I have given very careful consideration to the member's request to lodge a manuscript amendment. As members may be aware, at this stage a manuscript amendment may be moved only with my agreement. In deciding whether to allow an amendment I must take into account the disadvantages to other members of the lack of notice. The guidance on public bills says that agreement should not normally be given to move a manuscript amendment, which could equally well have been lodged before the deadline. While I accept that this amendment could not have been lodged before the deadline, a manuscript amendment could equally have been lodged at any time ahead of today's proceedings after the judgment was given last Tuesday. Seeking to lodge today gives no notice to members, and on that basis I do not intend to let it be taken. I note that we now come to a group of amendments dealing with the Equality Act, and so not allowing this amendment to be moved does not prevent members debating the issues that Ms Hamilton raises. We move to group 13, which is point of order Jeremy Balford. It is now 10 past 4 in 26 seconds, but the Scottish Parliament's business bulletin, as provided by the motion at midnight this morning, states that the questions were due to commence at 3.15pm. This was a defined time, and not the usual follow-on business, as in the case for most bulletins. We are now past 3.15pm, and MSPs have not been offered a chance to ask questions to Cabinet Secretary Ministers. We have not even been told, even if we will get the chance, to do so. Can I remind the chamber that a gender recognition bill is not an emergency legislation, and it should not supersede all other business? Ministers have been held to account by elected representatives if the bread and butter of this Parliament, and we cannot let the sideline once again so that this bill can be rushed through before Christmas. I personally have a rule of affairs question today, which I am looking forward to asking, and I will seek your clarity with regard to the business bulletin. When will portfolio questions take place? If you do not know, will you perhaps ask business managers to meet urgently to discuss the matter as it is important for members around the chamber and their constituents that these questions are asked today? Thank Mr Balfour for his point of order. The business bulletin does indeed reflect the agreement of the cross-party parliamentary bureau. We will proceed with this business at the moment, but business managers will leave in due course, and we will come back to members.  I call amendment 54 in the name of the cabinet secretary, grouped with amendments as shown in the groupings. Cabinet secretary, to move amendment 54 and speak to all amendments in the group. Let me begin by addressing some of the points raised by Rachael Hamilton, because they are relevant to this group. Let me first of all say that the ruling for absolute clarity made absolutely clear that the Scottish Parliament cannot modify the equality act. As I previously set out to Parliament, we welcome the outcome of the petition of 4 Women's Scotland Limited for a Judicial Review, which is that the Scottish Government's statutory guidance on the gender representation on public boards Scotland act 2018 has been held to be lawful and the petition dismissed. As the chamber is aware, those remain live proceedings with the possibility of an appeal, and I won't therefore comment in detail. I will say that our position has always been consistent with that of the Equality and Human Rights Commission on this matter. As I set out at stage 2 of the bill, for the purposes of the Equality Act 2010, sex does take into account the legal effect of a GRC, obtained in accordance with the Gender Recognition Act 2004. Nothing has changed in this ruling. It is the status quo, as was the case before. Rachael Hamilton. I was clearly disappointed that my manuscript amendment was not accepted, but I understand the presiding officer's view. I want to ask the cabinet secretary if a gender recognition certificate, which now confers on at least some of the protections afforded by the Equality Act, and given that I wasn't allowed to debate the implications of my potential manuscript amendment, can the cabinet secretary confirm what protections for women are granted to those with GRCs and which protections are not under the Equality Act? As I said at the beginning, the ruling has made absolutely clear that the Scottish Parliament cannot modify the Equality Act. Therefore, there are no changes whatsoever to any of the protections under the Equality Act. They remain the same. Lady Haldane was absolutely clear about this. The bill does not amend the legal effects of obtaining a gender recognition certificate, which was set out principally in section 9 of the 2004 act. Therefore, the judicial review ruling does not impact on the bill. I want to go on to the rest of the amendments in this group. Following discussions, I've answered your point. Yes, I will. Michelle Thomson. I thank the cabinet secretary for giving way. Now, Roddydon Lopkey makes the case that this matter doesn't grant or lose people rights. I don't disagree with his eminent view. However, it does clearly introduce considerable complexity on existing rights and the practical function and effect, particularly on women, has consistently been ignored. I'm sure that element of it will subsequently be legally tested. Does the cabinet secretary agree with that? Cabinet secretary. What I would say to Michelle Thomson is that the case has maintained the status quo that has been in the position since 2004, so 20 years, that the purpose and effect of a gender recognition certificate is to be able to change your birth certificate in line with the acquired gender. That is the purpose and effect of a GRC. This bill changes none of that. We couldn't change the Equality Act even if we wanted to. That is just not possible. I want to move on to the rest of the amendments because there are a lot of amendments