Seòmar agus comataidhean

I just want to say one more thing, if I may, convener.

I thank Daniel Johnson for his intervention. I did not use those words, but he is entitled to his opinion. I am not going to interfere in how his party decides on business management.

Using the example that the cabinet secretary used of the EHRC guidance, what it suits is shallow. The EHRC supports Foysol Choudhury’s amendment 104, as do I, so why does the Scottish Government not support it? If the Scottish Government truly wants reform, and if the cabinet secretary wants the bill to be passed as a piece of legislation that provides for groundbreaking reform in Scotland, all the political parties should be brought together. We have discussed the bill in good faith and we want to make good law. That is the point. The catch-all approach that the cabinet secretary has been supportive of in previous groupings of amendments would have been preferable for this grouping.

On that point, I seek to withdraw amendment 23.

Amendment 23, by agreement, withdrawn.

Amendment 24 not moved.

Amendment 25 moved—[Daniel Johnson].

Amendment 21 is a probing amendment that makes it clear that a gender recognition certificate does not change the status of a person as a parent under the Gender Recognition Act 2004. Currently, there is no provision regarding the status of parenthood in the bill. Section 12 of the 2004 act states:

“The fact that a person’s gender has become the acquired gender ... does not affect the status of the person as the father or mother of a child.”

If GRCs that are issued under the new Scottish system change the definitions in relation to mother and father, that could create confusion on their child’s official documents, and it would have cross-border implications.

I hope that the cabinet secretary will tell me that amendment 21 is not necessary and that section 12 of the 2004 act will still apply to GRCs that are issued by the registrar general for Scotland. In that case, I will seek to withdraw it.

I move amendment 21.

I seek to withdraw amendment 21. All I will say about the amendments in this group is that I am sympathetic to Fulton MacGregor’s amendment 111 on the impact on prisons. It is possible that addressing our concerns through the amendment would have reduced the risk in prisons. The cabinet secretary has indicated that this is dealt with by the Scottish Prison Service, but we still have concerns about the number of individuals seeking to acquire a GRC—a number that will possibly increase tenfold. I am sympathetic to Mr MacGregor’s comment that Pam Duncan-Glancy’s amendment might address this, but we will have to see how the cabinet secretary responds to that. If that is not the case, we could possibly have a discussion and work together to seek to address the concerns that Fulton MacGregor and I both have.

Amendment 21, by agreement, withdrawn.

Section 14—Offences

Amendments 22 and 99 not moved.

Amendments 72 and 73 moved—[Shona Robison ]—and agreed to.

Cabinet secretary, I am still concerned that you have not reassured my colleague Pam Gosal on the impact of her amendment. I will reiterate what Daniel Johnson has said: moving to a self-declaration model for obtaining a GRC will make the protection of privacy under section 22 of the Gender Recognition Act 2004 more easily available. As a result, that section 22 privacy provision will not guarantee that a female doctor or nurse will treat a person of religious diversity. I understand the protections that are afforded under that provision, but I am not reassured, and I implore the cabinet secretary to come back to Pam Gosal and work with her on the issue. Foysol Choudhury has also raised concerns. If I may say so, there is room to continue the conversation on the matter.

I thank Pam Duncan-Glancy for her intervention. With all due respect, I note that I am on the side of the public and I am not making this political. It is important that we discuss things robustly, and it is a shame that other parties did not reach the position of having a free vote on the bill so that we could be more open and transparent.

It is just a comment. Cabinet secretary, you are putting the onus on people in the NHS, for example, to interpret the law.

During the progress of the bill, there has been much discussion about the relationship between GRCs and healthcare. It is unrealistic to assume that some—perhaps many—of those who receive a GRC will not see that as relevant to what they are entitled to from NHS Scotland. I very much welcome Sarah Boyack’s comments and amendments, but my amendment 140 is slightly different, because, currently, no provision in the bill recognises that likelihood or the potential impact on healthcare for trans people. Amendment 140 seeks to do that. Specifically, we call on the Scottish ministers to conduct a review into whether a bespoke healthcare pathway needs to be created for those who apply for a GRC; whether any healthcare issues have arisen in the experience of people who have applied for a GRC; and what further steps could be taken to improve healthcare for trans people.

Amendment 140 could help to address the important issues that Sarah Boyack talked about, such as the long waiting times, which, should the process of obtaining a GRC become easier and be expanded to include a larger segment of the population, can reasonably be expected to increase. Sadly, that is a part of the reform of the legislation that the Scottish National Party has turned a blind eye to.

I accept that there might be other ways of recognising that point. I am open to any proposals from the cabinet secretary for approaching it differently. However, we should not legislate then walk away without making some provision for the potential impact in demands for health services that are already creaking at the seams.

