Gender Recognition Reform (Scotland) Bill: Stage 3

– in the Scottish Parliament at on 21 December 2022.

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Section 12—Copies of certificates to be given to other Registrars General:

We now move to group 14, on the copying of certificates to other registrars general. Amendment 55, in the name of the cabinet secretary, is the only amendment in the group.

Photo of Shona Robison Shona Robison Scottish National Party

Amendment 55, in my name, will remove section 12, which would require that copies of gender recognition certificates be given to other registrars general in the UK so that they can update register entries as required. If the UK Government decides not to update English and Welsh birth certificates on the basis of a GRC that has been issued in Scotland, there can be no need for the requirement to send copies. Essentially, amendment 55 future proofs the bill against that possibility.

Photo of Michael Marra Michael Marra Labour

I will take the opportunity to clarify a point that was raised in a briefing from MurrayBlackburnMackenzie that has been received by MSPs, which says that it is unclear whether or not the bill will remove access to the UK’s gender recognition panel for people who are living in Scotland. Could the cabinet secretary clarify whether people who are living in Scotland will be able to continue to obtain a GRC from the UK’s gender recognition panel, or will that route be closed?

Photo of Shona Robison Shona Robison Scottish National Party

People who are living in Scotland will be able to do that until the bill is enacted. Obviously, there will be delay before the bill’s commencement, once it has been passed into law. Until that point, the UK route will be open to people and, once the bill has been enacted, there will be a new route available.

Whether or not the register entries in the rest of the UK will be updated is a matter for the UK and Northern Irish Governments, which is another important point that I should make. Provision for sharing GRCs can still be made in a section 104 order, if that is agreed to. On Monday, I met the UK Minister for Women and Equalities, Kemi Badenoch, and we agreed to continue to work together constructively on those matters. I am sure that that will continue to be the case.

I move amendment 55.

Photo of Jeremy Balfour Jeremy Balfour Conservative

I thank the cabinet secretary for the information that she has shared so far. Tentatively, I want to support her amendment 55, as I note that the provision is in the Gender Recognition Act 2004. I presume that it is not necessary to replicate the provision in the bill. However, I would like clarity on whether that is the reason for removal of the provision. I would be grateful if the cabinet secretary could confirm whether that is the reason, or whether there is another one. For example, is the provision to send copies of gender recognition certificates deemed to be no longer necessary as a result of technology? If that is the case, could the cabinet secretary confirm that she has spoken to all registrars general in the United Kingdom to confirm that? I hope that the cabinet secretary can provide clarity to the public and me in her answer, before we vote on the amendment.

Photo of Shona Robison Shona Robison Scottish National Party

As I have said, amendment 55 seeks to future proof the bill against the possibility that the UK Government decides not to recognise a Scottish GRC. The amendment is a practical measure that we can take in the event that that is the case. I hope that that will not be the case and that the UK Government will decide to recognise GRCs that are issued in Scotland, but we have to make provision in case it does not.

Provision for sharing GRCs can also be made in a section 104 order, if that is agreed to. I know that Scottish Government and UK Government officials have been working closely and constructively for a number of months on the issue. I hope that that provides clarity for Jeremy Balfour.

The Presiding Officer:

The question is, that amendment 55 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 13 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 119 MSPs

No: 3 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 4 MSPs

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 119, Against 3, Abstentions 4.

Amendment 55 agreed to.

After section 13:

Amendment 112 not moved.

Amendment 113 moved—[Ash Regan].

The Presiding Officer:

The question is, that amendment 113 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 14 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 60 MSPs

No: 66 MSPs

Aye: A-Z by last name

No: A-Z by last name

The Presiding Officer:

The result of the division is: For 60, Against 66, Abstentions 0.

Amendment 113 disagreed to.

The Presiding Officer:

The question is, that amendment 114 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 15 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 98 MSPs

No: 14 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 14 MSPs

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 98, Against 14, Abstentions 14.

Amendment 114 agreed to.

Amendment 115 moved—[Jamie Greene].

The question is, that amendment 115 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 16 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 100 MSPs

No: 10 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 17 MSPs

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 100, Against 10, Abstentions 17.

Amendment 115 agreed to.

Amendment 116 moved—[Oliver Mundell].

The question is, that amendment 116 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 17 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 37 MSPs

No: 76 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 12 MSPs

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 37, Against 76, Abstentions 12.

Amendment 116 disagreed to.

After section 14:

Amendment 117 moved—[Pauline McNeill].

The Presiding Officer:

The question is, that amendment 117 be agreed to. Are we agreed?

Members:

No.

Division number 18 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 59 MSPs

No: 67 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 1 MSP

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 59, Against 67, Abstentions 1.

Amendment 117 disagreed to.

Amendment 118 moved—[Claire Baker].

The question is, that amendment 118 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 19 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 57 MSPs

No: 70 MSPs

Aye: A-Z by last name

No: A-Z by last name

The Presiding Officer:

The result of the division is: For 57, Against 70, Abstentions 0.

Amendment 118 disagreed to.

Amendment 119 moved—[Claire Baker].

The question is, that amendment 119 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

The vote is closed.

Photo of Jamie Halcro Johnston Jamie Halcro Johnston Conservative

On a point of order, Presiding Officer. My app would not refresh. I would have voted yes.

The Presiding Officer:

Thank you. We will ensure that that is recorded.

Division number 20 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 56 MSPs

No: 70 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 1 MSP

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 56, Against 70, Abstentions 1.

Amendment 119 disagreed to.

Amendment 120 moved—[Rachael Hamilton].

The question is, that amendment 120 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

The vote is closed.

Photo of Jeremy Balfour Jeremy Balfour Conservative

On a point of order, Presiding Officer. The app did not load. I would have voted yes.

The Presiding Officer:

Thank you. We will ensure that that is recorded.

Division number 21 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 59 MSPs

No: 67 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 1 MSP

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 59, Against 67, Abstentions 1.

Amendment 120 disagreed to.

Amendment 121 moved—[Rachael Hamilton].

The question is, that amendment 121 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

There will be a division.

Division number 22 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 59 MSPs

No: 67 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 1 MSP

Abstained: A-Z by last name

The Presiding Officer:

The result of the division is: For 59, Against 67, Abstentions 1.

Amendment 121 disagreed to.

Group 15 is on review of the act. Amendment 56, in the name of Jackie Baillie, is grouped with amendments 60, 75, 76, 76A, 77 to 83, 83A, 84, 84A, 85 to 90, 90A, 134 and 91.

Photo of Jackie Baillie Jackie Baillie Labour

I am hopeful for success with my amendments in this group, not least because I have worked with the Government to deliver them.

At stage 2, the Equalities, Human Rights and Civil Justice Committee agreed a number of amendments from MSPs of different parties, the purpose of which was to review elements of the bill and any impact that the changes to the process for applying for a gender recognition certificate might have made. That included an amendment lodged by my colleague Pam Duncan-Glancy that placed a duty on ministers to initiate a review within three years of the bill coming into force. That amendment covered a number of other issues, including the need to review the operation of section 22 of the 2004 act. In accepting the amendment, the cabinet secretary said that it could form the basis of incorporating other review items at stage 3, including those that were agreed at stage 2.

The Scottish Government has worked with members from across the chamber to develop this group of amendments, which bring together all the strands of review. With the new section 15B of the bill as amended as a base, a single review provision will be created, and I will be happy to move all the amendments in my name.

The amendments that were lodged by other members and agreed at stage 2 are all incorporated into that overarching provision. Jamie Greene’s amendments that placed a duty on ministers to report on the act’s impact on the placement of transgender people in prison are included; Claire Baker’s amendment requiring a review of the operation of section 22 is included, as is Pam Duncan-Glancy’s amendment, which already contained a related provision. An amendment from Maggie Chapman that required a review of the impact on trans people of the time periods for living in the acquired gender and the reflection period is also included.

Amendments 56, 60 and 91 remove those individual provisions, which will be replaced with the new single provision covered in amendments 82, 83 and 84—which also adds a provision on gender identity healthcare—while not changing the intent of the agreed amendments.

My other amendments strengthen the existing provision that was added by Pam Duncan-Glancy and reflect the views of members from across the chamber.

Amendments 85 to 87 seek to extend the scope of the review beyond that currently required by section 15B. The additional areas that are covered by the amendments were asked for specifically by Labour members and include the impact on the provision of services by Scottish public authorities, whether any other amendments to the 2004 act are appropriate and whether any changes to the guidance required by amendment 54 are appropriate.

Amendment 90 provides for a number of items that the report of the review must set out, including

“any changes that the Scottish Ministers consider it would be appropriate to make” to the time periods required by the bill both before and after an application is made, the age at which a person can apply and the process for 16 and 17-year-old applicants.

Amendment 76 varies the wording of section 15B in relation to the timing of the review. The bill currently requires the Scottish ministers to begin the review

“no later than three years after section 2 comes into force”.

That requirement would be altered so that the review takes place

“as soon as ... practicable after the end of the period of 3 years beginning with the date on which section 2 comes into force”.

That is to ensure that three full years’ worth of data will be available for the review to examine, and it will provide the Scottish ministers with a little flexibility in the case of unforeseen circumstances that could prevent the review from starting.

Amendment 78 expressly sets out that, in carrying out the proposed review,

“the Scottish Ministers must have regard to any data provided to them about the effect of a person obtaining a gender recognition certificate”.

Amendment 90 sets out that the report must include

“any other steps that the Scottish Ministers intend to take as a result of the review.”

The review may, of course, include further matters that are not explicitly covered in the amendments, but it must, as a minimum, cover those items. The bill’s existing provision that the registrar general is not required to publish information if it risks identifying an individual who has applied for a GRC will also still apply.

Amendments 75, 77, 79 to 81 and 89 are largely tidying amendments that are necessary to make the section read correctly as a whole.

The amendments in the group bring together a wide range of areas that must be reported on when the bill’s provisions are commenced. They are comprehensive and, collectively, they reflect the views of members from across the chamber, as well as the views of the Government. They provide reassurance that the bill’s provisions and their effect will be monitored and reviewed. Taken together, they provide a sensible way forward, and I hope that all members will be able to support them.

I move amendment 56.

Photo of Pam Duncan-Glancy Pam Duncan-Glancy Labour

Amendment 76A aims to ensure that we consider properly the impact of the legislation and that we therefore comprehensively review it over time. As has just been outlined, amendments from my colleague Jackie Baillie and from the Government seek to ensure that such reviews take place. My amendment will ensure that such reviews take place four times, with the first review taking place within three years of the bill’s provisions commencing.

Scottish Labour knows how important the operation of the bill is and that some people have concerns about it. It is therefore essential to consider what further changes might be needed further down the line to ensure that the process works for trans people and the wider public. My amendment seeks to monitor that. In short, it is designed to ensure scrutiny so that, should improvements be needed or, indeed, should the concerns that have been raised come to pass, the Parliament will be able to address them.

Photo of Russell Findlay Russell Findlay Conservative

Today is the shortest day of the year, but it perhaps feels like the longest, so I will try not to make it any longer.

I will begin by explaining what I had hoped to do through amendments in this group, which is largely about future scrutiny of the bill. Last year, a UK Government statutory instrument was introduced that made it no longer an offence in England and Wales to disclose information about a person’s GRC status for the purpose of the management of offenders. To my surprise, that SI was not emulated by the Scottish Government by way of a Scottish statutory instrument. UK-wide consistency is important for trans people and the general public; after all, we are already aware of the potential for confusion and other repercussions between the home nations of the UK. The Scottish Government’s inaction on the matter perhaps tells us something more generally about the lack of safeguarding considerations in relation to self-ID. I attempted to introduce such a statutory instrument another way by lodging an amendment to the bill. However, that was deemed by the Presiding Officer not to be within the scope of the bill.

I mention that because it relates directly to Jackie Baillie’s amendment 83, which asks ministers to review the prohibition of disclosing someone’s protected information in relation to a GRC. I agree with Jackie Baillie that the Scottish Government should review that prohibition, but I believe that such a review should also ask and assess when it is appropriate to disclose someone’s GRC status for the purpose of managing offenders, as the UK Government’s statutory instrument already does. It is worth recording for completeness that the amendment is linked to my amendments 30 and 31 in group 8 but, for members’ information, amendment 83A could be passed separately to them.

Turning to my final amendment—thank goodness—I believe that the Scottish ministers should consider laying an SSI separate to the bill. Amendment 134 relates to that, and it is fairly straightforward in obliging Scottish ministers to provide an explanation of the reasons why they might choose not to do so.

I will now briefly address some of the other amendments in this group, which Jackie Baillie has described as comprehensive and collective. I will support amendments 83 and 91 as they generally seek to achieve the same thing. Jackie Baillie’s amendment 56 is a consequential amendment to amendment 84, which would require any review of the bill to include the impact of the legislation on the placement of trans people in prisons. I will support that amendment, so that we can properly establish the impact of the bill on women’s safety in prisons.

Amendment 84A is a technical consequential amendment to amendment 84, and I will support it, too. Amendments 75, 77, 79 to 81 and 89 are also technical amendments, and I will support them. Amendment 60 seeks to remove section 14B from the bill, thus removing the review of time periods that is set out in that section. I understand that various amendments from Labour MSPs are effectively replacing that provision, so I am happy to support amendment 60.

