Chamber and committees

As others have said, a later group of amendments will deal with the bill’s interaction with the Equality Act 2010. Amendments in that group seek to clarify that the bill does not change all or part of that act, and I state now that I propose to support an amendment stating

“For the avoidance of doubt”

that this bill does not modify that act. There are, I believe, specific circumstances that justify such an approach, but, in general, provisions that simply state “for the avoidance of doubt” something that is very clearly the case add nothing of value to legislation.

On amendment 21, the bill amends specific sections of the 2004 act. It does not amend section 12, which states:

“The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.”

Because we are clearly not changing that part of the act, amendment 21 is entirely unnecessary and I do not support it.

I do not support Tess White’s amendments 135 and 142, which seek to introduce a duty for ministers to take steps to promote understanding of the bill and to report on that within six months of royal assent. The Scottish Government has held two of the largest public consultation exercises ever undertaken for a Scottish bill and we have published impact assessments, explanatory notes and a policy memorandum. Further information is available on our website. The committee has also conducted a public consultation and taken evidence, producing a thorough and very detailed report. We have engaged with stakeholders and will continue to do so as part of our implementation work, should the bill pass, and we will, of course, engage with users in designing the application process. National Records of Scotland will provide guidance on the process for and the effects of obtaining a GRC. Christine Grahame’s amendment 71, which was agreed to last week, also ensures that all necessary information will be made available on the National Records of Scotland website.

I also do not support Jeremy Balfour’s amendments 137 and 138, which state:

“For the avoidance of doubt, nothing in this Act alters the effect of Article 9 of the European Convention on Human Rights”

while also requiring regulations on the interaction of the bill with article 9. As the committee knows, acts of this Parliament cannot alter the effect of the convention. The amendment brings ambiguity, not clarity. It is not clear what sort of provision could be made in regulations under amendment 138 or who that provision would be addressed to.

I turn to Fulton MacGregor’s amendment 111. As the committee heard in evidence, the Scottish Prison Service already uses comprehensive individualised risk assessments to determine how trans prisoners are managed, whether or not those prisoners have a gender recognition certificate. I am happy to repeat that today, for the sake of the record. Adding provisions to the bill that simply state

“For the avoidance of doubt”

something that is very clearly the case do not generally add value to our laws. Therefore, I do not support amendment 111, but hope that I have given reassurance by emphasising again the Scottish Prison Service’s comprehensive individual risk assessment process.

Pauline McNeill will be aware of the correspondence that we have had with the Equality and Human Rights Commission, which was one of the main advocates for changing the gender recognition certificate process just a year ago. We have tried to understand some of the concerns that it has raised, as well as the change in position. We are still trying to seek clarity on that, as is the Scottish Human Rights Commission.

I have examined the issues that the Equality and Human Rights Commission has raised, and we have tried to take many of the issues that members have raised on board, including in some of the amendments that I have accepted. Even where the risk is, I think, minuscule, perception is important. Many of the amendments that I have accepted have been in the space of trying to reassure people, and I will continue to do that.

We will bring together a number of the amendments that have been lodged and we will reflect on the discussion around the committee table with regard to the art of the possible and what can be included in that stage 3 amendment. The only caveat is that I am not going to commit to gathering information that it is not possible to gather, simply because it does not exist. If what is proposed can be done and is proportionate, I am content to work with people in advance of lodging that stage 3 amendment to consider what the art of the possible might be in that respect. I hope that people are content with that.

We are open to that. People have talked about the increase in the number of people obtaining a gender recognition certificate, which is true; however, the numbers are still really small. In fact, if we break it all down into the various aspects, the numbers are actually so small that it makes the data very difficult to record.

In principle, I would say yes to your question. If there are things that we do not yet gather but which we think we could gather—and if doing so is proportionate and the numbers are not so tiny—I am happy to consider that. We are potentially talking about single figures, however, and it is very difficult to record such data, even in just a practical way.

Tess White’s amendment 143 places a duty on ministers to report every two years on the impact of the eventual act on education, health and criminal justice. We think that that is too broad a requirement, and we do not support the proposal. Likewise, with regard to amendment 144, which would require the registrar general to report on the number of certificates issued to people who had previously obtained one, it would likely not be appropriate to publish information about such a tiny group of people. I therefore cannot support the amendment.

Amendment 148, also in the name of Tess White, requires ministers to consult, within six months of royal assent, on how they should report on the impact of the bill on women and girls, to report on that consultation and then to make regulations, setting out their plans for reporting on that impact. The effect of the phrase

“regulations setting out its plans”

is unclear, so I will not be supporting that amendment. Nor will I support amendment 155, which prevents section 2 from being brought into force until after the regulations required under amendment 148 have been made.

I have said, though, that I will work with people on a proportionate, balanced and doable group of areas to be reviewed. I hope that, on the basis of that, members will not move some of their amendments. I have indicated the ones that I am happy to accept.

The clarity of the bill comes from the overarching “for the avoidance of doubt” amendment in Pam Duncan-Glancy’s name. If you start to pick out different parts of the 2010 act, you give more prominence to different elements of it, which creates confusion and opaqueness. Having the whole 2010 act be beyond doubt makes it clear.

As I have said on a number of occasions, the operation of the 2010 act is for the EHRC to lead on. On the cross-border issue that Foysol Choudhury mentioned, we are working with the UK Government on a section 104 order, and we will continue to work with it, as we would on any piece of legislation in relation to any cross-border issue.

