Chamber and committees

Sorry, but the rest of the UK is not reforming the law, cabinet secretary. That is the point.

Amendment 23 is along the same lines as Foysol Choudhury’s amendment 104. Amendment 24 is similar, but it seeks to clarify more precisely that obtaining a GRC would not impact on the protections offered by the Equality Act 2010 in relation to sport.

Amendment 23 addresses a key concern, which has been expressed by many women, about the effect of the bill on the 2010 act. It is important that the safeguards and protections afforded by the 2010 act are not impacted by the measures in the bill that is before us—measures that would mean that many more GRCs would be issued to a loosely defined and more diverse group. Without passing any judgment on the policy issue at stake, it is absolutely vital that the definitions that we use are clear. Law making must be precise, otherwise it will not be effective. No matter the aim, substance or ideology behind legislation, we should all be able to agree that laws must be clear and that the definitions within them must be plain.

I turn to points that were made earlier. As it stands the bill is too vague. It is not well defined and leaves far too much to subjective interpretation. We should all be agreed on looking to improve the bill. This new law will not be workable for anyone if it is incomprehensible or imprecise. Ultimately, the bill is not clear enough. It is important that the public are reassured that the bill will not harm women’s rights.

Amendment 23 simply seeks to take the cabinet secretary at her word, as expressed in previous proceedings, by writing on the face of the bill the fact that the new system of gender recognition that it introduces will not change how the definition of sex in the Equality Act 2010 is interpreted. I note that Foysol Choudhury’s amendment 104 is similar but extends that approach to the definitions of “woman” and “man”.

Amendment 24 safeguards the rights of sports bodies to include separate sports categories based on biological sex. It seeks to achieve that by stating:

“For the avoidance of doubt, nothing in this Act affects the protections offered by section 195 of the Equality Act”.

The 2010 act prohibits discrimination against trans people. However, it provides an exemption for sports bodies to be able to require that athletes compete in sports based on their biological sex where that is needed for safety and fairness. The amendment lodged by my colleague Brian Whittle on the reporting duty, which was not supported by the Scottish Government, expanded on the detail of the exceptions that are required to safeguard women and girls in sport.

The committee received evidence that the bill would negatively impact women’s sports by changing the group of individuals who can participate in them. Athletes such as Sharron Davies have stated that self-declaration would make it impossible for sports authorities to enforce single-sex sports. In addition, Mara Yamauchi has raised concerns that girls may self-exclude from sports at both grass-roots and elite level because of the bill.

That issue strikes at the heart of fairness for women and girls. How may they fairly compete against athletes who have genetic benefits that they cannot possibly have? How can it be fair to stack the playing field against them, based on inbuilt advantages that they cannot match, through no fault of their own? To me, that would simply be deeply unfair to the young girls who are striving to succeed and will suddenly find that they cannot, and to the world-class athletes who have sacrificed to be the best, only to find that they cannot win.

That goes against every principle of sport and basic fairness. Amendment 24 seeks to assist sporting bodies to make it clear that, in legislating for the new system, the Scottish Parliament has no intention of undermining the use of the protections in section 195 of the 2010 act. Again, I make it clear that the intention of my amendments is to make the bill clearer. Nobody benefits if the bill is not clear; that will only make things more difficult for everybody.

If the cabinet secretary wishes to ensure that sports bodies are able to protect the rights of women who want to compete fairly, the amendments will achieve that. If she does not want to achieve that, and if the bill’s intention is to make the playing field unfair for women—I sincerely hope that that is not the case—I hope that those who are seeking to achieve that aim will reconsider. I hope that if that is the intention, the cabinet secretary will say why that is fair for young women or for world-class female athletes.

We should not risk legislating in a way that would make it harder for service providers to use the powers that they currently have under the Equality Act 2010 to respond to women’s needs for single-sex provision for reasons of privacy, as discussed previously, and for dignity and safety, in sport and more generally. My amendments are intended to prevent us from making that mistake.

I therefore invite the cabinet secretary to explain how, by broadening the group of people who will be able to obtain legal gender recognition, her proposals do not have significant implications for the operation of the Equality Act 2010 in Scotland. Furthermore, if she believes that GRCs should not be relevant to the operation of the 2010 act, and if she wants to create clear laws without leaving room for vague misinterpretation, why will she not support my amendments?

Finally, if the bill’s intention is to change the entry requirements for competition for women and girls in sport, I ask her for a very simple answer to the question of how it is fair to disadvantage women solely because of genetics.

I move amendment 23.

We are all looking at different aspects in this group of amendments. What if the cabinet secretary were to advise that the Government could lodge a catch-all amendment that brought together all these elements with regard to data collection and the reviewing of this particular reform?

Cabinet secretary, will you please accept that obtaining a GRC through a self-identification process will somewhat change the section 22 privacy protections, because it will be made available to a wider and more diverse group? That probably brings us back to Pam Duncan-Glancy’s amendments and the legal challenges that would come because of them.

On that basis, would you consider defining “living in an acquired gender”?

Thank you, convener. I am really grateful to be let in.

I want to go back to the points that Pauline McNeill and I made earlier. Cabinet secretary, are you able to set out for the committee the content of the argument that the Scottish Government made in court two weeks ago? What did you go to court to argue? I am sure that you are not protected by legal constraints on that.

My other question relates to the concerns expressed by Brian Whittle and others about the interaction of the GRC with the Equality Act 2010. Does the Scottish Government think that women’s rights to manage their boundaries around the opposite sex matter?

I understand that—that is already covered in the protections.

That is with regards to gender representation on public boards, which is a devolved matter. What is the EHRC’s view on other aspects that are reserved?

The point is—

Thank you for letting me in, cabinet secretary. My question relates to Pam Duncan-Glancy’s amendment 146. The Scottish Conservatives are sympathetic to it, and I think that Pam Duncan-Glancy will have carefully considered its drafting. Therefore, I would like clarity about what data is not currently collected and what could potentially be collected very simply.

Subsection (2)(f) of the new section proposed by amendment 146 asks for information on legal challenges. That is important, because we know that there is confusion around the privacy provisions in section 22 of the 2004 act. It is important that the Government makes good legislation so that it understands the impact of legal challenges.

I am not sure whether Pam Duncan-Glancy will move her amendment, cabinet secretary, but is there any possibility of your having a wider conversation with us about what can and cannot be done under its terms?