We believe that the publication of the Cass review will offer important insights on improving healthcare for younger trans people, which is why we originally called for the bill to be delayed. We know that it is naive to assume that there will be no spillover effects in demands for healthcare from a greater increase in the number of GRCs. Although the SNP cannot make a silk purse from a sow’s ear, I urge the cabinet secretary to support or at least consider my amendment.

Sorry, but the rest of the UK is not reforming the law, cabinet secretary. That is the point.

Amendment 23 is along the same lines as Foysol Choudhury’s amendment 104. Amendment 24 is similar, but it seeks to clarify more precisely that obtaining a GRC would not impact on the protections offered by the Equality Act 2010 in relation to sport.

Amendment 23 addresses a key concern, which has been expressed by many women, about the effect of the bill on the 2010 act. It is important that the safeguards and protections afforded by the 2010 act are not impacted by the measures in the bill that is before us—measures that would mean that many more GRCs would be issued to a loosely defined and more diverse group. Without passing any judgment on the policy issue at stake, it is absolutely vital that the definitions that we use are clear. Law making must be precise, otherwise it will not be effective. No matter the aim, substance or ideology behind legislation, we should all be able to agree that laws must be clear and that the definitions within them must be plain.

I turn to points that were made earlier. As it stands the bill is too vague. It is not well defined and leaves far too much to subjective interpretation. We should all be agreed on looking to improve the bill. This new law will not be workable for anyone if it is incomprehensible or imprecise. Ultimately, the bill is not clear enough. It is important that the public are reassured that the bill will not harm women’s rights.

Amendment 23 simply seeks to take the cabinet secretary at her word, as expressed in previous proceedings, by writing on the face of the bill the fact that the new system of gender recognition that it introduces will not change how the definition of sex in the Equality Act 2010 is interpreted. I note that Foysol Choudhury’s amendment 104 is similar but extends that approach to the definitions of “woman” and “man”.

Amendment 24 safeguards the rights of sports bodies to include separate sports categories based on biological sex. It seeks to achieve that by stating:

“For the avoidance of doubt, nothing in this Act affects the protections offered by section 195 of the Equality Act”.

The 2010 act prohibits discrimination against trans people. However, it provides an exemption for sports bodies to be able to require that athletes compete in sports based on their biological sex where that is needed for safety and fairness. The amendment lodged by my colleague Brian Whittle on the reporting duty, which was not supported by the Scottish Government, expanded on the detail of the exceptions that are required to safeguard women and girls in sport.

The committee received evidence that the bill would negatively impact women’s sports by changing the group of individuals who can participate in them. Athletes such as Sharron Davies have stated that self-declaration would make it impossible for sports authorities to enforce single-sex sports. In addition, Mara Yamauchi has raised concerns that girls may self-exclude from sports at both grass-roots and elite level because of the bill.

That issue strikes at the heart of fairness for women and girls. How may they fairly compete against athletes who have genetic benefits that they cannot possibly have? How can it be fair to stack the playing field against them, based on inbuilt advantages that they cannot match, through no fault of their own? To me, that would simply be deeply unfair to the young girls who are striving to succeed and will suddenly find that they cannot, and to the world-class athletes who have sacrificed to be the best, only to find that they cannot win.

That goes against every principle of sport and basic fairness. Amendment 24 seeks to assist sporting bodies to make it clear that, in legislating for the new system, the Scottish Parliament has no intention of undermining the use of the protections in section 195 of the 2010 act. Again, I make it clear that the intention of my amendments is to make the bill clearer. Nobody benefits if the bill is not clear; that will only make things more difficult for everybody.

If the cabinet secretary wishes to ensure that sports bodies are able to protect the rights of women who want to compete fairly, the amendments will achieve that. If she does not want to achieve that, and if the bill’s intention is to make the playing field unfair for women—I sincerely hope that that is not the case—I hope that those who are seeking to achieve that aim will reconsider. I hope that if that is the intention, the cabinet secretary will say why that is fair for young women or for world-class female athletes.

We should not risk legislating in a way that would make it harder for service providers to use the powers that they currently have under the Equality Act 2010 to respond to women’s needs for single-sex provision for reasons of privacy, as discussed previously, and for dignity and safety, in sport and more generally. My amendments are intended to prevent us from making that mistake.

I therefore invite the cabinet secretary to explain how, by broadening the group of people who will be able to obtain legal gender recognition, her proposals do not have significant implications for the operation of the Equality Act 2010 in Scotland. Furthermore, if she believes that GRCs should not be relevant to the operation of the 2010 act, and if she wants to create clear laws without leaving room for vague misinterpretation, why will she not support my amendments?

Finally, if the bill’s intention is to change the entry requirements for competition for women and girls in sport, I ask her for a very simple answer to the question of how it is fair to disadvantage women solely because of genetics.

I move amendment 23.