Equality Act 2010 (Single-sex Exemptions)

– in the Scottish Parliament on 31st October 2019.

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Photo of Joan McAlpine Joan McAlpine Scottish National Party

3. To ask the Scottish Government whether it supports the Equality Act 2010’s single-sex exemptions that allow for women-only spaces and services based on biological sex when this is a proportionate means of achieving a legitimate aim. (S5O-03687)

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

The Scottish Government does of course support the appropriate use of the single-sex exemptions by service providers. That requires a case-by-case approach to determine what is legitimate and proportionate in any given circumstance. There is a requirement on all of us to be precise in the words that we use in this complex area and members will want to note that “biological sex” is not a term that is used in the Equality Act 2010.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

Does the cabinet secretary agree that, notwithstanding any current practice, the genuine occupational requirement in the Equality Act 2010 allows a Rape Crisis centre to ensure that its trauma counsellors are biological women, so that no female rape survivor is further distressed by encountering a male voice on a helpline or a male body in a shelter when she reaches out for help?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I can confirm that a specific provision in the 2010 act provides for the option to restrict the employment of a person in a specific role on the basis of whether or not that person has “a particular protected characteristic”. Employers can do that where that is a genuine occupational requirement and where applying the requirement is

“a proportionate means of achieving a legitimate aim”.

My experience is that organisations of the type referred to are run by dedicated and caring staff and volunteers who have become highly skilled in meeting the needs of vulnerable women and girls over many years. I would expect them to act appropriately and lawfully and to use whichever of the various provisions in the 2010 act they believe necessary in order to deliver services in the best interests of the women for whom they so tirelessly work.

The Deputy Presiding Officer:

There are two supplementaries.

Photo of Elaine Smith Elaine Smith Labour

Does the cabinet secretary agree that the 2010 act is right to allow competitive sport to be organised on the basis of sex when

“physical strength, stamina or physique” are major factors in determining success or failure?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

The member rightly points to the 2010 act having provisions on sport. Nothing that the Scottish Government is doing or considering would suggest any changes to the exemptions that are already in the 2010 act.

Photo of Patrick Harvie Patrick Harvie Green

I hope that we would all support careful case-by-case exemptions that are well evidenced and have a legitimate aim. However, we are also conscious that the debate is being had in a context in which some people—I hope not in this chamber—simply do not accept the reality of trans people’s lives. They do not accept that trans women are women or that trans men are men. Does the cabinet secretary agree that, if we were to listen to those arguments and reach a position where trans men had to use women’s spaces, facilities and services and trans women had to use men’s spaces, facilities and services, that would be wrong, discriminatory and unsafe, and that it will not happen in Scotland?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

Patrick Harvie rightly points out the responsibility that we all have to have that debate, in particular, in a way that respects everybody’s rights. It is certainly my intention and that of the Government to do just that. The Equality and Human Rights Commission’s statutory code of practice for service providers, for example, is clear that, in respect of a single-sex service, the service provider should treat a trans man or a trans woman according to the gender in which they present, unless there are strong reasons to the contrary.