Amendment 76, also in the name of Jackie Baillie, is a substantive amendment that would alter the initial review period of the act, which was originally set out in section 15B, and amendment 76A, in Pam Duncan-Glancy’s name, would further alter that period.

I am pleased to support amendment 78, which would require ministers to consider relevant data on

“the effect of a person obtaining a gender recognition certificate” when carrying out a review of the bill, which should be common sense to the Government.

Amendment 82 would require ministers to report

“the impact” of the bill

“on transgender people”, specifically on those people below the age of 18. I do not support under-18s being able to apply for a GRC, so I will support that amendment, as it will at least measure, analyse and report on the bill’s consequences for those under the age of 18 who seek a GRC.

Amendment 85 would require any review of the bill to include the impact that it has had

“on the provision of services by Scottish public authorities”.

I will support that amendment as well as amendments 86 and 87, which would require a review of the bill to consider any further amendments necessary to the Gender Recognition Act 2004.

I am now in the home straight. Amendment 90 would require a review to consider changes that could be made to this piece of legislation and amendment 90A determines the length of the review period. I will support both.

Amendment 88, in the name of Ruth Maguire, would require

“the impact of the Act on Disclosure Scotland” to be considered. My own earlier amendments sought to include a disclosure check on applicants, which Disclosure Scotland would administer. They were unsuccessful, but nonetheless I will support amendment 88.

Photo of Annabelle Ewing Annabelle Ewing Scottish National Party

I call Pauline McNeill to speak to amendment 84A and other amendments in the group.

Photo of Pauline McNeill Pauline McNeill Labour

Amendment 84A is a very small amendment that seeks to include in the list of data to be collected those with—and those without—a GRC

, for completeness. It just adds to amendment 84’s substantive list.

That is all I wanted to say.

The Deputy Presiding Officer:

I now call Ruth Maguire to speak to amendment 88 and other amendments in the group.

The Deputy Presiding Officer:

Thank you, Ms Maguire. I now call Jamie Greene.

Photo of Jamie Greene Jamie Greene Conservative

I commend Pauline McNeill for her remarkably short contribution on that group.

I will speak briefly to amendments 84 and 90. Jackie Baillie’s amendment 84 replicates an amendment that I lodged at stage 2. It is a welcome amendment, and it is good to see it making a return. However, it seems to include an additional element. It would insert the following words:

“any impact the amendments made to the 2004 Act by this Act have had on the provision of gender identity healthcare by health boards and special health boards”.

It was not explained why that element was added. However, it is a welcome amendment, given that, in group 17, which I hope that we will come to shortly, we will discuss similar issues. Therefore, at least that would be in the bill.

There has clearly been a lot of division over pretty much every amendment that we have discussed over the past few days, but I hope that there is some consensus among members that Jackie Baillie’s amendment 90 would make a welcome addition. Amendment 90 would mean that, as a result of the review, ministers would have to set out any changes that they considered to be appropriate to three specific things: the minimum periods of living in the acquired gender; the age at which a person can apply for a GRC; and the application process for 16 and 17-year-olds. By and large, those three issues have been matters of debate and division.

However, there is something that I am not clear about, and I might ask the cabinet secretary to respond on this. It is not just a case, as a result of amendment 90, of setting out changes proposed by ministers or the Government of the day. It is not clear what would happen thereafter. For example, what would happen if the changes—in any direction—to the major provisions that underpinned the legislation were quite substantial? Would that be presented to Parliament via primary legislation or a reset of the bill? Would it be done through secondary legislation that is subject to the affirmative procedure, or would it go through the appropriate committee of the day? I do not think that the amendment quite specifies that. If that is specified later in the bill, I would be grateful if the minister could point me in that direction.

I mention that only because it is important that, after the review period—it is not that far away; it would possibly be in the next parliamentary session, if such a period transpires—members of the Parliament in that session would be able to scrutinise any proposals and changes in a way that would largely replicate the debate that we have had this week and could reopen it. People must be held to account for those decisions, which should be debated by future members of the Parliament. I ask the cabinet secretary to reflect and comment on that in her closing remarks. That aside, it is good to see these areas coalesce in a single reporting requirement, which I will support.

Photo of Maggie Chapman Maggie Chapman Green

I begin by thanking all those who were involved in the discussions that led to the amendments in Jackie Baillie’s name. As we heard, stage 2 committee deliberations covered many issues on which different members wanted reviews. My amendment, which was accepted at stage 2, to review the impact on trans people of the time periods for living in their acquired gender and for reflection, and to report on what changes to those might be appropriate, given that review, is captured by amendments 82 and 90. The bill deals with a process that affects trans people, so I believe that it is right that its impact on them is at the forefront of the review process.

I am grateful to everyone who worked together to ensure that these amendments were presented in a coherent and consistent way and represent, as Jamie Greene has just identified, a clear review process. I think that that shows some of the best of the consensus and compromise working that we have undertaken across the chamber as part of the post-committee process.

Were it up to me, I would not have included some of the reviews that are now part of the process, but I agree that this is actually the best way forward. I thank everyone for working on these amendments in Jackie Baillie’s name.

Photo of Shona Robison Shona Robison Scottish National Party

I agree with members that, as with all legislation, it will be important to review the impact of the act. As I undertook to do at stage 2, I have worked with members to make a number of areas that were raised at stage 2 coalesce into a single review requirement. I was pleased to be able to work with Jackie Baillie on these amendments, which reflect a number of helpful conversations with members across the chamber in relation to suggestions for additional areas to review and report on. Those members included Maggie Chapman and, in relation to amendments that were agreed to at stage 2, Claire Baker and Jamie Greene. We also expanded on the provision in the amendment that was lodged by Pam Duncan-Glancy.

Amendments 76A and 90A, in the name of Pam Duncan-Glancy, would require the Scottish Government to review the impact of the act after three years, eight years, 13 years, and 18 years, which we think is a disproportionate review requirement for a bill that is about an estimated 250 to 300 trans people per year being able to apply for a gender recognition certificate.

Photo of Pam Duncan-Glancy Pam Duncan-Glancy Labour

The review period that I have suggested is for the bill to be reviewed four times. The reason that it goes on for that length of time is to allow the proper collection of data and understanding of the impact of the act. I do not think that that was particularly well characterised in the way that the cabinet secretary set it out. I hope that she will agree on the need for review over a period of time so that we can get proper longitudinal analysis of the presumably positive impacts that it will have for trans people—I concur with my colleague Maggie Chapman in that regard—but also of other impacts that may or may not transpire.

Photo of Shona Robison Shona Robison Scottish National Party

There will, of course, need to be further reviews after three years, but we do not think that specifying them to be every five years is proportionate. As with all legislation, the operation of the act will be kept under review, and it can be updated as needed by the Parliament. As I said, however, the amendment is disproportionate and I am not able to support it.

I also cannot support amendments 83A and 134, in the name of Russell Findlay, as they completely duplicate what has already been provided for in the bill. We will review whether further exceptions are required under section 22 of the 2004 act. We will set that out in due course.

I cannot support amendment 84A, in the name of Pauline McNeill, because it is already covered by the amendments in the name of Jackie Baillie, which contain provision to review the impact of the act on the accommodation of trans prisoners, including those both with and without a GRC. That was introduced by amendments lodged by Jamie Greene and agreed at stage 2, and it was incorporated into this one overarching review and report section of the bill.

I do not support the amendment in the name of Ruth Maguire, which would require us to review the impact of the bill on Disclosure Scotland, but I heard her say that she did not intend to move that amendment anyway.

On the question that Jamie Greene asked around how any changes that may be required after review would be done, it would depend on what those changes were. For example, making exceptions under section 22 could be done by regulations, as could some other things. However, changing fundamentals such as the requirements for issuing a GRC would require primary legislation. It would depend on the seriousness of the change that was required. I suspect that Parliament would want us to come back to it with any substantial changes of that nature. I will leave that there.

The Deputy Presiding Officer:

I call Jackie Baillie to wind up and to press or withdraw amendment 56.

Photo of Jackie Baillie Jackie Baillie Labour

I will be brief. There has been a considerable degree of consensus around the chamber in relation to these amendments, as members acknowledge the importance of keeping the legislation under review. The amendment is intended both to address the concerns expressed to all of us and to ensure that the legislation works effectively for those applying for a gender recognition certificate. I am grateful to the Scottish Government for its support. I press amendment 56.

The Deputy Presiding Officer:

The question is, that amendment 56 be agreed to. Are we agreed?

Members:

No.

Division number 23 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 121 MSPs

Abstained: 3 MSPs

Aye: A-Z by last name

Abstained: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 121, Against 0, Abstentions 3.

Amendment 56 agreed to.

Group 16 is on operation and impact of the act. Amendment 122, in the name of John Mason, is grouped with amendments 57 to 59, 67, 68, 13, 14, 71, 131 and 136.

Photo of John Mason John Mason Scottish National Party

I confess that I would rather have been at the carol service this evening, but there we go. I will speak to amendment 122, concerning prisons, and I will mention some of the other amendments in the group. I think that one of my colleagues will speak more about amendment 71 and the issues around human rights.

During the discussions on the bill, prisons have featured prominently, especially the question of who should be in which prison.

The cabinet secretary has already said this evening that guidance is being reviewed, and that is welcome.

Having asked a number of questions in the past, I understand that each case is currently decided on its own merits. Therefore, someone who was born a man but identifies as a woman could be placed in a women’s prison if they are reckoned not to be a threat to women and to be at risk by being in a men’s prison. It is important that the risks both to other inmates and to that person are taken into account. As far as I am concerned, that is a reasonable approach, and amendment 122 seeks to confirm the current position as I understand it.

By contrast, I understand that, in the United States, an inmate can demand to be placed in a women’s prison even if they might be considered a threat to women, and I think that it would be a mistake to go down that route.

I also support Pam Gosal’s amendment 57. If we are going to be truly inclusive, we need to be sensitive to ethnic minorities and religious groups. We should not say that modern, secular, western culture is somehow better than other cultures—or, for that matter, better than previous cultures in this country. Therefore, a review and a report make absolute sense to me.

I am also broadly in support of Brian Whittle’s sport-related amendments 58, 59 and 67. There are already problems around the world on the topic of sport and, at the very least, we need to keep a watchful eye on how things develop.

I move amendment 122.

Photo of Douglas Lumsden Douglas Lumsden Conservative

On a point of order, Presiding Officer. Has a new business motion been agreed for the timetable for today’s events? Obviously, there are people in the public gallery who expect the bill to either pass or fall tonight, and, as far as I can tell, there has been no guidance on whether that will take place.

The Deputy Presiding Officer:

I thank Mr Lumsden for his point of order. In fact, when the Presiding Officer was most recently in the chair, she indicated that business aside from the stage 3 amendments would be taken tomorrow and that, subsequent to a discussion at the bureau this evening, a business motion would be put before the Parliament at the end of proceedings on stage 3 amendments this evening. Maybe Mr Lumsden missed that.

Photo of Oliver Mundell Oliver Mundell Conservative

On a point of order, Presiding Officer. I seek your clarification, under rule 2.2 of the standing orders, about the basis on which we continue to sit. The last business motion that we passed was motion S6M-07320, which advised that decision time would be at 6.30 pm today. Clearly, the bureau has met and made a decision to change that, but it is not clear why a business motion has not been brought to the Parliament as a whole.

Some members have already expressed concerns about the change to decision time. Others have expressed concerns about the fact that portfolio question time will not take place. Surely, if a decision has been taken by the bureau, it would be reasonable for such a decision to be put before the whole Parliament, so that we can properly revise the business motion.

The Deputy Presiding Officer:

I thank Mr Mundell for his point of order. As I have just explained to Mr Lumsden in response to his point of order, as the Presiding Officer indicated a while back, a business motion will be put to Parliament at the end of the stage 3 amendments session this evening. The member will be aware that the standing orders state that the Presiding Officer can make consequential amendments to the business programme as business proceeds and make changes in line with those proceedings. That is where we are just now.

I call Pam Gosal to speak to amendment 57 and other amendments in the group.

Photo of Pam Gosal Pam Gosal Conservative

My mission, since I stepped into the Scottish Parliament, has been to ensure that communities—whether BAME communities, people with disabilities or other marginalised communities—no longer go unheard. This Parliament is supposed to be striving to be more accountable, diverse and inclusive, yet it has failed to listen to stakeholders whom the bill will have a large impact on. I am disappointed to see that, aside from my colleagues and several other members, so many members across the chamber have failed to listen.

For many people, knowing the biological sex of a health professional carrying out a medical examination or treatment is extremely important. When we are under medical care, we are often at our most vulnerable.

Amendment 57, in my name, seeks to address concerns that a self-declaration model may exacerbate existing problems with section 22 of the 2004 act. The amendment requires the Scottish ministers to

“prepare and publish a report on a review of the impact of this Act on patients where knowledge of the biological sex of a health professional carrying out a medical examination or treatment is required, including on religious grounds.”

I hope that I can now answer the question that John Mason asked in the debate on group 13. Religious women and groups have expressed concern that the bill could interfere with the requirements of their religion. For example, for many religious women, particularly in the Islamic faith, it is a religious requirement that they shall not let another man touch or see their body. Such women therefore feel more comfortable using the services of female general practitioners, carers and other medical professionals.