On Rachael Hamilton’s question, I will not talk about a live court case, except to state again that the position of the Scottish Government is no different from and is entirely consistent with that of the Equality and Human Rights Commission. That is all that I can say on that.

On the second question, which was about whether I think that exemptions under the 2010 act matter, of course they do. That is why I have said on numerous occasions that those exceptions are important, should remain and are not affected by the bill. Pam Duncan-Glancy’s amendment puts that beyond doubt—if there ever was any doubt.

Pam Duncan-Glancy gave a clear account of why her amendment is important, so I do not need to say any more on that.

I can confirm to Foysol Choudhury that single-sex service exemptions apply, but they have to be proportionate. The EHRC guidance sets out the proportionality and gives examples of the types of services that it would envisage could be exempt from allowing trans women, for example, to access them. The guidance talks about what proportionality means for a service provider.

On Claire Baker’s contribution, I will need to look at the letter that she referred to, but I am happy to have further discussions with her about the issue. It is about getting the balance right and being very clear about which is the lead organisation in these matters, whether that is employment law, which is reserved, or something else. We would look to the EHRC to lead on that, but that does not mean that we do not have an interest or that we cannot work with the EHRC on further guidance that it may wish to develop and issue. It is about recognising and respecting the lead organisation and its role. I am happy to have further discussions with Claire Baker if there is further thought that we can give to the matter, if that would be helpful.

Okay, and then I will come back to my point.

As I said in response to group 17, I agree that we should review the bill. In addition, the bill as introduced already includes a provision in section 15 under which annual reporting will be required, including on the number of people who apply for and obtain a GRC. The National Records of Scotland provides annual statistics and reports on other areas of civil registration, including marriages, civil partnerships, births and deaths, and the bill will require it to report annually on the processes around gender recognition certificates.

It is important that we carefully consider what it is possible and appropriate to collect information about. The list in amendment 147 is, I think, overly prescriptive, with the duty put on Scottish ministers rather than the registrar general for Scotland, who will be responsible for the processes. That said, although I would not support amendment 147 ahead of stage 3, I would want to consider whether it would be possible and appropriate to provide anything in it as part of the registrar general’s annual reporting duty. If Pam Duncan-Glancy is content not to press her amendment, I am prepared to work with her on that and, if we can, bring something back at stage 3.

I agree with Sarah Boyack that it is important to collect data and information about the impact of the act to ensure effective reporting, but, again, we need to consider what is possible and appropriate. Amendment 149 is very broad. As I have said, the bill is about reforming the process for obtaining a GRC, and you do not need a GRC to access gender identity healthcare. I am therefore not clear how that would work in practice. I cannot support amendment 149 at this stage, but I am happy to work with Sarah Boyack on some of the issues that she has raised.

The amendments raise some wider issues, too. I have written to Pam Duncan-Glancy, laying out in some detail the multi-agency public protection arrangements—or MAPPA—but if those who manage sex offenders are concerned that someone is trying to obtain a gender recognition certificate fraudulently, they will be able to prevent the certificate from being issued through the registrar general or, if it has already been issued, they can have it revoked. Essentially, the justice secretary will put in place a regulation to require someone on the register who is seeking to obtain a gender recognition certificate to first of all attend a police station and inform the police of their intention. Those are proportionate risk-based assessments. MAPPA works very well at risk assessing offenders, which gives us the assurance that, if there were bad actors, which I think was the phrase that Sarah Boyack used, those protections will help to ensure—

The guidance is already provided through the Equality and Human Rights Commission and through governing bodies. Mr Whittle is talking about two slightly different things. On the way in which a public body manages its spaces, there is guidance from the Equality and Human Rights Commission on the proportionality of who would be excluded from certain spaces in sports provision.

If you are talking about competition and athletes competing at whatever level, however, the guidance has to be specific to that sport. That is why we have seen sports governing bodies very publicly making those changes in the light of the evidence that they have gathered and research that they have done. Each sport is very different with regard to the physicality of athletes, so the guidance, as I have said, has to be specific to the sport.

Thinking about the guidance that sportscotland issued last year in Scotland, I cannot see how you can possibly legislate for every scenario and every sport in a bill that is about the process for obtaining a gender recognition certificate. That said, if the Equality and Human Rights Commission believes that guidance requires to be revised again in the light of the bill, we will of course work with it on that. However, the guidance is already there, and sports governing bodies are changing their policy in certain circumstances.

We have done so. Let me be absolutely clear: we have considered every single amendment. We have examined them and assessed whether they are required or not required, what their effect would be and any unintended consequences. We have done that for all of them—every single one of them.

For clarity and simplicity, having the protection or the catch-all clarity of Pam Duncan-Glancy’s amendment 37 offers the clearest way to say that, for the avoidance of doubt, there is no change to any aspects of the Equality Act 2010. To go further than that would actually introduce a lack of clarity. I hope that I could not have been any clearer in my answer to Daniel Johnson’s point regarding the exemptions, which will continue to apply.

Okay. As I have said, I met the Faith & Belief Forum, which includes representatives of various faiths. Not every religious leader was at the forum; there were representatives appearing on behalf of religious groups. I am happy to come back to the member with more information about whom I met. It was a while ago now, so I cannot remember off the top of my head, but I can come back with information if the member finds it helpful.