Chamber and committees

I was going to mention this later, cabinet secretary, but I will talk about it now, as you have mentioned it. You will be aware of the briefing that MSPs have received from the Equality and Human Rights Commission, which believes that, because of the significant differences between this bill and the 2004 act, there will be significant issues with regard to the interaction between this bill and the Equality Act 2010.

For completeness, ministers must address what the EHRC has said about that. The commission agrees with you on some points, but as the body responsible for guidance on the 2010 act, it thinks that there are significant issues. It would be wrong of the Scottish Government not to address that before we make decisions.

It is really important that the Government clarifies this point. We have heard a lot of talk about fraudulently making a declaration, but at no time has the Government set out what would have to be shown in court. Can you give us an example of what would need to be shown, given that the process is already quite a simple one, in that a person just applies and then waits three months? The process can also be reversed.

I am interested in the legality of the position. If something is in the bill—whether people think that it should be or not—it is a matter of law. The Government needs to be clear what would need to be shown in court to prove that the application was fraudulent in the first place.

I have a simple point to make. Cabinet secretary, you said that the bill does not modify the Equality Act 2010 or the effects of obtaining a GRC. That is fine, but it is confusing that the Government is arguing that legal sex—as opposed to biological sex—includes those who have a GRC. It appears that the Government’s definition of sex includes people who have a GRC. That would not be my definition, and many people would disagree with that: it is disputed.

You state that the bill does not modify the effects of the 2010 act, but it does change those effects if your definition of sex is not one of biological sex. I think that you need to clear that up. What is the Government’s definition of “sex” for the purposes of the 2010 act?

For the avoidance of any doubt, I refer to a specific bit of the EHRC briefing—which I do not know whether the cabinet secretary has seen—which Foysol Choudhury mentioned. It says:

“We have highlighted several areas where the effect of the Bill’s provisions on the operation of the protections from sex discrimination in the Equality Act is unclear and have urged further consideration before legislative change is made.”

The briefing refers to my amendment 101 and all the amendments in the group, and recommends that “such amendments should be considered.” Cabinet secretary, you say that it is a matter for the EHRC, and that you will not support amendment 101, but it is important to get on the record that even the EHRC has said that the amendments should be “considered”, because it would welcome that clarity. It seems that the Scottish Government stands alone in saying that it would not accept further clarification.

Like Daniel Johnson, I support reform of the Gender Recognition Act 2004. It seems a century ago, but I chaired the committee that considered that legislation at the time. It was a much-needed piece of legislation to protect the rights of trans people.

My amendment 101 would require the Scottish ministers to publish guidance on the effect of having a gender recognition certificate. It seeks to clarify both that effect and the impact that obtaining a GRC will have on rights under the Equality Act 2010.

In his remarks, Daniel Johnson went quite a long way towards making the central argument that I am going to make, which is that, if the Government does not provide clear guidance, public organisations will be unclear about how they may use the 2010 act to, for example, protect single-sex spaces. As far as I am concerned, it would be unacceptable to leave organisations in the dark in that regard.

Although a GRC that was gained under the 2004 act will have the same interaction with the Equality Act 2010, my contention is that the guidance on exclusions could never be made clear enough. The bill seeks to make significant changes to the process and, with a larger number of individuals being likely to apply for a GRC after its provisions come into effect, it is now pressing to ensure that the guidance is clarified.

A note from MBM says:

“It is ... worth emphasising ... that a GRC is not a sex-invisibility cloak. In court recently, Counsel for the Scottish Government appeared to argue that once someone had changed their birth certificate using a GRC, it would be more or less impossible for organisations to distinguish between those born female and holders of a female GRC.”

I asked the cabinet secretary about that at stage 1, because there appears to be a contradiction between what the Government has said to Parliament—we heard that in an exchange between Karen Adam and the cabinet secretary—and what it has argued in court. We have heard that the fact that someone has a GRC will not be a basis on which an exclusion may be made, yet the Government has argued in court that there will be legal significance to having a GRC. We need clarity on what it means by that.

On the 2010 act’s functions with regard to the exclusion of men from single-sex spaces, the Equality and Human Rights Commission tells us:

“The Equality Act allows for the provision of separate or single sex services in certain circumstances under ‘exceptions’ relating to sex.”

If that is the case, it is incumbent on the Government to set out how that can be achieved. Again, I asked the cabinet secretary to address that, but I do not think that it was addressed. I hope that the Government will address it.

The Equality and Human Rights Commission says:

“By broadening the group of trans people who will be able to obtain legal gender recognition, the proposals have significant implications for the operation of the Equality Act in Scotland.”

The Government cannot ignore the fact that the body that is responsible for telling us how the Equality Act 2010 operates is saying that that could be a problem and that it needs to be resolved.

The EHRC continues:

“Whilst the Equality Act makes provision to treat people with the protected characteristic of gender reassignment differently from others sharing the same legal sex in certain circumstances and where justified (for example, in relation to occupational requirements, separate- and single-sex services, sport and communal accommodation), such provision does not apply in every context contemplated by the Act.”

Although sex discrimination cases are a reserved matter, I believe that, given the significant changes to Scottish GRCs, employers need to be aware of the interaction between sex discrimination and Scottish GRCs. For example, women who make equal pay claims will need to know whether they can compare themselves to someone with a GRC or not. I make no comment on that, but we need the Government to make such things clear.