that I want to comment on. Following discussions with members, I have lodged amendment 54 in my name, which places a duty on Scottish ministers to publish guidance on the operation of the act. This was an ask of members, which I'm happy to provide for. The amendment says that we will do that in consultation with human rights organisations. As I've also made clear to members, this amendment is within the legislative competence of this Parliament. Before I speak to the other amendments in this group, I want to remind members that responsibility for the Equality Act is reserved to the UK Parliament, just as immigration and nationality, including asylum, is reserved as we've debated in group 3. To be clear, as I said earlier, any amendment agreed to today, which may be outwith competence, puts the aims of the bill as a whole at risk. While some people may oppose this bill, every member in this chamber has not just a responsibility but a duty to make competent law. I know that every member takes their role as a legislator for our country seriously. I'll give way. I'm very grateful to the cabinet secretary for giving way, and she's quite correct. Any bit of legislation that sought to alter the impact or effect of reserved legislation would not be competent. However, the Parliament regularly legislates using definitions defined in reserved law. For example, the point in 2016 when we altered the franchise of this Parliament, we made explicit reference to the Immigration Act 1975. Indeed, we've done so on a number of other occasions. We're not altering the definitions or the things that are specified in that law, but we use the definitions and clarify how this Parliament and how our legislation seeks to use them. That doesn't put our laws in breach. It doesn't call into question. It doesn't fall foul of the Scotland Act. If we do it in those legislative circumstances, why can't we do it in this one? Cabinet Secretary, I'll come on to that point in my remarks, if you don't mind. The bill already provides the reassurance that members thought that this does not modify the Equality Act. This was done through a stage 2 amendment that we agreed with Pam Duncan-Glancy, which covers the Equality Act in its entirety. To pick the Equality Act apart by stating further that the bill does not modify some provisions of that act when there is already patently provision in the bill that it does not modify the whole of the Equality Act causes confusion within the law. Provisions that do that now on top of Ms Duncan-Glancy's amendment are unnecessary and unhelpful. In addition, it's for, and this is really important, it's for the Equality and Human Rights Commission as a reserve body in terms of its statutory functions to provide guidance on the effects of the Equality Act 2010 and it's for Scottish ministers or the Registrar General to provide guidance on the effects or operation of the bill. Therefore, I cannot support any amendments in this group apart from my own for those reasons. Yes. Stephen Kerr. Apologies, Presiding Officer. So I'm just anxious to know before we vote on any of the amendments that are in this section, I'm quite anxious to know, I think in very clear terms, will the Cabinet Secretary confirm that someone who is issued with a GRC would have access to single sex spaces? Can we just have a very clear answer about the implications? Cabinet Secretary. Not if the organisation providing those services used the exceptions under the 2010 act, they could be excluded. As I have said so many times in this chamber, nothing changes. So if an organisation had a service that they wanted to restrict to being single sex, then they could do that in the same way as they can do now. This bill changes none of that whatsoever, and I hope that that gives members the reassurance that they require. There are a few amendments in this group on guidance. Amendment 111, in the name of Jackie Baillie, would place a duty on Scottish ministers to issue guidance on the impact of this act, and in particular on the provision of single sex services and what would be considered a proportionate means of achieving a legitimate aim in that context. That refers to particular sections of the Equality Act. Amendment 12O, in the name of Rachel Hamilton, and amendment 73 and 74, in the name of Sue Webber, are similar. Amendment 117, in the name of Pauline McNeill, would place a duty on Scottish ministers to provide guidance on the effect of having a GRC, in particular to set out how obtaining one impacts on the rights in the Equality Act. Amendment 129 places a duty on Scottish ministers to consult each Scottish public authority regarding the operation of the exceptions in schedule 3 of the Equality Act, and amendments 118 and 119, in the name of Claire Baker, would place a duty on Scottish ministers to issue guidance on the impact of the bill on section 22 of the 2004 Gender Recognition Act on schedule 9 of the Equality Act. The Scottish Government cannot provide legal advice to external bodies. Guidance on the test of a proportionate means of achieving a legitimate aim, as required in the Equality Act is for the Equality and Human Rights Commission. The Scottish Government will always promote and encourage observance of the Equality Act, but it is properly for the HRC, not the Scottish Government, to provide guidance on the effects of the Equality Act. I'll take Claire Baker. Claire Baker, can we have Claire Baker's microphone, please? Bear with us a moment, Ms Baker. In a briefing in advance of stage 2, the HRC said that in relation to the UK and the Scottish Government that they must provide and ensure clarity for employers and service providers on the law. This would suggest that the HRC do think that there's a role for governments to provide clarity on this. The HRC also knows that, in relation to the Equality Act, it is for them to lead. What I have set out is the guidance of the operation of this bill, which of course has a role for us as ministers. What we said about the