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We are not changing the effect of obtaining a GRC. The effects of that are laid down in the 2004 act. That will not change at all; the effects are exactly the same. That is the position.

In terms of the practical effects to which Daniel Johnson referred, as I have said previously, the guidance is led by the EHRC. If he is asking me whether we intend to or would be prepared to work with the EHRC on whether the guidance needs updating after the passing of the bill, the Government would of course be more than happy to do that. However, such work would have to be led by the EHRC, because it is the lead body in terms of the guidance.

If the member is asking me whether we will work with the EHRC if the guidance needs to be updated in light of the passing of the bill, I gave a commitment that we will do that.

—and guidance on the effects of the 2010 act. The bill also does not change the provisions on the protected characteristic of gender reassignment that are contained in the 2010 act.

Convener, would you like me to finish?

What is my interpretation of the 2010 act? Do you mean in its entirety?

I will try to come back on all the points and questions that have been raised before making final comments on the other amendments.

On Rachael Hamilton’s question, it is worth pointing out that, under the Equality Act 2010, sex and gender reassignment are protected characteristics and that gender reassignment protection applies whether or not someone has a GRC.

On the point about the 2004 act and the effect of obtaining a GRC, the position is as set out in section 9 of the 2004 act. Nothing in the bill changes that. Essentially, that enables people to change their birth certificate to be in line with their acquired gender. That has been the case for 18 years, and that remains the same.

I will not comment on the court case, other than to say that the position of the Scottish Government is exactly the same as the position that the Equality and Human Rights Commission set out in court. We agreed with that position; there is no difference in position.

Okay, and then I will come back to my point.

It is also important that, with such tiny numbers, we do not identify a person.

We discussed that last week, and I gave a number of extensive examples of how someone could show that they were living in their acquired gender. Those already exist under the 2004 act, so we are not changing anything in relation to the various ways in which someone could demonstrate that—they remain the same. We are talking about someone committing an offence and its being shown that they did not live in their acquired gender and had no intention of doing so. Evidence could be led showing the various circumstances of how they lived their life.

In relation to Jamie Green’s amendment, we are talking about an aggravator. The person would be in court because of the crime that they had committed, and if it can be shown that they had falsely obtained a gender recognition certificate in addition to that, the aggravator would be appropriate because of the seriousness of doing that. As Jamie Greene alluded to, the aggravator would send a clear message that that would be a very serious offence.

As I have set out, I want us to try to do all that we can, but our approach must be proportionate, and it must be possible for us to collect the information—it must exist in some form for us to be able to collect it.

I am happy to continue to have discussions about what could be included in an amendment at stage 3 to pull in as much information as possible, if that would be helpful. However, I do not want us to commit to collecting information that we do not think is available.

I also support Jamie Greene’s amendment 136, but as I think that what it proposes would be better incorporated into the wider review after three years, I will seek at stage 3 to incorporate its provisions into the requirements for post-legislative review. I hope that Jamie Greene will be minded to be content with that.

Amendment 156, in the name of Claire Baker, would place a duty on ministers to review the operation of section 22 of the 2004 act, including whether the criminal offences remain appropriate and whether any further exemptions are necessary. Under section 22 of the 2004 act, it is a criminal offence for a person who has acquired protected information in an official capacity to disclose the information to any other person. Protected information refers to either a person’s application or their gender prior to obtaining a gender recognition certificate. It is vital that a person’s right to privacy is protected in that way. We are not amending section 22 of the 2004 act.

There are already several exceptions to the criminal offence in section 22, such as when the disclosure is for the purpose of preventing or investigating crime. We can make further exceptions by way of regulations, but only when an exception relates to devolved matters.

Amendments 80 and 81 in the name of Pam Gosal are similar to those proposed by Claire Baker, but there is no requirement to publish a report of the review or any timescales, so I do not support those amendments. However, as I said, I agree that it is important to review legislation, so I support Claire Baker’s amendment 156 in principle, although I would seek to work with the member, given that the way in which the amendment is drafted raises several issues, including in relation to the limits on the power of ministers to make an order under section 22(5) of the 2004 act that does not relate to devolved matters. The addition of the words

“within the legislative competence of the Scottish Parliament”

does not in itself solve that issue. It would therefore need to be further amended at stage 3, if the member is happy to work with us on that.

I turn to Brian Whittle’s amendment. To be clear, the bill makes no changes to the rules for the participation of trans people in women’s sport, whether that is professional, amateur or in schools. As Brian Whittle is more than aware, governing bodies set their own policies on the participation of trans people under the Equality Act 2010, and many of them have done that. The UK sports councils, including sportscotland, published guidance for transgender inclusion in domestic sport back in September 2021. In addition, it is not clear that the information that he proposes be collected is currently obtainable.

We have listened to what people have said, and it is in recognition of that and in an effort to address some of those issues that we have brought forward the MAPPA regulations, which the Cabinet Secretary for Justice and Veterans—for the very reason of recognising the issue—has committed to putting in place before the bill is enacted. When we discussed these amendments, I explained why a blanket ban is not ECHR compliant. I went into that in some detail, for all the reasons that I am sure that Pauline McNeill and others will understand. Therefore, a risk-based assessment is the best way. The MAPPA regulations that the justice secretary is bringing forward are absolutely in recognition of those concerns.

Jamie Greene’s amendment 133, which relates to a false application and aggravation of offence, and which we have accepted, is about sending out a very strong message that, if someone who has falsely obtained a GRC goes on to commit a crime, that should be considered to be an aggravator. In that way, we recognise all those issues. Therefore, it is not fair to say that we do not recognise them. What we are trying to do is address them in a way that is legal and competent, within the bill or through other processes such as MAPPA, which the justice secretary has agreed to address.

Okay—I apologise.