I would like to provide members and you, Presiding Officer, with a real example. My mum is a practising Sikh and my auntie is a practising Muslim. Normally, when they go to the doctor’s, my mum—I or my sisters will be with her—or my auntie will ask their questions when they see in front of them a biological female. I am sorry if my terminology is not right; I am trying to put in the simplest form how people such as my mother and my auntie would feel.

When they go to the doctor’s, if they see that there is a woman—a biological woman—in front of them, they are quite happy to have their smear test, cancer checks, checks of their breasts, or whatever checks they need. However, if they see a gentleman—a biological male—on the other side of the desk, they will normally ask whether it is possible to have a female do that check-up. That is never a problem. I must say that the NHS staff are fantastic and so accommodating—they are always there to help.

I want the cabinet secretary to tell me how my older mother, sitting there, can ask those questions. What is she asking for? What is she doing? How is she doing it? She is going to break her religion because she cannot ask and they cannot tell. My Muslim auntie is going to break her religion because she cannot ask and they cannot tell her. She is scared, thinking, “Are the right words coming out? Can I say ‘trans woman’ or ‘trans man’? Can I say ‘biological man’ or ‘biological woman’? Can I ask?” [

Interruption

.] Some members can laugh and snigger about that—I am sorry, but I thought that this was a diverse Parliament. I really did.

I have mentioned that in committee—I have tried to bring out the practical points. This is not political; it is about religious beliefs. We need to listen to those people and provide them with the right guidance and the right law, to ensure that nobody is out there discriminating and nobody is out there breaking anybody’s religion. We must ensure that the bill does not infringe on the right to freedom of religion.

According to international human rights law,

“The obligation to fulfil” human rights

“means that States must take positive action to facilitate the enjoyment of basic human rights.”

However, I have with me today letters from both the Muslim Council of Scotland and the Scottish Association of Mosques. Those letters are not based solely around the freedom of religion that the bill calls into question; they are about concerns for women, children and vulnerable individuals.

I remind members that those religious organisations are not alone. Other religious organisations were frightened to come to committee to voice their concerns. We heard that in a private session—it is not simply hearsay, or something that I am saying. It has been voiced in a private session. I am not going to ignore those voices as other members in the chamber have done.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

I appreciate what Pam Gosal is saying, and I am listening to her carefully. Would she agree that even if not every person of faith needs such single-sex care, we have to listen to those who do?

Photo of Pam Gosal Pam Gosal Conservative

I thank the member for asking that question—she must be psychic, because I am going to go on to that point next. We absolutely need to look not just at care for those with religious beliefs, but at the care that we provide for many different and diverse people.

My colleague Jeremy Balfour highlighted that point with regard to care earlier, and I will go on to speak about it in relation to my amendment. I have been contacted by so many people who are concerned about what the bill will mean for vulnerable individuals, such as those with disabilities, those who have a carer and those in care homes.

There was a particular letter that stuck with me, on an issue that I have raised previously. A constituent wrote to me to ask what the bill would mean for an elderly woman in a care home, and whether she could be guaranteed a female carer to wash and dress her. As it stands, I cannot answer with confidence how the bill will affect that elderly woman.

Ultimately, by removing all safeguards in the process, the bill will open up the GRC process to a group of unknown size and characteristics. Given the existing privacy protections in section 22 of the 2004 act, many service providers will simply not be at liberty to confirm to a patient whether the individual who is treating her is biologically female.

I therefore ask the Scottish Government to fulfil its obligation to

“take positive action to facilitate the enjoyment of basic human rights.”

In the absence of amendments to the section 22 privacy protections—that was covered in my amendments at stage 2, but those amendments were, it is no surprise, again voted down—the least that the Scottish Government can commit to is monitoring the impact on rights by monitoring

“the impact of this Act on patients where knowledge of the biological sex of a health professional carrying out a medical examination or treatment is required, including on religious grounds” and setting out

“any steps” that it considers necessary in response

“to any concerns expressed as a result of the review.”

I support my colleague Jeremy Balfour’s amendments 13 and 14, which would ensure that the bill does not negatively impact freedom of thought, conscience and religion, as set out in article 9 of the European convention on human rights. Similarly, I support Ash Regan’s amendment 71, which would have the same effect.

I support amendment 122, in the name of John Mason, which would ensure that the bill will not change how prisons currently operate.

I also support my colleague Brian Whittle’s amendments 58, 59, 67 and 68, on the impact of the legislation on sports. Biological males have a biological advantage over biological women, and increasing the number of GRCs could lead to more trans individuals participating in sport.

Finally, I support amendment 131, in the name of Tess White, which would require ministers to consult women and girls on how the impact of the bill on women and girls should be reported.

I urge all members to back amendment 57 in my name.

Photo of Brian Whittle Brian Whittle Conservative

It is a pleasure to follow Pam Gosal, and I urge the chamber to support her amendment.

I appreciate the opportunity to speak to my amendments. At the outset, I say—I should not have to, but I am going to—that, like every member of this Parliament, I am in full agreement that every person should be treated equally, irrespective of colour, creed, religion, sex or gender. We should all recognise specific challenges that the trans community have had to face and we should all want to create laws that protect them and their human rights in the same way as those of every other person are protected. However, as I have said before, you cannot create equality for one section of society by creating inequality for another.

Amendments 58, 59 and 67, in my name, speak to the impact of the bill, as currently drafted, on sport, which will be significant. They would require the Scottish Government to publish guidance and collect data on the impact of the bill in that area, as others in this debate have asked for in relation to other situations.

The committee deemed sport important enough to include in its investigation but apparently did not deem it important enough to take evidence from any sportswomen, despite the committee being offered the option. Instead, it decided that trans activists and men would suffice. That speaks to a global issue whereby women participants are being warned not to speak out when confronted by the prospect of competing against biological males, which silences those who are most affected. Some have been threatened with expulsion from their sports teams and others have even been threatened with expulsion from college or university. However, it surely must be right that all are heard and that those with genuine concerns are not automatically castigated and branded bigoted or transphobic.

My amendments would place a responsibility on the Scottish Government to report on the impact on sport of the legislation and would require the Scottish Government or the registrar general to publish information, guidance or reports on the operation and impact of the provisions of the legislation when it is implemented.

I see that Shirley-Anne Somerville, who is online, is indicating that she wishes to make an intervention.

The Deputy Presiding Officer:

Could we have Shirley-Anne Somerville, please? Hello? Ms Somerville?

I think that we could continue with Mr Whittle for the moment while we double-check whether Ms Somerville is trying to make an intervention.

Photo of Brian Whittle Brian Whittle Conservative

Thank you, Presiding Officer. I will give way, instead, to my colleague Stephen Kerr.

Photo of Stephen Kerr Stephen Kerr Conservative

Brian Whittle introduced the idea that certain athletes were being challenged with regard to their preferences about whom they would compete against, and that there were threats that they would be removed from universities or colleges. In the interests of clarity, I would like to know whether that happened in Scotland or somewhere else, because—

The Deputy Presiding Officer:

Mr Kerr, could you please face the front of the chamber, so that the microphone can pick up your voice?

Photo of Stephen Kerr Stephen Kerr Conservative

Yes, I understand your point, Presiding Officer. The compulsion to look at the people one is speaking to is quite strong.

Photo of Stephen Kerr Stephen Kerr Conservative

I understand that—thank you for the education.

Photo of Graham Simpson Graham Simpson Conservative

You are supposed to speak to the Presiding Officer.

Photo of Stephen Kerr Stephen Kerr Conservative

Yes, I understand that, and I am grateful to the chief tutor on the Government benches for explaining it.

The Deputy Presiding Officer:

Mr Kerr, could you please complete the intervention.

Photo of Stephen Kerr Stephen Kerr Conservative

My intervention is completed, but I have so many people willing to help me.

The Deputy Presiding Officer:

Excellent. Mr Whittle, please continue.

Photo of Brian Whittle Brian Whittle Conservative

I thank my colleague for his intervention. The fact is that this is happening across the United Kingdom and globally. It first came to my attention in the USA and Australia, it happened down south and it has now happened in Scotland. It is happening globally.

I am not asking for any data to be collected that is not routinely collected by many sports already. Members and competitors are categorised by sex, age and disability, and many sports now give the option of male, female and non-binary under the sex category. That kind of data is necessary to ensure that the sport offered takes its membership into account when delivering fairness for competitors.

I am going to quote the Equality and Human Rights Commission’s stage 2 briefing paper, and I think that it will be of interest to the cabinet secretary, because it contradicts quite a lot of the position that she took when considering other amendments around guidance and reporting—amendments such as those of Jackie Baillie, Claire Baker, Pauline McNeill, Rachael Hamilton and Sue Webber. In its submission, the Equality and Human Rights Commission said:

“We have highlighted several areas where the effect of the Bill’s provisions on the operation of the protections from sex discrimination in the Equality Act is unclear and have urged further consideration before legislative change is made. Additional requirements to publish information and guidance, and to publish reports on the impact of the legislation, for example, on the provision of single-sex services, on trans people, on religious groups and in sport could usefully assist in ensuring the effective implementation of the Act and in monitoring its impact in practice. We recommend that such amendments should be considered.”

I am interested in hearing the cabinet secretary’s response to that.

The Equality and Human Rights Commission went on to say:

“These amendments seek to insert specific provisions in the Act dealing with the implications for single-sex services and the definition of, and data collection on, the protected characteristic of ‘sex’ in the Equality Act.

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 (for example, in relation to occupational requirements, separate- and single-sex services, sport and communal accommodation), such provision does not apply in every context contemplated by the Act.”

There is a reason why we must support these amendments, and I have stated it many times in Parliament. It is that sport should be available and participation encouraged for all, irrespective of background and personal circumstances, which of course, includes trans athletes. However, sport globally is in turmoil trying to deal with the trans community’s participation in sport. It varies from sport to sport and from country to country, and even—in the United States—from state to state. It means that some trans athletes participate as women locally but they must participate as a man nationally or internationally, and there is precedent for the trouble that sport gets itself into when trying to approach such issues.

Intersex athletes have been in the news a lot in recent years, as high-profile runners such as Caster Semenya and Dutee Chand have come under scrutiny for having some physical features that are commonly associated with men. World Athletics says that intersex women such as Semenya, who have XY male chromosomes instead of XX female ones, account for just over seven in every 1,000 elite female athletes. To put that in context, that is 140 times more intersex women than there are in the general population, with a still higher podium presence. Caster Semenya won the women’s Olympic 800m and dominated the event for several years; she is a wonderful athlete. Burundi’s Francine Niyonsaba won the 800m silver medal and Kenyan Margaret Wambui won the bronze medal. Initially, they were banned from competing. Then they were told that they must take testosterone-suppressing drugs to compete in certain events, which made Semenya sick. All have subsequently been banned from competing in events from the 400m to the mile. Semenya is currently in a legal battle with World Athletics to be allowed to compete in her preferred events.

By coincidence, I got a call this morning from Frank Dick, who was the director of coaching for UK Athletics and is now one of the most celebrated coaches in the world, working across many sports. As it happens, he was the director of coaching for the South African Olympic team for the 2016 Olympics and worked with Semenya’s coach. He told me that not only was Semenya destroyed by the sport’s inability to deal with her issues, her family and the community that she came from were destroyed.

Photo of Jamie Greene Jamie Greene Conservative

I am extremely grateful for the member’s contribution, illustrating some real-life examples. Given his experience and knowledge of the subject that he is eloquently speaking to, notwithstanding the wording of his amendment, which talks about reporting requirements and presenting numbers to Parliament, does he have any ideas on what the solution to this conundrum might be? It sounds as though it is very complex and I am sure that lots of members, whatever their views, will have a lot of empathy with these organisations as they approach what are quite sensitive and difficult subjects. Is there a solution to this?

Photo of Brian Whittle Brian Whittle Conservative

Again, Mr Greene has obviously read my mind, because I am coming on to that.

Rather than protect intersex athletes, sport’s clumsy approach has caused them harm, much as I believe the same thing will happen and is happening to trans athletes.

To come to Mr Greene’s question, Kenyan Olympic bronze medallist Margaret Wambui competed alongside Semenya in 2016 in the 800m event. She, too, was barred from competing in her preferred race due to her elevated testosterone levels. Wambui, who also refuses to take medication to reduce her testosterone levels, suggested that World Athletics introduce a third category to international sports competitions to include intersex people. She said:

“It would be good if a third category for athletes with high testosterone was introduced because it is wrong to stop people from using their talents.”

Who could disagree with that? These are wonderful athletes who need the opportunity to participate and I concur with what she says. That approach has been tried—the New York marathon introduced a non-binary category. This year, the entries to that category increased by 300 per cent, which tells me that those in that category are now feeling validated and more confident about having a place in sport, which is surely exactly what we want. However, there is still a significant issue to settle, in that the trans woman who won the category and collected the £10,000 prize money finished outside the top 1,000 overall finishers. Now, tell me that that is not a situation that is not open for exploitation by the unscrupulous—checks and balances are still needed and there is a long way to go.

National governing bodies are unsure of the legalities on which they can act and feel that they may leave themselves open to court action on the ground of prejudice or, conversely, if a trans athlete is injured or injures a fellow competitor, open to legal action for failing to take appropriate action to protect the safety of participants.