Equality Act, however, to go further and to address some of Claire Baker's concerns, is that if they want to revise the guidance in the light of the bill, or the act, should it pass, we would work with them in doing that, but we have to respect them as the lead organisation for matters that impact on the Equality Act. The HRC provides guidance already for individuals, organisations and the public sector, as well as a statutory code of practice that assists service providers with understanding the relevant issues. This includes already published guidance for service providers looking to establish and operate a separate or single sex service. Pam Duncan-Glancy. I thank the cabinet secretary for taking an intervention and I understand the statutory responsibilities that the HRC has over the Equality Act, but I wonder if she'd accept that, for example, in a letter recently from Minister Kevin Stewart to health boards, there was recognition that protocols would need to be in place to support people, trans people and others in order to be able to provide services. On that basis, surely the cabinet secretary can accept that it is acceptable for the Scottish Government to direct devolved bodies on how to provide services and organisations, how to deliver services too, on the basis of any piece of legislation? As I've just said, the guidance on the operation of this bill is absolutely for us to set out. I've already acknowledged and accepted that we will do that, but that is different from the operation of the Equality Act, which has the lead of the EHRC in statute. They are the statutory body, so we can't lead on that. They have to lead on that. What I have said, though, is that we'll work with them on doing that, but they have to be the lead body. I can't be any clearer than that. I agree that it is important for clear guidance to help people and organisations to understand their own rights and responsibilities as set out in the Equality Act, which is why, as I've just said, I've said to the EHRC that I'd be happy to work with them should their guidance required to be updated following the bill. We will highlight where additional guidance would be helpful. I'll repeat that commitment now. Amendment 112, in the name of Ash Regan, specifies that nothing in the act affects any provision to which section 93 of the gender recognition 2004 applies. As we have set out on a number of occasions, the bill does not amend the effect of a GRC as provided for principally in section 9 of the 2004 act, and therefore I cannot support an amendment that says the bill does not amend a section, it obviously does not amend. I also don't support her amendment 113, which specifies that nothing in this act affects specific sections of the Equality Act, nor do I support the similar amendment 130, in the name of Jackie Baillie, which specifies that nothing in this act prevents the provision of a service only to persons of one sex under schedule 3 of the 2010 act, modifies the protected characteristic of gender assignment, or modifies the definitions of sex, man, woman in the 2010 act. Amendment 133, in the name of Jamie Greene, places a duty on Scottish ministers to publish a report no later than three years after the act has come into force on a review of the impact of this act on the equality act. As I've already said, the bill, as amended, already states for the avoidance of doubt that the bill, this bill, does not modify the equality act in its entirety in any way, and to pick the equality act apart in this way causes confusion within the law, particularly when there is already provision added to the bill at stage 2 that for the avoidance of doubt it does not modify the 2010 act. Liam Kerr. I'm genuinely grateful, and I'm genuinely struggling, Cabinet Secretary, so I wonder if you can make this very clear for me. What I'm struggling to understand, if obtaining a GRC under the Haldane judgment means that a man with a GRC is a woman, then what is the legal basis going back to Stephen Kerr's intervention for excluding that category of person from a single sex space? Trans women can be excluded from a single sex space. That is in the Equality Act as an exception, and nothing has changed with this bill whatsoever. As I said, the judgment is entirely in line with the position of the Equality and Human Rights Commission, literally the body that oversees the Equality Act. Our position is exactly the same as theirs. Very briefly. Ash Regan. I thank the cabinet secretary for taking intervention. I do think that this is a very important point that we need to be allowed to debate. The Government's position, as I understand it, which I happen to not agree with, but the Government's position is that exemptions are still operable. I'd like to know what assessment the Government has done on the chilling effect on what could often be quite small single sex service providers? Cabinet Secretary. I don't believe that that will be the case in terms of a chilling effect. In recognition of any concerns, what I have said is that in terms of the guidance of the operation of this bill, that we will set out that guidance, but it is for the Equality and Human Rights Commission to set out the guidance to public bodies to make sure that when they are applying those exceptions, and it has to be on a proportionate basis, that they are doing so and keeping themselves on the right side of the law. That is very clear. The guidance, I think, is very clear, but if it has to be reviewed, if the HRC thinks that it has to be reviewed, that is a matter for them, and we will assist them with that. I'm going to make some progress, if you don't mind. I don't support... Members, sorry Cabinet Secretary. I think it's fair to say that members have been very good so far in listening to one another, and I'd like us to continue with that. Cabinet Secretary. Thanks. I don't support amendment 121 in the name of Rachel Hamilton, which would place a duty on Scottish ministers to report on the impact of the bill on the