Scottish Parliament, 21 December 2022

489 contributions from 49 members. The official report.

Motion without Notice

Alison Johnstone (Presiding Officer, Lothian)

Good afternoon. Given the point that we reached in proceedings yesterday and that we have a number of groups of amendments to debate before we reach the next line, I am minded to accept a motion without notice to propose that, under rule 9.8.5A, the next time limit be extended by up to two hours. I invite the Minister for Parliamentary Business to move the motion.

Motion moved,

That, under rule 9.5.8A, the time limit for groups 10 to 12 be extended by up to two hours.—[

George Adam

]

Motion agreed to.

Gender Recognition Reform (Scotland) Bill: Stage 3

Alison Johnstone (Presiding Officer, Lothian)

The first item of business is continuation of stage 3 proceedings on the Gender Recognition Reform (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2—that is, Scottish Parliament Bill 13A—the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 45 seconds. Thereafter, I will allow a period of one minute for the first division after a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak button or enter RTS in the chat as soon as possible after I call the group.

Members should now refer to the marshalled list of amendments.

Douglas Ross (Conservative, Highlands and Islands)

On a point of order, Presiding Officer.

I seek your guidance on the

Official Report

of this Parliament.

“The

Official Report

is a written record of what is said in public meetings of the Scottish Parliament and its committees.”

Those are not my words but the words on the

Official Report

website, which is hosted by the Scottish Parliament.

Last night, the Deputy Presiding Officer suspended the meeting, saying:

“We will have to clear the galleries now. We will suspend the meeting for a few minutes while that happens.”—[

Official Report

, 20 December 2022; c 104.]

The

Official Report

states that, at 18:24, the meeting was suspended. At 19:00, on resuming, the Deputy Presiding Officer invited members to resume their seats. In the intervening period, the Deputy Presiding Officer had begun proceedings again. I then made a point of order. That has been totally removed from the

Official Report

—there is not a single note of it. At that point, I was urging the Deputy Presiding Officer to make it clear that, if people had been unruly, they should be removed but that people who had sat through silently and listened to the debate should not be removed. That point was, I think, accepted by the Deputy Presiding Officer.

We then had further discussions. I pointed out—on the record, I thought—that people had been threatened with arrest if they did not leave the public gallery. Again, there is no mention of that whatsoever in the

Official Report

. I reiterate that it is supposed to be a

“record of what was said in public meetings of the Scottish Parliament”.

Later on, my colleague Jeremy Balfour said:

“On a point of order ... I seek some clarification about a question that my colleague, Douglas Ross, asked just before the suspension, in connection with who can use the gallery”.—[

Official Report

, 20 December 2022; c 22.]

However, anyone who tries to read what I said will find no record of that in the

Official Report

.

How can we possibly have a situation in which there is an incomplete

Official Report

for an important meeting of Parliament?

The Presiding Officer

I thank Mr Ross for his point of order. My understanding is that proceedings had been suspended, but I will look into the matter that he has raised and I will be back in touch with him.

We move to group 10, which is on certificates obtained by fraud. Amendment 108, in the name of Jamie Greene, is grouped with amendments 110, 114 to 116, 138 and 139.

Jamie Greene (Conservative, West Scotland)

First of all, I place on record my thanks to colleagues and, more importantly, to the staff of the Parliament, who aided and abetted us so diligently last night in our late sitting. Without them, we would not be able to do the jobs that we do. [

Applause

.] The good news is that I will try not to speak so much that I keep them here until midnight.

I also welcome people back to the public gallery. We are an open Parliament and it is important that we are a Parliament of the people for the people.

The amendments in group 10, which we did not get through to last night, are largely centred around the concept of certificates that are obtained by fraud. Members who were here for yesterday’s proceedings will know that I made comments about what I felt was much-needed compromise in this bill. Such compromise was notably absent at stage 1.

Over many hours yesterday, many concerns were raised about the use of the new simplified process for nefarious purposes. Various members proposed a number of amendments about that, which were voted on.

In my desire to amend the bill, I have followed two overriding themes. I am not trying to be difficult or to take advantage of the situation for other purposes; I am simply trying to make the bill better. I think that that is a desire that we should all share. I am trying to meet that desire on the basis of two themes: compromise and competence. I hope that we will all bear in mind those two recurring themes as we go through today’s amendments.

The issue of compromise is important because, without it, I do not think that those on both sides of the argument will feel fully satisfied that they have been heard and listened to.

The issue of competence is equally important. This is a stage 3 debate, and what we put in the bill now will live in the bill in black and white for generations to come.

Through the process, I have come to the view that the amendments in this group will meet the need for compromise and competence. These are amendments of compromise because, in my view, they will ensure that, whatever someone’s view on the simplicity of the new process, that process will not be taken advantage of or abused. My six amendments, four of which are substantive and two of which are consequential, seek to do that in a number of ways.

Amendment 108 addresses an issue that was raised when I introduced the concept at stage 2. I was happy to participate constructively in that stage of proceedings. During that stage, Pauline McNeill raised the very valid issue of what the definition of a fraudulently obtained certificate might be and what that might look like. She set me quite a challenge—it has been very challenging to get a well-rounded definition of what a fraudulently obtained certificate is without it being so limited that it could prevent prosecution in valid cases.

My understanding is that my revised amendment is much clearer legally. Amendment 108 states that a

“gender recognition certificate is fraudulent if the applicant knowingly ... makes a statutory declaration ... or ... includes information”

in their application that

“is false in a material particular”.

What does that mean in practice? An application would be fraudulent if the court saw sufficient relevant evidence to prove that the application was fraudulent. Of course, that would be a matter for the independent judiciary—in that scenario, either a jury or a judge or a sheriff. A broad range of evidence could support the fact that there was suspicion that an application was fraudulently made. It could include things such as the physical appearance of the offender in question; evidence from people who know the offender; names, pronouns and prefixes used by the offender before, during and after the period that they lived in the acquired gender; and anything else that the court might deem appropriate.

Graham Simpson (Conservative, Central Scotland)

The issue that I have with this section, which I raised at stage 2, is that it seems to me to be virtually impossible to prove fraud if, in order to get a gender recognition certificate, a person does not have to present any evidence. If no evidence is needed to get a certificate, how can a fraud be committed in order to get one? What would be the fraud? If the only thing that someone has to say is, “I am a man” or “I am a woman,” and they present no other evidence, what fraud can there be?

Jamie Greene (Conservative, West Scotland)

I am aware of a number of other amendments on the production of documentation, which have been discussed. There is a valid point, in that the Gender Recognition Act 2004 does not go into great detail in specifying what evidence is required to obtain a GRC. However, that has been the case for nearly two decades. Nothing in the bill changes that.

I feel that what is missing from the 2004 act—and I hope that this is a point of agreement between me, Graham Simpson and other members—is that it does not fully address the issue that there is a possibility, which I believe to be low but others believe to be greater, that someone could use either the existing process or the new simplified process of statutory declaration and self-identification, as it is otherwise known, for nefarious reasons.

I think that the 2004 act is weak in that respect. What I am trying to do with this set of amendments—I will go on to explain some of the others and how they go about this—is to introduce the concept that making a false statutory declaration is a very serious offence. Making a false declaration is already an offence, but if these amendments are passed, doing so, and using the new process to commit further offences, would be taken extremely seriously by the judiciary. That is manifested in another amendment of mine in this group, on aggravated offences.

Of course, we cannot consider every scenario and every court case in which such an offence may be involved. I expect the numbers to be relatively low, but if they occur and come to a court of law, it will be a matter for the court to decide whether a false declaration was made.

It should be clear to folk out there that making a statutory declaration is a very grave matter and a very serious thing to do. For that reason, we should put faith in the process of statutory declarations—a process that has existed for generations. [

Interruption

.]

I will give way in a second. I want to make some progress, or we will be here till midnight.

Such offences will be addressed on a case-by-case basis. It might be difficult to put specific criteria in the bill, as that could be counterproductive if they are used as a definitive list rather than an open one.

Following on from that, amendment 114 creates an aggravation when a crime has been committed using a fraudulently obtained certificate. To be clear about what I mean by the aggravator, I introduced the concept in an amendment at stage 2. The wording of that amendment was widely challenged, which is the whole point of stage 2 amendments. I revisited it and am confident that amendment 114 tidies up the concept of the aggravator. It means that, if someone has a GRC and commits an offence that can be linked to the acquisition of their GRC, that offence would be considered to have an aggravating factor. That would result in a harsher sentence and punishment for those who use the GRC process to commit an offence.

It is important that that link would have to be made. To give another example, if someone who holds a GRC commits a criminal offence such as a hit-and-run or theft, the two are clearly unrelated. If a court was confident or had suspicion that the acquisition and holding of a GRC enabled a person to commit a specific offence, the aggravating factor could kick in.

That is a commonly used mechanism in sentencing. It is used in domestic abuse legislation and is a concept that I introduced during the passage of fireworks legislation. It is a well tested and well known concept in court, and the amendment has been welcomed and well received by many stakeholders.

If an individual was found to have fraudulently applied for a certificate and/or was convicted of an aggravated offence, their certificate would rightly be revoked. Amendment 115 would provide for the automatic revocation of a certificate in that scenario. It would also fix a loophole whereby an applicant could have received an interim certificate based on a fraudulent application and could be converting that interim certificate into a full GRC. Amendment 115 would close that loophole and bring the measures on fraudulent applications for interim GRCs in line with the measures in the rest of the bill.

Stephen Kerr (Conservative, Central Scotland)

I pay tribute to the contribution that Jamie Greene is making to this process. The way in which he is carefully presenting his views and the standard of debate that he brings to the chamber are a credit to him.

Is the fraud thereby defined as someone obtaining a certificate—

The Presiding Officer

Mr Kerr, I am sorry, but I would be grateful if you could speak into the microphone, because we are finding it difficult to hear you.

Stephen Kerr (Conservative, Central Scotland)

Yes—it is very difficult to speak to someone who is behind me.

Would the fraud happen when someone seeks to obtain the certificate in order to commit a crime? Mr Greene did not want to give specifics, but is that the nature of the fraud that he is describing?

Jamie Greene (Conservative, West Scotland)

That is a helpful question, and the answer lies in the wording of amendment 108, which states:

“an application for a gender recognition certificate ... is fraudulent if the applicant knowingly—

(a) makes a statutory declaration which is false in a material particular in connection with the application, or

(b) includes information which is false in a material particular in ... the application, or ... a notice of confirmation given under section 8B(3) in connection with the application”.

That is a technical answer but, essentially, if somebody makes a false statutory declaration, which is a distinct possibility, the gender recognition certificate will have been achieved through fraudulent means. That is the first scenario, and that in itself is the offence of making a false declaration. However, if, by receiving a GRC through the normal process, a person then goes on to commit a further offence, such as an offence of sexual violence or violence against another individual, and the court believes that the acquisition of the GRC was a material factor in that offence or a facilitating factor that enabled the individual to commit the offence, that would be an aggravated offence. Therefore, it is very likely that the measure would be relevant only in the scenario where the holder of a GRC commits an offence and the court deems that the offence was facilitated by the acquisition of a GRC through fraudulent means.

As I said, there are a number of cases in which I believe that, had these provisions already existed in legislation, they would have been helpful. For example, a few years ago, there were a number of cases in which individuals who held GRCs were convicted of sexual assault. Members are welcome to look up the cases—they are the cases of the Crown versus Barker, McNally, Wilson and Newland. They were trans men who had female partners. In most of those cases, the female partner discovered the transgender identity of the offender only at the point of intercourse. Those people were then duly charged and prosecuted with sexual offences. There was no aggravating factor in that; they were simply charged with sexual offences.

Under my proposals, courts would look more severely on such offences, because there would be a direct link between the person having obtained a GRC and their committing a sexual offence, as happened in those scenarios. Under my proposals, those people would have received a harsher punishment for the offence because of the link between obtaining a GRC and committing such an offence. That is why my amendments are, I believe, important and helpful additions to the bill, as those provisions do not exist in the current system.

Ruth Maguire (Scottish National Party, Cunninghame South)

I listened carefully to the member’s answer to Graham Simpson. He seemed to say that there is no difference between the 2004 act and this bill in relation to evidence. However, there is a major difference in that people would have had a diagnosis of gender dysphoria. I appreciate that we do not wish to have that requirement in the future, but does that not mean that the evidence that will remain will be a bit arbitrary and subjective? How will we prove that there has been a fraudulent inquiry if we are talking about how people feel?

Jamie Greene (Conservative, West Scotland)

I respect the member’s position on the matter. To be clear, there are people who believe that getting a gender dysphoria diagnosis is an important safeguard in the process, because evidence must be submitted to the panel before someone can obtain a GRC. Of course, the bill will remove that requirement—I understand that—but that does not take away from the fact that making a false statutory declaration is still an offence.

We have had quite a wide-ranging discussion, but the issue of how one proves that one is living in an acquired gender does not relate to the amendments in the group. That has been a matter of debate since the 2004 act.

These are, of course, hypothetical scenarios, but my amendments will give courts flexibility. That is an important point. If the view was taken that a false statutory declaration was made and that the acquisition of a GRC enabled an individual to commit a further offence, the GRC could be revoked and the sentence that was given would be harsher than the sentence for a normal scenario involving a similar type of offence by an individual. I am not sure whether that answers the member’s question, but I am doing my best.

