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I have a simple point to make. Cabinet secretary, you said that the bill does not modify the Equality Act 2010 or the effects of obtaining a GRC. That is fine, but it is confusing that the Government is arguing that legal sex—as opposed to biological sex—includes those who have a GRC. It appears that the Government’s definition of sex includes people who have a GRC. That would not be my definition, and many people would disagree with that: it is disputed.

You state that the bill does not modify the effects of the 2010 act, but it does change those effects if your definition of sex is not one of biological sex. I think that you need to clear that up. What is the Government’s definition of “sex” for the purposes of the 2010 act?

It is really important that the Government clarifies this point. We have heard a lot of talk about fraudulently making a declaration, but at no time has the Government set out what would have to be shown in court. Can you give us an example of what would need to be shown, given that the process is already quite a simple one, in that a person just applies and then waits three months? The process can also be reversed.

I am interested in the legality of the position. If something is in the bill—whether people think that it should be or not—it is a matter of law. The Government needs to be clear what would need to be shown in court to prove that the application was fraudulent in the first place.

For the avoidance of any doubt, I refer to a specific bit of the EHRC briefing—which I do not know whether the cabinet secretary has seen—which Foysol Choudhury mentioned. It says:

“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.”

The briefing refers to my amendment 101 and all the amendments in the group, and recommends that “such amendments should be considered.” Cabinet secretary, you say that it is a matter for the EHRC, and that you will not support amendment 101, but it is important to get on the record that even the EHRC has said that the amendments should be “considered”, because it would welcome that clarity. It seems that the Scottish Government stands alone in saying that it would not accept further clarification.

Sarah Boyack’s amendment raises a number of important issues. I want to address the question of what everyone is calling bad actors. I have dealt with a lot of legislation, as have other members, so I know that it is perfectly normal in legislation to close loopholes, even if you do not think that there actually is a loophole. Although the Government has moved on the question of sex offenders, which I welcome, I do not understand why it is so resistant to closing the loophole.

There does not seem to be anything to prevent someone who wants to misuse the legislation from doing so. We are not talking about a trans person here; we are talking about a man, for example, who could easily acquire a GRC—let us face it, it will be a simple process. The Government does not seem to think that that is a loophole or that further action is needed to prevent that from happening. I plead with the cabinet secretary to think about the issue for stage 3. As legislators, we are here to look for loopholes in proposed legislation and say, “I’m not sure about this.” I might be wrong, but it looks to me that there is a loophole here. I do not understand why the Government is so resistant to that, because it does not undermine the principles of the bill or what the Government is trying to achieve.

I just point out the reality of life, which is that men have abused their positions in professions, including in the NHS, in relation to women. Why would they not use this as an opportunity, in another way? Therefore, why can we not think about how we could close that loophole, for the purposes of complete closure?

I was going to mention this later, cabinet secretary, but I will talk about it now, as you have mentioned it. You will be aware of the briefing that MSPs have received from the Equality and Human Rights Commission, which believes that, because of the significant differences between this bill and the 2004 act, there will be significant issues with regard to the interaction between this bill and the Equality Act 2010.

For completeness, ministers must address what the EHRC has said about that. The commission agrees with you on some points, but as the body responsible for guidance on the 2010 act, it thinks that there are significant issues. It would be wrong of the Scottish Government not to address that before we make decisions.

Thank you—it is because you touched on my amendment.

I had hoped that you would address the significant question around exclusion. You said that the 2004 act sits alongside the 2010 act. Forgetting for a moment your definition of sex versus my definition, I am interested in how the 2010 act is used for exclusions.

As I said, the Government has a minister who is telling health boards that they cannot exclude people and that if they do so, it might be discriminatory. That is completely unhelpful for the purposes of this debate, and I would like an explanation for that from the Government somewhere along the line.

I go back to the Glasgow Life example. I think that some bodies are either confused or potentially not implementing the section of the 2010 act that allows them to make a “proportionate” decision for a “legitimate” aim. In some cases, they are actually saying that they will not make any exclusions. That is not what the 2010 act says.

Given those examples, surely the Government has to step in and say, “Now hold on a minute—you are allowed to make exclusions under the 2010 act.” Do you see my point?

I was referring to the EHRC’s briefing, which says that we should consider the relevant amendments.

Will you take an intervention?

Your comprehensive amendment refers to a GRC being “fraudulently obtained”. What would need to be shown in court to prove that? You will be aware of the considerable debate around the provisions in the bill that say a GRC is fraudulently obtained if it can be shown that someone has done that for the “wrong reasons”, as you mentioned.

I have concerns that the bill does not set out what would be needed to be shown in court, given that self-declaration is a simple process.

The amendment is a good one, but I would be really grateful if you could outline what would need to be shown in court to prove that a GRC had been fraudulently obtained.

Will the cabinet secretary give way?