Chamber and committees

Claire Baker is correct: employers take cognisance of employment law and the 2010 act. The employer has a balance of rights to consider with regard to the rights of patients to request whom they want and the rights and protection of staff working in their organisation and, in that respect, they would draw on equality law under the 2010 act and other employment legislation. You could imagine a scenario in which a patient refused to accept care from someone, because they were from a different minority group, and it would then be for the employer to decide what was proportionate and acceptable in the circumstances.

Well, okay.

As Brian Whittle has rightly said, the policies have to be set by each governing body, because each sport is different and each governing body will take an approach that is appropriate to the sport concerned. We have seen that in some of the announcements that governing bodies have made.

I am not clear that the information that we are talking about is readily obtainable, but I accept that Brian Whittle says otherwise. Therefore, although I will not support amendment 1, I am happy to have further discussions with him about whether there is something that we could capture within the wider review criteria that we will bring forward at stage 3. I hope that he will be content with that.

Amendment 76 would require the Scottish ministers to prepare and publish a report on a review of the impact of the legislation on patients

“where knowledge of the biological sex of health professionals is required, including on religious grounds.”

I should say that I met a range of religious leaders and bodies as part of the Faith & Belief Forum as part of the consultation on the bill.

The Scottish Government expects everyone to be treated fairly and equally and with respect when seeking healthcare. National health service staff make every effort to ensure that the privacy and dignity of all patients are maintained in Scottish hospitals and healthcare more widely.

“The Charter of Patient Rights and Responsibilities” says that the patient’s

“needs, preferences, culture, beliefs, values and level of understanding will be taken into account and respected when using NHS services”

and that, when considering those preferences, the health board

“must also consider the rights of other patients, medical opinion, and the most efficient way to use NHS resources.”

In short, the NHS will try to meet people’s needs but, as Pam Gosal herself recognised, it can do so only where possible. We can all think of situations—not least an emergency situation—in which, essentially, it might have to be the presenting doctor who has to intervene.

It is not clear how the information that Pam Gosal sets out in her amendment could be collected or published, or how the bill would impact on that area. Therefore, I do not support her amendment.

As I have said, I met the Faith & Belief Forum, which is a forum of religious leaders across many faiths, and in that discussion, some expressed support for the bill and some expressed the view that they did not support it. It was a free and frank discussion. If the member wants, I can say who was at the forum; if they are happy for the information to be shared, I am happy to say which organisations I met.

On Foysol Choudhury’s other point, the matter of choice comes under the charter of patient rights and responsibilities, which says that patients will have a choice. However, that will clearly depend on the availability of a female doctor, and in some specialties, that might not be possible. There is always a “where possible” caveat, for all the reasons that we have talked about.

Can I just deal with the other amendments first?

The explanation that I gave to Rachael Hamilton on the position of the 2004 act answers Pauline McNeill’s point. The 2004 act is not changed in terms of the effect of obtaining a gender recognition certificate. Under the Equality Act 2010, the protected characteristics of sex and gender reassignment sit alongside one another.

Finally—I am sorry if I have missed some points—Brian Whittle made a point about the guidance—

The EHRC’s position is on the effect of a gender recognition certificate. As it has stated—I think that its position is on its website—the bill changes none of that.

I will not comment on the court case, other than to say that our position is exactly the same as the EHRC’s position, which the member has agreed with on many occasions—

We are not changing the effect of obtaining a GRC. The effects of that are laid down in the 2004 act. That will not change at all; the effects are exactly the same. That is the position.

In terms of the practical effects to which Daniel Johnson referred, as I have said previously, the guidance is led by the EHRC. If he is asking me whether we intend to or would be prepared to work with the EHRC on whether the guidance needs updating after the passing of the bill, the Government would of course be more than happy to do that. However, such work would have to be led by the EHRC, because it is the lead body in terms of the guidance.

If the member is asking me whether we will work with the EHRC if the guidance needs to be updated in light of the passing of the bill, I gave a commitment that we will do that.

—and guidance on the effects of the 2010 act. The bill also does not change the provisions on the protected characteristic of gender reassignment that are contained in the 2010 act.

Convener, would you like me to finish?

That is why I have mentioned the Equality and Human Rights Commission’s guidance. It is the body that gives guidance on the Equality Act 2010, because it deals with reserved matters.

In recognition of some of the challenges facing employers, the EHRC provided guidance on the existing provisions; that was in advance of any changes that we have made to the 2004 act. We need to bear in mind that not everyone who is living as a trans woman or a trans man, including those working in public services, has a gender recognition certificate, and the guidance covers the whole situation, whether or not they have a GRC. The guidance would still be required, irrespective of whether we had this bill.

The EHRC gives guidance to employers on the balance and proportionality required with having an exception under the 2010 act. The exception is there to use, and the NHS can use it, if it is proportionate to do so. I do not think that any guidance that we could provide would make the position any clearer, to be honest. In any case, the EHRC is the body that provides that guidance to public bodies.

What is my interpretation of the 2010 act? Do you mean in its entirety?