian faith will also struggle to work out how they will be able to practice their religious freedom. To be able to record and monitor that and to see the effect of the bill on that will be helpful, so I hope that Parliament will support those amendments.

My colleague Brian Whittle spoke very clearly about issues around sport. I will come at that issue from a slightly different angle. I really enjoy watching my two daughters play sport. They enjoy it and it is good for their physical health. In Scotland, we want our children to be more healthy, but we all know that it is difficult to keep them actively involved in sport when they become teenagers; that is particularly the case for female teenagers. As a father, I know that if my daughter suddenly finds that she never wins or never has an opportunity to win or, perhaps, that she is putting her body in physical danger because someone is stronger and bigger than her and physically different, she will simply walk away. That could have dangerous consequences for future generations in terms of keeping young folk fit and healthy.

Amendments 13 and 14 in my name are fairly straightforward. If I am honest, I think that Ash Regan’s amendment 71 is probably better, so if I must choose, I would choose her amendment before mine. However, my amendments seek to do a similar thing—to recognise that we have diversity in society and that we must protect every protected characteristic, whether it is religion, disability or another one. We are simply asking that the bill have that at its heart, so that people understand how it all fits in. I also support my colleague Tess White’s amendment 131.

On a point of order, Presiding Officer. It is now 10 past 4—[Interruption.] I think that I have got the time right; I am not sure what is wrong. It is now 10 past 4 and 26 seconds. The Scottish Parliament’s Business Bulletin, as revised by a motion at midnight this morning, states that portfolio question time was due to commence at 3.15 pm. That was a defined time; it was not the usual follow-on business as is the case in most bulletins. We are now past 3.15 pm and MSPs have not been offered a chance to ask questions of the cabinet secretary and ministers. We have not even been told whether we will get the chance to do so.

I remind the chamber that the Gender Recognition Reform (Scotland) Bill is not emergency legislation and that it should not supersede all other business. Ministers being held to account by elected representatives is the bread and butter of the Parliament, and we cannot let that be sidelined once again so that the bill can be rushed through before Christmas. I have a rural affairs question today, which I am looking forward to asking.

Presiding Officer, I seek your clarity with regard to the Business Bulletin. When will portfolio question time take place? If you do not know, will you perhaps ask business managers to meet urgently to discuss the matter? It is important for members around the chamber and for their constituents that those questions are asked today.

On a point of order, Presiding Officer. My app did not load. I would have voted yes.

Will the member take an intervention on that point?

I agree with Pauline McNeill. The amendments that we have been debating in this group are perhaps among the most important amendments that we will debate over the next couple of days.

With your permission, Presiding Officer, I would like to start by quoting a constituent who has been watching the debate at home on television. She has asked a specific question of the cabinet secretary. Her email says:

“As charge nurse on day shift (short staffed, as usual), I am sent a clinical support worker ... (not a registered nurse) from the staff bank, who I have not met before and is obviously male. A female patient on the ward has stated that she only wants female staff to provide intimate care to her. The CSW from the staff bank intends to accompany another, female”

and give that individual a bed bath. My constituent continues:

“I reiterate that patient has requested female only care.”

My constituent says that she does not know what to do as a staff nurse. Does she protect her patient or protect the NHS from being sued? Could the cabinet secretary please clarify the situation?

That is why I stand to speak to some of the amendments in the group. We have heard from members that there is clarity, but here is an individual, serving our society here in Lothian, who does not know what to do.

I am not sure that I fully agree with Mr Johnson that there is clarity on the law. We have heard from Pauline McNeill, Jackie Baillie and others that there is not clarity on the law.

I think that the cabinet secretary misses the point. What does the staff nurse do to get the patient washed and dressed if that is the only choice that they have at the time?

I am not going to get into a debate about current staff shortages in our NHS, but we all know that there is a limited number of staff in each ward. That answer does not give guidance on what the charge nurse does there and then, on that shift. It is clear that any advice has not been handed down from NHS Lothian to the people who are in charge of the wards to enable them to decide. With respect, I do not think that that response clarifies the matter.

As I was saying, I think that we need a moment to pause. Surely our primary purpose in the Parliament is to make good law and to make law that actually helps everybody in Scotland. Until there is clarity around the Haldane judgment from others who have a better legal understanding than I do, I think that there is an opportunity for us to pause.

I turn briefly to specific amendments. As we have heard, amendment 54, in the name of the cabinet secretary, requires the Scottish Government to produce

“guidance about the operation of”

the Gender Recognition Reform (Scotland) Bill. It states that, in preparing that guidance, the Scottish ministers will

“consult ... statutory bodies concerned with promoting equality or human rights”.

That sounds all well and good, but I will not be supporting the amendment. As I recall, the Scottish Government’s track record of consulting bodies that are concerned with human rights has been consistently one-sided, as we have seen throughout the progress of the bill.