The amendments in this group will reintroduce the things that some people believe will be taken away through the simplification of the process. They are to act as a deterrent. They will simply send a strong message that people cannot abuse the new process for nefarious purposes and that, if they do, the law will look harshly on them. People must know that making a statutory declaration is a solemn and grave act, and that making a false declaration will be dealt with by the law. It will not be possible to use the process to commit further crimes and get away with them. That is the important point.

I am trying to address the perception that there will be a loss of safeguards by introducing provisions that do not even exist in the current process. They will have absolutely no effect on trans people who go about their business in applying for a GRC under due process.

Importantly—going back to the second point that I made at the beginning of my comments—my amendments are competent. That is important, given our type of chamber, which is unable to revisit legislation after stage 3. My amendments have been legally reviewed and are, I believe, helpful. They have been welcomed even by those who are in favour of the current bill, and they will address the important concept of deterrence.

I move amendment 108.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I agree with the comments that were made by my colleague Jamie Greene. I thank the parliamentary staff who worked yesterday.

I also stand with Jamie Greene in relation to his comments about the importance of compromising and finding shared ground, which the Conservatives did yesterday by supporting a number of amendments from the Government and others.

Amendment 116 seeks to make it a criminal offence to gain

“access to a single-sex service as a result of having fraudulently obtained a gender recognition certificate”.

The amendment seeks to address a key concern of thousands of women and girls who have contacted me, my colleagues and many others in the chamber about the potential unintended consequences of the bill. The provisions of the bill open the ability to obtain a GRC to a much wider and more diverse group of people. The danger that amendment 116 aims to mitigate relates to the potential for bad-faith actors to take advantage of the bill by fraudulently obtaining a GRC.

The right to access single-sex spaces, such as changing rooms, hospital wards or religious spaces, can be conferred on holders of a GRC unless a service provider is confident that they can legitimately exclude people of protected characteristics. My fear is that, without the amendment, a bad-faith actor could fraudulently obtain a GRC to access those spaces. Therefore, I believe that it is imperative that we criminalise such an act, both to deter people from doing it and to convict those who do it.

On Monday evening, the committee on which I sit heard evidence from the United Nations special rapporteur on violence against women and girls, specifically in relation to the bill’s potential harmful impact on the rights of, and protections for, women and girls. During her evidence and in her correspondence to the committee over the past few months, we have heard that women across the country may have to self-exclude from women-only spaces because of the bill. We need to take those concerns very seriously. The special rapporteur’s expert opinion should not be brushed aside; she has consulted widely on the matter and her opinion has been well informed.

If the bill passes and those concerns are not addressed, it is right that the cabinet secretary should take the time to explain exactly why the Government has brushed aside Ms Alsalem’s comments, which specifically relate to matters in my amendment 116. We must take time to listen to those people who have warned Parliament of the dangers of the bill to women’s spaces, so I sincerely hope that members will reflect on this amendment.

I also recognise the points that Graham Simpson and Ruth Maguire made in their interventions. Much of the amendment hangs on some of the amendments that I aimed to achieve yesterday. I want to respond to the concerns that individuals have, and I am not yet sure, until I hear from the cabinet secretary, whether I will move amendment 116.

Pauline McNeill (Labour, Glasgow)

First, I want to thank Jamie Greene, who always lodges thoughtful amendments on some of the technical issues around the commission of offences. I will look at the matter from that point of view, so I am grateful that he has responded to a question that I put to him at stage 2.

To prove the commission of any crime, you must show the mental and the behavioural elements to the crime. It is impossible to see into someone’s mind, so you have to look at the actions of the person to establish what they were thinking.

What would be required to be shown around the commission of a fraudulent application, such as that which amendment 108 mentions? The bill is a self-identification model with no specific requirements as to what would constitute living in the gender. As the cabinet secretary pointed out yesterday, the guidance on acquiring gender in the Gender Recognition Act 2004 sets out what it is required under that act, which is to gather the documentation.

Under the 2004 act, it is the panel that signs off before the declaration at the end of that two-year period, which is an important difference to understand. When it comes to this legislation, we need to be clear about what kind of evidence would need to be brought before a court before an offence would be brought before it.

Jamie Greene said at stage 2 that you could show the commission of the crime by showing that the person did not really mean to apply for a GRC or had not been using correct pronouns—and I think that the member said something about appearance. I do not think that that would be enough, because nothing in the bill requires a definition of living in the gender.

That is why I am interested in probing the question. How would someone prove such a fraud? Of course, it is possible to reverse a GRC—there is a provision to do that, and rightly so, because people might change their minds. My concern is that, having been charged with a fraud under this offence, someone could use that as a reasonable explanation—that they had changed their mind and reversed their GRC.

I am trying to probe the technical nature of the provision to see whether it is of any value. On balance, I would support having it over not having it, and I would support having the aggravator, because although it might be unclear to us now why it might be needed, it is better to have a belt-and-braces approach.

Under article 5 of the European convention on human rights, there is a requirement to provide legal certainty of how an offence is committed under any act that we pass. However, I am concerned that the answers that I got from the cabinet secretary at stage 2 do not seem to square with the legislation that we are looking at, which does not require any specifics in order for a person to acquire their gender. To have a birth certificate aligned with that simply requires a declaration that that is the gender that the person now wishes to live in.

I have some difficulty with regard to how someone would prove that fraud to a court, but, on balance, I would rather have that provision in the legislation than not have it.

Graham Simpson (Conservative, Central Scotland)

Pauline McNeill raises the fundamental questions. The issue is that, if the bill passes as it is, we will have a system of self-ID. All that a person would have to do is make a declaration. I could declare that I was a woman. I could tell people now, “I’m a woman.” I am not a woman, but I could tell people that. If anyone said, “Prove it”, I would not have to prove it. Under this bill, all I would have to do is say, “I’m a woman” and apply for a certificate. No evidence would be required other than my saying, “I’m a woman.” If someone were to challenge that and say, “No, you are not. You have obtained that certificate by fraud,” surely they would have to prove that I was not a woman. However, I would not have had to present any evidence other than that of stating the fact—or not—that I was a woman. Therefore, how could a fraud have been committed?

People are looking puzzled by that. I am puzzled by the bill, let me tell you. We have a situation in which these well-meaning amendments—I see that Mr Kerr wishes to make an intervention.

Stephen Kerr (Conservative, Central Scotland)

In my intervention on Jamie Greene, I suggested that the only fraud that was possible would be somebody obtaining a GRC for the purposes of some nefarious act that they had in mind to perform or commit. Do you agree?

Graham Simpson (Conservative, Central Scotland)

I agree that that is a risk in the bill. That is one of the problems with the bill, but how do you prove fraud if no evidence is required to obtain one of these certificates? That is something that several of us have been trying, unsuccessfully, to tackle in the amending stages—at stages 2 and 3. We are left with a bill that requires no evidence—just self-ID—so how, then, can a fraud be committed unless someone can prove that I have lied, and why would I own up to that? Somebody would have to prove it in court.

Ash Denham (Scottish National Party, Edinburgh Eastern)

Does the member agree that evidence suggests that the risk of getting caught committing an offence is a very effective deterrent?

Graham Simpson (Conservative, Central Scotland)

Yes, that is correct. That would be a deterrent. Where is the risk here? There is very little risk, because of the situation that I have outlined, which is that no evidence is required to obtain the certificate. If the police were to get involved, how would they be able to prove anything?

Brian Whittle (Conservative, South Scotland)

I have been wrestling with that exact point since speaking to a policeman the other day who said to me that, if a transgender person walked into the toilet for the opposite gender and was challenged by somebody in that toilet, one of those two people would be committing an offence, but how would they tell the difference?

Graham Simpson (Conservative, Central Scotland)

That is precisely the point. That was a good point well made by Mr Whittle, as I would expect.

All the amendments in the group are very well meaning and would work if obtaining a gender recognition certificate required a person to produce some evidence, because we could then disprove the evidence; however, we are not asking for that. Unfortunately, therefore, none of the amendments work, and I urge the members who lodged them not to move them.

Shona Robison (Scottish National Party, Dundee City East)

I put on record my thanks to Parliament staff for supporting last night’s very late sitting. It was very much appreciated by members across the chamber.

At stage 2, Jamie Greene lodged an amendment to introduce a new statutory aggravator of an offence connected to fraudulently obtaining a gender recognition certificate. At the time, I supported his amendment with the caveat that it would require some adjustment at stage 3. I am grateful to Jamie Greene for working with me on developing the updated wording in amendment 114. The introduction of a statutory aggravator supplements the other safeguards in the bill and provides additional assurance against misuse of the system.

Jamie Greene’s other amendments in the group also strengthen the bill, and I am happy to support them. Revocation was already possible through an application to a sheriff, but making it automatic in the case of a conviction, as Mr Greene does here through his amendment, is sensible and appropriate. I therefore support all Jamie Greene’s amendments in this group.

I do not support amendment 116 in the name of Rachael Hamilton, which specifically creates an offence of gaining fraudulent access to single-sex services. The bill already creates an offence of making a false application, with penalties identical to those in the amendment. Under Jamie Greene’s amendments, there will also be an aggravator of an offence connected with a fraudulently obtained GRC.

Tess White (Conservative, North East Scotland)

What safeguards will be put in place to prevent those who fraudulently obtain a GRC from accessing women-only spaces?

Shona Robison (Scottish National Party, Dundee City East)

The protections under the Equality Act 2010 that have exceptions for single-sex service spaces are there and are unchanged by the bill. Therefore, if a trans woman tried to enter a space that was for women only and that could exclude trans women—in, for example, a service for victims of sexual assault—it would be an offence under common law; it could, for example, be a breach of the peace. In that circumstance, they might be a genuine trans woman trying to enter a service that excludes them.

If, however, the person had obtained a GRC fraudulently and had made a false application, clearly, that is dealt with through these provisions. It is a very serious offence that could mean up to two years in prison and an unlimited fine in the circumstances covered.

Stephen Kerr (Conservative, Central Scotland)

Will the cabinet secretary give way?

Shona Robison (Scottish National Party, Dundee City East)

Briefly.

Stephen Kerr (Conservative, Central Scotland)

There is huge confusion about what the whole concept of “applying fraudulently” means. Will the cabinet secretary spell out for the benefit of us all what exactly the offence of applying fraudulently for a GRC amounts to? How do we define it, and how do we prove it?

Shona Robison (Scottish National Party, Dundee City East)

For example, a person of interest would be able to go to the sheriff and provide enough evidence to allow the sheriff to look into whether the person was living in the acquired gender. They would, in essence, have to be able to demonstrate that they had been living in the acquired gender as per the guidance under the 2004 act.

Jeremy Balfour (Conservative, Lothian)

Will the cabinet secretary give way?

Shona Robison (Scottish National Party, Dundee City East)

Not at the moment.

At the end of the day, as with any other case in court, the sheriff would look at the circumstances. If it was found that the person had made a false application, that person would, clearly, face the penalties for doing so. If that person went on to commit a crime, which is what these amendments deal with, and it was shown that part of the crime involved their having falsely obtained a gender recognition certificate, there would be an aggravator to the crime.

I think that this is a sensible set of amendments that strengthens the safeguards that are already in the bill. I therefore ask members to support amendments 108, 110, 114, 115, 138 and 139, in the name of Jamie Greene, but to reject amendment 116, in the name of Rachael Hamilton.

The Presiding Officer

I ask Jamie Greene to wind up the debate on this group and to indicate whether he wishes to press or withdraw amendment 108.

Jamie Greene (Conservative, West Scotland)

I thank members for their contributions. I should point out that this is a debate, and I am pleased to say that we, on the Conservative benches, are happy to have such debates.

I want to make three points. First, although they are lengthy, I believe that the amendments are, from a legal point of view, self-explanatory.

Liam Kerr (Conservative, North East Scotland)

Will the member give way?

Jamie Greene (Conservative, West Scotland)

I will do so after I have made some progress.

The first of my three points—a point that was also made by Pauline McNeill—is that I would rather have something in the bill than nothing. That is a sentiment that I agree with. I believe that the “something” that I introduced at stage 2 had technical and legal issues, which I have sought to resolve. I have done so without the assistance of anyone on these benches; I have resorted to getting assistance and legal advice from elsewhere, to try to make the amendments competent, which I believe—and am advised—they are.

As is always the case with things such as aggravators that exist in other pieces of legislation, we often do not know whether they are competent until they are tested in specific court cases and are put through rigorous testing in such scenarios. I do have sympathy with the notion that there is a spectrum between having nothing in the bill that states the criteria for what constitutes an offence and having a large range of specificity in that respect. Somewhere in the middle might have been a better balance. I understand that, and it is an issue that I wrestled with ahead of lodging this particular amendment.

My second point is that, if members do not support or agree with the amendments or think that they are poorly worded, they should not vote for them. That is, of course, their prerogative and, indeed, the point of today’s session.

My third point relates to a theme that I have picked up on, which is the conflation of this issue with the other, parallel issue of self-identification. There is a very valid debate to be had in that respect.

Liam Kerr (Conservative, North East Scotland)

Will the member take an intervention?

Jeremy Balfour (Conservative, Lothian)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

I will take the first intervention.

Liam Kerr (Conservative, North East Scotland)

If I may, I will take the member back to the legal points, because I am really struggling with them and I did not hear any answer to them from the cabinet secretary.

We are talking about fraud, which is a criminal offence. It seems to me that, if that is right, proving it requires not only the act itself, but the mens rea—that is, the intention. I am struggling to understand what could be adduced and what evidence could be brought forward to show or prove beyond reasonable doubt the intention, because I have not heard anything about that so far.