Claire Baker mentioned while we were considering a previous group of amendments that, under the 2010 act, an approach must be a

“a proportionate means of achieving a legitimate aim.”

That will depend on the nature of the service and it may be linked to the reason why the single-sex service is needed. We are clear that the 2010 act allows exclusions, but we are unclear about what those exclusions really amount to.

The EHRC guidance gives the following example:

“A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend as they judge that the clients who attend the group session are likely to be traumatised by the presence of a person who is biologically male.”

We need the Government to say whether it believes that such exclusions would be lawful or unlawful and whether its guidance will support them or not.

The same holds for domestic abuse refuges. Some have sought to make exclusions, but they have found themselves at the wrong end of, for example, social media. If exclusions exist, organisations must be allowed to use them, and I would argue that, if the Government is seeking to make significant changes to the 2004 act, it is incumbent on it to say in guidance what the effect of having a Scottish GRC is.

I could give other examples. I note that, in its guidance in 2015 on accessing sports facilities and services by transgender people, Glasgow Life, in a section entitled “Single Sex leisure Provision”, said:

“The person is entitled to participate in single sex sessions and cannot be excluded from participation of their chosen gender.”

That is legally incorrect. The authority in my own city is saying that you cannot exclude people, but that is plainly wrong, and the Government has to start challenging these things if it believes that we can use the Equality Act 2010 as intended.

I also put on record my concern about a letter that Kevin Stewart, the Minister for Mental Wellbeing and Social Care, has written to all health boards, further confusing Government policy on this matter. I have asked for that letter, but I have had to base what I am about to say on reports that I have read, so I ask the cabinet secretary for some clarity. The minister is reported as saying that health boards who place trans women in a private room as a way of dealing with single-sex wards may be discriminatory. That is plainly wrong in law if the Government believes that it can prove that these exclusions exist. Scottish Government ministers are not helping themselves or helping people understand how the exclusions can be made.

In summary, the Government has to set out in a more explicit way the rights that women have to set boundaries on single-sex services and the rights that organisations have to use the exclusions. If the cabinet secretary’s answer today is that this is a matter for the Equality and Human Rights Commission, I, again, have to cite the fact that it, too, is concerned about this. It is down to the Scottish Government to say what the effect of having a GRC is.

On my other amendment—amendment 110—I think that we are all at one in this Parliament, certainly from the debates that we have had, in saying that violence against women and girls is a significant problem in Scotland and, indeed, across the world. That data must continue to be collected, and I believe that it should be collected on the basis of biological sex. I would like to hear what definition the Government intends to use in that respect, because, as I have said, I do not think that that has been clear from what it has said in court. Indeed, it has not said anything so far in this process that makes things any clearer. I would have thought that there would have been some agreement to continue to collect that data without interfering with the bill’s main principle of giving trans people dignity in their lives and of significantly improving the 2004 act to ensure that we make changes that make sense.

I will definitely be moving amendment 101, but I will listen to what the cabinet secretary has to say on amendment 110.

Do you see any options in the short term other than finding alternatives to prison, which you have said we need to do?

I have a question to follow on from Jamie Greene’s questions. Of all the alarming things that I read in the committee papers, the one that jumped out at me was what you had to say about the heightened risk of prison disturbances. You did not mince your words.

If ever there were to be a case for changing the rules of privilege in the Scottish Parliament to include questions that are sub judice, it would be this one. I understand why it is so, but I do not think that it is good enough that we cannot get accountability for the decision. I agree with Russell Findlay that the case has brought the Crown Office and Procurator Fiscal Service into complete disrepute. We have been unable to ask any questions and it is now a long time since that all happened. I am beginning to worry about the quality of the answers that we will get.

I totally support the notion that, whenever we can do so, we should ask the Lord Advocates to come to the committee. The committee needs to be the body to question the Crown Office on how such a decision could ever come to pass. Who else will do so? The money is an issue to some extent, but at the heart of the matter is the question of why our Crown Office and Lord Advocate took a decision that, on the face of it, now seems highly questionable and which has been described as involving a malicious prosecution against the directors concerned. We need answers on what was behind that decision. The sooner we can get those, the better.

The Criminal Justice Committee still has to have a discussion about how it will respond. It might mention, among other things, the issue that you raised about the extras that prisoners get keeping the prison regime quiet or in check. I picked up the word “legitimacy” quite strongly. Given what you have said, if the committee were to say in its report that it felt that the Government should take those important factors in your submission into account when it is considering what it might strip away, would you be pleased to read that?

Good morning. I have both a local and a regional interest in Barlinnie prison, which you have spoken about. For the record, and to add to what you said, I note that it has only five cells that are suitable for disabled prisoners, that there are no shared spaces for prisoners to sit and converse with others at mealtimes and—this is quite shocking—that prisoners have to eat all meals in their own cells. Where there are two prisoners to a cell, that might breach the standards on space.

I imagine that not much can be done about the situation right now, but how concerned would you be if the timetable for the new build were to slip? Have you had any discussions that would give cause for concern about that timetable? I appreciate that it is in the hands of the Scottish Prison Service but, given what you have said, I imagine that you have a strong interest in it, too.