Chamber and committees

I agree. Pam Duncan-Glancy’s amendment 145, which calls for a three-year review, has the right time frame, because it allows for data to be generated. That leads to the question of what we review and what can be reviewed, based on the information that will be available. Would that monitoring in and of itself be kept under review? I agree with Sarah Boyack, but my question is: what will the review criteria be and what information can or will we gather?

On Karen Adam’s question, people will not require a gender recognition certificate to work in healthcare or in any other walk of life. As far as I am aware, that will not be required.

Finally, it is for the Equality and Human Rights Commission to consider the guidance given to public bodies, including the NHS, and it has done so. The commission has already issued public bodies with guidance on the operation of the Equality Act 2010.

What is important—

Okay—I apologise.

Yes, I see your point. The exclusions are exactly the same, and the bill makes no change. The updated guidance that the Equality and Human Rights Commission has issued should be followed by public bodies, and that guidance is clear. The EHRC is clear that if a public body deems it proportionate—the EHRC gives some guidance on proportionality in applying those exceptions—to exclude trans women, or trans men for that matter, with or without a gender recognition certificate, it is entirely within the 2010 act for it to be able to do so. I do not think that I can be any clearer than that.

Jamie Greene’s point on the use of the phrase “for the avoidance of doubt” just popped back into my head. That is not normally something that we would have in the text of the bill. However, the reason that I felt that it was important, in this case, to have it in the bill relates to the discussions that we have just had. It is—to go back to Pauline McNeill’s point—intended to provide absolute clarity; it is stating the obvious, and the facts of the matter. From one point of view, why would we need to do that? It is the absolute law and the facts of the matter, and it cannot change the 2010 act. However, we felt that, because of the importance of the discussion and the need for reassurance, it was important and proportionate to put it in the text of the bill. That is the clearest way of moving forward.

What is not required is for different elements of the 2010 act to be pulled out and also to be included in the text of the bill, because the 2010 act covers all that, and there is no change.

On Brian Whittle’s point, I accept the need for sports governing bodies to be clear about what relates to their sport, and each sport is different in relation to the treatment of transgender athletes. We have seen different governing bodies develop and change their guidance in the light of rulings, the evidence that they have taken and the rulings that they have made, and that is entirely appropriate. Sportscotland updated its guidance last year in order to try to help with that.

All governing bodies need to apply the principles of the Equality Act 2010, and—

Yes.

I cannot speak for all governing bodies, but I am aware of some very public positions that a number of sports governing bodies have changed after looking at their sport and all the issues that Brian Whittle has raised. They have changed their policy in relation to transgender athletes on the back of that. It is right and proper for each sport to look at its rules, because each sport is very different with regard to unfairness and competition among athletes. The issue is not the same for every sport, and I just cannot see how we could legislate across the board when every sport is so different.

It is much better to allow sports governing bodies to do this, as they are doing; indeed, I am sure that members around the table will be aware of some very high-profile policy changes in that respect. Many sports bodies are doing that sort of thing already, and it is for them to lead what is appropriate for their sport, within the law and making sure that they are in line with the 2010 act. It is entirely for them to do that within the existing rules. I just do not see how we could legislate for a pan-sport position.

The Equality Act 2010 protects the characteristics of sex and gender reassignment—it protects all those characteristics. It is a rather good piece of legislation and is entirely untouched by the bill. I have said that on a number of occasions, but we are now literally putting that on the face of the bill for the avoidance of any doubt.

Just one second—let me finish this point while it is still in my head.

The Scottish Prison Service was mentioned. I put it on record that the Scottish Prison Service carries out robust risk assessments. Whether we are talking about a transgender woman or a transgender man, and whether or not they have a gender recognition certificate, the Prison Service will place them in the estate that is risk assessed as best for them and for the other prisoners in that estate. That is how the Prison Service has operated and will continue to operate, whether or not someone has a gender recognition certificate.

Hang on.

We would not try to legislate in this bill for something that governing bodies have already demonstrated that they are doing. They might not have all done it in the same timeframe, or to the satisfaction of Brian Whittle, but many of them have done it on the international stage, and we have seen changes in policy emanating from that. Given the nature of sport and the fact that it differs from one governing body to the next, those bodies are best placed to have these discussions and make such changes—which means, in Scotland, following sportscotland’s guidance.

I see that Brian Whittle wants to come back in.

I was going to turn to the reasons why I do not support amendments 23 and 104, which is because they single out section 11 of the Equality Act 2010, and the bill cannot change section 11. We have got the catch-all amendment from Pam Duncan-Glancy that I referred to earlier.

I also do not support amendment 24, which singles out section 195 of the 2010 act. The bill does not alter the exceptions in section 195, which provides for certain exceptions from sex and gender reassignment discrimination in relation to sport.

I do not support amendment 110, which focuses on collecting data on sex, because its effect on the interpretation of the bill is unclear, and nor do I support amendment 152, which requires that the functions under the bill must be exercised in accordance with the 2010 act. The requirements of the 2010 act do not impact on who can and cannot obtain a GRC or the process for obtaining a GRC.

Let me turn to amendments in relation to the Equality Act 2010 and guidance. As I have said, it is for the UK Government, or the Equality and Human Rights Commission, as a reserved body, to issue guidance on the Equality Act 2010. The EHRC is a statutory non-departmental public body established by the Equality Act 2006.

In relation to the 2010 act, the EHRC has published guidance for individuals, organisations and the public sector. It published updated guidance earlier this year on protecting people from sex and gender reassignment discrimination in relation to the act. It has also published a statutory code of practice, which assists service providers with understanding the relevant issues in relation to the act. It is the right body to do that. As I said earlier, if the EHRC wants to update its guidance again after the bill has passed, we would welcome that.

On that basis, I cannot support amendments 25, 74, 75, 101, 103 and 151.