Jamie Greene (Conservative, West Scotland)

The member makes a very valid point. The idea is that it is clearly a matter for the court to decide or prove that somebody has made a false statutory declaration or has fraudulently obtained a GRC. Evidence will be given, but it is difficult to foresee what that will be, because it so rarely happens. Indeed, since 2004, the issue has rarely been tested in court, despite the fact that it is already possible to get a GRC and already an offence to make a false statutory declaration.

The fact is that I do not have a huge amount of case study precedence to revert to; it would have been helpful if I had had that. I do not want to pre-empt what criteria courts might look at, but, in my view, the scenario in which somebody has clearly made a false declaration would include some of the factors that I mentioned in my opening remarks. For example, it could be demonstrably proven that the person had not been living in their acquired gender. There are ways of doing these things.

Jeremy Balfour (Conservative, Lothian)

Will the member take an intervention on that point?

Jamie Greene (Conservative, West Scotland)

I will do so in one second, but I want to answer Mr Kerr’s point first.

There are manifest ways in which one can do that. In my opening comments, I talked about not living in one’s acquired gender for the defined period. There might be physical evidence, evidence that someone is not using pronouns that are attributed to the acquired gender, or evidence given by those who know the offender and who believe that the declaration was made falsely. Such evidence could be used in court. Amendment 115 states:

“Evidence from a single source is sufficient to prove that an offence is aggravated by a connection with a gender recognition certificate obtained by fraud.”

That would be a matter for the court to decide on. The court might not believe that the case had been made, but that would be a matter for the court.

Jeremy Balfour (Conservative, Lothian)

This is one of the things that I wanted to ask the cabinet secretary. I am sympathetic to what Jamie Greene is trying to do, but the test in a criminal trial is “beyond reasonable doubt”. It is a very high test that a sheriff has to apply. Following on from the interventions made by Graham Simpson and Liam Kerr, I am struggling to think what evidence the Crown could bring in a case that would reach that “beyond reasonable doubt” test.

There is a danger that we are making a law that could never be enforced. Is that a good way for us to move forward?

Jamie Greene (Conservative, West Scotland)

It might never be enforced, but it could be, and that is the point. It is important that this exists, so that, in such a scenario, it can be enforced. I hope that it does not have to be, because if so, it will show that the system has been abused. However, if we find ourselves in a scenario where the law has to be put to the test, it would be, as the member has rightly said, for the court to decide whether the case had been made “beyond reasonable doubt” that a declaration was false and that the aggravator was relevant. I have every faith in the judiciary to make that decision on the basis of the evidence that is provided by the prosecution and the defence.

Such provisions are common in a number of areas.

As I have said, my amendments could be seen as similar to the provisions in the legislation that this Parliament passed on domestic abuse aggravators in cases in which an abuser was using children to further traumatise the victim. In such a situation, the court would decide whether, on balance, that was an aggravating factor.

It is not an unusual concept. I appreciate that members are not happy with the wording of my amendments but are sympathetic to the notion behind them. All I can do is try to word my amendments as best I can, with the advice that I get, and make them competent. I am sure that they are, but they would be tested in court in the unlikely scenario that such a case went to court.

The underlying principle behind my amendments is that I am trying to introduce a greater deterrent. There is a perception that safeguards are being dropped as a result of the self-identification process. Whether or not one agrees with the new process, all members are welcome to lodge amendments. What my amendments try to do is improve the deterrent aspect of the bill by saying, “No, you cannot use this new process for nefarious purposes, and, if you do, the law will take it very seriously.” That is their underlying premise. If members do not think that I have achieved that in my amendments, they should not vote for them; if they do, I ask them please to do so.

If members have problems with the concept of self-ID, that is not a problem that I can fix—that is their personal view.

Ruth Maguire (Scottish National Party, Cunninghame South)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

No. I have probably said enough on this.

Ruth Maguire (Scottish National Party, Cunninghame South)

That is not the point that I was making.

Jamie Greene (Conservative, West Scotland)

I will give way, then.

Ruth Maguire (Scottish National Party, Cunninghame South)

I just wanted to be clear that I was not making a point about self-identification itself; I was just pointing out the difference between the two systems and asking what evidence would be accepted as proof.

People might have a concern that folk will be wrongly accused. I get that prosecution is the business of the Crown Office and Procurator Fiscal Service, but law is our business and we need to be really clear about what we are legislating for. I was not making a point about self-ID—I was talking about the member’s amendment.

Jamie Greene (Conservative, West Scotland)

First, I point out that I did not refer to the member by name or glance in her general direction. The comment was not directed at any individual member.

I am just making a point, and it is fair to say that it would be unusual for me not to point out that there are members in the chamber who do not agree, as a matter of principle, with the change that the legislation proposes. I understand that and I respect it, much as members respect my position on the bill. I am not accusing the member of saying anything.

The member has made a valid point, which is that people might be wrongly accused of such matters. As with any criminal case, it would be for the defence to make its case, the prosecution to prove its case, and the court to make a judgment. That is the whole point of an independent judiciary. I have confidence in it; other members might have less.

There are members who have a problem with the changes to the process: the reduction in the time period for living in the acquired gender; the threshold for evidence that needs to be given as a result; and the removal of the panel—all the things that the bill does. If members have a problem with those proposed changes, that is fine. My amendment 108 would not alter or affect—would not change—any of that. Members who oppose the bill will still oppose it. All that I am trying to do is improve the bill by adding what I believe is a much-needed deterrent, and I will be happy to move my amendments when it comes to doing so.

The Presiding Officer

Can you

confirm that your intention is to press amendment 108?

Jamie Greene (Conservative, West Scotland)

I

t is.

The Presiding Officer

The question is, that amendment 108 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division. As

this is the first division of the day, I suspend the meeting for five minutes.

14:06 Meeting suspended.

14:11 On resuming—

We will now proceed with the division on amendment 108. This is a one-minute division.

The vote is closed.

Stephanie Callaghan (Scottish National Party, Uddingston and Bellshill)

On a point of order, Presiding Officer. My app is not working. I would have voted no.

The Presiding Officer

We will ensure that that is recorded.

The Presiding Officer

The result of the division is: For 94, Against 16, Abstentions 16.

Amendment 108 agreed to.

Alexander Burnett (Conservative, Aberdeenshire West)

On a point of order, Presiding Officer. I seek your guidance under rule 16.1.3 of standing orders, which states:

“The Clerk shall arrange for the minutes of proceedings to be published as soon as possible by whatever means is considered appropriate.”

It is, obviously, vital to make public the full results of votes on amendments in this place as soon as possible because, as we saw from last night, there is significant public interest in the proceedings that are going on, particularly in relation to the Gender Recognition Reform (Scotland) Bill.

Last night, the detail of the results of votes on the amendments was passed to parliamentarians and their staff at 17 minutes past midnight, which was after the conclusion of the debate and many hours after some of the amendments had been voted on. Given the circumstances, I think that that is completely understandable—or I would think that, had I not learned this morning of the following developments.

I can reveal that the detailed results of votes on those amendments were passed from parliamentary officials to journalists hours before elected parliamentarians received them. At 21:04 in the evening, the detailed results were passed to journalists—more than three hours before MSPs and their staff received them. On top of that, the results of the votes on those amendments were not made publicly available for anyone to access. That, of course, meant that the details of yesterday’s proceedings were not published as soon as possible, because that information was not made public through the proper channels.

I am also aware that the detailed results of all votes on amendments last night have been published in the

Official Report

only in the past hour.

Will the Presiding Officer clarify what measures are being taken to ensure that standing orders are being adhered to, particularly with regard to the details of proceedings being made publicly available as soon as possible to everyone, and not just to a select group?

The Presiding Officer

I thank Mr Burnett for his point of order. The rules require the minutes to be published as soon as possible by whatever means is considered appropriate. I am aware that divisions were notified to business managers as soon as possible, and I believe that that was as close to the suspension of last night’s proceedings as possible.

Mr Burnett will understand that officials need time to ensure that the minutes are correct before they are published, and he will also be aware that several hours of business had to be checked through before publication took place. We had an exceptionally late sitting last night, as everyone appreciates.

I will look into the points that Mr Burnett raised with regard to information being available to some before others.

Stephen Kerr (Conservative, Central Scotland)

I think that it is important to ascertain from the Presiding Officer that it would be inappropriate for that information to have gone to journalists ahead of parliamentarians. That is a fundamental, and I would be grateful to have your ruling on it, Presiding Officer.

The Presiding Officer

I have just ruled on the point that Mr Burnett raised, and I said in that ruling that I would look into the matter.

After section 8A

Amendment 50 moved—[Russell Findlay].

The Presiding Officer

The question is, that amendment 50 be agreed to. Are we agreed?

Members

No.

The Presiding Officer

There will be a division.

The Presiding Officer

The result of the division is: For 62, Against 64, Abstentions 0.

Amendment 50 disagreed to.

Group 11 is titled “Late application for review of Registrar General’s decision”. Amendment 109, in the name of Jamie Greene, is the only amendment in the group.

Jamie Greene (Conservative, West Scotland)

I hope that this group will be slightly less contentious. The single amendment in the group is amendment 109, which is on late application for a review of the registrar general’s decision.

We know that, unfortunately, many transgender lives can be filled with much disruption and instability due to a wide range of socioeconomic factors. I have spoken to a number of individuals who have already gone through or who are about to go through the GRC process. Some do not have regular addresses; some have wider physical and mental health problems and often require medical supervision or, indeed, intervention.

As the bill is drafted, an individual seeking to obtain a GRC who has had their application refused, for whatever reason, has the right to an appeal. That appeal must be made within 40 working days. There are provisions that allow the registrar general to consider an appeal after that period if they so wish, but they are not required to do so. I am concerned that if, for example, the number of applications is higher or additions are made to the duties that fall within the registrar general’s remit as a result of amendments that are agreed to, the 40-day deadline may become a strict, blanket deadline, irrespective of the applicant’s circumstances.

From a sympathetic point of view, I feel that, if a person were to have good reason for missing that deadline—perhaps, for example, because of hospital admission, sickness, a change of living circumstances or a family emergency—that should be taken into account when an appeal is submitted late. Amendment 109 is a relatively simple amendment. It would allow late appeals, but only if the registrar general was satisfied that the applicant had good reason for not making the request sooner.

Liam Kerr (Conservative, North East Scotland)

Will the member take an intervention?

Alexander Burnett (Conservative, Aberdeenshire West)

Will the member take an intervention?

Jamie Greene (Conservative, West Scotland)

Two members have asked to intervene—who was first?

Liam Kerr (Conservative, North East Scotland)

I am seeking clarification from Jamie Greene. I follow his articulation of the idea that someone could make a request later if they had a “good reason”. I appreciate that the member gave some examples, but will there be guidance on what constitutes a good reason? If not, who will be the arbiter of what constitutes a good reason?

Jamie Greene (Conservative, West Scotland)

As stated, the amendment sets out that

“if the request is made after ... that period”,

the registrar general

“must comply with the request”

if he or she is

“satisfied that the applicant had a good reason for not making it sooner,”

and “may”, but does not need to, comply with it if not satisfied.

The amendment does not specify any grounds for which a scenario would be given. I think that the concept of guidance is a helpful one; I might ask the cabinet secretary to reflect on that in responding. There will be guidance that is associated with many other aspects of the bill. This may be a good example of where, instead of putting in the bill prescriptive scenarios that the registrar general must adhere to, we can give flexibility to the registrar general, as I trust their judgment on whether they believe that the applicant has “good reason” to make a late application.

However, some parameters around that in guidance to the registrar general would be helpful, given that the nature of the role of the registrar general—this is a point that we have not properly debated in all this—is changing as a result of the bill, and that deserves wider airtime. I am sure that we will talk more about that as the day goes on, but I do not disagree with Liam Kerr’s comments.

Alexander Burnett was also wanting to make an intervention—he is indicating that it was on the same point, so I hope that I have answered it.

I move amendment 109.

Liam McArthur (Liberal Democrat, Orkney Islands)

Thank you, Mr Greene. I call the cabinet secretary to respond.

Shona Robison (Scottish National Party, Dundee City East)

Thank you, Presiding Officer. I hope that I will be similarly brief.

Under the terms of the bill as introduced, the registrar general “must” comply with a request for a review if it is made within 40 days of the application being determined, and the registrar general

“may (but need not) comply”

if the request is made after that time. Amendment 109 would provide further clarification on the discretion that is provided to the registrar general to deal with applications and it is a helpful clarification of the review process. I am happy to support the amendment, and I confirm to Jamie Greene and others that National Records of Scotland will produce guidance, which the registrar general will apply to individual circumstances using their judgment.

Jamie Greene (Conservative, West Scotland)

I am happy to receive that further clarification on the role that NRS will play in producing guidance. I hope that that addresses any concerns that members had.

The Deputy Presiding Officer

The question is, that amendment 109 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 116, Against 4, Abstentions 5.

Amendment 109 agreed to.

Amendment 52 moved—[Russell Findlay].

The question is, that amendment 52 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 61, Against 63, Abstentions 1.

Amendment 52 disagreed to.

Amendment 53 moved—[Russell Findlay].

The question is, that amendment 53 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 60, Against 62, Abstentions 2.

Amendment 53 disagreed to.

Amendment 110 moved—[Jamie Greene].

The question is, that amendment 110 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The Deputy Presiding Officer

The result of the division is: For 92, Against 13, Abstentions 19.

Amendment 110 agreed to.

Group 12 is entitled “Manifestly unfounded application to sheriff to revoke certificate”. Amendment 51, in the name of Pam Duncan-Glancy, is the only amendment in the group.

