Chamber and committees

Good morning, minister—it is nice to see you, and thanks for coming in. It is always good when one of our colleagues tells the minister what we are going to ask. [Interruption.] The good news is that I am not going to ask about data now—although my beliefs on data, especially healthcare data, are well known: we are very good at collecting data but not particularly good at deploying it, especially across sectors. We need to get better at that and we could get better at that.

I want to follow up the extremely important issue that Murdo Fraser raised, which we could probably spend the whole time talking about. During Covid, access to healthcare was restricted, which had a significant impact on elective surgery for chronic pain and on access to mental health services. It is reasonable to extrapolate from that that the economic inactivity rate would move in an upward direction. At a certain level, if a person’s pain is not treated, it becomes chronic pain, so more people must have moved in that direction.

I am always interested in the cross-portfolio impact of decisions. I go back to the reprioritisation of £65 million in primary care funding and £38 million in mental health funding. The minister said that, for every £1 that is spent, you get £5 back. Surely that indicates a false economy—taking money from one side of the ledger affects the other side of the ledger. Given the return on such investment, would it be prudent for the Government to revisit the position?

It is interesting that the minister mentioned that mental health issues cost our businesses £2 billion; I have read that the cost is more like £4 billion-plus to the economy. How do we strike a balance?

I will use the fact that the minister brought up data. We collect good data; if we do not deploy it in a way that gives you the answers that you need, we need to invest more in it—we could get into that big time. Should we focus first on how we deploy the data to give us better and more accurate responses?

We could discuss that issue all day, minister, but I had better finish off my questions. We know that Scotland is the unhealthiest nation in Europe, so I am slightly concerned that you think that things will get worse. We know that economic inactivity follows ill health, and there is no doubt that Covid has significantly exacerbated that. Surely, if we focus on health—and education, for that matter—we will positively impact the employment and activity rates in Scotland. That is why I said that it is time that we look to undertake more cross-portfolio working rather than working in silos, which is what are doing just now.

One thing that I want to touch on, which is one of the most important things that we have spoken about today, is the impact that employers can have on the health and wellbeing of staff.

Given that we have a real problem with mental health, would it not be prudent for the Government to start pushing an initiative that encourages occupational health and the promotion of health and wellbeing within businesses? It could take a significant burden off statutory services if we could get employers to recognise that correlation between the £5 they get back and the £1 that is spent on mental health. Could the Government focus and bear down on that?

I know that it is unusual to be brought back in. On Mr Ewing’s point, I have highlighted the lack of record keeping across all local authorities, which seems to hamper things. The key here is that you only have to have probability; you do not have to have proof. I also underline the phrase “in loco parentis”—it is key to your deliberations. Thank you for allowing me back in.

Thank you, convener—I am happy to have the opportunity to speak once again on this issue. At the outset, I note that the former Education and Skills Committee produced an in-depth and comprehensive report—I do not know whether members have seen it—as the bill that became the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 progressed through Parliament in the previous session of Parliament. I recommend reading that report.

Sexual abuse, and specifically child sexual abuse, has been swept under the carpet for too long, and victims have been left without the support that they desperately need. As several colleagues will be aware, I have been working on the issue with constituents for a number of years. I think that it is fair to say that my understanding of the trauma that they have suffered over a prolonged period, as they seek justice and redress, and my discomfort and disquiet at the way in which victims are retraumatised and left open to suffering secondary abuse, continues to deepen.

The redress scheme was designed to make it easier to access redress than taking a case to the civil court. However, the Criminal Injuries Compensation Authority already has a similar redress scheme in which the decision is based on the balance of probabilities. That is different from a criminal court, which decides on the basis of “beyond reasonable doubt”, and the victim does not need to wait for the outcome of a criminal trial if there is already enough information to make a decision on a case. Crucially, however, the 2021 act suggests that the victim would waive their right to take future civil action and any subsequent payment from civil action, and if there had previously been a criminal injuries compensation scheme payment, the act would require that it be reimbursed.

I welcome the redress scheme, but I think that it is flawed. Most important, the 2021 act was designed to provide financial redress to survivors of historical sexual abuse while in care in Scotland. Welcome though the legislation is, it is too narrow in scope. When I questioned the Deputy First Minister on the eligibility criteria for the scheme, and on whether victims of sexual abuse in a school setting, for example, should also be included, he responded by saying that the scheme is designed to compensate those in situations where the state—a care home, in this case—had undertaken parental responsibilities.