In other words, many sports are not taking any action for fear of making the wrong decision. Clear guidance is required from the Scottish Government; it cannot be subjective. I was asked by a national governing body whether, if it took action to prevent a trans athlete from competing on the ground of safety or on the ground that the trans athlete had a material advantage from the sex in which they went through puberty, it would be acting illegally. It is not just national governing bodies that have to make these decisions in sport. Teachers and coaches have exactly the same issue when selecting teams. I am one of those coaches—I am qualified as a senior level 4 coach, I am a former chair of the Scottish Athletics coaches and I am a member of the European Athletics Coaches Association—and I do not know.

The fallout from an incorrect decision is significant. In male and female athletes who are of the same size, a male athlete can generate approximately 160 per cent of the force that a female athlete can. A person who has been born male and transitions to female retains many of the male characteristics that can provide them with a huge unfair advantage.

I never thought that I would have to talk about the quadriceps angle at the hip—the Q angle—which is the angle between the hip and the knee. When a woman goes through puberty, that angle changes into a position that enables her to give birth, which impairs her ability to apply force. Male athletes have a bone density of approximately 30 to 33 per cent more and a muscle mass of approximately one third more than female athletes. They have greater lung capacity and bigger hearts. Women also have to deal with menstruation when competing in sports, as was highlighted by Dina Asher-Smith and Eilish McColgan during the summer, and they have to go through the menopause.

In the case of trans men competing in women’s sports, if they are transitioning, they are likely to be receiving hormone replacement therapy. According to the World Anti-Doping Agency, those hormones are illegal because they give women an unfair advantage in terms of muscle growth and exercise recovery. In other words, the treatment is tantamount to legalised doping. It is generally only at elite level that anti-doping is present, which leaves every other level of competition open to significant inequality.

I will give an example of the differences between male and female sport. I will go all the way back to 1985, when German Democratic Republic athlete Marita Koch broke the world record for 400m and completed it in 47.60 seconds. Of course, that country had a state-sponsored doping programme. Since 1985, no women have got anywhere near that time. However, last year, that time was beaten 10,000 times by men. I have spoken about Caitlyn Jenner before. She brought the issues that are facing of the trans community to the fore and has done incredible work in that area. In 1976, she won the male decathlon Olympic title. She states that trans women should not be able to compete in women’s sport—and she should know.

Surely we cannot have women being excluded from sport, as they currently are, because politicians cannot openly discuss concerns and develop decent law that is fit for purpose. I do not think that that is happening only at elite level; it is happening across all age groups and abilities, in our schools and our sports in this country. Let us not forget the potential impact on the insurance of sport and of teachers and coaches. With increased risk comes increased cost. The chamber may not want to recognise risk, but members can be sure that insurance companies will. When change is being considered, the consequences need to be anticipated.

During stage 2, the cabinet secretary told me that she cannot be expected to decide which sports are affected. However, she does not need to do that, because sport has already done that for her. That is why sport has a women’s category to ensure that there is fairness and safety. More than 1 million women and girls are participating in sport in Scotland. It has been a long fight to try to get equality between men’s and women’s sport, and we have come such a long way in my lifetime. When passing the bill, it is imperative that the Government considers the impact that it will have across all members of society, and that it does not pass the buck and negate its responsibilities for the changes that it proposes. We must protect women’s rights in sports, as well as ensuring that trans rights are protected, just as they are for every person.

Photo of Gillian Mackay Gillian Mackay Green

On a point of order, Presiding Officer. There has been an accident at the back of the chamber. Could we suspend the meeting for a few minutes.

The Deputy Presiding Officer:

Absolutely. The meeting is suspended.

21:14 Meeting suspended.

21:35 On resuming—

I can advise that one of our colleagues was unwell, but I have been assured by a business manager that the individual is, in fact, feeling better now. On that basis, we will resume business.

Photo of Jeremy Balfour Jeremy Balfour Conservative

On a point of order, Presiding Officer. Would you accept a motion without notice to adjourn for this evening? [

Interruption

.] I appreciate that some members do not want to hear from disabled members, but we will not be silenced by shouting.

The Deputy Presiding Officer:

Could we please listen to the member who is on his feet?

Photo of Jeremy Balfour Jeremy Balfour Conservative

Thank you, Presiding Officer. I have made this point on two occasions—I made it twice yesterday and I rise today to make it again.

We have seen the business motion for tomorrow. We know that we are returning tomorrow afternoon. At that point, there will be the opportunity to consider the rest of the amendments. In my view, we should now adjourn so that we can rest and so that those who have caring responsibilities can go and meet those responsibilities. All members could then return tomorrow to complete this process in an orderly way. I ask that such a motion be accepted.

The Deputy Presiding Officer:

I thank Mr Balfour for his point of order. I advise him that the welfare concerns that have been raised today and yesterday have, indeed, been noted. The Parliamentary Bureau has decided to proceed with consideration of stage 3 amendments this evening, so we will continue with the business that has been agreed by the bureau. I am therefore not minded to accept the motion without notice.

Photo of George Adam George Adam Scottish National Party

On a point of order, Presiding Officer. I can provide some clarity. Our colleague wants business to proceed. She is keen to vote remotely from a room where she is a lot cooler and comfier.

The Deputy Presiding Officer:

I thank the minister for that update.

Photo of John Mason John Mason Scottish National Party

On a point of order, Presiding Officer. I take the points that have been made already. I know that the Presiding Officer and the Deputy Presiding Officers have been very generous in giving people time, but would it be possible for you to encourage members to make shorter speeches so that we reach the end quicker?

The Deputy Presiding Officer:

I thank Mr Mason for his point of order. I point out that, in the course of stage 3 proceedings, no member has been subject to a time limit, so it would perhaps be somewhat incongruous to proceed on a different basis now. However, all members will have heard the point that Mr Mason has made.

I hope that we can now return to stage 3 proceedings. I think that Mr Whittle was finishing up.

Photo of Brian Whittle Brian Whittle Conservative

I will not start again, Presiding Officer.

We wish our colleague well and are thinking about her.

More than 1 million women and girls participate in sport in Scotland. It has been a long fight in trying to get equality between men’s and women’s sport, but we have come such a long way in my lifetime.

It is imperative that the Government considers the bill’s impact across all of society. It should not pass the buck or negate its responsibilities for the changes that it proposes. We must protect women’s rights, as well as ensuring that trans rights are protected. The same applies to every person. We all want equality in society. However, as I have said before, we do not create equality for one group by creating inequality for another.

Much has been made of other countries adopting similar trans rights, so I took the opportunity yesterday to look at Denmark’s experience of developing trans rights. Denmark recommended that sex should determine participation in elite sport events and that otherwise sensible measures be taken to ensure a balance between the inclusion of trans-identified people and, for example, women. Those recommendations were met with harsh criticism from Danish LGBT organisations, much like some of our comments have been, too. However, the recommendations were made due to an understanding of the growing need to protect women’s sport, as well as to include trans-identified people where it is reasonable to do so and where it is not at the expense of girls’ and women’s possibilities in sport.

Photo of Shona Robison Shona Robison Scottish National Party

For clarity, it would be for the UK Government to decide whether it wanted to do that with sport. What the member has referred to is a reserved matter; he might wish to address that point to the UK Government, because it is not something that the Scottish Government could do.

Photo of Brian Whittle Brian Whittle Conservative

I am sure that, as the cabinet secretary was previously the Cabinet Secretary for Health and Sport, she will recognise that, in this country, we have an organisation called sportscotland. [

Interruption

.]

The Deputy Presiding Officer:

Members! We want to hear one voice at the moment, and it is that of the member who is on his feet. Please resume, Mr Whittle.

Photo of Brian Whittle Brian Whittle Conservative

We can perhaps learn from other experiences and not make the same mistakes that they made.

I am asking the Scottish Government to give guidance on sports for teachers and coaches and that relevant data should be collected to establish the consequences of the bill.

Amendment 68 is essential. Not only does it speak directly to the safety of the trans community when seeking healthcare, but it would protect our healthcare professionals in their ability to deliver the very best care to all. To demonstrate that, I will read from a letter that I received from an NHS consultant, clinical scientist and medical physics expert in ionising radiation, who quoted from the statutory regulations on optimising radiation exposure—the Ionising Radiation (Medical Exposure) Regulations 2017—which state, in paragraph 8 of regulation 12, that

“In complying with the obligations under this regulation, the practitioner and the operator must pay particular attention in relation to ... where appropriate, individuals in whom pregnancy cannot be excluded and who are undergoing a medical exposure, in particular if abdominal and pelvic regions are involved, taking into account the exposure of both the individual and any unborn child” or those

“individuals who are breastfeeding”.

Paragraph 9 of regulation 12 states:

“The employer must take steps to ensure that a clinical evaluation of ... each exposure ... is recorded in accordance with the employer’s procedures including, where appropriate, factors relevant to patient dose”, one of which is biological sex.

The clinician states that the regulators of IRMER in the four home nations already see examples of gender recognition legislation affecting the safety of patients. For example, a pregnant biological female patient who identified as male was inappropriately exposed to an abdominal computed tomography—CT—scan, which included their unborn child; in another example, a biological male patient who identified as female inappropriately had a CT scan of their prostate, which had been mistaken for a growth during an ultrasound examination.

At the moment, our clinical information systems record sex; they do not record biological sex and gender. As such, there are implications for patient safety, including the safety of unborn children and breastfeeding infants, through gender recognition legislation.

The clinician goes on to say that knowing a patient’s

“‘biological sex ... prior to the commencement of any medical or clinical treatment’ will clearly become increasingly important as more patients identify with a gender that is different to their biological sex. I therefore fully support Mr Whittle’s proposed amendments to assess the impact of the act and hopefully inform how clinical risk can be mitigated.”

I heard about an instance in which a female who identified as male but did not inform healthcare providers was treated for chest pains and eventually diagnosed with the consequences of endometriosis. That is an inherently dangerous position for a patient, and it is not great for the healthcare professional, either.

With that in mind, it seems ridiculous that consideration is being given to remove the words “woman” and “female” from the vocabulary in a healthcare setting. Are we really going to start calling women “people with a cervix”? Why are we not calling males “people with a prostate”—why the discrepancy? Why does it take a male to stand up in the chamber and highlight the erosion of women’s identity?

Mitigating risk is exactly what I am trying to do with these amendments.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

It might just be because it is late in the day, but Mr Whittle is surely not suggesting that he is the first person to draw attention to these issues.

Photo of Brian Whittle Brian Whittle Conservative

I am the first person to draw attention to these issues in this debate.

What I am trying to do with the amendments is mitigate risk in sports participation for female, male and trans athletes and protect the trans community with regard to healthcare. The Government cannot create legislation and then abdicate responsibility for the consequences of the legislation for others. That is surely not too much to ask. I ask those members from across the chamber who have spoken to me and intimated that they have reservations about the bill to support my amendments. This is one piece of legislation that, if passed as drafted, will open up routes to harm, especially for women and the trans community.

That is exactly why we wanted the time to discuss and examine the consequences of the bill. That time has been denied by those in Government who are forcing the bill through without proper parliamentary scrutiny. We cannot pass the bill and then think about amending it at a later date as data is collected. We cannot vote for the bill in a vacuum without any checks and balances. I urge members to vote for these amendments. This is not a party political issue, which is why I have a free vote, nor is it anti any part of society. Rather, it is pro every part of society. It is about making the best law possible from the outset.

I urge colleagues from across the chamber not to hide behind their party colours. If members have any doubts—I know that many do—please, please, do the right thing.

The Deputy Presiding Officer:

Thank you, Mr Whittle. Members will note that we have passed the agreed time limit for the debate on this group of amendments. I have exercised my power under rule 9.8.4A(c) of standing orders to allow debate on this group to continue beyond the limit in order to avoid the debate being unreasonably curtailed. I call Jeremy Balfour to speak to amendment 13 and the other amendments in the group.

Photo of Jeremy Balfour Jeremy Balfour Conservative

Thank you, Deputy Presiding Officer. I will try to keep my comments reasonably brief.

I will support Mr Mason on amendment 122. On amendment 57, my colleague Pam Gosal spoke very clearly about some of the issues that could arise that I am sure are unintended. I totally recognise that most of us in the chamber do not follow a belief or religion that will be impacted. However, we are also here to protect minority religious groups and to allow individuals to worship in freedom and in a way that they believe to be right. Pam Gosal pointed to examples from the Muslim faith. It is true to say that people from the Jewish faith and some from the Christian faith will also struggle to work out how they will be able to practice their religious freedom. To be able to record and monitor that and to see the effect of the bill on that will be helpful, so I hope that Parliament will support those amendments.

My colleague Brian Whittle spoke very clearly about issues around sport. I will come at that issue from a slightly different angle. I really enjoy watching my two daughters play sport. They enjoy it and it is good for their physical health. In Scotland, we want our children to be more healthy, but we all know that it is difficult to keep them actively involved in sport when they become teenagers; that is particularly the case for female teenagers. As a father, I know that if my daughter suddenly finds that she never wins or never has an opportunity to win or, perhaps, that she is putting her body in physical danger because someone is stronger and bigger than her and physically different, she will simply walk away. That could have dangerous consequences for future generations in terms of keeping young folk fit and healthy.