Pam Duncan-Glancy (Labour, Glasgow)

The function of the

“person who has an interest”

under new section 8S, which will be inserted into the 2004 act by the bill, is essential. It makes provision for someone who has a genuine interest in a person’s GRC application to intervene and express concern that the application has been made fraudulently or that the person was coerced or did not understand

“the effect of obtaining the certificate”.

The definition of

“person who has an interest”

has been drawn more widely in the bill than it is in the 2004 act in order to take account of the change process that is proposed. Scottish Labour supports that definition. My amendment 51 seeks to apply proportionality to that function in the bill so that it serves the intended purpose and is not used as a means to unfairly block a GRC application.

Amendment 51 would give the sheriff jurisdiction

“to determine ... that an application under section 8S was manifestly unfounded”—

which is to say that the person making the application to the sheriff had malicious intent, was using the request with

“no real purpose other than to cause disruption”,

or had made unsubstantiated accusations against or was targeting the applicant because they had a problem with them—

“unless it is proved on the balance of probabilities that it was not.”

Amendment 51 would transfer the burden of proof to a respondent in civil proceedings so that it would be for them to prove that the GRC application should be revoked, thereby ensuring that it is not for the GRC applicant to disprove any claims that are made against them.

My amendment 51 would clarify that evidence that is used to prove a fraudulent GRC application cannot be based on personal feelings towards the applicant, or on the person’s view on gender reassignment. Applications under the “person who has an interest” powers are important, but they must be based on evidence that transcends personal opinion.

I am confident that amendment 51 would address concerns that a person who has an interest who disapproves of a trans person’s identity and their right to exist might use the courts to interfere in a GRC application.

Liam Kerr (Conservative, North East Scotland)

I want to make sure that Pam Duncan-Glancy addresses this point, which she might have been going on to do. At the end of proposed new section 8SA, there is a definition of “manifestly unfounded” that finishes by saying that it turns on the application having “no evidential basis”. Can the member help me to understand whether there is any specification of what might constitute evidence for that evidential basis, and/or is there a threshold around sufficiency?

Pam Duncan-Glancy (Labour, Glasgow)

The language that is used in that part of amendment 51 was taken from data protection legislation and from information around freedom of information. There is, therefore, precedent in how to look at the term. Ultimately, however, it would be a matter for a sheriff to determine. At that point, a sheriff would already have been involved because the “person who has an interest” function had been invoked. Therefore, it would be for the sheriff to determine whether there was evidence. I hope that that helps Liam Kerr and provides the clarity that he needs.

In my view, we must protect trans people from manifestly unfounded claims, and I believe that that is something on which all members in the chamber can agree. We also believe that the “person who has an interest” function is incredibly important. We believe that with amendment 51 and that function, we would have a suite of protections that would ensure that trans people and others get what they need from the legislation. I urge colleagues to support my amendment 51.

Stephen Kerr (Conservative, Central Scotland)

Does Pam Duncan-Glancy also accept that the provision on the award of damages might put off people who have genuine concerns who might be afraid of that element of the bill? Maybe that is her deliberate design, but I do not think that it is. Does the member accept that the provision could have a serious dissuading influence on people who have genuine concerns but are terrified about what it might mean if the court ruling was different from what they had hoped it would be? That might put them off completely.

Pam Duncan-Glancy (Labour, Glasgow)

No, I do not accept that. I believe that, if concerns are genuine, the person would be able to prove that and would have the evidence that is required.

The definition of a “‘manifestly unfounded’ application” is that it has malicious intent, that a request is being used with no real purpose other than to cause disruption and that it makes unsubstantiated accusations.

Anyone who can make substantiated accusations and therefore has, in the member’s words, “genuine concerns” should not be put off by the provision. It is not designed to deter them; it is designed to deter people who might wish to frustrate the process for trans people who, as I think we all believe, need access to the system. I believe that even people who have voiced concerns about the bill recognise that trans people who need to change their legal gender should not be blocked from doing so just because somebody does not agree with their acquired gender status.

I move amendment 51.

Murdo Fraser (Conservative, Mid Scotland and Fife)

I thank Pam Duncan-Glancy for lodging amendment 51 and for her explanation of it. It references unfounded applications under proposed new section 8S of the 2004 act, which allows for gender recognition certificates to be revoked on application to a sheriff if the sheriff is satisfied that

“on the balance of probabilities”

the application was fraudulent. Where a sheriff makes that finding, they must revoke the certificate or take other action as appropriate to the specifics of the case.

I understand Pam Duncan-Glancy’s intention in lodging amendment 51, but having considered it very carefully I am concerned that it is confused. It also throws up a number of legal difficulties.

Amendment 51 seeks to make a provision that would allow sheriffs to determine that an application to revoke a gender recognition certificate was “manifestly unfounded”. As with an application that is fraudulent, a sheriff could judge that an application for revocation was unfounded

“on the balance of probabilities”.

As my colleague Stephen Kerr has just mentioned, amendment 51 would also allow for the award of compensation where “injured feelings” are found to have occurred as a result of a “‘manifestly unfounded’ application” for revocation.

That “‘manifestly unfounded’ application” for revoking a gender recognition certificate is defined as one that is

“intentionally misleading ... made in accordance with the applicant’s feelings”

about GRCs and

“that had no evidential basis.”

There are number of issues with that. During the afternoon, we have already had quite lengthy debates about the very difficult issue of fraudulent applications and the question of evidence. Someone can apply for a gender recognition certificate with no evidence whatsoever—that is the whole principle of self-identification. They are not required, for example, to change their appearance or to change their pronouns, and they are not required to change the way that they dress. Those are not requirements for obtaining a GRC. Therefore, I really struggle to see what the “evidential basis” that is referred to in amendment 51 would actually mean, because none of those things are prerequisites for obtaining a GRC, if we accept the principle of self-identification.

Pam Duncan-Glancy (Labour, Glasgow)

The things that Murdo Fraser has outlined are not current requirements in what a person must prove in order to access a gender recognition certificate. Amendment 51 would neither change nor affect those provisions.

Murdo Fraser (Conservative, Mid Scotland and Fife)

I accept Pam Duncan-Glancy’s point but, with respect, I do not think that it strengthens her case. She has lodged an amendment that refers to “evidential basis.” I am afraid that she is now, in effect, arguing against herself by saying that those things are not currently required.

We would be creating a mechanism with an ill-defined threshold and throwing it on to sheriffs to try to make a judgment against those criteria

“on the balance of probabilities”,

with no history of case law around those areas. I think that it would be extremely difficult for a sheriff to make such judgments based on amendment 51.

My second point has already been mentioned. Amendment 51 would allow for compensation to be awarded to those who successfully claim that an application for revocation was “manifestly unfounded”. I think that there is a genuine worry that that would lead to a situation where people know, or are concerned, that a gender recognition certificate was fraudulently claimed, but will not apply for a revocation because they are worried about the financial consequences for them should the challenge be unsuccessful. Should,

“on the balance of probabilities”,

a sheriff reject their challenge, they would potentially be liable for financial compensation. That would act as a potential barrier to people seeking to challenge awards.

I believe that allowing people to apply for revocation of a gender recognition certificate without fear of litigation is important because the proposed legislation is opening up the process and removing so many safeguards. Threatening individuals with legal action if they take up the option simply to apply for a review of the granting of a gender recognition certificate should not, in my view, be in the bill. I hope that colleagues will support me in opposing amendment 51.

Shona Robison (Scottish National Party, Dundee City East)

I know from the evidence that was provided to the Equalities, Human Rights and Civil Justice Committee and through our own consultations that there is concern in the trans community about potential misuse of the ability of a person with an interest to apply to a sheriff for a GRC to be revoked. I can understand that.

The bill allows for a person who has an interest in a GRC to apply to a sheriff to revoke a certificate on the grounds that the application was fraudulent, that the applicant was incapable of understanding the effects of it, or that the applicant was incapable of validly making the application. That is an important safeguard. The person seeking to revoke a certificate would need to have a genuine interest in the certificate, in that it would have to affect them personally or professionally. They would be required to produce evidence of their interest and of the ground on which the certificate could be revoked.

The Deputy Presiding Officer

Cabinet secretary, could you resume your seat? Tess White has a point of order.

Tess White (Conservative, North East Scotland)

Thank you, Presiding Officer. As you can see, the gallery, again, is not full. Again there are people who would like to witness what is happening today but who have been refused tickets. They have been told that they cannot have access. That is completely unacceptable. Will the Presiding Officer take a view, please, on those women and people who cannot get access? It might be too late, but there are some who would like access to the empty seats in the gallery above us. Thank you.

The Deputy Presiding Officer

Thank you, Ms White, for the point of order. I recognise that a similar point of order was made yesterday, and there was no evidence that people had been prevented from coming into the building, as far as I am aware.

Tess White (Conservative, North East Scotland)

I have evidence, and I will feed that to—

The Deputy Presiding Officer

Ms White, resume your seat, please! [

Interruption

.] I will not have the chair challenged, Ms White. I responded to your previous point of order and I will respond to your current point of order. I will ask that the matter be looked into. It is not something that I can do alone from the chair. As was said yesterday, we would hope and expect that any members of the public who wish to attend proceedings and who can be accommodated in the public gallery will be allowed to do so.

I invite the cabinet secretary to continue her remarks.

Shona Robison (Scottish National Party, Dundee City East)

As I was saying, the person who was seeking to revoke a certificate would have to have a genuine interest in the certificate—it would have to affect them personally or professionally. They would have to produce evidence of their interest and of the ground on which the certificate could be revoked.

At stage 2, a number of amendments were lodged along similar lines to amendment 51. I indicated then that I was sympathetic to the aims of those amendments and would consider whether there was anything that could address those concerns without raising wider issues around access to justice. I have not been able to identify anything for the bill, because existing mechanisms already allow the courts to dismiss groundless applications in the most efficient manner.

In a clear case of lack of genuine interest or bad faith, a sheriff could dismiss a case at the first hearing without even having required the GRC holder to formally participate. It is a common statutory requirement that a person has an interest in a particular matter in order to bring proceedings to court. The courts are used to determining what amounts to a genuine interest.

Pam Duncan-Glancy (Labour, Glasgow)

Does the cabinet secretary accept that, in those proceedings, the burden of proof is on the GRC applicant rather than the person who is applying to revoke the certificate?

Shona Robison (Scottish National Party, Dundee City East)

Let me just continue.

If a person was to make repeated vexatious applications to revoke the GRCs of different GRC holders, there is an existing provision in the Courts Reform (Scotland) Act 2014 that would allow the Lord Advocate in the public interest to apply to the Court of Session for a vexatious litigation order, which would require the person to get permission from the court before making a further application. The courts also have existing powers to properly compensate the GRC holder for their legal expenses and to sanction a malicious applicant through an enhanced award of expenses against them.

We will work with the Scottish Courts and Tribunals Service on any updates or changes to court rules that are needed as a result of the bill, including where those rules could avoid any negative impacts on the GRC holder that arise from the court proceedings. I consider that the law already provides mechanisms that can be used to respond to a malicious application—because, of course, the prospect of litigation being used maliciously is a general issue that is not particular to these circumstances. There does not appear to be anything further that could be achieved in the bill without either duplicating the existing machinery or restricting access to justice in a way that would be unacceptable.

However, I am pleased to say that the amendments in group 15, on the requirement to review the bill, will include a requirement to review the provision allowing applications to be made to the sheriff. I hope that that will be enough to reassure Pam Duncan-Glancy and Maggie Chapman, who has also expressed an interest in the issue, that we will look at whether the existing machinery, which has worked well to date, also covers the issues that the member raises. On that basis, I hope that she will not press amendment 51.

The Deputy Presiding Officer

I call Pam Duncan-Glancy to wind up and to say whether she wishes to press or withdraw amendment 51.

Pam Duncan-Glancy (Labour, Glasgow)

In the interests of brevity, I will be as brief and as clear as I can be. I do not accept some of the concerns that my Conservative colleagues raised about the fact that the deterrent of potential civil proceedings will prevent people from using the person-with-an-interest power. I go back to where I started on the issue, which is that we believe that that power in the bill is entirely proportionate, and we support it. Indeed, we voted against proposals to narrow the power at stage 2 because we think that it is incredibly important that it is there.

However, I believe that amendment 51 would allow us to bring some proportionality to that and ensure that, when someone uses the power, they would have to bring evidence. The point about people not using the power due to the level of evidence that would be required is not accurate because, in order to bring an accusation of a fraudulent application, of coercion or of someone not understanding the application, evidence would be required anyway. The point of amendment 51 is to enable the sheriff to say that the evidence is not founded or that there is not enough evidence to prove that the application is fraudulent or unclear.

The cabinet secretary made important points about existing legislation, and I welcome the fact that there will be a review, but I still think that the burden of proof is being left on the trans person. We need to ensure that the burden of proof does not sit with the trans person and that they do not have to prove that someone is deliberately trying to prevent them from accessing a GRC. That is why I cannot accept that the existing mechanisms are enough. However, I look forward to hearing how the review sees that issue.

On that basis, I will press the amendment.

The Deputy Presiding Officer

The question is, that amendment 51 be agreed to. Are we agreed?

Members

No.

The Deputy Presiding Officer

There will be a division.

The vote is now closed.

Meghan Gallacher, who joins us online, has a point of order.

Meghan Gallacher (Conservative, Central Scotland)

On a point of order, Presiding Officer. My laptop froze, so I am unsure whether my vote has been recorded. Can I please confirm whether it has been?

