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Amendment 151 complements my previous amendment 156. I have outlined to the committee the rationale and purpose of those amendments in relation to occupational requirement exceptions, and I emphasise that my amendments are about ensuring that rights in the Equality Act 2010 can be exercised.

Although I am pleased that the cabinet secretary has indicated support for amendment 156, notwithstanding the potential for amendment at stage 3, amendment 151 would commit the Government to produce guidance on occupational requirement exceptions that clearly sets out the interaction between the bill, schedule 9 to the 2010 act and, crucially, section 22 of the 2004 act. Although, in the previous discussion, the cabinet secretary set out the basis on which exemptions can happen, I hope that she recognises that section 22 is having a chilling effect on the operation of those exemptions.

Although the Equality and Human Rights Commission has issued guidance on occupational requirement exceptions, the interpretation of that guidance in public bodies across Scotland is leading to confusion, as Pauline McNeill outlined in her contribution. The Government might argue that it is not its role to issue guidance, but it is not unusual for additional guidance to be issued. For example, the Equality and Human Rights Commission provides guidance on discrimination for schools in respect of the 2010 act. Education Scotland says that the guidance

“provides an authoritative, comprehensive and technical guide to the detail of the law”

and

“an overview of the obligations”.

It describes the guidance as

“an essential reference which should be used both to develop and review policy.”

Furthermore, in a briefing for stage 2, the EHRC said that the UK and Scottish Governments

“must also ensure clarity for employers and service providers on the law.”

Therefore, I do not believe that it is outwith the boundaries of the Scottish Government’s powers to provide clarity on those issues. I go back to the quotation that I gave from the Government’s 2019 consultation: with regard to the scenario of information being held by an HR department, the Government consultation said that it is

“appropriate for information about a person’s trans history to be shared in a strictly limited, proportionate and legitimate way.”

It would provide much-needed clarity were the Government to set out that assurance in guidance, which employers could use on the occasion that they wished to exercise an occupational exemption, which they are able to do with the support of the 2010 act when it is proportionate for a legitimate aim.

The provision of such guidance would also provide clarity for service users, as it would emphasise the EHRC guidance and would make clear the circumstances in which they could expect an occupational exemption to be considered. That would provide clarity for the provision of single-sex services and, although there might still be questions or challenges, the legal framework in which decisions are taken would be made clear.

Both of my amendments—156 in this group and 151 in the next group—focus on the operation of occupational exceptions and the impact of the bill on practice and decision making.

Amendment 156 in this group seeks to ensure that there is clarity over the interaction with section 22 of the Gender Recognition Act 2004, which makes the disclosure of protected information related to an individual’s trans status a criminal offence, unless it is to prevent a crime. It is about how that interacts with schedule 9 to the Equality Act 2010, which allows occupational exceptions based on both gender reassignment and sex when it is a proportionate means of achieving a legitimate aim. That supports the provision of same-sex services where it is proportionate and legitimate. That is what the current law facilitates, but the current lack of clarity is leading to confusion over how the law is interpreted. That confusion exists both for providers of such facilities, and for users, who are unclear about what they can or cannot expect, or what they are entitled to ask for under existing equality legislation.

The bill is significantly changing the process by which someone gains a GRC, making it more accessible and less intrusive for individuals. I support reform of the process, but I also believe that we must fully consider its implications. It is expected to increase the number of people who hold a GRC and, by simplifying the process and introducing a process of self-identification, it has the potential to broaden the cohort of people who hold a GRC. At the heart of my amendment is the importance of information sharing where a proportionate and legitimate right to deliver a same-sex service is being exercised.

In the 2019 consultation on the draft bill, the Scottish Government highlighted a situation that requires clarity. The consultation said:

“some people in an organisation (eg people in its HR department) may know about a person’s trans history but those actually taking the decisions on staff deployment (eg line managers) may not.”

The consultation went on to say:

“when there is a legitimate case to use the general occupational requirements exception, the Scottish Government considers that it would be appropriate for information about a person’s trans history to be shared in a strictly limited, proportionate and legitimate way.”