Amendments 13 and 14 in my name are fairly straightforward. If I am honest, I think that Ash Regan’s amendment 71 is probably better, so if I must choose, I would choose her amendment before mine. However, my amendments seek to do a similar thing—to recognise that we have diversity in society and that we must protect every protected characteristic, whether it is religion, disability or another one. We are simply asking that the bill have that at its heart, so that people understand how it all fits in. I also support my colleague Tess White’s amendment 131.

The Deputy Presiding Officer:

I call Ash Regan to speak to amendment 71 and other amendments in the group.

Ash Regan:

In Norway, a female artist is facing criminal charges for stating that men cannot be lesbians. I fully accept that some people hold beliefs that I do not agree with. I, no doubt, hold beliefs that others would not agree with, but I would not compel others to agree with my beliefs. We should all be free to express ourselves and, indeed, even to cause offence. That is important.

The wider debate on the issues has not benefited from the attempt to shut down questioning voices and voices that suggest things that other people may not believe in.

On the point that Mr Whittle raised, it is very important that women feel that they have the right to the words that describe them, their lives, and their experiences.

I recently happened to listen to a recording of Mary Richardson. She was describing her time as a suffragette and how she was once on the train having left the scene of an act of civil disobedience. She sat in the train carriage and listened to man after man after man describe all the violent ways that they would like to kill a suffragette if they ever saw one, obviously not realising that there was one sitting among them in the carriage. I must say that I was quite struck by the parallels that we are facing today in the form of threats to women who speak out, including their being threatened with rape and murder. Even 100 years later, men still feel entitled to threaten and kill women simply for saying something that they do not agree with.

I want to ensure that nobody is compelled to speak about a holder of a GRC in a particular way simply because they hold a GRC. The judgment in Maya Forstater v Centre for Global Development made clear that protection of a belief means nothing without the ability to express that belief. We need to be clear that a process of state certification does not in itself introduce new constraints on article 10 rights, except in so far as the bill explicitly introduces those constraints.

I will also talk about the effect of section 22—which has already been raised by Ms Gosal—on what people may lawfully say. I also attempted to lodge amendments on the subject—as, I know, Ms Baker also tried to do at earlier stages. Those amendments would have allowed us to discuss whether the provisions of that section remain appropriate for what is now a much larger and more varied group of GRC holders than was envisaged by the legislation from 2004.

The Employment Lawyers Association has previously queried whether section 22 of the 2004 act remains the best approach to privacy protection due to its potential to have a chilling effect on lawful information sharing. The association asks why the protections that are properly afforded to everyone with a protected characteristic of gender reassignment, whether or not they have a GRC under the Equality Act 2010, need to be enhanced in this way for GRC holders only. I take this opportunity to put on the record my understanding that the offences in section 22 of the 2004 act apply only to a person who has obtained information about a GRC holder in an official capacity, and have no relevance outside that context and pose no other additional legal constraints relating to GRC holders or individuals who are going about their day-to-day lives.

I would welcome an undertaking from the cabinet secretary that the Scottish Government will look very carefully at the amendments that were rejected as inadmissible, in terms of their having suggested additions to the exceptions in section 22 of the 2004 act. It would be reassuring for the chamber to hear the minister confirm that the Government is open to using its power to amend section 22 by order before the bill is brought fully into force, where that can be properly justified. I am aware that in 2019 a commitment that remains to be fulfilled was made to look further at section 22. Now is, of course, the time to tie up that loose end.

The Deputy Presiding Officer:

I call Tess White to speak to amendment 131 and other amendments in the group.

Photo of Tess White Tess White Conservative

Over the past few days, we have heard from several members about how important reporting is.

Amendment 131 would create a statutory duty for ministers to consult on how, and how often, they should report on the legislation’s impact on women and girls. Ministers must then make regulations that specify the details for reporting on that impact.

Amendment 136, which goes hand in hand with amendment 131, would delay commencement of section 2 until the regulations have been made.

I have brought those amendments back from stage 2—with modifications—for two reasons. I was deeply concerned by the lack of debate on the amendments during stage 2. The cabinet secretary gave them nothing more considered than a cursory mention in a massive grouping. By dodging the key issues and denying that there is a problem to begin with, the discussion of the amendments at stage 2 felt like a microcosm of the wider GRR debate and the bill’s impact on women and girls.

However, events since stage 2, over just a few short weeks, demonstrate precisely why amendments 131 and 136 are needed. The UN special rapporteur on violence against women and girls has raised concerns that the bill’s proposals present potential risks to the safety of women.

Meanwhile, last week’s court ruling underscores further why the legislation’s impact on women and girls should be reviewed on a statutory basis, as we move forward. It states that

“‘sex’ is not limited to biological or birth sex” and that a person who obtains a GRC in their acquired gender legally changes their sex. Like Pauline McNeill, I am confused by that.

The Scottish Conservatives called for the bill to be paused while the implications of the verdict are considered, but the Scottish Government has ignored those calls. However, it desperately needs to recognise that the legislation gives the key to the door to an undefined group of people by making it significantly easier for them to change their sex.

I believe that the intent of the bill is good, but the unintended consequences could be greater for the rights and safety of women and girls. Those who act in bad faith will exploit loopholes in situations where there is access to women and children, and there is a real risk that women will self-exclude from services.

Last night, vital safeguards that were proposed by Russell Findlay and Michelle Thomson were rejected. More than ever, post-legislative scrutiny of the bill’s impact on women and girls is so important.

Photo of Gillian Martin Gillian Martin Scottish National Party

First, I am glad that Tess White voted for my amendments, which have the same effect as Russell Findlay’s and Michelle Thomson’s amendments would have but were actually competent and in line with the European convention on human rights. [

Applause

.]

Photo of Tess White Tess White Conservative

I thank Gillian Martin for that, but I did not feel that they were robust enough. Gillian Martin and I both come from the energy sector, which looks at risk and risk management. It also really focuses on data and data reporting, which are the substance of my amendments.

The cabinet secretary objected not to the substance of the amendments, but to their drafting. As such, I instructed the bill team to make them clearer in order to address those concerns. There are some strong amendments in the group, and I am supportive of them all.

I will briefly highlight Brian Whittle’s amendments 58, 59 and 67 on sport. Statutory changes through the GRR bill will have a significant impact on sport. That is already happening, but the legislation will accelerate it. It has implications for the safety of competitors and for fairness. It is only right that that should be reviewed on a statutory basis, and it is the responsible thing to do.

My amendments are a bandage and a sticking plaster. I deeply regret the Scottish Government’s disastrous handling of this aspect of the process, but this is an opportunity to change course. Therefore, I strongly urge colleagues to support amendments 131 and 136.

Photo of Kenneth Gibson Kenneth Gibson Scottish National Party

I speak in support of my colleague John Mason’s amendment 122.

A particular area of concern with the bill has been its potential impact on the female prison population. Whatever the reason for a woman being imprisoned, what matters is that they are in the Scottish Government’s custody and care, and it falls upon ministers to do their utmost to ensure that those often vulnerable women are safe while serving their time. A 2011 Swedish cohort study analysed crime rates after surgical sex reassignment of male-to-female trans people—[

Interruption

.] That was not my alarm, I am glad to say. The study found that those people retained a male pattern regarding criminality and violent crime. Trans women are therefore no more or less likely to commit crimes than any other biological males.

Official UK Government data shows that, as of March this year, the total number of transgender prisoners in England and Wales was 230, 97 of whom are sex offenders—around 42 per cent. Of the general male prison population in England and Wales, 19 per cent are sex offenders. In the United States, of the federal system’s 1,143 male-to-female transitioners, nearly half have a history of sexual offences.

Given that trans women are no more likely than other anatomical males to commit sexual offences, the obvious corollary is that there must be a significant number of sexual offenders in prison who falsely claim to be trans. The danger is that many commit sexual offences then claim to be transgender in order to avoid imprisonment in the men’s estate. The very presence of anatomical males in women’s prisons can cause distress to vulnerable female prisoners, many of whom have been the victim of male violence.

A key issue of the bill is that by making it easier to acquire a GRC, more male sex offenders may pretend to be trans in order to be incarcerated in a female prison, whether to prey on women or do easier time. Unlike in England, the Scottish Prison Service already uses individualised risk assessments to determine how trans prisoners are managed, whether those prisoners have a gender recognition certificate or not.

However, in November 2021, it was reported in

The Times that 12 trans prisoners convicted of violence or sexual crimes had been accommodated in Scottish women’s jails within the previous 18 months, according to figures released under freedom of information legislation, so the review that the cabinet secretary spoke of earlier is welcome, if belated.

Rhona Hotchkiss, former governor of Cornton Vale prison and a constituent of mine, said that women were being exploited as

“unwilling participants in a social experiment” by being housed alongside trans women. She added that women are being told:

“their concerns, their fears, their despair, must take second place to the feelings of men who identify as women”.

I therefore firmly believe that no one who is anatomically male should be incarcerated in a women’s prison. The inconvenient truth is that trans women are physically male and, as a group, present the same hazard that other men present—those who pretend to be trans, even more so. If a fox said it was a chicken, would you put it in a hen house? Of course not.

Back in 2015, an American woman who identified as black and was a chapter president for the National Association for the Advancement of Colored People was outed as being entirely of European heritage. Denounced worldwide, she lost her university job teaching the black woman’s struggle and was accused of being a race baiter, wearing a costume and lying to claim ownership over a painful and complicated history that she was not born into, yet if she had declared herself to be a bloke, rather than black, everyone would have been expected to agree with that self-identification.

This is real emperor’s new clothes stuff. Reality must intrude at some point. Allowing anatomical males who self-identify as women into women’s prisons is unacceptable and a safeguarding nightmare. I support amendment 122.

Photo of Stephen Kerr Stephen Kerr Conservative

It is a pleasure to be able to follow my colleague, and I have to say that I agree with everything that he said. These are not easy things to talk about, because we are into a realm where people may wish to take offence, but it is important in this context that we can speak as freely as we are speaking to each other, and there has been an immense degree of respect.

Before I say anything further—[

Interruption

.] Would somebody like to intervene?

The Deputy Presiding Officer:

I call Mercedes Villalba.

Is the member’s microphone on?

Photo of Mercedes Villalba Mercedes Villalba Labour

Would the member like to clarify in what way the previous contribution demonstrated respect? From where I was sitting, it was extremely disrespectful and bordered on hate speech.

Photo of Stephen Kerr Stephen Kerr Conservative

I am not sure that I am here to defend my colleague, but he was speaking as a parliamentarian in a Parliament of adults and we respectfully heard him deliver his speech. If the member had wanted to intervene on him to say what she has just said, it would have been much fairer on him, because he is now in a situation in which he cannot readily respond. He can intervene on me now if he wishes, and respond on his own behalf, but I am not sure whether he wants to do so.

Before I go any further, given that I wish to speak pretty exclusively about the subject matter of freedom of religion or belief, I refer members to my entry in the register of members’ interests. This is a subject area that is very important to me personally. To that extent, I must say that I probably agree with what John Mason said earlier: I think that many of us would rather have been at the carol service tonight. Sadly, as has just been illustrated, there is sometimes too little joy to the world, and sometimes we should afford each other the benefit of the doubt when it comes to the way in which we choose to express ourselves, however clumsy that might be.

I support amendment 57, in the name of Pam Gosal, in particular; amendments 13 and 14, in the name of Jeremy Balfour; and amendment 71, in the name of Ash Regan. That does not mean that I do not support the amendment in the name of John Mason or indeed the amendments in the name of Brian Whittle or Tess White. They have also given excellent speeches that have respected the subject matter, and I am grateful for that.

However, I will refer specifically to issues around the freedom of religion or belief. On 20 October, I was invited by Foysol Choudhury to attend a meeting in the Parliament, in one of our committee rooms, where he and I were privileged to meet with a group of about 60 people from all kinds of backgrounds and all forms of religion and belief, and none; there were also representatives there from the trans community.

I have to say that the whole evening was exceptional in this respect. It showed that it is possible to discuss very sensitive issues in the same respectful way that I think that we have, in the main, been discussing them in the chamber for the past couple of days. That has instilled in me a belief that when it comes to human rights, it is always possible, when people are speaking to and listening to each other, for there to be an accommodation. I think that that is what is required in respect of some of the clashes that occur around human rights.

At that meeting, representatives of Scotland’s major faiths—including the Muslim, Hindu, Sikh and Christian faiths—expressed their views forthrightly. Foysol Choudhury and I gave them a commitment that we would allow their voices to be heard in the proceedings of the Parliament, and I do so now, which is a great honour to me. I will simply raise the concerns that they had in relation to their faith. They felt that they had largely been left out of the process that has brought us to this point this evening. Sadly, I do not think that that has changed since October.

They had grave concerns about women’s rights and the safety of women’s spaces. That issue was raised repeatedly, and questions were asked about the continued ability of religious institutions to maintain sex-segregated spaces. I hope that the cabinet secretary will take the opportunity to be as clear as she possibly can be on that. To many people of faith, it is a very important issue.