The Deputy Presiding Officer

I can confirm that your vote has been recorded.

The Deputy Presiding Officer

The result of the division is: For 26, Against 98, Abstentions 0.

Amendment 51 disagreed to.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

On a point of order, Presiding Officer. Under rule 9.10.6 of standing orders, I would like to lodge a manuscript amendment to the bill that would leave out section 15A. The Scottish Parliament’s guidance on amendments states:

“If no amendment to leave out the section or schedule has been lodged in advance, any member may lodge a manuscript amendment to leave it out.”

I can submit the wording of the amendment to the Presiding Officer if necessary—if that has not already been done. I hope that my amendment can be permitted.

I will briefly explain why I intend to lodge the manuscript amendment. Section 15A was agreed to as a result of a stage 2 amendment to the bill at the Equalities, Human Rights and Civil Justice Committee. My colleague Pam Gosal and I abstained on the amendment, which was voted on on 22 November 2022. It is important to remember that date.

The rushed deadline for lodging stage 3 amendments to the bill was 12 pm on Tuesday 13 December 2022. Just after the deadline, the Court of Session published its ruling on the judicial review from For Women Scotland on whether holding a gender recognition certificate changes a person’s sex for the purposes of the Equality Act 2010. Lady Haldane ruled:

“I conclude that in this context, which is the meaning of sex for the purposes of the 2010 Act, ‘sex’ is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act”.

That clearly has a substantial impact on how the Equality Act 2010 is to be interpreted for the purposes of those who hold a gender recognition certificate, which is what the Gender Recognition Reform (Scotland) Bill relates to. However, the Parliament has not been able to decide on section 15A since the Court of Session ruling, and no amendments could be lodged in time because the ruling was made public after the stage 3 amendment deadline.

Given the importance of the court ruling in interpreting the bill, I think that it is important that the Presiding Officer accepts my amendment, so that the Parliament is able to debate the substantive effect of the Court of Session ruling on how the Equality Act 2010 is to be interpreted in relation to the bill.

I seek to move the manuscript amendment, in my name, to leave out section 15A.

The Deputy Presiding Officer

Thank you, Ms Hamilton. As manuscript amendments are a matter for either the convener or the Presiding Officer, I will have to suspend this meeting of the Parliament for the time being.

14:53 Meeting suspended.

16:08 On resuming—

Alison Johnstone (Presiding Officer, Lothian)

I have given very careful consideration to Ms Hamilton’s request to lodge a manuscript amendment. As members may be aware, at this stage, a manuscript amendment may be moved only with my agreement. In deciding whether to allow an amendment, I must take into account the disadvantages to other members of the lack of notice.

The guidance on public bills says:

“Agreement should not normally be given to move a manuscript amendment which could equally well have been lodged before the deadline.”

While I accept that this amendment could not have been lodged before the deadline, a manuscript amendment could equally have been lodged at any time ahead of today’s proceedings after the judgment was given last Tuesday. Seeking to lodge the amendment today gives no notice to members, and on that basis I do not intend to let it be taken.

I note that we now come to a group of amendments dealing with the Equality Act 2010. Not allowing this amendment to be moved does not prevent members from debating the issues that Ms Hamilton raises.

Jeremy Balfour (Conservative, Lothian)

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 questions were 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 questions 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.

The Presiding Officer

I thank Mr Balfour for his point of order. The

Business Bulletin

does, indeed, reflect the agreement of the cross-party Parliamentary Bureau. We will proceed with this business at the moment, but business managers will liaise in due course, and we will come back to members.

We move to g

roup 13, which is titled “Interaction with the Equality Act 2010, the concept of sex, and single-sex services”. Amendment 54, in the name of the cabinet secretary, is grouped with amendments 111 to 113, 117 to 121, 61, 123, 72 to 74, 127 to 130, 133 and 92. I call the cabinet secretary to move amendment 54 and to speak to all amendments in the group.

Shona Robison (Scottish National Party, Dundee City East)

I will begin by addressing some of the points that Rachael Hamilton raised, because they are relevant to this group. First, the ruling made it absolutely clear that the Scottish Parliament cannot modify the Equality Act 2010. As I previously set out to Parliament, we welcome the outcome of the petition of For Women Scotland Ltd for judicial review, which is that the Scottish Government’s statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018 has been held to be lawful, and the petition was dismissed. However, as the chamber is aware, those proceedings remain live, with the possibility of an appeal, so I will not comment in detail.

Our position has always been consistent with that of the Equality and Human Rights Commission on the matter. As I set out at stage 2, for the purposes of the Equality Act 2010, the definition of “sex” takes into account the legal effects of a GRC obtained in accordance with the Gender Recognition Act 2004. Nothing has changed with that ruling; it is the status quo.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Clearly, I was disappointed that my manuscript amendment was not accepted, but I understand the Presiding Officer’s view.

A GRC now confers at least some of the protections that are afforded by the Equality Act. Given that I was not allowed to debate the implications of my manuscript amendment, can the cabinet secretary confirm what protections are, and are not, granted to those people with GRCs under the Equality Act?

Shona Robison (Scottish National Party, Dundee City East)

As I said at the beginning, the ruling has made absolutely clear that the Scottish Parliament cannot modify the Equality Act; therefore there are no changes whatsoever to any of the protections under that act, which remain the same.

Lady Haldane was absolutely clear about this: the bill does not amend the legal effects of obtaining a gender recognition certificate, which are set out principally in section 9 of the 2004 act. Therefore, the judicial review ruling does not impact on the bill. I want to move on to the rest of the amendments in this group.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Cabinet secretary—

Shona Robison (Scottish National Party, Dundee City East)

I have answered your point.

Michelle Thomson (Scottish National Party, Falkirk East)

I thank the cabinet secretary for giving way. Roddy Dunlop KC makes the case that the matter does not grant or lose people rights, and I do not disagree with his eminent view. However, it clearly introduces considerable complexity in relation to existing rights, and the practical function and effect, particularly on women, has consistently been ignored. I am sure that that element of it will subsequently be legally tested. Does the cabinet secretary agree?

Shona Robison (Scottish National Party, Dundee City East)

The case has maintained the status quo, which has been the position since 2004—for 20 years—that the purpose and effect of a gender recognition certificate is that people are able to change their birth certificate in line with their acquired gender. That is the purpose and effect of a GRC. The bill changes none of that,

and we could not change the Equality Act 2010 even if we wanted to. That is just not possible.

Ash Regan

Will the cabinet secretary take an intervention?

Shona Robison (Scottish National Party, Dundee City East)

I want to move on to the rest of the amendments, because there are a lot of amendments that I want to comment on.

Following discussions with members, I lodged amendment 54, which will place a duty on the Scottish ministers to publish guidance on the operation of the act. That was an ask from members that I am happy to make provision for. The amendment says that we will do that in consultation with human rights organisations. As I have also made clear to members, amendment 54 is within the legislative competence of the Parliament.

Before I speak to the other amendments in the group, I remind members that responsibility for the Equality Act 2010 is reserved to the UK Parliament, just as immigration and nationality, including asylum, are reserved, as we debated in relation to group 3. Therefore, to be clear, as I said earlier, any amendment agreed to today that is outwith competence puts the aims of the bill as a whole at risk, and although some people might oppose the bill, every member in the chamber has not just a responsibility but a duty to make competent law, and I know that every member takes their role as a legislator for our country seriously.

Daniel Johnson (Labour, Edinburgh Southern)

I am grateful to the cabinet secretary for giving way. She is quite correct in saying that, obviously, any piece of legislation that sought to alter the impact or the effect of reserved legislation would not be competent. However, this Parliament regularly legislates using definitions that are made in reserved law. For example, in 2016, when we altered the franchise to this Parliament, we made explicit reference to the Immigration Act 1971. Indeed, we have done that on a number of other occasions. We are not altering the definitions or the things that are specified in that law, but we use the definitions and clarify how this Parliament and our legislation seek to use them. That does not put our laws in breach of that legislation, it does not call them into question and it does not fall foul of the Scotland Act 1998. Therefore, if we can do it in those legislative circumstances, why can we not do it in this situation?

Shona Robison (Scottish National Party, Dundee City East)

I will come to that point in my remarks, if the member does not mind. The bill already provides the reassurance that members sought that the bill does not modify the Equality Act 2010, and that was done through a stage 2 amendment that we agreed with Pam Duncan-Glancy and which covers the Equality Act 2010 in its entirety.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Will the

cabinet secretary take an intervention?

Shona Robison (Scottish National Party, Dundee City East)

No, not just now.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Please?

Shona Robison (Scottish National Party, Dundee City East)

To pick the Equality Act 2010 apart by stating further that the bill does not modify some provisions of that act when there is already patently provision in the bill that it does not modify the whole of the Equality Act 2010 causes confusion in the law. Provisions that do that now, on top of Ms Duncan-Glancy’s amendment, are unnecessary and unhelpful.

In addition—this is really important—it is for the Equality and Human Rights Commission, as a reserved body, in terms of its statutory functions, to provide guidance on the effects of the Equality Act 2010, and it is for Scottish ministers or the registrar general to provide guidance on the effects or operation of the bill. For those reasons, I cannot support any amendments in this group apart from my own.

Stephen Kerr (Conservative, Central Scotland)

Before we vote on any of the amendments in this section, I am anxious to know—in very clear terms—whether the cabinet secretary will confirm that someone who is issued with a GRC would have access to single-sex spaces? Can we have a very clear answer on the implications?

Shona Robison (Scottish National Party, Dundee City East)

They would not if the organisation providing those services used the exceptions under the 2010 act. As I have said so many times in the chamber, they could be excluded—nothing changes there. If an organisation had a service that it wanted to restrict to being single sex, it could do that in the same way as it can do so now. The bill changes none of that whatsoever. I hope that that gives members the reassurance that they require.

There are a few amendments in the group on guidance. Amendment 111, in the name of Jackie Baillie, would place a duty on Scottish ministers to

“issue guidance on the impact of”

the act,

“in particular ... the provision of single-sex services”

and

“what would be considered a proportionate means of achieving a legitimate aim in the context”,

which refers to particular sections of the Equality Act 2010.

Amendment 120, in the name of Rachael Hamilton, and amendments 73 and 74, in the name of Sue Webber, are similar.

Amendment 117, in the name of Pauline McNeill, would place a duty on Scottish ministers to provide

“guidance on the effect of having a gender recognition certificate”,

and, in particular, to

“set out how obtaining a gender recognition certificate impacts on the rights in the Equality Act 2010.”

Amendment 129 in her name would place a duty on Scottish ministers to

“consult each Scottish public authority about ... the operation of the exceptions in ... Schedule 3 of the Equality Act 2010.”

Amendments 118 and 119, in the name of Claire Baker, would place a duty on Scottish ministers to issue guidance on the impact of the bill on section 22 of the Gender Recognition Act 2004 and schedule 9 of the Equality Act 2010.

The Scottish Government cannot provide legal advice to external bodies. Guidance on the test of a proportionate means of achieving a legitimate aim, as required in the Equality Act 2010, is for the Equality and Human Rights Commission. The Scottish Government will always promote and encourage observance of the 2010 act, but it is properly for the EHRC, not the Scottish Government, to provide guidance on the effects of the 2010 act.

Claire Baker (Labour, Mid Scotland and Fife)

In a briefing in advance of stage 2, the EHRC said that the UK and Scottish Governments must provide and ensure clarity on the law for employers and service providers. That suggests that the EHRC thinks that there is a role for Governments in providing clarity on that.

Shona Robison (Scottish National Party, Dundee City East)

Yes, but the EHRC also knows that it is for it to lead on the operation of the

Equality Act 2010

.

What I have set out relates to guidance on the operation of the bill, in relation to which there is, of course, a role for us as ministers.

To go further, and perhaps to address some of Claire Baker’s concerns, what we have said about the Equality Act 2010 is that, if the EHRC wants to revise the guidance in the light of this bill—should it pass and become an act—we will work with it to do that. However, we have to respect the EHRC as the lead organisation for matters that impact on the 2010 act. The EHRC already provides guidance for individuals, organisations and the public sector as well as a statutory code of practice, which assists service providers with understanding the relevant issues. That includes already-published guidance for service providers looking to establish and operate a separate or single-sex service.

Pam Duncan-Glancy (Labour, Glasgow)

I understand the statutory responsibilities that the EHRC has over the

Equality Act 2010.

However, does the cabinet secretary accept that, for example, a recent letter from the Minister for Mental Wellbeing and Social Care, Kevin Stewart, to health boards contained recognition that protocols would need to be in place to support people—trans people and others—in the provision of services? On that basis, the cabinet secretary can surely agree that it is acceptable for the Scottish Government to direct devolved bodies on how to provide services and direct organisations on how to deliver services on the basis of any piece of legislation?

Shona Robison (Scottish National Party, Dundee City East)

As I have just said, it is absolutely for us to set out the guidance on the operation of the bill, and I have already acknowledged and accepted that we will do that. However, that is different from the operation of the 2010 act, which has the lead of the EHRC in statute. The EHRC is the statutory body, so we cannot lead on that, because the EHRC has to lead on the 2010 act. I have said that we will work with the commission on doing that, but it has to be the lead body. I cannot be any clearer than that.

I agree that it is important for there to be clear guidance to help people and organisations to understand their rights and responsibilities, as set out in the 2010 act. That is why I have said that I will be happy to work with the EHRC, should its guidance require to be updated following the passing of the bill. We will highlight where additional guidance would be helpful, and I repeat that commitment now.