However, it is not clear how that broad statement can be made in relation to section 22 of the 2004 act, which makes it a criminal offence to share protected information. That has led to confusion among employers and in public bodies. For example, a Scottish health board, in response to a freedom of information request, said:

“Unless the practitioner consented, to exclude them from carrying out female-only care would be a breach of section 22 of the Gender Recognition Act 2004 and a criminal offence. There are also restrictions under the Equality Act 2010 around requiring staff to disclose their gender identity and staff selection on this basis.”

I am not sure where to start on the inaccuracies in that statement. A health board can exclude on the basis of gender assignment, regardless of whether someone holds a GRC. It can exclude someone from delivering female-only care under the Equality Act 2010. The tension is with the lack of clarity on the effect of section 22 of the 2004 act, which is having a chilling effect. That suggests that public bodies believe that section 22 prohibits information to the extent that it prevents them from delivering female-only care. However, the Government consultation from 2019 says that that information can be shared.

The amendment seeks a requirement on Government to review the operation of those interlinked acts in light of the bill that is before us.

If an employer dealing with patients decided to use an exception to make a service a single-sex service, would it be helpful for them to set out the basis on which they had made that decision? Should there be more transparency around that? I think that people’s understanding of single-sex services is based on biological sex; indeed, most people will think that, if they are told that something is a single-sex service. Under the 2010 act, sex and gender reassignment would be the exceptions that you would apply.

I appreciate that there are a lot of amendments in the group. On amendment 151, I hear what the cabinet secretary is saying about it being for the EHRC to issue guidance in this area, but public bodies, including Education Scotland, have provided guidance in addition to EHRC guidance around the Equality Act 2010 on discrimination. Education Scotland describes its guidance as a

“reference which should be used both to develop and review policy.”

It is a tool. The Government could look at whether that is the approach that it should take to providing more guidance in this area. In a briefing that it sent to members, the EHRC said that it had written to the Scottish Government and the UK Government

“to get clarity for employers and service providers on the law.”

The EHRC provides guidance on occupational exemptions, but it has written to the Scottish and UK Governments because it sees a role for Government in providing clarity for employers and service providers.

Cabinet secretary, have you seen the letter and had a chance to respond? I would be interested to know what the difference is with the guidance that Education Scotland has issued on the Equality Act 2010, which comes from 2021 and is described as

“technical guidance”

that provides

“an authoritative, comprehensive and technical guide to the detail of the law.”

I will press the amendment. The cabinet secretary might feel that it oversteps in relation to the role of the Scottish Government, but does she recognise that there is a role for the Scottish Government to provide guidance on the operation of the 2010 act in Scotland? Perhaps we could have further discussion before stage 3 in order to reach a shared understanding of what role the Scottish Government has in ensuring that public bodies and employers in Scotland know how to use the law effectively.

I wonder whether the cabinet secretary can provide clarity on an issue that is linked to the previous discussion. The right to make decisions on exceptions sits with the employer, not with the patient. The patient has the right to ask about who can provide care, but the right to make any decisions under the Equality Act 2010 sits with the employer. I note that the cabinet secretary has said that the employer makes the decision, but can she set out the legal framework upon which they do so?

Thank you. I will begin by asking some questions about progress on fair work. You mentioned the report card that was published in December 2020, where the convention raised concerns about lack of progress on realising the 2025 vision. In March 2021, the convention warned that, unless the Scottish Government took urgent action, the vision would not be realised.

Have you seen the urgent action that you called for since then? Are there actions that the Government needs to take forward to make sure that we reach the 2025 target? Why has progress in some areas been so slow?

Good morning, and welcome to the Economy and Fair Work Committee’s 26th meeting in 2022. No apologies have been received.

Our first item of business is a decision on whether to take item 3 in private. Are members content to take that item in private?

Members indicated agreement.

Thank you. I will bring in Graham Simpson.

That is helpful. The committee might decide to follow up on that issue in the future.

That brings us to the end of the evidence session. I thank all the witnesses for coming along and sharing their knowledge and expertise.

I am going to change the order of questions and bring in Jamie Halcro Johnston, as his question is relevant, I think, to what we have heard so far. I will then come to Colin Smyth.