Women’s rights organisations have told us that they have felt ignored throughout the process, and we have seen people such as the UN special rapporteur on violence against women and girls have their voice ignored in favour of another, male UN rapporteur to whom the Scottish Government prefers to listen.

I will not support a Scottish Government amendment that will allow it to dictate, for the purpose of producing guidance, who it deems to be promoting equality and human rights. As I said, I will vote against amendment 54.

Amendment 111, in Jackie Baillie’s name, would require the Scottish ministers to produce

“guidance on the ... operation of this Act for ... the provision of single-sex services”.

The amendment mentions specific settings such as

“schools, healthcare facilities and prisons.”

I am happy to support that amendment, because those public service providers need clarity—as I said a moment ago—on how the bill will impact them and whether certain services can be provided only to those who are born women and girls. Again, there is a lack of clarity around those issues as a result of the decision in the Court of Session last week.

I understand that amendment 112 will not be moved by Ash Regan. I think that it is a good amendment, and I would have supported it had she decided to move it.

Amendment 113, which is also in Ash Regan’s name, would further clarify that

“Nothing in this”

bill

“affects ... the definition of ‘sex’ in ... the Equality Act 2010”.

Although it is important that that is stated, I note again that, as a result of the recent Court of Session ruling, those who have a gender recognition certificate are included in consideration of the definition of “sex”. The Scottish Government has failed to address that point with regard to single-sex space provision. Nonetheless, it is important to put it in the text of the bill that the definition under the Equality Act 2010 is not altered, in order to avoid confusion for the public.

Amendment 117, in Pauline McNeill’s name, is another amendment that requires the production of guidance, this time in relation to the

“effect of having a gender recognition certificate.”

Again, the public deserve certainty on that point. Because the Scottish Government is expanding the number of people who can apply for a gender recognition certificate, it is inevitable that organisations will interact with people who have obtained certificates, so specificity is essential. Amendment 129 would also require the Scottish ministers to consult public authorities on the “implications” of that. We have heard different comments from the Scottish Government, but it consults public bodies and organisations all the time, and I still have not found clarity on why it will not do so on this occasion.

Amendment 128, also in Pauline McNeill’s name, would put it beyond doubt that nothing in the bill affects any requirement to collect data on sex. It, too, is a sensible amendment, and I will support it.

Amendments 118 and 119, in Claire Baker’s name, would require the Scottish ministers to produce guidance on occupational exceptions to the offence of disclosing information about a person’s gender recognition status for the purpose of any occupational requirement. Amendment 118 is slightly stronger in that the guidance would require the Scottish Parliament’s approval, but both are good amendments that will be needed, given that people in new occupations will be forced to interact with holders of a GRC. It should not be an offence for people in such occupations to disclose someone’s gender recognition certificate status if that is part of their job.

Amendment 127, in Jackie Baillie’s name, is one of the amendments that the Scottish Government has requested be not moved, as the Government claims that the amendment would change the effect of the Equality Act 2010, which is of course reserved. I am absolutely clear that no amendment should be supported if it were to intrude on reserved matters, but it is far from clear that the Scottish Government’s interpretation of amendment 127 is correct. After all, the amendment seems only to restate what is already set out and stated in law. I hope that Jackie Baillie will move her amendment. As I understand it, it would insert in the bill paragraph 28 of schedule 3 to the 2010 act, which allows for discrimination against those who have undergone gender reassignment surgery when providing a single-sex service, even if such individuals hold a gender recognition certificate.

The cabinet secretary often says—and has done this afternoon—that the bill will have no effect on the ability of single-sex service providers to provide their services exclusively to those born as women, but she now claims that making that clear in the bill would put it at risk of a legal challenge. The question therefore is, which is it? Her positions are seemingly contradictory. I will support amendment 127 unless the cabinet secretary can provide compelling evidence that it would be an incompetent amendment, which I highly doubt she will be able to do.

Finally, Jackie Baillie’s amendment 130 would secure protections for single-sex services by stating that providing a service only to persons of one sex is lawful if it is in accordance with schedule 3 to the 2010 act. I am happy to support the amendment on the basis of protecting single-sex services, because it takes us further down the right road, even if I do not think that it will provide adequate protection.

As I said at the beginning of my remarks, when I quoted a constituent of mine who has been watching the debate today, there is a lack of clarity. I believe that, if the bill becomes law without these amendments being accepted, there will be a lack of clarity about how the legislation will work in practice. Bad law is bad for Scotland, bad for our citizens and bad for the reputation of this Parliament.

I ask members to support the amendments that I will be supporting.

Will the member take an intervention?

We have had the judgment for just over a week, and most of us have not read the full text, let alone understood it. Academics are still working through its implications and, no doubt, lawyers are looking at appeal points as well. There is real uncertainty about what the interpretation will mean going forward. Does the member agree that the best way forward is simply to pause the process until we get legal certainty, so that we are not all trying to second-guess what will happen, given that most of us are not practising day-to-day lawyers?