Amendment 112, in the name of Ash Regan, specifies that

“Nothing in this Act affects any provision to which section 9(3) of the 2004 Act applies.”

As we have set out on a number of occasions, the bill does not amend the effect of a GRC, as provided for principally in section 9 of the 2004 act. Therefore, I cannot support an amendment that says that the bill does not amend a section that it obviously does not amend.

I also do not support her amendment 113, which specifies that

“Nothing in this act affects”

specific sections of the 2010 act.

In addition, I do not support the similar amendment 130, in the name of Jackie Baillie, which specifies that

“Nothing in this Act prevents the provision of a service only to persons of one sex where it is in accordance with Schedule 3 of the Equality Act 2010”,

“modifies the protected characteristic of gender reassignment”

or modifies the definitions of sex—man or woman—in the 2010 act.

Amendment 133, in the name of Jamie Greene, places a duty on the Scottish ministers to publish a report,

“no later than 3 years after this Act has come into force”,

in relation to

“a review of the impact of this Act on ... the Equality Act 2010”.

That is important. As I have said, the bill, as amended, already states that,

Liam Kerr (Conservative, North East Scotland)

Will the cabinet secretary take an intervention?

Shona Robison (Scottish National Party, Dundee City East)

Yes, I will.

Liam Kerr (Conservative, North East Scotland)

I am genuinely grateful for that and I am genuinely struggling to understand, so I wonder whether the cabinet secretary could make it very clear for me. If, under the Haldane judgment, obtaining a GRC means that a man with a GRC is a woman, what is the legal basis—going back to Stephen Kerr’s intervention—for excluding that category of person from a single-sex space?

Shona Robison (Scottish National Party, Dundee City East)

Trans women can be excluded from a single-sex space. That is in the 2010 act as an exception, and nothing whatsoever in this bill changes that. As I said, the judgment is entirely in line with the position of the Equality and Human Rights Commission, which is, literally, the body that oversees the 2010 act. Our position is exactly the same as the commission’s position.

Ash Regan

Will the cabinet secretary take an intervention?

Shona Robison (Scottish National Party, Dundee City East)

I will do so very briefly.

Ash Regan

I thank the cabinet secretary for taking the intervention. I think that it is a very important point, which we need to be allowed to debate. As I understand it, the Government's position, which I happen not to agree with, is that exemptions are still operable. What assessment has the Government done on the chilling effect on what could often be quite small single-sex service providers?

Shona Robison (Scottish National Party, Dundee City East)

I do not believe that there will be a chilling effect. In recognition of any concerns, I have said that we will set out guidance on the operation of the bill, but it is for the Equality and Human Rights Commission to set out the guidance to public bodies, to make sure that, when they are applying those exceptions, they do so on a proportionate basis and keep themselves on the right side of the law. That is very clear. I think that the guidance is very clear, but, if the EHRC thinks that it has to be reviewed, that is a matter for the commission and we will assist with that.

Pauline McNeill (Labour, Glasgow)

Will the cabinet secretary take an intervention?

Shona Robison (Scottish National Party, Dundee City East)

I will make some progress first, if Ms McNeill does not mind. [

Interruption

.]

The Presiding Officer

I am sorry, cabinet secretary. It is fair to say that members have been very good, so far, in listening to one another. I would like us to continue with that.

Shona Robison (Scottish National Party, Dundee City East)

I do not support amendment 121, in the name of Rachael Hamilton, which would place a duty on the Scottish ministers to report on the impact of the bill on the provision of single-sex services every year. That is a disproportionate reporting requirement.

I do not support amendment 61, in the name of Pam Gosal, which would place a duty on ministers to report on the impact of the bill on self-exclusion from services. Exceptions in the 2010 act enable single-sex services to exclude trans people or treat them less favourably where it is

“a proportionate means of achieving a legitimate aim.

”

Those exceptions apply whether a person has a GRC or not, and the bill does not change that. There is no impact of the bill to measure, and any self-exclusion that occurs is more likely to be caused by misinformation and concerns.

Amendment 123, in the name of Pam Gosal, would place a duty on the Scottish ministers to report on the impact of the bill on the funding of single-sex services. It is not clear to me what the funding of such services has to do with a bill that is about applying for legal gender recognition, and I see no possible impact and therefore cannot support the amendment.

Amendment 128, in the name of Pauline McNeill—whom I will let in in a minute—would insert an avoidance-of-doubt provision that

“nothing in Act affects any requirement to collect data on sex”

as defined in section 11 of the 2010 act. I do not believe that the amendment adds value, for the reasons that I have explained in my comments on the other amendments in the group, and therefore I will not support it.

Pauline McNeill (Labour, Glasgow)

In response to Ash Regan’s intervention, the cabinet secretary said that exemptions can be used, which is, of course, correct. Will the cabinet secretary offer her opinion on why rape crisis centres, for example, that have tried to use the exclusions have experienced a great deal of resistance? Many organisations that have tried to use the exemptions, which are lawful, do not seem to be able to use them. Does that give the cabinet secretary cause for concern? Does all of this boil down to, “Well, in any case, you can exclude anyone but, incidentally, you can’t ask someone’s trans status, as it might be a bit difficult”?

Surely the cabinet secretary must know that loads of organisations are at the end of their tether, because they are trying to use the exemptions but they are not able to.

Shona Robison (Scottish National Party, Dundee City East)

Some organisations have used the exemptions and others have chosen to be trans inclusive. It is for an organisation to decide its policy, as long as its policy is within the law, follows the guidance and is proportionate.

We cannot dictate to each organisation what its policy is. Organisations have to follow the guidance and keep themselves on the right side of the law.

I turn, importantly,

Daniel Johnson (Labour, Edinburgh Southern)

Again, I am grateful to the cabinet secretary for giving way. I gave the example that I did explicitly because it actually confers rights on individuals based on status defined in law. In very much the same way as this bill does, it borrows a definition in reserved law in terms of functions that are being legislated for. Again, I do not understand why this legislation falls foul in that respect but previous legislation did not.

Shona Robison (Scottish National Party, Dundee City East)

T

here has been previous legislation in the same bracket; I understand that at the time of the passage of the Land Reform (Scotland) Bill, for example, ministers had to write to members on the same basis.

Some members have noted that we were able to put in the

The Presiding Officer

I call Jackie Baillie to speak to amendment 111 and other amendments in the group.

Jackie Baillie (Labour, Dumbarton)

I apologise to members in advance for the length of my contribution, but there are substantial issues to consider.

I have lodged three amendments in relation to the protections that exist in the Equality Act 2010: amendments 130, 127 and 111. When Scottish Labour supported the bill at stage 1, we were clear that significant improvements were needed if it was to respond to concerns that had been expressed—in particular by many women’s groups and by individual women—and to have public confidence. At every stage, we have sought to work with others to deliver those changes, and we continue to do that this afternoon at stage 3.

At stage 2, Scottish Labour was successful in placing a reference to the 2010 act in the text of the bill, supported by the Scottish Government. However, the Government did not go far enough; it rejected an amendment from Foysol Choudhury, and it has continued to reject amendments today.

We recognise that concerns remain, not least following the intervention of the UN special rapporteur on violence against women and girls, who said that amending the application process for a GRC makes upholding the protections for women and girls in the 2010 act very important, hence the amendments that are before members today.

Labour is proud to have passed the Equality Act 2010. We know that, as reserved legislation, it cannot be changed by this Parliament, but we believe that it is important that service providers and public bodies have clarity about their legal obligations under the 2010 act and the legislation that is before us. For that reason, in order to provide clarity and reassurance, I have lodged a number of amendments.

I will take amendment 130 first. The amendment references the exceptions in the 2010 act that allow for the provision of single-sex spaces and services and makes it clear that they continue to apply. It states plainly that “nothing” in this new legislation changes or modifies the exceptions that exist in the 2010 act under schedule 3 or modifies the definitions in the act for the protected characteristics of both sex and gender reassignment. It repeats exactly the language in the 2010 act—nothing more and nothing less—and its purpose is to emphasise the primacy of that act, ensuring that single-sex spaces are protected where it is necessary to do so.

I know that there have been concerns that providers are not clear on the legal position with regard to the use of those exceptions, or that the exceptions have been used appropriately. Amendment 130 therefore clarifies that, despite any changes brought about by the bill, service providers can continue to offer single-sex services in accordance with the legal test in paragraph 28 of schedule 3 to the 2010 act, and that, by doing so, that test is met. Providers can also exclude trans people from those services in certain circumstances.

Subsection 2 of amendment 130 also states that the bill will do nothing to change the definition of gender reassignment in the 2010 act, which does not require a GRC. The effect of that subsection is to emphasise that it continues to be a defence to the charge of gender reassignment discrimination that the person was excluded from a single-sex service where it was done in accordance with the test set out in the 2010 act.

My understanding is that Lady Haldane made clear in her judgment that sex and gender reassignment are distinct and separate protected characteristics, even if not mutually exclusive. Therefore, should a trans woman be excluded from a single-sex service on the basis of her gender reassignment, the exception in paragraph 28 would apply, to allow for that to be permissible. I see that the cabinet secretary is nodding.

Stephen Kerr (Conservative, Central Scotland)

At the weekend, Lord McConnell wrote:

“There are really serious concerns about safe spaces for women, especially those facing and dealing with the trauma of abuse, violence, and rape.”

Does Jackie Baillie agree with that? The issue was highlighted earlier in the debate. Does she also agree that the chilling effect of what happens when any organisation attempts to apply those exceptions is very real?

Jackie Baillie (Labour, Dumbarton)

That is exactly

why we are bringing forward these amendments today, and I hope that Mr Kerr and his party will support them, because amendment 130 is intended to put beyond doubt that the situation that I have outlined continues to be the case in Scotland.

I am aware that the Scottish Government’s rationale for opposing amendments that pull out specific sections of the 2010 act is that that somehow weakens the bill. I genuinely do not get that. I do not believe that the Government has convincingly set out how changing the procedure for applying for a GRC is weakened simply by noting that existing reserved legislation remains unchanged. Amendment 130 and my other amendments are carefully worded so that they do not interpret the 2010 act; they merely reference the relevant sections literally word for word.

Shona Robison (Scottish National Party, Dundee City East)

At stage 2, we agreed to an

amendment—jointly with Pam Duncan-Glancy—to put beyond doubt the fact that nothing in the 2010 act is changed by the bill. Does Jackie Baillie acknowledge that picking out parts of the 2010 act beyond that catch-all statement will lead not only to confusion but to legal misunderstandings and misinterpretation, which could be unhelpful in terms of the bill?

Jackie Baillie (Labour, Dumbarton)

I think that amendment 130 has exactly the opposite effect. It is about spelling out clearly an area of concern has been raised with members across the Parliament—that is why it is so important.

Tess White (Conservative, North East Scotland)

Will the member take an intervention?

Jackie Baillie (Labour, Dumbarton)

I would like to make some progress.

I turn to amendment 127, which seems to have caused much controversy. It makes clear that the exception in the 2010 act that allows for the exclusion of trans people from single-sex spaces continues to apply as before, even if someone obtains a GRC under the new application process that is set out in the bill. The cabinet secretary actually stated exactly the same thing last week in the chamber, almost word for word, when responding to an urgent question.

My intention in lodging amendment 127 is to give clarity and reassurance to service providers that they can continue to make use of that exception where it is appropriate to do so and where the necessary legal tests, as set out in the 2010 act, are met.

The Scottish Government has suggested that the amendment may be trying to interpret the 2010 act, but, again, it is carefully drafted so that it references exactly the exception in that act; it does not add to or take away from it.

Ruth Maguire (Scottish National Party, Cunninghame South)

The member mentioned the importance of service providers knowing the law. Does she agree that it is also important that funders know what service providers are and are not allowed to provide?

Jackie Baillie (Labour, Dumbarton)

I absolutely agree. It is not only service providers that should have an awareness of what all of this means; funders and the general public should, too. I welcome that intervention.

The Scottish Government said that the bill is put at risk if members accept amendment 127. I genuinely do not find that argument persuasive. I do not want to do anything that puts the bill at risk, although we know that the Government has experience of that, when it pushed through amendments—which it was warned about—to the fiasco of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, leading to a Supreme Court referral.

We know that the other day the cabinet secretary met the UK Minister for Women and Equalities to discuss the bill. I am not sure of the content of their conversation, but it would be helpful to the chamber if the cabinet secretary could confirm whether there was a discussion that centred on, or even touched on, the amendments that she raised in her letter. If agreeing to amendment 127 is as serious as has been described, surely—surely—it would have been discussed.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I am trying to work out Jackie Baillie’s argument.

Labour’s original stage 2 amendment—it was amendment 37,

in the name of Pam Duncan-Glancy—said:

“for the avoidance of doubt, nothing in the act modifies the Equality Act 2010”.

Bear with me. How can that solve the issues that relate to the interaction between the bill and the 2010 act? I hope that my understanding of her argument is right. The bill now simply says that things will stay the same. However, they will not, because of Lady Haldane’s court ruling.

Jackie Baillie (Labour, Dumbarton)

Our additional amendments absolutely recognise the court ruling, but they also lean into what is already in the 2010 act. If we wish to protect single-sex spaces and to exclude, those provisions already exist—Lady Haldane’s judgment does not change that at all.

That is why amendment 130 is so important.