However, the bill that led to the Education (Scotland) Act 1980 used the term “in loco parentis”, which has the effect of transferring parental responsibilities to schools temporarily. There are many allowances as to where that can be true, including specifically for the Fornethy survivors. That being the case, the 2021 act is flawed and could, I believe, leave the Government open to a challenge in the European Court of Human Rights and from the Equality and Human Rights Commission, because of its inequality of approach to the victims of a crime, especially such a heinous crime.

Members may be aware that there was a related case in which the judge found that the Irish Government had misrepresented a ruling by the European Court of Human Rights by excluding children who were abused in Irish schools from a redress scheme. Although I accept that the issues in that ruling are not exactly the same, it suggests that the 2021 act could be open to a similar legal challenge. Again, the Fornethy survivors sit directly in that path.

As I said, the 2021 act was and is very welcome, but it is incumbent on us to ensure that it is the very best that it can be for all those who have been victims of such a heinous crime and have to carry that burden throughout their lives. Financial redress will not heal their wounds, but it will at least perhaps give them comfort that their voices have been heard, and in the acceptance that they have been victims.

However, I think that more needs to be done on understanding the journey of those victims—both those who speak out and those who initially cannot do so. The repeated trauma of retelling their story to multiple agencies, and the lack of accessibility and adequate support, are all part of the jigsaw.

I have absolutely no doubt that the Government has a commitment to those who have suffered such a crime, but I think that it needs to be braver. It will need to look beyond the limitations of how the 2021 act is currently deployed for those who have suffered in similar ways but are currently excluded, including the Fornethy survivors. If the Government does not do that, it will require the legislation to be amended further down the road. We need to make the act everything that it could be. I speak on behalf of the Fornethy survivors and all those other child abuse victims who are yet to have similar redress.

Amendment 103 applies to any governing body or authority that needs to make a decision on the inclusion of trans people in sporting activities, especially with regard to

“any safety concerns or .... material advantage that may be gained as a result of change of gender resulting from this Act”.

As has been said, the Equalities and Human Rights Commission has stated:

“By broadening the group of trans people who will be able to obtain legal gender recognition, the proposals have significant implications for the operation of the Equality Act in Scotland. Whilst the Equality Act makes provision to treat people with the protected characteristic of gender reassignment differently from others sharing the same legal sex in certain circumstances and where justified”—

sport is one of those—

“such provision does not apply in every context contemplated by the Act.”

The reasons why we must include these amendments in the bill are as follows. First, as I have said, sport, globally, is in turmoil as it tries to deal with the trans community’s participation in sport. I have mentioned the mess that sport has made of dealing with the intersex community and its inclusion in sport—to the detriment of that community and to the detriment of sport.

There is variation from sport to sport, from country to country and even, in the US, from state to state. That means that some trans athletes participate as a woman locally but must compete as a man nationally or internationally.

Sports national governing bodies are unsure of the legalities under which they can act. They may leave themselves open to court action on the grounds of prejudice. Conversely, if a trans athlete is injured, or injures a fellow competitor, the sport may be left open to legal action for failing to take appropriate action to protect the safety of participants. In other words, I say to the cabinet secretary, many sports are not taking any action, for fear of making the wrong decision.

Currently, in international sport, the determination of sex involves a swab on the inside of the cheek. That determines a competitor’s sex, for life.

It is not just about national governing bodies but about coaches and teachers, and it is subjective. I speak as a coach. I have been a senior coach for 20-odd years. I was the chair of Athletics Coaches Scotland and am a member of the European Athletics Coaches Association. We are in turmoil. We do not know how to deal with the issue, because it is so subjective. Sport does not employ its participants. We are not subject to employment law. The problem is that, if I make a decision that is based on safety, that is subjective, and I am open to legal action.

I was asked by a national governing body whether it would be acting illegally if, on the grounds of safety, it took action to prevent a trans athlete from competing, given that the trans athlete had a material advantage due to the sex in which they went through puberty. As I have said, it is not just national governing bodies that have to make such decisions in sport; teachers and coaches have exactly the same issue when selecting teams. The fallout from a wrong decision is significant.

If a male and a female athlete are of the same size, the male can generate approximately 160 per cent of the force that the female can generate. A person who was born male and has transitioned to female retains many of the male characteristics that give a huge unfair advantage.

