Chamber and committees

From reading your submissions and listening to you today, it is clear that 2023 would be a massive cliff edge and that 2026 would still be a cliff edge, because it is not that far off.

What do the witnesses think about taking the opposite approach, which I think one of you mentioned, whereby, instead of dumping everything, we keep everything and then decide what we want to get rid of for flexibility? That would be a much more prioritised and much less risky approach, which would give you the opportunity to seek opportunities rather than taking the risk of putting environmental health, human health or animal health at risk as a result of huge uncertainty.

Do other witnesses want to come in? Donna Fordyce talked about a cliff edge with losing the sunset clauses.

Not moved—[Inaudible.]—research considered by the cabinet secretary in order to talk about it.

Amendment 149 not moved.

Section 16—Further modification of enactments

Amendment 16 not moved.

Section 16 agreed to.

After section 16

Amendment 26 moved—[Rachael Hamilton].

I welcome the cabinet secretary’s commitment to discuss my amendments. Will she accept the need for co-ordinated and coherent research and monitoring if the legislation is to be successful and have an impact? Does she accept that we must think through the implications for those who will be affected by it? Whether or not they want to take the opportunity of using the simplified GRC process, there will be more interest in the topic. That puts an onus on the Scottish Government to review, in a couple of years’ time, what the impact has been and what further work is needed from the Scottish Government and its agencies, as well as in public life more generally.

There are two parts to your response, as there are two elements of my amendment 149. I am pleased with your comments about MAPPA, and I want to consider that matter in detail after the meeting, because I have not seen the letter to which you referred. However, at least you are reaching out in the direction of specifically addressing the issue of bad actors.

The first element of my amendment is there because, from looking at experiences in other legislatures, it seems that there is a need for support to be in place. I was disappointed that the cabinet secretary did not accept my amendment 139, which was designed to enable people to get the support that they need, given the likelihood that more people will use the opportunity to transition. That goes back to making sure that there is a review to ensure that a variety of support services are in place. I have not been specific on exactly how you do that, with the intention of enabling the Scottish ministers to use their judgment on the issue.

I come back to the point that changes will be made and, from looking at other legislatures, it seems that the Government needs to plan ahead and think about the potential impacts of the legislation once it is passed and people can use it.

Amendment 139 would require the Scottish ministers to carry out a review into the impact of the bill on gender identity healthcare. The overarching aim of the amendment is that such a review should have the gravity of the Cass review in England; however, it would also enable the Scottish ministers to consult on its remit. Subsection 3 would require any review to consider how access to and provision of gender identity healthcare could be improved.

Amendment 139 comes on the back of the evidence that the committee heard on the provision of trans healthcare, including the Cass review, which is currently taking place in England. It seeks not to delay the bill—as, I understand, was called for by a minority on the committee—but to strike a balance to ensure that a review happens in line with paragraph 289 of the committee’s stage 1 report.

I have spoken to a number of constituents, who shared opinions both for and against elements of the bill. However, I hope that we would get broad support for amendment 139, to ensure that anyone who goes through the GRC process and wants to receive gender identity healthcare is able to do so.

Last week, in discussion of an earlier grouping, I mentioned the waiting times at gender identity clinics. Currently, trans people experience significant delays in receiving treatment from clinics. The bill could increase the number of people who try to access that service, which would exacerbate the demand on it. That issue needs to be monitored.

Amendment 139 would ensure that, in implementing the bill, the Scottish Government would take steps to ensure that its consequences are fully understood and that services for trans people adapt to meet their needs as those change.

I note that amendment 140 is similar; it is slightly more narrowly focused, I think. I therefore hope that Rachael Hamilton might support my amendment, which I think is more beneficial.

In addition, amendment 139 sits alongside Pam Duncan-Glancy’s amendments 145, 146 and 147. It is aimed at ensuring that there is a commitment to having a review of what is important legislation—within two years of royal assent, I have suggested—to make sure that the implications of the bill and the changes that it brings around in society are carefully monitored, and that the strains that are already on support and healthcare are addressed, properly reviewed, monitored and acted on. Amendment 139 leaves to the Scottish Government the capacity to decide on the detail of that, but at least commits it to doing that review.

Amendment 149 would require the Scottish ministers to specify narrow areas in which data is able to be, or required to be, collected

“on an individual’s acquired gender and gender at birth”.

Those areas would be specified in the text of the bill and would initially include only

“access to and provision of healthcare”

and

“the commission of specific offences.”

Ministers would be able to modify the list through regulations.