I will try to conclude my point, because I have a lot more to say. With the greatest respect, I genuinely do not accept that amendment 127 would put the bill at risk. It is not adding to or interpreting the 2010 act; it merely states:

“Paragraph 28 of Schedule 3 of the Equality Act 2010 continues to apply to activity or conduct carried out in Scotland, even in circumstances where an individual holds—

(a) a gender recognition certificate obtained under section 8A(1), 8F(1), 8J(1) or 8K(1) of the Gender Recognition Act 2004,

(b) a confirmatory gender recognition certificate obtained under section 8O(1) of that Act”,

by which I mean a Scottish GRC under the new application process.

The salient phrase in the amendment is “continues to apply”. To say that it does more is disingenuous—the evidence for that is that the same argument is not applied to amendments 130 and 111. I know that the Scottish Government does not like amendments 130 and 111, but it has not written to me to say that those amendments would put the bill at risk.

Presiding Officer, you know that I am a reasonable person. Amendments 130 and 111 do not appear to cause the Government the same problems as they were not mentioned in its letter, and I would consider withdrawing amendment 127 if the Government were willing to accept amendments 130 and 111. I am willing to give way to the cabinet secretary if she wants to indicate her support for amendments 130 and 111.

Shona Robison (Scottish National Party, Dundee City East)

I cannot do that, for all the reasons that I have already set out. For the avoidance of doubt, saying that nothing changes in the 2010 act is clear, but to start unpicking any piece of legislation, selecting parts of it and putting them into another piece of legislation is not clear or helpful.

I can say that the member is right in so far as amendment 127 is high up on the list of risks to the bill, for all the reasons that I have stated and made clear.

It is not the case that amendment 127 only reflects the wording of the 2010 act; the 2010 act does not refer to a GRC, so Jackie Baillie is not correct on that.

I hope that Jackie Baillie decides not to move amendment 127 for the reasons that I have stated.

Jackie Baillie (Labour, Dumbarton)

That was quite a long intervention, but my assessment of what the cabinet secretary said is that she has a preference for amendment 130, so I hope that members in the chamber will listen to her on that and support the amendment.

Finally, amendment 111 requires the Scottish Government to produce guidance on the operation of the legislation for devolved service providers and public bodies. The wording of the amendment matches closely the amendments on guidance that the Government itself lodged after my discussion with it. The difference is that my amendment 111 makes clear that the guidance should cover the provision of single-sex spaces and the circumstances in which there can be exclusions—again, that is lifted from the Equality Act 2010. If the cabinet secretary wants to give me an assurance on the record that her amendment would cover that, I would absolutely reflect on that, but I did not hear that in her opening statement.

Throughout the passage of the Gender Recognition Reform (Scotland) Bill, we have repeatedly warned the Scottish Government of the dangers of allowing a policy vacuum to develop, because it will lead to uncertainty for service users and service providers in Scotland. Those warnings have largely been ignored. Many different organisations are attempting to navigate a path through the interaction of the two pieces of legislation, trying to respect everyone’s rights and protections. The silence from the Government is not appropriate, and many groups have spoken to us about the dangers of differing interpretations of the legislation.

Amendment 111 makes it clear that it is the Scottish Government’s responsibility to provide clarity by setting out clear guidelines for the operation of the bill with regard to the 2004 act and the 2010 act. We believe that that will make service providers’ responsibilities clearer and easier to implement.

The Scottish Government suggested previously—it has done so again today—that it is not within its remit to produce that guidance; instead, it says that that is the job of others, and the Government will work with them. That is great, but I reject the assertion that the Government does not have any remit to do that work. The drafting of the amendment is such that the guidance does not need to be statutory. The Government has already provided guidance to schools and Scottish health boards—in fact, Scottish health boards have themselves issued a variety of pieces of guidance covering some of these issues. If that is possible, it is completely within the Scottish Government’s remit to publish guidance for devolved bodies; in fact, I would argue that that would be preferable.

Graham Simpson (Conservative, Central Scotland)

I have listened carefully to Jackie Baillie, as I always do, and it sounds as though her sensible-sounding amendments in this group are pretty fundamental to Labour’s case. If the amendments—and amendment 130 in particular—are not agreed to, will that mean that Labour will not support the bill?

Jackie Baillie (Labour, Dumbarton)

I absolutely welcome that intervention from Graham Simpson. I want the amendments to be agreed to, and I hope that everybody across the chamber listens to the reasonable, proportionate arguments that are being made and agrees to them. Graham Simpson can wait until the stage 3 debate to find out what we do as a consequence of what happens.

I am confident that the amendments are competent. They will help to highlight that, although the bill simplifies the process of obtaining a GRC, which is absolutely welcome, the rights of women, girls and trans people will continue to be protected by equality legislation, and public authorities in Scotland will finally have clarity on the actions that they should take to ensure that everyone’s rights and obligations are upheld.

In bringing my remarks to a close, let me be clear about three things. Amendment 127 and amendments 130 and 111 do not reinterpret the Equality Act 2010; they state that it continues to apply in Scotland. That is a fact. The Scottish Government does not seem to have the same concerns about amendments 130 and 111, so I would consider withdrawing amendment 127 if the Government could find its way to supporting the other two amendments and to making that clear. Unfortunately, it has not done so.

Therefore, I would encourage members to think about the amendments, because they directly address the concerns of women and women’s organisations while still protecting the rights of trans people seeking a gender recognition certificate. They deliver, word for word, the provisions of the 2010 act. They seek the practical provision of guidance where it would be a genuine dereliction of duty to leave a vacuum. They respond to the concerns of the UN special rapporteur on violence against women and children. I specifically asked whether she would be reassured by the amendments, and she said yes.

As parliamentarians, we have a responsibility to ensure that we pass the best possible legislation. If we are serious about protecting single-sex spaces while protecting the bill’s integrity, supporting my amendments will provide members with the opportunity to do that.

The Presiding Officer

I call Ash Regan to speak to amendment 112 and the other amendments in the group.

Ash Regan

For the chamber’s information, I note that I do not intend to move amendment 112, but I will move amendment 113.

One of the roles of a Government is to protect its people. As we know, the current GRA regime was put in place to ensure that there was legal recognition for trans people, and they are protected under the Equality Act 2010’s provision on gender reassignment. The existing regime is fully compliant with human rights law. A recent High Court judicial review in Northern Ireland ruled that the GRA regime strikes a fair balance between the needs of the applicant and those of the community.

In my view, the Gender Recognition Reform (Scotland) Bill does not strike that balance and does not protect the rights of everyone. Instead, it introduces a hierarchy of rights in which women’s rights are demoted. I say that not to be provocative or unnecessarily controversial, but because that is the only conclusion that can be drawn from a review of the interactions between the existing legislation and the proposed legislation. That has been demonstrated by the lengthy debate that we have had already about that point.

In my view, Lady Haldane’s ruling in the Court of Session last week has now put it beyond doubt that self-identification grants new rights, because it would grant a GRC to almost anyone who wants one. That is not just an administrative change or a change in process that has no real-world effect.

Currently, around 600 people in Scotland hold a GRC, which is quite a small number. The Government expects that number to increase tenfold to 6,000. That means that somewhere in the region of 5,000 or more people—although we are not entirely sure about the number—who are not currently eligible for a GRC will be granted the right to apply for one and the rights that are conferred by it. That is the most important point. Those people may well be trans; however my strong contention is that not all of them will be.

Maggie Chapman (Green, North East Scotland)

When Ash Regan says that more than 5,000 people are not currently eligible for a GRC, does she accept that there will be people in that group who are eligible for one but have chosen not to go through the process because it is demeaning and humiliating? [

Interruption

.]

The Presiding Officer

I appreciate that there is great interest in the bill and that people observing from the public gallery are very interested in the proceedings. However, we ask that members not be applauded from the gallery.

Ash Regan

I accept that point. Probably, there will be a small number of people who have chosen not to apply for a GRC for whatever reason. However, the general contention is fair: the bill would open the process to a vast number of people who would not currently be eligible for a GRC under the normal scheme, which has a number of safeguards.

I take issue with the point that Maggie Chapman has made that all trans people think that the current process is intrusive or degrading in some way. Although I am sure that there are some who feel like that, that is not how some trans people have described it to me. A GRC holder has said to me that she was completely happy with the process and felt that the length of time that it took was entirely appropriate, considering the profundity of the change.

If we are saying that we think that some of the people who are applying for a GRC might not be trans, we are not going to be able to tell whether they are or not. We have already had a debate about how we would be able to tell whether there were fraudulent applications, which would create a situation in which members of a dominant group in society can self-identify into an oppressed group. That is absolutely unprecedented. My amendments 112 and 113 will not resolve that problem and I do not think that they will put the situation beyond legal doubt. I tried to lodge a number of other amendments but was advised by Parliament that amendments that would alter the effect of a GRC were inadmissible, which we have already debated.

However, because the bill has expanded the group of people who could access a GRC—we are all admitting that the process could be open to abuse—in not allowing the Parliament to make changes to the effect of those certificates, we are now being asked to legislate in a way that cannot possibly lead to good law.

Therefore, it is my strong belief that many of the amendments that we are discussing today will not materially alter the issues that we are all facing. I also contend, despite the information that has been presented at committee, that the state’s obligation to protect vulnerable rights holders was not given enough consideration. That contention has been backed up by Reem Alsalem, the UN special rapporteur on violence against women and girls, its causes and consequences.

It is claimed that the impact on women and girls was assessed and that there was no impact. I strongly disagree with that. I have searched, and I cannot find the analysis that addresses and evaluates the impact in the context of women and girls as vulnerable rights holders. That is consistent with other jurisdictions, where the data on the impact on women is not being collected. In Ireland, when the self-ID law was being reviewed, the impact on women was considered to be out of scope. If we do not collect the data, we will not be able to assess the impact. On that basis alone, I believe that we should not proceed.

There are many examples around the world, including in Scotland, of violent offenders and sex offenders in women’s prisons. There are examples of flashing and voyeurism in women’s single-sex spaces, and of women self-excluding from services in places where self-identification for women’s single-sex spaces has been introduced. I assert that for those who are looking, the impact is there to see.

Women’s single-sex spaces are important. The issue is whether people are male and not whether they are trans. Male people as a group are a risk to women. I see that the Greens are sighing at that reference, but male people as a group are a risk to women—I think that we all accept that. The ability to exclude people of the opposite sex on the ground of sex will now be impossible if they hold a GRC. Inevitably, making use of the exemptions will be much more complicated and will be much more off-putting to organisations, many of which are quite small or are charities.

The bill might not spell it out, but I believe that we should not delude ourselves: it comprehensively undermines the single-sex exemptions. We are being conditioned to accept male-bodied people in women’s single-sex spaces. Why? Who does that benefit? I say to my fellow parliamentarians that it boils down to this question: do you think that women will be more or less safe as a result of the bill? If members have any concerns at all that the bill will make women and girls less safe, they cannot vote for it. [

Interruption

.]

The Presiding Officer

We will suspend for a moment.

17:03 Meeting suspended.

17:03 On resuming—

Ash Regan

The public expects us, as parliamentarians, to engage critically with the arguments. The public expects us to balance different viewpoints and rights, and it expects us to ask the hard questions and to understand what we are voting for. It is a huge responsibility and it cannot be

delegated.

The people of Scotland are watching. We often say that we use legislation to “send a message”, and I believe that that is true; I believe that that is sometimes what we are doing. However, I am very sad to say that the message that is being sent out to women and girls in Scotland today is, “You don’t matter.”

I will vote as if women do matter, and I will vote against the bill. [

Applause

.]

The Presiding Officer

Before I call Pauline McNeill to speak, I am minded to accept a motion without notice to propose that, under rule 9.8.5A, the first time limit be moved by up to 2 hours. I invite the Minister for Parliamentary Business to move the motion.

Motion moved,

That, under rule 9.5.8A, the first time limit be moved by up to two hours.—[

George Adam

]

Motion agreed to.

I call Pauline McNeill to speak to amendment 117 and other amendments in the group.

Pauline McNeill (Labour, Glasgow)

I will speak to amendments 117, 128 and 129,

in my name, and I support the excellent amendments in the name of Jackie Baillie and other amendments in the group. I will try not to repeat what has been said—there is quite a bit of overlap in the group, which is probably one of the most important in relation to the bill.

I will begin by tackling the Scottish Government’s stated position that all that it is doing is reforming the process part of the Gender Recognition Act 2004. I do not believe that to be the case. As a result of having taken that position, the Scottish Government has consistently argued that there is no requirement to issue guidance or to clarify the effect of holding a gender recognition certificate under the proposed reforms to the Equality Act 2010.

Up to this point, the Scottish Government has insisted—members have heard this again today—that it is the responsibility of the Equality and Human Rights Commission to issue guidance on the effect of having a GRC. The problem with that is, as Claire Baker said, that the EHRC has repeated its view that the Government has amended the bill to such an extent that clarity is needed on the operation of the Equality Act 2010. In my view, that is based on the bill that we are looking at being quite different.

Just last week, the EHRC made the same point. It said:

“The law concerning matters of sex and gender can be complex, and clarity is essential for the public bodies, employers, service providers and people across the country who rely on it.”

Reem Alsalem, who gave evidence to the Equality, Human Rights and Civil Justice Committee, made the same point. In relation to prisons, she told the cabinet secretary that the guidance is not good enough. What more convincing does the Government need, to have got to this stage and argued a position, but has now conceded that position and will talk—

Shona Robison (Scottish National Party, Dundee City East)

I am not sure whether Pauline McNeill is aware that the Scottish Prison Service is already reviewing its guidance. The SPS has for many years been managing transgender prisoners, some of whom are placed in the women’s estate and some in the men’s estate, according to risk. T

he SPS is reviewing its guidance, to make sure that it is fit for purpose.