provision of single-sex services every year. I don't think that that is a disproportionate reporting requirement. I don't support amendment 61 in the name of Pam Gosol, which would place a duty on ministers to report on the impact of the bill on self-exclusion from services. Exceptions in the Equality Act enable single-sex services to exclude trans people or treat them less favourably where it is a proportionate means of achieving a legitimate aim. Those exceptions apply whether the person has a GRC or not, and this bill does not change that. There is no impact to measure from the bill, and any self-exclusion that does occur is more likely to be caused by misinformation and concerns. Amendment 123 in the name of Pam Gosol would place a duty on Scottish ministers to report on the impact of the act on the funding of single-sex services. It is not clear to me what the funding of such services has to do with the bill about applying for legal gender recognition. I see no possible impact and therefore can't support such an amendment. Amendment 128 in the name of Paulie McNeill, and I will let Paulie McNeill in a minute. In the name of Paulie McNeill is an avoidance of doubt provision that nothing in this act affects any requirement to collect data on sex as defined in section 11 of the 2010 act. I don't believe this amendment adds value for the reasons that I have explained on the other amendments, and therefore I won't be supporting it, but I'm happy to take an intervention from Paulie McNeill. Thank you, cabinet secretary. It was following on from Ash Denham's intervention where you answered that the exemptions can be used, and that is of course correct. If the cabinet secretary might want to offer an opinion then, is the why rape crisis centres, for example, who have tried to use the exclusions, have experienced a great deal of resistance to this. Many organisations who have tried to use the exemptions, which are lawful, don't seem to be able to use them, and I wonder if that gives the cabinet secretary cause for concern, because if all of this boils down to, well, in any case, you can exclude anyone, but, incidentally, you can't ask someone's trans data to submit you. It's a bit difficult, but anyway, on that point, surely she must know that loads of organisations are really the end of their terror because they're trying to use the exemptions and they're not able to. Some organisations have used the exemptions and others have chosen to be trans-inclusive. That is ultimately for that organisation to decide their policy as long as their policy is within the law and follows the guidance and is proportionate. We can't dictate to each organisation what their policy is. They have to follow the guidance and they have to keep themselves on the right side of the law. I want to turn finally and importantly to amendment 127 in the name of Jackie Baillie, which provides a paragraph 28 of schedule 3 of the 2010 act on exceptions from gender assignment discrimination continues to apply to activity or conduct carried out in Scotland, even where an individual holds a Scottish GRC. Members asked me yesterday about the degree of risk of amendments and, I think, to be clear, this would be at the top of the risk to the bill list for reasons that I'll come on to. It is trying to clarify the effect of reserved legislation and we can't do that in a devolved bill. Let me just say a little bit more because this is important. Whatever the intention of that amendment, and I'm sure it's well intended, in legal form the provision would legislate to continue the effect of reserved provisions of the equality act. We believe the amendment is at serious risk of being out with legislative competence. The amendment specifies circumstances where paragraph 28 of schedule 3 of the equality act on gender reassignment discrimination applies, stating that it continues to have effect where a person holds a GRC. That is consistent with our understanding of the effect of the equality act but that act makes no mention of GRCs. This amendment purports to clarify paragraph 28, which is reserved law and so there is a serious risk of the amendment being out with competence. This amendment is different in its effect from the provision already in the bill and this might be Daniel Johnson's point, which states that the bill does not modify the equality act. That provision states plainly that this bill does not modify the equality act whereas this amendment 127 seeks to clarify what the act does. I hope that members will remember that the disputed section of the gender representation on public board Scotland Act 2018 was found in the first judicial review on appeal to have impinged upon equal opportunities as a reserved matter. Daniel Johnson. I am grateful to the cabinet secretary for being so explicit why I was giving the example that I did because it actually confers rights upon individuals based on the status defined in law. In very much the same way, it borrows on a definition in reserved law in terms of functions being legislated by this, which is similar to that. Again, I do not understand why this legislation falls far out of that, but previous legislation does not. There has been previous legislation, which has been in the same bracket. I understand that ministers at the time of the land reform bill, for example, had to write to members on the same basis. The difference, as I have just set out, was the provision already in the bill, which I know that some members have said, so if we were able to put for the avoidance of doubt at stage 2, what is the difference? Well, the difference is that the provision already in the bill states that the bill does not modify the equality act, but that provision states plainly that this bill does not modify the equality act, whereas, as I said earlier, this amendment seeks to clarify what that act does. I would like to re-emphasise a point that some members mentioned yesterday. That is, if a provision of the bill, as passed, is subject to legal challenge, it