I recognise that to some people, those who hold religious faith—how that faith can become a leading and perhaps even dominating influence in their lives and how they spend their time, and how religion can be so important to people—may all be a bit of a mystery. Nonetheless, I ask colleagues on all sides of the chamber, if they are less religious, to remember, in considering these amendments, that we should try to put ourselves in the shoes of the other people that we are talking about. To them their religion is the most important thing in their lives, and to some people their religious beliefs are more important than their very lives.

Photo of Ross Greer Ross Greer Green

Does the member recognise that many trans and non-binary people are people of faith and that he is certainly not speaking on their behalf at the moment?

Photo of Stephen Kerr Stephen Kerr Conservative

I am not quite sure why Ross Greer says that I am trying to speak on behalf of anybody; I am talking about a meeting that I attended where representatives of faith groups in Scotland expressed their views. Foysol Choudhury was there, and so were representatives of the trans community in Scotland. It was a very good meeting, so I am not sure that I understand where Ross Greer is coming from. I am happy for him to come back in if he wishes to give a further explanation.

Photo of Ross Greer Ross Greer Green

I am grateful to the member for that further opportunity. My discomfort with his speech, as a person of faith—which he knows that I am—is due to the implication that there is a tension between the beliefs of people of faith and the rights of the trans and non-binary community. I am simply making the point that many trans and non-binary people are part of faith communities.

Photo of Stephen Kerr Stephen Kerr Conservative

I think that there is a misunderstanding here. What I am trying to say, very simply, is that people of faith who were present at a meeting in this Parliament on 20 October expressed genuinely held concerns, and I think that—again, on the matter of respect—it is important that we accept that people may feel differently from us and have views that are different from ours, regardless of what we think might be the origins, the motives or whatever of those beliefs.

That is what that group of people of faith felt. They felt a concern, as I have said already, about the need for their faith groups to get a fair hearing in this process; they felt a concern about women’s rights; and they felt a concern about their ability to maintain sex-segregated places—I am sure that Ross Greer would recognise that that is an important part of the worship of many faith groups. They also had a concern about the bill’s attempt to move the age for self-identification to 16—unanimously, they felt that that was too young.

Again, I say that the reason why I mention all of that is because the whole idea of freedom of religion and belief, which is at the core of our human rights—which include freedom of conscience, as is highlighted in Ash Regan’s amendment 71, which specifically refers to article 10 of the European convention on human rights—is all about an individual’s human right, which we all agree is sacrosanct, to determine their own path in life. For some, that means following the teachings of a faith and for others it does not. However, that is all encompassed in the article of the European convention on human rights that defines what freedom of religion or belief is. I believe that that freedom underpins many of our other freedoms, because, without freedom of conscience, we do not have freedom of speech or freedom of assembly.

Article 18 of the United Nations Universal Declaration of Human Rights, and article 9 of the European convention on human rights, which is quoted in Jeremy Balfour’s amendments 13 and 14, talk about the right to worship publicly in accordance with the teachings of one’s faith group. In response to this group of amendments, faith groups require some assurance from the cabinet secretary that their rights will be respected. I am thinking now of the different variations of Islam, Judaism, Sikhism and Buddhism in which public worship is segregated as part of their belief system. I think that they need to hear it categorically stated that that right will in no way be compromised through the passing of the bill. If the bill passes as it is currently worded, could faith groups feel confident that they can keep their form of public worship?

There are other more basic questions that I feel that the cabinet secretary could approach in her summing up. Those relate to Catholicism, for example. It is well known that, in Catholicism, only men can become priests and only women can become nuns. It is important, for the sake of clarification, that the cabinet secretary says whether a biological male who has a GRC stating that they are female would still be legally entitled to enter the priesthood or some other religious position of privilege if the bill is passed.

Photo of Graham Simpson Graham Simpson Conservative

I want to steer Stephen Kerr back to Pam Gosal’s amendment, because I listened very carefully to Pam Gosal as she made a very passionate speech. I ask Mr Kerr whether he agrees with me that Pam Gosal’s amendment deals not so much with the things that Mr Kerr is talking about as specifically with medical examinations. Members may have got the impression that Pam Gosal was asking for special treatment for religious groups, but I do not think that she was. Would he agree with me that she was actually asking for us to respect the right of individuals—women, mainly—to ask for somebody of a specific gender to examine them? That is all that the amendment does.

Photo of Stephen Kerr Stephen Kerr Conservative

Yes, that is correct. Pam Gosal’s amendment 57 is exactly what my friend just outlined, but I am specifically focusing on amendments 13, 14 and 71, which underpin the freedom of religion or belief concepts that I am currently trying to speak about.

I am not the only one who has brought these concerns to the debate. I have quoted faith groups from the meeting that Foysol Choudhury organised, which I was privileged to attend.

In a letter that has been much quoted during the past few days, the UN special rapporteur on violence against women and girls, Reem Alsalem, wrote:

“A failure to provide single-sex services to women born female alongside gender specific services targeting women in all their diversity could amount to unlawful indirect discrimination because of religion under the Equality Act 2010. The International Covenant on Civil and Political Rights (ICCPR) guarantees freedom of religion or belief under international law. Furthermore, article 18 of the Universal Declaration of Human Rights adopted in 1948 states that ‘everyone has the right to freedom of thought, conscience and religion’. Furthermore, and according to international human rights law, the obligation to fulfil human rights means that States must take positive action to facilitate the enjoyment of basic human rights.”

That is the crux of the matter; the amendments are trying to achieve that we facilitate the enjoyment of basic human rights—and that means all human rights—as we make law.

I believe that for very obvious reasons—the most obvious being the way in which the Government is ramming the bill through the Parliament with inadequate time for reflection, for amendments to be considered and for evidence to be gathered from all kinds of witnesses who have been thus far denied a voice in the bill process.

Photo of Monica Lennon Monica Lennon Labour

Perhaps Stephen Kerr could explain to the chamber in what circumstances he would support the bill. He is asking people to treat this in good faith, but I am not convinced that Mr Kerr would ever support the bill, and it would be better if he could just be clear on that.

Photo of Stephen Kerr Stephen Kerr Conservative

I am a realist, I can count and I know what lies ahead of us through the process of the consideration of the amendments and at the end of the stage 3 debate. I am not standing here in political naivety; I am doing the very best that I can—and I think that my colleagues on the Conservative benches and in other places in the chamber are doing the same—to introduce amendments that will make what we believe is bad law less bad. Am I going to vote for the bill? Absolutely not, but I know that there is a very high likelihood that, at the end of this process, it will become the law of my country.

I and others have lodged amendments not because we support the bill, but because we want to save Scotland from more bad law being rammed through the Parliament. Freedom of religion or belief is an important aspect of many people’s lives, because it includes the right not to have a religion or a belief.

Photo of Brian Whittle Brian Whittle Conservative

My point follows on from Monica Lennon’s intervention. As I said at the start of my contribution, I think that every single member of the Parliament recognises the need to develop human rights across the board. Does Mr Kerr agree that we are trying to ensure that the law that is made will not impinge on other people’s human rights? We believe that everyone should have the same rights. I would vote in favour of the bill if I believed that everyone had the same rights.

Photo of Stephen Kerr Stephen Kerr Conservative

Brian Whittle has given a brilliant summation of the views of many of us in the chamber.

Earlier, I spoke about a meeting in Parliament where there was a happy meeting of minds. People talked to and listened to each other. In all of that there was the basis of an accommodation that would give us the desirable outcome that Brian Whittle has just described and that I hope we would all sign up to, which is that all our human rights are being respected. We respect each other enough to understand where my human rights and those of someone else need to be accommodated.

Photo of Douglas Lumsden Douglas Lumsden Conservative

What was the outcome of that meeting? Did people go away thinking that the Parliament would take note of their voices? Did they think that there would be changes, or were they assuming the worst?

Photo of Stephen Kerr Stephen Kerr Conservative

No. In fact, as I said a few minutes ago, they left feeling that we, including Foysol Choudhury—who is in the chamber and can speak for himself; perhaps he will make a speech in a minute—had listened, and that we were going to reflect their views when we had opportunities to speak in the chamber and in other places in the Parliament. They left with that hope. However, they pleaded with us that the position of faith groups in this country should be considered further.

I draw members’ attention to the fact that, during the pandemic emergency, only one Government in the United Kingdom was taken to court and found guilty of neglecting human rights. That was the Scottish Government—in the Court of Session. It was found to have been in denial of the basic human rights that are defined in the Universal Declaration of Human Rights in respect of freedom of religion or belief. One of the aspects of that case was the degree to which there was a form of religious illiteracy among policy makers and advisers. That is why it is important that we hear a fuller accounting from the cabinet secretary in response to this group of amendments on the subject of freedom of religion or belief.

Members of the Scottish Government might not be comfortable with being reminded that they were found to be in violation of that fundamental human right during the pandemic, but that is a warning about the need for care to be given in respect of any legislation that touches on that basic human right. At the end of the day, I hope that we will be united by the desire to ensure that Scotland remains on the right side of those fundamental human rights. That would be a source of pride for all of us.

I therefore urge all members—regardless of their parties—to vote for the amendments lodged by Scottish Conservatives, especially those lodged by Jeremy Balfour and Pam Gosal.

Photo of Shona Robison Shona Robison Scottish National Party

I remind Stephen Kerr that it is his party’s Government that wants to repeal the human rights legislation that has protected people for many decades.

I cannot support amendment 122, which provides that nothing in the bill

“affects the exercise of the Scottish Ministers’ functions in relation to prisons or prisoners.”

It is not clear what functions John Mason refers to in his amendment or how any functions could possibly be affected by the bill. The Scottish Prison Service already has a robust risk-based procedure for prisoners and the rest of its prison population. It may or may not place a trans person in the estate of their acquired gender, whether or not they have a GRC. If the Prison Service puts someone in that estate, it may not put them where they can mix with other prisoners.

Photo of Michelle Thomson Michelle Thomson Scottish National Party

I recall that the cabinet secretary has said that the Scottish Prison Service is currently looking at provisioning, and I am aware of that. How does she know that the service has a robust process that considers all key stakeholders, particularly in relation to women in prisons, which is my concern?

Photo of Shona Robison Shona Robison Scottish National Party

The SPS has provided considerable evidence, and its procedures are robust. The review involves looking at what more it can do. Without a doubt, there is a level of confidence in the SPS because of the fact that it already places transgender prisoners outwith their acquired gender in an estate that is not of their acquired gender, if the SPS thinks that there is a risk. In fact, the split is about half and half at the moment, whether or not people have a GRC.

That is quite different from the position in England and Wales, where the possession of a GRC is far more of a material factor in where a prisoner is located. That is not the case in Scotland, where risk assessment is the primary issue that is considered. As I was saying before the intervention was made, even when someone has been placed in the estate of their acquired gender, they may not be placed in a position where they mix with prisoners if it is believed that they pose a risk to others.

I cannot support amendment 57, in the name of Pam Gosal. As was queried by Jamie Greene at stage 2, it is not clear whether Pam Gosal expects all healthcare professionals to have to declare to every patient that they are trans. When Jamie Greene asked the member about that, she said that that was not her intention.

Let us look at what actually happens. The charter of patients’ rights and responsibilities rightly sets out that NHS staff have a right to be treated with consideration, dignity and respect. As I set out to Pam Gosal when she lodged a similar amendment at stage 2, the Scottish Government expects everyone to be treated fairly, equally and with respect when they are seeking healthcare. NHS staff make every effort to maintain the privacy and dignity of all patients in Scottish hospitals.

If a patient specifically requests a doctor or nurse who is of the same gender as them during any part of their care, every effort is made to accommodate that as far as possible. Of course, that depends on the availability of staff who have the appropriate skills to manage the patient’s condition. For example, if someone ends up in emergency care, and only male doctors are available in the emergency room, I am sure that members will appreciate that life-saving care needs to be given, whatever the gender of the health professionals who are attending.

Photo of Pam Gosal Pam Gosal Conservative

I am well aware of what the cabinet secretary has just said. If there was an emergency, our religions provide for the fact that we would have to have care first. However, if the cabinet secretary considers the practical example that I gave, she will see that it was not to do with an emergency; it related to day-to-day care, whether that is cancer treatment, breast inspections or smear tests—[

Interruption

.] Could the cabinet secretary let me finish?

We have heard about what was the case under the Gender Recognition Act 2004, but are we going to continue to put sticking plasters on the problem, or are we going to address it? The increase in the number of GRCs is going to cause a problem. The cabinet secretary and her Government would be able to help us to see how we could solve it.

Photo of Shona Robison Shona Robison Scottish National Party

Let me be absolutely clear again: if a patient specifically requested a doctor or nurse of the same gender as them in any part of their care, every effort would be made to accommodate that as far as possible. I have given examples of where that might not be possible.

Photo of Shona Robison Shona Robison Scottish National Party

No, thanks. Care homes and care services, which were also mentioned, will always try to provide care as per the person’s wishes. As a former home care organiser, I can tell members that that has been the case for many years.

The genuine occupation requirement exception under the Equality Act 2010 provides that a person must not be a trans person where there is a requirement due to the nature and context of the work, if appropriate. The exception could be used in health services, for example, when intimate health and personal care is to be provided. Of course, I previously pointed to the guidance to employers from the Equality and Human Rights Commission and schedule 9 to the 2010 act, which are relevant here.