The committee heard a wealth of evidence on data collection. It is clear that there is no example of best practice and that there are criticisms of all countries that have moved to self-ID laws. Senator Doherty gave evidence on Ireland’s experience of self-ID laws, and said that Ireland had

“a long way to go”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 22 June 2022; c 16.]

on data. The elements in Pam Duncan-Glancy’s amendment are, therefore, crucial.

I will highlight two issues that my amendment 149 addresses. First, it would require Scottish ministers to specify where data must be collected on both

“acquired gender and gender at birth”

in narrow and specific areas. At present, public bodies follow guidance, but the terms “gender” and “sex” are frequently used interchangeably. The initial list of areas would be confined, first, to healthcare, because data plays a significant role in designing services and ensuring that everyone receives appropriate healthcare. The bill is likely to lead to an increase in the number of people who apply for and obtain a GRC, which is likely to lead to a larger cohort of people who might need to access gender-based health services for the opposite sex.

For instance, a trans man might need to access a cervical smear cancer-screening test. It is essential, in order to protect the health and outcomes of trans people, that our NHS has robust data. Historically, we have—rightly—argued for an increasing focus on the importance of research on women’s health where there are differences from men’s health. One of the issues that came up in conversations that I had with trans constituents during discussions on the bill was a concern that there is no longitudinal research in Scotland that specifically monitors the long-term health of trans men and women to ensure that they get the support that they need throughout their lives. I want to flag up that issue at this stage, because I think that the Scottish Government needs to do the heavy lifting so that when we make it easier for people to transition as a result of the legislation, they can have confidence that our health service will be there for them.

The second issue that my amendment 149 addresses is about responding to concerns that have been raised with me on the small number of bad actors who might use the bill to exploit women and girls. I wanted to explore how we can, during discussion of the bill in Parliament, send a clear message to bad actors that the bill is not an opportunity for them.

I know that the issue was discussed in relation to an amendment by Russell Findlay earlier in the committee’s discussions at stage 2, and in relation to an amendment from Jamie Greene earlier today. To be clear, my intention is absolutely not to ban people who have committed specific offences from transitioning if they meet the criteria in the bill. However, I think that there should be capacity for organisations where vulnerable women need safe spaces to be aware of that.

Today, we have debated several amendments that highlight the need for clear and effective guidance for a range of organisations. We need to be clear that people who want to register as trans specifically in order to abuse women are predators, and I am sure that every MSP will want to ensure that we do everything that we think is necessary to protect women and girls.

A number of concerns have been raised with me using the example of Denmark, where instances of rape and sexual offences rose in the year after self-ID legislation was introduced. The critical issue there is that there is no data available that can prove or disprove whether self-ID legislation or something else was behind the rise, but I strongly believe that we need to explore the issue.

The cabinet secretary said that there is no evidence that we should be worried about that. I repeat that I am not suggesting that people should be prevented from transitioning if they have lived in their new gender, as set out in the bill. I want to be clear that my concerns are not about trans women, but about bad actors. I am concerned that there is a need to send them a clear message, and to ensure that there is accountability for people who commit abuse against women and girls, and who will take any opportunity to carry out their abuse.

My amendment 149 is partly a probing amendment, but I think that it is really important. I am keen to hear from the cabinet secretary what work she has committed to doing to ensure that sex offender notification would be acted on. We have heard from the cabinet secretary that the police would carry out monitoring; I want to get on the record an explanation of the extent to which that would involve prisons, safe spaces for women who have experienced sexual abuse or any other area in which she thinks research is needed. We know that there is new statutory action, as the cabinet secretary outlined, but I would really like more detail on that.

Will the cabinet secretary take an intervention?

That would be helpful. Table 1 in the report that we commissioned lists key areas—including environmental protection, animal health and welfare, chemicals, plant health, food standards and police and judicial co-operation, to name just a few—and notes whether alignment in each of them is devolved. If we consider the information that the Scottish Government will have held over the past 23 years, we will start off with a database. We would be very interested to receive feedback from the cabinet secretary with clarity about alignment and non-alignment, as well as the timing. Thank you.

The issue is where you have decided not to align. You say that it would be too much work to routinely scrutinise everything, but surely there needs to be a process whereby Parliament can at least ask questions about where you have decided not to align and why. You have given us examples of a couple of policy issues around industry and agriculture, but should that not be tested? Should it not be visible so that people can agree or disagree with the Government’s decisions? Should we not have clarity of process and timing on the issue?