is absolutely not the case that the rest of the bill can proceed meanwhile. The entire bill would be referred and therefore delayed and put at risk, and I have to be clear with members about that. I hope that those who support this bill—a point that I made yesterday as well— there will be some members in this chamber who do not support this bill and therefore it will not be of concern to them. However, I know for members who do support this bill and do not want a delay, we should not be putting barriers in the way and we should not be putting this bill at serious legal risk. I urge members to support my amendment 54, not to support the other amendments in this group, particularly 1, 2, 7, for all the reasons that I have set out. I call Jackie Baillie to speak to amendment 111 and other amendments in the group. Thank you very much, Presiding Officer, and I apologise to the chamber in advance for the length of my contribution, but there are substantial issues to consider. There are three amendments that I have lodged in relation to the protections that exist in the Equality Act, amendment 130, amendment 127 and amendment 111. When Scottish Labour supported the bill at stage 1, we were clear that significant improvements were needed if it was to respond to concerns expressed in particular by many women's groups and individual women in order to have public confidence. At every stage, we have sought to work with others to deliver these changes and we continue to do so this afternoon at stage 3. At stage 2, Scottish Labour was successful in placing reference to the Equality Act on the face of the bill and that was supported by the Scottish Government, but it did not go far enough and rejected an amendment from Foisal Childry and continued to reject amendments today. We recognised that concerns remain, not least following the intervention of the UN rapporteur on eliminating violence against women and girls, who said that amending the application process for a GRC makes upholding the protections for women and girls in the Equality Act very important, hence the amendments before you today. Labour is proud to have passed the Equality Act in 2010. As reserved legislation, we know that it cannot be changed by this Parliament, but we believe that it is important that service providers and public bodies have clarity about their legal obligations under the 2010 act and this legislation. For that reason, to provide clarity and reassurance, I have lodged a number of amendments, taking first amendment 130. The amendment references the exceptions within the Equality Act that allow for the provision of single sex spaces and services and makes clear that they continue to apply. It states plainly that nothing in this new legislation changes or modifies the exceptions that exist in the Equality Act under schedule 3 or modifies the definitions in the Equality Act for both the protected characteristics of sex and of gender reassignment. It repeats exactly the language in the Equality Act, nothing more, nothing less. The purpose is to emphasise the primacy of the Equality Act of 2010, ensuring that single sex spaces are protected where it is necessary to do so. I know that there have been concerns that providers are not clear on the legal position with the use of these exceptions or that these exceptions have been used appropriately. The amendment clarifies that, despite any changes brought about by the bill, service providers can continue to offer single sex services in accordance with the legal test in paragraph 28 of schedule 3. By doing so, those tests are met. They can also exclude trans people from those services in certain circumstances. Subsection 2 of the amendment 130 states that the bill would do nothing to change the Equality Act definition of gender reassignment, which does not require a GRC. The effect of the subsection is to emphasise that it continues to be a defence to the charge of gender reassignment discrimination that a person was excluded from a single sex service where it was done in accordance with the test set out in the Equality Act. My understanding is that Lord Halden made clear in her judgment that sex and gender reassignment are distinct and separate protected characteristics, even if not mutually exclusive. Should a trans woman be excluded from a single sex service on the basis of her gender reassignment, the exception in paragraph 28 would apply to allow for this to be permissible. I see that the cabinet secretary is nodding. I am happy to take an intervention. Does Jackie Baillie agree with Lord McConnell, who at the weekend wrote, if I might quote from his words, that there are really serious concerns about safe spaces for women, especially those facing and dealing with the trauma of abuse, violence and rape, has been highlighted in the debate. Picking up on the point that was made earlier, the chilling effect of what happens when there is an attempt to apply these exceptions for any organisation is a very real thing. Jackie Baillie. Can I thank the member for the intervention? That's exactly why we're bringing forth these amendments today, and I hope that he and his party will support them, because amendment 130 is intended to put beyond doubt that this continues to be the case in Scotland. I am aware that the Scottish Government's rationale for opposing amendments that pull out specific exceptions of the Equality Act is that it somehow weakens the bill. I genuinely don't get it. The Government, I don't believe, has convincingly set out how changing the procedure for applying for a GRC is weakens simply by noting that existing reserved legislation remains unchanged. Amendment 130 and my other amendments are carefully worded so that they do not interpret the Equality Act. They merely reference the relevant sections. Literally word for word. I give way to the cabinet secretary. As we passed the amendment at stage 2, which was done jointly with Pam Duncan-Glancy, it was to put beyond doubt, for the avoidance of doubt, that