Photo of Monica Lennon Monica Lennon Labour

When this debate is over, people might go back and read the

Official Report of what was said. I have felt uncomfortable with some of the things that have been said over the course of the debate. Does the cabinet secretary agree with me—and others, I am sure—that trans men and women and non-binary people who currently work in the national health service and in social care are valued colleagues? We do not want to leave the debate with anyone thinking that they are not valued and not welcome. Can we get that on the record for the avoidance of doubt? It is really important that their contribution is appreciated and that they feel able to work in our public services.

Photo of Shona Robison Shona Robison Scottish National Party

I absolutely put on record an appreciation of every member of staff working in our NHS and our care services, whatever their gender. Monica Lennon makes a good point.

I cannot support the amendments in the name of Brian Whittle, which would place a duty on the Scottish ministers to “report on the impact” of the bill on sport and to publish guidance. The bill makes no changes to the rules on trans participation in women’s sport, whether professional, amateur or in schools. Sports governing bodies set their own policies on trans participation under the Equality Act 2010, which is reserved legislation. Section 195 of the 2010 act contains provision allowing restrictions on trans people participating in sport to be imposed if necessary to uphold

“fair competition, or ... the safety of competitors.”

That is under the 2010 act.

Photo of Brian Whittle Brian Whittle Conservative

Oh, really. What I am trying to say to you is that the guidance is not working.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Speak through the chair, Mr Whittle.

Photo of Brian Whittle Brian Whittle Conservative

Sorry, Presiding Officer. It is not enough to have guidance; the guidance has to be applied and have worth in the field. Many times throughout the debate, colleagues have asked the Government to create guidance, and the Government and the cabinet secretary have ignored that request.

The guidance is not working and, because there will be more transgender athletes, it will be worse if you do not create the guidance and framework within which sport can act. It is not a reserved matter; it involves sportscotland, which you fund. You need to take responsibility for your actions.

Photo of Shona Robison Shona Robison Scottish National Party

I repeat that sports governing bodies set their own policies on trans participation under the Equality Act 2010, which is a piece of reserved legislation. Section 195 of the 2010 act contains provision allowing restrictions on trans people participating in sport to be imposed if necessary to uphold

“fair competition, or ... the safety of competitors.”

That is where the resolution and the guidance lie.

The Equalities, Human Rights and Civil Justice Committee heard clearly at stage 1 from sports bodies that whether a person has legally changed their gender forms no part of their decision making around participation in sport. The bill does not have an impact in that area.

As I hope that Brian Whittle would be aware already, in 2020, the UK sports councils commissioned independent consultants to conduct a review of existing guidance for the inclusion of transgender people in sport. The review was in the recognition that sport at every level required more practical advice and support in that area. The councils published guidance for transgender inclusion in domestic sport just last year, in September 2021.

As the member has acknowledged, sport is incredibly diverse and there might need to be different solutions for different sports. The guidance encourages sport to consider options to balance fairness, safety and inclusion. Some British national governing bodies have now published updated policies—for example, British Triathlon has published a new policy that will come into effect on 1 January 2023.

I do not support amendments 13 and 14, in the name of Jeremy Balfour, or amendment 71, in the name of Ash Regan. As both members will be aware, acts of this Parliament cannot alter the effect of the European convention on human rights. Therefore, the amendments are unnecessary and, indeed, confusing, particularly because they pick out specific parts of the ECHR.

Stephen Kerr spoke about religion. I met the Faith & Belief Forum, which covers all faiths, and faith groups responded to the consultation on the bill. The Equalities, Human Rights and Civil Justice Committee also held evidence sessions with faith groups. Therefore, I do not think that it is true to say that people of faith have not been listened to. Of course, it is up to churches to decide how they organise themselves, and nothing in the bill changes that.

On the range of exceptions under the Equality Act 2010 that apply to faith groups, the general single-sex exception could apply to religious services where appropriate. That aspect is already covered in the 2010 act and there is no change to that whatsoever.

I also do not support amendments 131 and 136, in the name of Tess White. The Scottish Government has carried out two public consultation exercises and, likewise, the Equalities, Human Rights and Civil Justice Committee has carried out a full public consultation. I have also supported members with areas that they wanted to see outlined in amendments on reviewing and reporting.

On the basis of all of that, I ask members to reject those amendments.

The Deputy Presiding Officer:

There is a bit of background noise. If members need to have conversations, I ask that they take them outside the chamber.

I invite John Mason to wind up, and to press or withdraw amendment 122.

Photo of John Mason John Mason Scottish National Party

First of all, I pay tribute to Shona Robison for persisting through all these hours and, I have to say, a certain amount of delay from the Conservative group. I admire her for that, even though I disagree with her on one or two points.

Pam Gosal’s speech was excellent. She gave us some practical examples of where her mother and her aunt really feel that there could be a problem with the bill. In this debate, we sometimes need to look at what is happening to people in practice and what they are feeling, and not just look at things in a high-level, Holyrood-bubble way. She mentioned the Muslim Council of Scotland. We also know that Sikhs and a lot of Christians are very unhappy about the bill.

The point is that, if we are truly to be inclusive, we cannot expect everyone to take on the way that we do things in western secular society, and we must allow people a certain amount of freedom to exercise their own way of doing things and their own beliefs.

Photo of John Mason John Mason Scottish National Party

I will just finish this point.

I think that that was highlighted when Ross Greer intervened on Stephen Kerr. The latter would, for most religions, represent a more traditional view, and the former might represent a more liberal view. That is probably more where the divide is, rather than its being between Christians, Muslims and Sikhs.

Photo of Rachael Hamilton Rachael Hamilton Conservative

Last weekend, the Muslim Council of Scotland wrote to the cabinet secretary to say that it was concerned about the negative impact of the bill on single-sex spaces. The cabinet secretary seemed to be saying that she has engaged with faith organisations and that everything is fine. I do not understand how everything can be fine if she has listened to the same arguments that were set out in the letter to her. Could the member shed some light on the matter?

Photo of John Mason John Mason Scottish National Party

I saw the letter from the Muslim Council; there was also a joint letter from the Muslim Council, Sikhs in Scotland and the Evangelical Alliance, which together represent quite a range of faith groups. Shona Robison talked about there being no real change. That might be her view of things, but it is not the way that people feel about the bill and people are not convinced. There is real concern.

To touch on something that my colleague Ash Regan said about legislation sending out a message, I know that we can argue that this is a very technical piece of legislation, but I think that a lot of people, such as those in faith groups, Pam Gosal’s relatives and so on, see it as much more of a—

Photo of John Mason John Mason Scottish National Party

Let me just finish this point.

Those people see it as much more of a longer-term trend, and they are fearful, maybe not about where we are today, but about where we are going to be in a year’s time.

Photo of Kevin Stewart Kevin Stewart Scottish National Party

I respect faith groups of all kinds and I respect freedom of religion. However, some of the arguments that are being made are exactly the same as those that were made in the run-up to the equal marriage debate and vote, when religious groups said they felt that they would have to carry out equal marriage against their faith. That has not happened, and my argument is that this is exactly the same kind of situation. Can Mr Mason see that?

Photo of John Mason John Mason Scottish National Party

I certainly understand Kevin Stewart’s argument, but I disagree with him. I think that on same-sex marriage there is drift—there is a change. The Church of Scotland is one example of people being somewhat firmly against it and gradually moving their position over time. I think that my argument—

The Deputy Presiding Officer:

Sorry, Mr Mason. I have just reminded the chamber that there has been too much background noise. The background noise has now become foreground noise and heckling. So far, we have conducted proceedings respectfully and courteously, and I hope that we can continue in a similar vein.

Photo of John Mason John Mason Scottish National Party

There has been drift on that issue, and I would say that some people who believe in traditional values are feeling more under pressure than they were at that time.

Photo of Daniel Johnson Daniel Johnson Labour

A particular faith group changing its thoughts and practice is not necessarily a bad thing. I would just caution Mr Mason in describing that as “drift”. It is a change, and such groups are perfectly entitled to make that change.

Photo of John Mason John Mason Scottish National Party

They are perfectly entitled to make that change; my point is just that some individuals are more under pressure now than they were in the past. The fear with the bill as well is that we are going in a certain direction and sending out a certain message, and it is going to become increasingly difficult for Pam Gosal’s mother and aunt.

Some of Brian Whittle’s points were good—they were a bit long-winded but still good. If it is true that the committee did not take evidence from sportswomen, I have a serious problem with that. The key words here are fairness and safety—they are absolutely key. I take Shona Robison’s point that the Equality Act 2010 is where people should look, but a lot of Scottish sports bodies, and even national sports bodies in Scotland, are relatively small and they can be easily scared by legislation if there is not guidance and reports. I think that amendments 58, 59, 67 and 68 are only asking for guidance and reports. It is not a very big ask.

Finally, I come to my own amendment, which was supported by Kenneth Gibson. He used perhaps slightly stronger language than I used, but he very much painted a picture of some of the risks, dangers and fears out there among normal people in society.

Language is very important. Probably everybody in the chamber has been a bit uncomfortable with some of the language used by the other side—I certainly include myself in that. We should be sensitive and respectful, but I also think that we have to be honest with each other and use honest language. One of the fears about the bill is that, over time, language will be censored and people will have to be increasingly careful about what they say.

I support all the amendments in the group—I will leave it at that. I press amendment 122.

The Deputy Presiding Officer:

The question is, that amendment 122 be agreed to. Are we agreed?

Division number 24 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 59 MSPs

No: 65 MSPs

Aye: A-Z by last name

No: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 59, Against 65, Abstentions 0.

Amendment

122 disagreed to.

Amendment 57 moved—[Pam Gosal].

The question is, that amendment 57 be agreed to. Are we agreed?

Division number 25 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 38 MSPs

No: 64 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 23 MSPs

The Deputy Presiding Officer:

The result of the division is: For 38, Against 64, Abstentions 23.

Amendment

57 disagreed to.

Amendment 58 moved—[Brian Whittle].

The question is, that amendment 58 be agreed to. Are we agreed?

Division number 26 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 61 MSPs

No: 64 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 1 MSP

Abstained: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 61, Against 64, Abstentions 1.

Amendment

58 disagreed to.

Amendment 59 moved—[Brian Whittle].

The question is, that amendment 59 be agreed to. Are we agreed?

Members:

No.

Division number 27 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 58 MSPs

No: 67 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 1 MSP

Abstained: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 58, Against 67, Abstentions 1.

Amendment

59 disagreed to.

Section 14B—Review of time periods:

Amendment 60 moved—[Jackie Baillie].

The Deputy Presiding Officer:

The question is, that amendment 60 be agreed to. Are we agreed?

Members:

No.

The Deputy Presiding Officer:

There will be a division.

The vote is now closed.

Photo of Sharon Dowey Sharon Dowey Conservative

On a point of order, Presiding Officer. I am sorry, but I could not connect. I would have voted yes.

The Deputy Presiding Officer:

Thank you, Ms Dowey. I will ensure that that is recorded.

Division number 28 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 122 MSPs

Abstained: 3 MSPs

Aye: A-Z by last name

Abstained: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 122, Against 0, Abstentions 3.

Amendment

60 agreed to.

After section 14B:

Amendment 61 moved—[Pam Gosal].

The Deputy Presiding Officer:

The question is, that amendment 61 be agreed to. Are we agreed?

Members:

No.

Division number 29 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 40 MSPs

No: 66 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 20 MSPs

The Deputy Presiding Officer:

The result of the division is: For 40, Against 66, Abstentions 20.

Amendment 61 disagreed to.

Group 17 is on gender identity healthcare. Amendment 62, in the name of Pam Gosal, is grouped with amendments 132 and 135. I call Pam Gosal to move amendment 62 and to speak to the other amendments in the group.

Photo of Pam Gosal Pam Gosal Conservative

The bill decouples the legal and medical aspects of the GRC process, which means that everyone who would have had to obtain a medical diagnosis of gender dysphoria and, therefore, meet medical professionals will now bo longer have to do so. Amendment 62 calls on ministers to

“commission independent research” on the effect of the bill

“on gender identity healthcare”.

In a submission to the committee, the Royal College of General Practitioners talked about

“the vulnerabilities of young people ... and the heightened risk of self-harm and ... suicide”.

When questioned on that point by my colleague, David Parker of NHS Greater Glasgow and Clyde said:

“the proposal to reform services is not simply about providing more clinic appointments and enabling pathways forward for people on the waiting list; it is also for people who will never join the waiting list, so that community support is available for people, who might be looking for all kinds of intervention ... If the numbers of people on the waiting list are increasing, that need is increasing, too.”—[Official Report,

Equalities, Human Rights and Civil Justice Committee

, 14 June 2022; c 50-51.]

It appears, therefore, that many people require this type of healthcare but do not seek it; that number is likely to increase as the requirement to obtain a medical diagnosis is removed. We cannot risk individuals experiencing psychological distress by falling through those gaps.

The aim of amendment 62 is to measure what effect the act has had on identity healthcare services; who is accessing them, and who is not; and where we can provide that much-needed support for those people who might be suffering a great deal of distress. Furthermore, I believe that that research must be commissioned by an independent professional or organisation that is not currently in receipt of funding by the Scottish Government, in order to avoid any instance of bias. Given the nature of my amendment, I support amendments 132 and 135, which Jamie Greene and Sarah Boyack lodged, and which aim, too, to measure how the act might impact gender identity healthcare.