Pauline McNeill (Labour, Glasgow)

I welcome the Scottish Prison Service’s review. It has consulted more widely, which I am pleased to see. However, I am not comfortable with the notion that that guidance is out for consultation when we as a Parliament are still being criticised for not having the guidance in the first place. I am uncomfortable with looking at the provisions in the bill while that is not in place.

That is the central issue to be debated under this group of amendments.

Jackie Baillie has addressed the confusion, and Ruth Maguire asked a question about funders, for example. There is massive confusion, which I will address in some detail.

Under the current proposed system, it now appears to be quite impossible for organisations to legally distinguish between those who are born female and holders of a female GRC. The Government successfully argued the matter in court. That judgment may or may not be overturned in court. However, that has added to the confusion, particularly in relation to the phrase “legal sex”. That will undoubtedly lead to confusion among organisations that are left with the challenge of trying to interpret what that law means.

In its stage 2 briefing, the EHRC noted that the proposed reform will have

“significant implications for the operation of the Equality Act in Scotland”,

to the extent that

“The expansion to a larger group will have meaningful consequences in relation to the operation of those provisions”.

I do not think that members should dismiss that lightly—whatever they think of the reform overall, it will apply to a larger group of people. Let us be clear that the EHRC, which is the guardian of the 2010 act, is saying that that expansion will make a significant difference and that it

“will have meaningful consequences in relation to ... education in schools, sex discrimination (including equal pay between women and men), gender pay gap reporting, and measures to address disadvantages experienced by women.”

My contention is that the bill does not simply reform the 2004 act—of which I was a vocal supporter. I am still a vocal supporter of reform. I believe that the removal of huge elements of the process and the arrival at the framework, if you like, of a self-ID model will lead to some aspects of operation of the Equality Act 2010 to be considered.

Tess White (Conservative, North East Scotland)

Does the member agree with Johann Lamont, who said that the proposed safeguards “are utterly risible”?

Pauline McNeill (Labour, Glasgow)

To be fair, I think that what the Parliament has been trying to do in the past day or so is debate safeguards, some of which we have achieved; so, yes, I agree with Johann Lamont. However, I was not really talking about safeguards per se.

This is a really important point—certainly, for me. My contention is that the bill does not simply reform one part of the GRA; it changes the whole nature of it. That is why we, as legislators, have to be absolutely clear, when we pass the bill tonight—or tomorrow, or whenever it will be—how it interacts with the Equality Act 2010.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Will the member take an intervention?

Pauline McNeill (Labour, Glasgow)

Just give me a minute to get my train of thought back, please.

I believe that the Scottish Government has instead stripped out those elements, as I have said, as well as removing all the requirements from the process of acquiring a gender, as I spoke about in previous groups of amendments. That means that clarity is required, and that is why I believe that the Scottish Government must publish detailed guidance on the effect of having a GRC.

I want to speak more about what legal challenges there might be to Lady Haldane’s judgment and what that might mean. Given what I have just described, which is a vastly different bill—because it is not just a tinkering with the 2004 act—the Government has an obligation now to indicate what the effect of having a gender recognition certificate is.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

I thank Pauline McNeill for allowing me in. I am really interested in the arguments that you are making. You and I have discussed this issue—

The Deputy Presiding Officer

Through the chair, please, Ms Hamilton.

Rachael Hamilton (Conservative, Ettrick, Roxburgh and Berwickshire)

Sorry, Presiding Officer. I just want to ask Pauline McNeill whether she believes that Lady Haldane’s court ruling has blown apart the Scottish National Party’s claim that obtaining a GRC does not grant access to the rights and protections of women. Because of the argument that the SNP made in court, a GRC will now confer access to the rights and protections of women. The SNP has blown apart its own argument that a GRC does not confer rights and protections to women.

Pauline McNeill (Labour, Glasgow)

I am not going to second-guess the judgment and what might happen. I will say the following in response, which I was going to say anyway. The phrase that we have heard is that nothing in the bill changes anything in the Equality Act 2010. In a sense, that really depends on your perspective. Personally, I have always assumed that, where the Equality Act 2010 refers to sex, it means biological sex, although it does not say so, but some people think that it is legal sex. Lady Haldane seems to be saying that it is legal sex, but up to this point I thought that it was biological sex.

My point is that there is a great deal of confusion about what the judgment means. It is the job of the Government, as the movers of the legislation, to take into consideration the judgment and to tell providers and the general public what the effect of having a GRC is. I cannot answer what the effect is, because I am a wee bit confused myself, to be honest.

Let me deal with the question of having a GRC or not having a GRC. We have heard the argument that you can have one but it does not really make any difference whether you have one or not, because you can be excluded under the exemptions. There is a significant level of confusion about this, and it takes time to get your head around where having a GRC really matters.

In March of this year, the cabinet secretary said:

“This Bill does not introduce any new rights for trans people. It is about simplifying and improving the process for a trans person to gain legal recognition”.

I agree that it makes the process simple; what I am not clear about is whether it gives any new rights.

Many commentators are already saying that the Haldane judgment in the For Women Scotland case is likely to

“destabilise existing categories and frameworks for the purposes of the reserved matter of equal opportunities”.

In particular, I refer to an article by Michael Foran for the UK Constitutional Law Association. I realise that he is just one academic, but the issue is being discussed—obviously, because the judgment was passed only on 13 December. Here is the important part for the Government to consider: Michael Foran and others are now of the opinion that

“the possession of a GRC clearly does matter for the assessment of whether exclusion is objectively justified.”

Jackie Baillie made the argument very well. The law requires services to judge whether it is proportionate and legitimate to exclude anyone, and rightly so. They have to say why they think that that is proportionate. Some commentators are saying that, given the judgment that we have just had, we do not know whether the possession of a GRC will make it more difficult for services to make that objective judgment.

I am only posing the question; I am not saying that it is—

Jeremy Balfour (Conservative, Lothian)

Will the member take an intervention?

Pauline McNeill (Labour, Glasgow)

Give me a second, because I want to make this point thoroughly.

I am not saying that it will be more difficult, but the fact is that people are already raising questions about the judgment in that regard. The Government has to answer that question, because it is the one that is saying, “There are no problems here—the bill will be totally in line with the Equality Act 2010, and you can use the exemptions.” However, some people are now saying that the fact that someone has a GRC might not be seen as an objective reason to exclude them.

Jeremy Balfour (Conservative, Lothian)

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?

Pauline McNeill (Labour, Glasgow)

It is a fair point that none of us is a practising day-to-day lawyer, but we are trying to achieve our best understanding of the judgment. I am saying what my understanding is, but I would like guidance from the Government. It has proposed the legislation, and I am trying to get guidance now rather than wait for that. That is why I have lodged my amendments in the group.

I want to deal with the exceptions in the Equality Act 2010, which Jackie Baillie addressed, because they are fundamentally important to the bill. Amendment 129 would require the Scottish Government to

“consult each Scottish public authority about the implications of this Act for the development or modification of the authority’s policy on the operation of the exceptions”.

Just a year ago, in December 2021, the House of Commons Women and Equalities Committee report on the Gender Recognition Act 2004 stated:

“Concerns raised ... about the interplay between the GRA and Equality Act fall into three broad categories:

• A lack of confidence or understanding amongst service providers about how to apply exceptions;

• The need for better guidance to assist service providers with exceptions; and

• How a system of self-declaration might affect the provision of single-sex services”.

A year on from that, I do not think that those questions have been answered.

Fundamentally—this is the most important point that I want to make to the cabinet secretary—if service providers do not feel that they have confidence to use the law, what is the point of the law? The cabinet secretary must provide those organisations with that confidence or she cannot continue to rely on the argument that organisations should just make use of that exception.

I will give some examples of that point. The cabinet secretary is aware that I have been trying for ages to get a copy of the letter that Pam Duncan-Glancy referred to earlier, just so that I could see what was in it. Previously, what I said on the record about that was based on a report about it in

The Times

, but I have now read the letter for myself and I concede that it is quite different. However, what concerns me about Kevin Stewart’s letter—this illustrates my point—is that he wrote to health boards in October of this year, noting that he had been

“asked questions about the processes and policies Scottish hospitals use when managing inpatient admissions of transgender patients to NHS inpatient services”,

and that

“some Boards … have clarified that there is currently no specific protocol for management of this patient group.”

However, there is nothing in the letter about the law or the exemptions. What is the point in writing to health boards without telling them what they are allowed to do but saying that the onus is on them, when it should be on the Government? Surely the Government must at least accept that point. To be honest, I think that that is atrocious. The Government must live up to its responsibilities.

That is why I ask the Government to support my amendment and to talk to the organisations on the ground that have to implement public policy. The aspect of the bill that is most lacking relates to how the exemptions can be applied in the public policy sphere.

Shona Robison (Scottish National Party, Dundee City East)

Pauline McNeill will be aware that the EHRC recently issued revised guidance. It did that, in part, to take into account some of the issues that she is talking about. I am not sure what different guidance we could provide in those circumstances. I think that the revised guidance is the right guidance. Even if we could cut across that—which we cannot, because the matter is reserved—that would just cause confusion. I do not think that there is anything fundamentally wrong with the revised guidance that the EHRC has issued.

Pauline McNeill (Labour, Glasgow)

I wonder whether the cabinet secretary will address my central point. Why do ministers not write to health boards to tell them what the guidance is? Why are ministers putting the onus on health boards to tell them? The problem is that health boards do not have the confidence to use the exemptions.

I will give another example of that. In NHS Ayrshire and Arran’s policy on trans users, there appears to be no mention of the exemptions framework. Can members see the trend here? No one in the public sector is mentioning the exemptions, and I do not understand why the Government is not more concerned about that. It is in the interests of all users and patients, including trans patients, and of everyone who believes in the policy and the bill to sort this out.

The example that I have given is the worst one, because it shows a total misreading of the law—it is not even the law. On multiple occasions, NHS Ayrshire and Arran’s policy refers to the fact that certain scenarios or practices

“may be in breach of legislation”,

but it does not name the legislation. At appendix 4, the policy states that placing a trans patient in a single-occupancy room to “avoid potential difficulties” is “discriminatory”. It is discriminatory only if staff have not justified it by being proportionate and legitimate. The policy says that the situation is comparable with placing a

“black, disabled, elderly or lesbian, gay or bi-sexual patient”

in a single-occupancy room. The policy further states that female patients who raise concerns about trans women being put on female-only hospital wards are comparable with racists, and they have been told that they

“may have to be removed”.

I am not being too hard on health boards, because they probably think that they are doing the right thing, but this is a public policy disaster, and I am annoyed that we have reached stage 3 before the Government has acknowledged any of this.

Liam Kerr (Conservative, North East Scotland)

I am enjoying the member’s contribution. She is articulating my concerns very well. However, that leads me to wonder whether—if the amendments that she seeks are not agreed to and if there is not the clarification that she has asked for from the cabinet secretary, so the ambiguity and the concerns that she has articulated remain—she nevertheless intends to vote for the bill. If so, can she help me to understand why?

Pauline McNeill (Labour, Glasgow)

Like any good legislator, I have come here today to press the cabinet secretary for some answers. I sat through the whole of the stage 2 proceedings. My contribution to the debate is genuine. Members will find out what I will do when the time comes. At the moment, I am trying to test the Government on these important policy issues, because I want to improve the situation.

Jackie Baillie has covered the issue of single-sex services, but I reiterate that some services such as rape crisis centres have clearly found the situation very difficult in some instances. That is not good enough. It is not good enough that rape crisis centres should feel the threat of being called transphobic for using the exemptions when they can and clearly showing that their use is proportionate and legitimate—the Government must stand up for the services that choose to do so.

Lastly, I want to briefly talk about amendment 128, which is on sex and gender data. We need better data. The UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity—forgive me, I cannot remember his name—made the point well that we need more data on the trans population in Scotland to ensure that we have better policies for trans people.

However, we do need to collect data on the basis of biological sex. Reem Alsalem has said that she is

“afraid that the collection of sex data has recently been deprioritised”

and that it has led

“to the conflation of data results.”—[

Equalities, Human Rights and Civil Justice Committee

, 19 December 2022; c 21.]

We have seen the introduction of recording policies that conflate sex and gender identity in a single category. Although I recognise that the chief statistician published a report on data collection in respect of sex, gender identity and trans status in September 2021, he proposed voluntary questions around the capture of sex and gender data, and it is clear that many organisations are not tracking such information in relation to service users. Statistical evidence has been compromised by a lack of separate data on sex and gender identity, which means that information cannot be easily tracked. Police and other services need to collect data on sex at birth and self-declared gender identity separately in order for services to undertake rigorous risk and impact assessments when considering “proportionate and legitimate” concerns.

I apologise that this is a long contribution, Presiding Officer—one of the reasons why I wanted this amendment moved into another grouping is so that I could address it.

I am clear in my mind that, if we want the legislation to work, it has to be quite different—you have to resolve these issues without going to the heart of competence. You have to give confidence to public service providers. Otherwise—if you cannot tell your public sector providers what it actually means—the phrase

“proportionate means of achieving a legitimate aim”

is absolutely meaningless in law, as Jackie Baillie has said.

Douglas Lumsden (Conservative, North East Scotland)

On a point of order, Presiding Officer. While the debate has been taking place, I have noticed that members at home are trying to make interventions, but speakers are not able to see those interventions while they are speaking. Are members meant to be told that there are interventions, or are they meant to notice them on the screen while they are speaking?