nothing in the Equality Act was changed by this bill. Does Jackie Baillie not acknowledge that by then picking out parts of the Equality Act beyond that catch-all just leads to not just confusion, but could lead to legal misunderstandings interpretation, which could be really unhelpful in terms of this bill? Jackie Baillie. I think my amendment 130 has exactly the opposite effect. It is about spelling out clearly an area of concern that has been raised with members across this Parliament, and that's why it's so important. Let me turn to... If I could make some progress, please. Let me turn to amendment 127, which seems to have caused much controversy. This amendment makes clear that the exception in the Equality Act, which allows for the exclusion of trans people from single-sex spaces, continues to apply as before, even if someone obtains a GRC under the new application process set out in the bill. The cabinet secretary actually stated exactly the same thing last week in the chamber, almost word for word, when responding to an urgent question. My intention in lodging this amendment is to give clarity and reassurance to service providers that they can continue to make use of this exception where appropriate to do so and whether necessary legal tests are met as set out in the Equality Act. The Scottish Government allow me to make some progress. The Scottish Government has suggested that this amendment may be trying to interpret the Equality Act, but again, it is carefully drafted so that references exactly the exception in the Equality Act does not add or take away from it. There was Bruce McGuire. I thank Jackie Baillie for taking the intervention. You mentioned service providers and the importance of them knowing the law. Would you agree that it's also important to know what service providers are and aren't allowed to provide? I absolutely agree. It's not just service providers, it's funders. It is also the general public having an awareness of what this all means. I welcome that intervention. The Scottish Government is saying that by accepting this amendment, the bill is at risk. I genuinely do not find that argument persuasive. I don't want to do anything that risks this bill, but we know that the Government has experienced this through the UNCRC fiasco when amendments that they were warned about but pushed through led to a Supreme Court referral. We know that the cabinet secretary met the other day with the UK Minister for Women and Equalities to discuss this bill. I'm not sure of the content of the conversation, but it would be helpful to the chamber if she could confirm whether there was a discussion that was centred at all or even touched on the amendments raised in her letter the other day. Because if passing this amendment was as serious as described, surely, but surely it would have been discussed. I will indeed. Rachel Hamilton. I thank Jackie Baillie for taking the intervention. Surely at this point, I'm trying to work out whether Jackie Baillie is trying to argue that Labour's original amendment at stage 2, it was in the name of Pam Duncan-Glancy which said, for the avoidance of doubt, nothing in the act modifies the equality act 2010. Now, bear with me, because how can that solve the issues that relate to the interaction between the Gender Recognition Act and the Equality Act? I hope that's my understanding of what argument you're trying to make because it simply says that things will stay the same, but they're not because of Lady Heldain's court ruling. Our additional amendments are absolutely recognising the court ruling, but actually leaning into what is already in the Equality Act. If you wish to protect single sex spaces, if you wish to exclude those provisions are already there. Lady Heldain's judgment does not change that at all. That's why amendment 130 is just so important. Let me go back to trying to conclude this, because I've got a lot more to say, but I genuinely don't accept, with the greatest respect, that amendment 127 would put this bill at risk. It's not adding or interpreting the Equality Act. It merely states that paragraph 28 of schedule 3 of the Equality Act 2010 continues to apply to activity or conduct carried out in Scotland, even in circumstances where an individual holds a gender recognition certificate obtained under the Gender Recognition Act of 2004, or a confirmatory gender recognition certificate obtained under section 801 of that act, i.e. a Scottish GRC under these new application processes. The salient phrase in the amendment being continues to apply. To say it does more is disingenuous and the evidence for this is that the same argument is being applied to amendments 130 and 111. I know the Scottish Government don't like amendments 130 and 111, but they haven't written to me saying that they would rest the bill. You know I'm a reasonable person. Amendment 130 and 111 don't appear to cause the Government the same problems. They weren't mentioned in their letter and therefore I would consider withdrawing amendment 127 if they would be willing to accept 130 and 111. I mean, I would genuinely be willing to give way to the cabinet secretary just now if she wants to indicate her support for amendment 130 and 111. Cabinet secretary. I can't do that for all the reasons that I've set out already, that the equality act for the avoidance of doubt amendment that nothing changes is clean, clear to start unpicking any piece of legislation and to select parts of it into another bill is not clear and is not helpful. What I can say is that she's right in so far as the list of risks to the bill 127 is up there for all of the reasons that I have stated and have made clear and it's not the case that 127 just reflects the wording of the equality act. The equality act does not refer to a GRC but Jackie Baillie is just not correct on that and I hope she does decide not to move 127 for those reasons. Jackie Baillie. That was quite a long intervention but my assessment of what the cabinet secretary said is that she