When women go through puberty, the quadriceps angle of the hip changes. Is that important? Absolutely. It is physics—it is about the application of power. A male’s bone density, muscle mass and heart and lung size are one third greater than those of a female. Especially, therefore, in sports in which contact is made, we are asking females to compete, potentially, in an arena in which the person opposite them will be able to deliver a much greater force to a much weaker frame. Then there is the issue of menstruation, which was highlighted by Dina Asher-Smith and by Eilish McColgan this year. In any sport in which power and speed are significant elements, there is a significant risk of injury.

When it comes to trans men competing in women’s sport, they are likely, if they are transitioning, to be going through hormone replacement therapy. Those hormones are illegal, according to the World Anti-doping Association. In other words, that is tantamount to legalised doping. Currently, most trans men still compete as women, because they cannot be competitive in men’s sport.

I will give examples from my sport. The world record for the 400m for women was set in 1985 by an East German by the name of Marita Koch—that was during a time when there was state-sponsored doping. Since 1985, not one woman has got near that performance. However, last year, 10,000 men ran quicker than that. A man could be ranked 1,000th in the world, then transition and all of a sudden be a world record holder.

Another example is Tori Bowie, one of the greatest sprinters in the world, who has won the Olympics and the world championships. However, last year, men ran quicker than her 15,000 times. It is just an unfair playing field. Surely we cannot have women excluded from sport, as is currently happening, because politicians cannot make decent law and will not take responsibility.

Do not think that this is just happening at elite level, because it is happening across all age groups and abilities in our schools and our sports clubs. I have seen it.

As I said to the cabinet secretary, I think that it is fantastic that the New York marathon and the Boston marathon are taking a stance on the issue by creating a non-binary category. That category tripled in size in one year, which says to me that we are now offering trans athletes the opportunity to participate and they are confident about coming forward. Those numbers will only increase exponentially, and we have to be aware of that.

There are more than 1 million women and girls participating in sport in Scotland. It has been a long fight to try to get equality between men’s sport and women’s sport, and we have come such a long way in my lifetime with regard to the events that women are now able to participate in and parity of prize money.

In making this legislation, it is imperative that the Government considers the impact of the bill across all of society and does not pass the buck. We have to protect women’s rights and we have to protect the trans community—I refer again to what happened to Caster Semenya.

We all want equality across society, but you cannot create equality for one group by creating inequality for another. The Scottish Government cannot hide from the potential safety issues, and those must be dealt with prior to the passing of the bill. We cannot wait until there is an injury before amending the legislation.

Sport is already gathering that information. As I said, in many sports, when someone enters a competition, they must specify whether they are male, female or non-binary. It is actually simple to gather that information, and it is incredibly important.

As I said, across the globe, from sport to sport, people are struggling massively with this issue. I am not sure what is happening with track and field, but at one point cycling accepted trans women in women’s competitions, but then that policy was changed, and rowing currently accepts trans women in women’s competitions. At the moment, sport does not know how to deal with the issue. Difficulties are faced not only by national governing bodies, which I will talk about later, but also by teachers and coaches across the world and in this country. It is important that, as the bill progresses, we understand the implications for sport.

The Equality and Human Rights Commission says that, as it is currently drafted, the bill impacts on the Equality Act 2010 in certain circumstances. It is important for sport to gather that information so that we can understand how to act on it for the benefit of all.

Having listened carefully to the cabinet secretary, I will press amendment 1. It has been mentioned that the numbers are small, but we already know what the numbers are. In this year’s New York marathon, there were 45 finishers in the non-binary category, three times more than the year before. We must ensure that we collect data. If that trend continues, the non-binary category will grow and grow. That is great, but we need to understand the impact of that, including on other categories.

This is already a live issue in sport, and it must be dealt with. We must collect data. I am not suggesting anything in my amendment that is not already happening in sport.

I am telling you what is happening out there, cabinet secretary. Sports national governing bodies are not making the right decision, because they are frightened of ending up in court. That is what is happening out there.

I can go through as many power and speed-based sports as you like. Some are making one decision, while others are making a different decision—to the detriment of women. That is happening out there, cabinet secretary. It is not a matter of having a bit of paper telling us what the rules are; if the rules are clear, can you tell me why they are not being applied across the whole of sport? The approach is not working, and something has to be done properly to deal with the situation.