Should the Scottish Government wish to address concerns that the reform will lead to many vulnerable individuals suffering from gender distress without adequate medical support, it should at the very least commit to reviewing the impact of the act on gender identity healthcare. I urge all members to back my amendment.

I move amendment 62.

The Deputy Presiding Officer:

I call Jamie Greene to speak to amendment 132 and the other amendments in the group.

Photo of Jamie Greene Jamie Greene Conservative

Thank you, Presiding Officer—we persevere.

There has been a lot of talk in the chamber today—quite a valid discussion—about the effect that the act will have on a range of minority groups. With the permission of the chamber, I would like to bring the discussion back to the minority group that the bill is actually all about, which is trans people.

Amendment 132 builds on an amendment that my colleague Rachael Hamilton brought to Parliament at stage 2—a very well-worded, thoughtful and well-intentioned amendment—to raise awareness of the state of gender identity healthcare in Scotland. I believe that it is in a sorry state, truth be told, and many trans people and organisations that I speak to believe that to be true, too, which is the underlying point of the amendment.

The amendment asks the Government, within a reasonable period—three years; there is some precedent for that reporting period—of section 2 coming into force, to outline the state of affairs with regard to access to and availability of mental health support, waiting times for healthcare in relation to transitioning and whether a bespoke pathway is needed for those applying for a GRC.

The reason for that is quite obvious to those who have been through that system. The Sandyford clinic in Glasgow states that, for its adult gender identity service, it is offering appointments to people who registered in May 2018. They are only now getting appointments. It has taken four years for some people to get the treatment that they require.

Photo of Rachael Hamilton Rachael Hamilton Conservative

Jamie Greene is absolutely right. I lodged that amendment at stage 2, and it was rejected by the cabinet secretary, because she said that the Cabinet Secretary for Health and Social Care was looking at a pathway to healthcare for trans people. Obviously, the bill is about improving the experience of trans people, particularly to make the whole process less stigmatising and the rest of it—to improve everything. However, that should be in the bill. We should not leave it to the health secretary, who has enough pressures on his plate, to sort that out. It should be in the bill because it is really important—

The Deputy Presiding Officer:

Ms Hamilton, please face the microphone so that your comments are picked up.

Photo of Jamie Greene Jamie Greene Conservative

I thank the member for her intervention. I also believe that, and with good reason. The recent report from Stonewall, which I think was included in briefings that we all received, stated that 72 per cent of transgender people have experienced depression and that—listen carefully to this statistic—more than half of the people whom it surveyed have thought about taking their own life. That is a huge volume and percentage of people. Those are harrowing figures that show the desperate state of the availability of mental health services and support for transgender people in Scotland.

Stonewall also found that 37 per cent—more than a third of trans people—actively avoid accessing healthcare treatment when needed for fear of discrimination. Again, that should worry us. That means that many people are hiding illnesses while they struggle to deal with their gender identity.

A great piece of work was done by SHAAP, which is Scottish Health Action on Alcohol Problems. In its recent report—SHAAP representatives were in the garden lobby to talk to members—it detailed conversations with a number of trans people who were struggling with alcoholism. I will quote from the report, because it underpins the reasons why I think that it is an important issue. One person SHAAP spoke to said, on the record:

“For me alcoholism … means I am not at ease with myself … That might be a lot to do with (being) transgender and not being comfortable within my own skin ... Growing up, having to hide things away like that ... it was a lot of pressure … I’ve always been ashamed of who I am”.

We have held debates in the Parliament before when we have spoken about the fact that people often self-medicate to deal with many of those issues. Of course, although I support the removal of the requirement for a diagnosis of gender dysphoria, that should not be used as an excuse not to provide adequate services and support to transgender people in Scotland.

I appreciate that, in the feedback on all the amendments in some of the briefings, some organisations—particularly those that support the legislation—said that although, in principle, they were happy for me to raise the issue, they asked members to oppose the amendment. I inquired why, because I was intrigued by that. Their fear is that the amendment might have the reverse effect to improving healthcare and might do the opposite. The reason for that is, understandably, quite worrying. It is because they feel that, if the amendment passes and there is a duty on the Government and ministers to report on the state of healthcare, it will divert much-needed attention, resource and money away from doing and towards reporting and talking. That is testament to the problem that we face and which I am trying to identify through this amendment.

I understand where those organisations are coming from, but we should not need to be afraid to put this in the bill, because those services should already be there and they should be getting better, and people should not be afraid to tell Government that it must do better. Although I appreciate their feedback, it is a shame that their concerns are based around the lack of resource and money in those services.

I also hope that those organisations appreciate the sentiment behind why I brought these amendments back to the chamber at stage 3. I hope that, in doing so, I say to them that I will work hard—as will other members—to improve outcomes for transgender people. That is a duty on all of us. I would like to think that, whatever your views on the bill—a number of comments have been expressed this evening that should make many of us feel uncomfortable—we can all agree that there is a collective duty on this Parliament to make healthcare provision for transgender people in Scotland much better than it is now. Whether or not we agree to this amendment, we can commit to that, and the Government can commit to that, tonight.

The Deputy Presiding Officer:

Under rule 9.8.

5A, I am minded to accept a motion without notice to propose that the next time limit be extended by 1 hour and 30 minutes.

Motion moved,

That, under Rule 9.8.5A, the time limit for groups 17 to 19 be extended by up to 1 hour and 30 minutes.—[

George Adam

]

Motion agreed to.

I call Sarah Boyack to speak to amendment 135 and other amendments in the group.

Photo of Sarah Boyack Sarah Boyack Labour

I will try not to fill up an hour and a half with my speech.

Amendment 135 would require Scottish ministers to carry out a review into the impact of the bill on gender identity healthcare in the form of a longitudinal study. Scottish ministers would be required to consult on the remit of the review, but any review would have a focus on improving access to and the provision of gender identity healthcare. The review would be repeated each successive five-year period to deliver a longitudinal study.

At stage 1, the committee heard a range of evidence on the provision of trans healthcare, including on the Cass review that is currently taking place in England. A number of constituents I have engaged with during the Parliament’s consideration of the bill would support work to improve gender identity healthcare in Scotland. There are significant delays for trans people who are trying to receive treatment from clinics. The bill could increase the number of people who are trying to access those services, which would exacerbate the demand on the services that are currently provided.

The review that I propose in my amendment would provide reassurances to Parliament that we do not forget individuals applying for a GRC who then go on to experience lengthy waiting periods for treatment that they may wish to receive. When we pass legislation in this Parliament, we need a joined-up approach to ensure that it is successful.

At stage 2, I moved amendments that would require ministers to publish data on trans healthcare waiting times. I welcome the reassurance that I had from the Scottish Government through the letter that the minister sent to me on 9 December, which outlined that the Scottish Government is currently looking at work being done by Public Health Scotland to improve the quality of data on healthcare waiting times, as was committed to in the “NHS gender identity services: strategic action framework 2022-2024”.

However, I honestly believe that we need more than that. The bill will simplify the process for obtaining a GRC, and there has been consideration as to why that simplification is required. As the number of people applying for and obtaining a GRC increases, it is possible that we will see an increase in the number of people who need and wish to access gender identity healthcare, and who will potentially have more complex needs. That could be a direct impact of the bill. I therefore hope that Parliament will agree to my amendment so that we can ensure that health services deliver for the needs and demands of trans people, both now and in the future.

I referenced the need for a longitudinal assessment of health. It is important that trans people get the support that they need not only during the early years of their transition on a short-term basis, but throughout their lives. It is about not a one-off piece of work but something that will need to be continued going forward so that the health services that we have in Scotland understand people’s needs.

I will briefly comment on other amendments. I understand that amendment 62, in the name of Pam Gosal, would require the Scottish Government to start a review similar to the Cass review in England, which I think we should support. I will support the amendment if Pam Gosal moves it.

Amendment 132, in the name of Jamie Greene, would require a review of the availability of trans healthcare three years after commencement. Given that it is aimed at making sure that trans healthcare is available and meets the needs of trans people, I would support it.

The points that Jamie Greene made when he was moving his amendment were very well made, because the delays and pressures that people are experiencing will really impact on their experiences going forward. We need to reflect on the statistics that he talked about in his speech.

Collectively, these amendments would strengthen the impact of the bill and make it more successful, so I hope that colleagues will support them all.

Photo of Shona Robison Shona Robison Scottish National Party

As, I hope, the members who have amendments in this group are already aware, the Scottish Government published a strategic action framework for gender identity service improvement in December 2021, which set out a series of commitments that we are working to progress with NHS Scotland and other stakeholders, along with some investment to make that happen. That included a commitment to commission Public Health Scotland to provide regular publication of robust, validated data on waiting times to access specialist clinical services. That commission has been made, and work by Public Health Scotland is on-going to deliver that. We also made a commitment, which Sarah Boyack has just referred to, to make available funding for research into the long-term health outcomes of people who access gender identity healthcare in Scotland. That process is on-going, led by the chief scientist office within the Scottish Government’s health and social care directorate, and a funding call was issued to Scottish academic institutions in August.

Therefore, much of the work that is sought by the amendments in this group has already begun and is on-going outside of the bill, which—I remind members—is about the process and requirements for applying for legal gender recognition and not about access to and delivery of gender identity healthcare.

Photo of Jamie Greene Jamie Greene Conservative

The cabinet secretary knows that I am not trying to muddy the waters with regard to the remit of the bill. That has been clear throughout what I have said over the past few days.

However, it is a valid point that now, with the existing volume of people who are going through the system to apply for a GRC, there are years’ and years’ worth of waiting lists to get specialist help. If we pass the bill and that volume increases, which is the expectation, those waiting times will simply get longer and longer, unless the Government puts more resource and cash into the system. It is so important that the bill reflects that, because that will be a direct effect if it is passed.

Photo of Shona Robison Shona Robison Scottish National Party

First, I recognise the point that Jamie Greene is making about the waiting times and the need to make improvements. That is why we published the strategic action framework for gender identity service improvement and committed to the investment that is required to make those improvements.

As Jamie Greene knows, a GRC is not required in order to access gender identity healthcare. I think that the data and its monitoring will show whether there is an increase as a result of the legislation. My feeling is that there will not be an increase, because it is about people who are seeking gender identity healthcare, whether or not they would pursue a gender recognition certificate. Not everybody would want to do so and not everyone who wants a gender recognition certificate would want to access healthcare. However, I will come on to the data collection in a second.

On the basis of all of that, I do not support amendments 62, 132 and 135. I recognise that those amendments might, as Jamie Greene has just said, be motivated by a desire to improve the provision of gender identity healthcare services. However, following discussions with members, we have supported amendment 84, in the name of Jackie Baillie, to review the impact of the act on gender identity healthcare, as discussed in an earlier group. I hope that that will reassure members and I think that that gets the balance right.

The Deputy Presiding Officer:

I call Pam Gosal to wind up the debate on the group and to press or withdraw amendment 62.

Photo of Pam Gosal Pam Gosal Conservative

Throughout the debate, we have heard about the need for collection of data from other sources, including criminal justice and single-sex services, that will undoubtedly be affected by the bill. A review of the legislation’s impact on gender identity healthcare is no less important.

I am disappointed, although not surprised, by the SNP Government’s reluctance to review gender identity healthcare. I imagine that, much like the Cass review, it would provide a case for further pausing reform of the gender recognition process by shedding light on what appears to be a healthcare pathway that does not follow the routine medical process.

I believe that a review of the effect of the bill on gender identity healthcare would provide some reassurance for people who are concerned about the decoupling of the legal and medical processes.

Photo of Shona Robison Shona Robison Scottish National Party

To be absolutely clear, in the very last sentence in my remarks I said that, following discussions with Jackie Baillie, the amendment that we agreed to means that we will review the impact of the act on gender identity healthcare, which is exactly what Pam Gosal is asking for. Does she not recognise that?

Photo of Pam Gosal Pam Gosal Conservative

I am asking why the Government will not agree to the amendments in this group, which include the provisions that we have asked for.

The SNP Government’s removal of all safeguards increases the likelihood that children and young people and vulnerable individuals might go without much-needed support. I therefore urge all members to back the amendments in the group.

I press amendment 62.

The Deputy Presiding Officer:

The question is, that amendment 62 be agreed to. Are we agreed?

Members:

No.

The Deputy Presiding Officer:

There will be a division. [

Interruption

.] There is a vote on, Mr Lumsden.

Division number 30 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 54 MSPs

No: 68 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 2 MSPs

Abstained: A-Z by last name

The Deputy Presiding Officer:

The result of the division is: For 54, Against 68, Abstentions 2.

Amendment 62 disagreed to.

Amendment 123 moved—[Pam Gosal].

The question is, that amendment 123 be agreed to. Are we agreed?

Members:

No.

Division number 31 Gender Recognition Reform (Scotland) Bill: Stage 3

Aye: 36 MSPs

No: 67 MSPs

Aye: A-Z by last name

No: A-Z by last name

Abstained: 22 MSPs

The Deputy Presiding Officer:

The result of the division is: For 36, Against 67, Abstentions 22.

Amendment 123 disagreed to.

The remainder of today’s business will be published tomorrow, Thursday 22 December, as soon as the text becomes available.