has a preference for 130 and I hope the chamber will listen to her on that and support it. Finally, let me turn to amendment 111. Amendment 111 requires the Scottish Government to produce guidance on the application of the legislation for devolved service providers and public bodies. The wording of this amendment matches closely the amendments on guidance which the Government itself has lodged after my discussion with them. The difference is that my amendment makes clear that this guidance should include the provision of single-sex spaces and the circumstances in which you can exclude again lifted from the equality act. If the cabinet secretary wants to give me an assurance on the record that her amendment would cover this I absolutely reflect on that but I did not hear that in her opening statement. Throughout the passage of the Gender Recognition Reform Bill we have repeatedly warned the Scottish Government of the dangers of allowing a policy vacuum to develop because it leads to uncertainty for service users and for service providers in Scotland. Those warnings have largely been ignored and we can see many different organisations attempting to navigate a path through the interaction of these acts trying to respect everyone's rights and protections but the silence from the Government is not appropriate and many groups have spoken to us about the dangers of differing interpretation of the legislation. With amendment 111 we are making it clear that it is the Scottish Government's responsibility to provide clarity by setting out clear guidelines for the operation of this legislation with regard to the 2004 act and the Equality Act of 2010. We believe that service providers' responsibilities will be made clearer and easier to implement. The Scottish Government has suggested and they have done it again today that it is not within their remit to produce this guidance, it is the job of others and they will work with them. That's great but I reject that assertion that they don't have any remit to do this. The amendment is drafted so that this guidance does not need to be statutory and it is already the case that this Government has provided guidance to schools, to Scottish health boards and in fact Scottish health boards have issued a variety of guidance covering some of these issues. If that is possible then it is completely within the Scottish Government's remit to publish guidance for devolved bodies and I would argue that it would in fact be preferable. Graham Simpson I thank Jackie Baillie for taking the intervention and listening very carefully to her and it sounds like these very sensible sounding amendments in this group are pretty fundamental to Labour's case. So if these amendments don't pass particularly 130 will Labour not be supporting this bill? Jackie Baillie I absolutely welcome the intervention from Graham Simpson but you know I want to see what has passed I hope everybody across this chamber listens to the very reasonable proportional arguments made and passes these amendments and you can wait to stage 3 to find out what we do as a consequence of that but I am confident that these amendments are competent they will help to highlight that whilst this legislation simplifies the process of obtaining a GRC which is absolutely welcome and that trans people continue to be protected by equality legislation and that public authorities in Scotland will finally have clarity on the actions that they should take to ensure everyone's rights and obligations are upheld Presiding Officer in bringing my remarks to a close let me be clear on 3 things amendment 127 and indeed amendments 130 and 111 do not reinterpret the equality act they state that it continues to apply in Scotland and that is a fact the Scottish Government do not seem to have the same concerns about amendment 130 and 111 so I would consider withdrawing amendment 127 if they could find their way to supporting the other amendments and make that clear unfortunately they haven't done so so I would encourage members to think about this because these amendments directly address the concerns of women and women's organisations while still protecting people seeking a gender recognition certificate they deliver word for word the equality act provisions they seek the practical provision of guidance where it would be a genuine dereliction of duty to leave a vacuum they respond to UN rapporteur on eliminating violence for women and children's concerns and I specifically asked if she would be reassured by these amendments and she said yes to the possibility as parliamentarians to ensure that we pass the best possible legislation if we're serious about giving single sex spaces protection whilst protecting the integrity of the bill this is the opportunity to do so thank you I now call Ash Regan to speak to amendment 112 and other amendments in the group thank you I don't intend to lodge sorry to move 112 but I will move 113 so one of the roles of a Government is obviously to protect its people and the current GRA regime as we all know was put into place to ensure that legal recognition to reflect that and trans people are protected rightly so under the equality act provision on gender reassignment so the existing regime is fully compliant with the human rights law and a recent high court judicial review in Northern Ireland ruled that the GRA regime strikes a fair balance between the needs of the applicant and the community as a whole the bill before us today in my view does not strike that balance it does not protect the rights of everyone instead it introduces a hierarchy of rights where women's rights are demoted and I say that not to be provocative or to be unnecessarily controversial but because that is the only conclusion that can be drawn from a review of the interactions between these two pieces of legislation I think demonstrated by the quite long debate we've had on that point prior to this and the Court of Session ruling last week in my view has now put this beyond doubt self-id does grant new rights and grant a GRC to almost anyone who wants one and this is not just an administrative change this is not just a change in process that has no real world effect there are currently around 600 GRC holders in Scotland which is quite a small number and the Government expects this to increase 10 fold to 6,000 this will grant somewhere in the region although we're not entirely sure for people who are and the most important point about this not currently eligible for a GRC and also the rights that are conferred by it now these people may well be trans however my strong contention is that not all of them will be I'll give way I thank the member for giving way when she says that the people, the 5,000 are not currently eligible does she accept that there will be people in that group that are eligible but have chosen not to go through the process because it is demeaning and humiliating excuse me I appreciate that there's great interest and that those observing from the gallery are very interested in the proceedings but it is the case that we would ask that members are not applauded from the gallery actually I do accept that point there probably will be some probably a small number who may be chosen for whatever reason that they don't want to apply for a GRC but I still think the general contention is fair that this opens the process up to a vast number of people who would not currently be eligible under the normal scheme with the safeguarding that I think that entails and I also take issue with the point that the member raises that all trans people think that the current process is intrusive or degrading in some way that is not I'm sure some people do feel like that but that is not how some trans people have described it to me and one GRC holder said to me that she was completely happy with the process and indeed felt that the longer process was entirely appropriate considering the profundity of the change that was being undertaken so if we are saying that we think that some of the people that are applying for GRC may not be trans we're not going to be able to tell how we would be able to tell if there were some fraudulent applications or not and this now creates a situation where members of a dominant group in society can now self-identify into the rights of an oppressed group and this is absolutely unprecedented now my amendments in this group won't resolve this problem and they won't put this beyond legal doubts I don't think I tried to lodge a number of other amendments and I was advised by the Parliament that amendments that altered the effect of a GRC were inadmissible and we've had some debate on that already but I think that as the group of people that can now access a GRC so expanded and that I think we're all admitting that it may be open to being abused that in not allowing this Parliament to make changes to the effect of a GRC that we are now being asked to legislate in such a way that I don't think can possibly lead to good law or as my strong belief that many of the amendments that we are discussing today will not materially alter the issues that we are all facing and I also contend that despite the information that's been presented to the committee that states obligation to protect vulnerable rights holders was not given enough consideration and that is of course a contention that has been backed up by Reem Alsalem, the UN special rapporteur on violence against women and it's claimed that the impact on women and girls had been assessed and that there was no impact and I strongly disagree with that I have searched and I cannot find the analysis that addresses and evaluates the impact from the context of women and girls as vulnerable rights holders and that is consistent with other jurisdictions where the data on the impact on women is not being collected in Ireland when self-id law was being reviewed the impact on women was considered to be out of scope but if you don't collect the data you will not be able to assess the impact and on that basis alone I believe we should not be proceeding there are many examples around the world of violence and sex offenders in women's prisons now including here in Scotland examples of flashing and voyeurism in women's single sex spaces and women self-excluding from services in places where self-identification into women's single sex spaces has introduced and I assert that for those who are looking the impact is there and women's single sex spaces are important and the issue is whether of course people are male and not whether they are trans male people as a group are a risk to women and I see the Greens are sighing at that reference but male people as a group are a risk to women and I think we all accept that so the ability to exclude people of the opposite sex and the GRC I think will now be impossible on grounds of sex and inevitably making use of these exemptions will be much more complicated and will be much more off-putting to organisations many of which are quite small some are charities and so on so this bill may not spell it out but I believe that we shouldn't delude ourselves it comprehensively undermines the single sex exemptions and we are being conditioned to accept male bodied people in women's single sex spaces why? who does that benefit? and I would say to my fellow parliamentarians that it boils down to this do you think women will be more or less safe as a result of this law and if you have any doubt at all if you make women and girls less safe then you cannot vote for it we will suspend for a moment as parliamentarians the public expect us to engage critically with the arguments they expect us to balance different viewpoints and rights and they expect us to ask the hard questions and understand what we are voting for and it is a huge responsibility and it cannot be delegated the people of Scotland are watching and we often say that we use legislation to send a message and I believe that's true but I'm very very sad to say that the message today that's been sent out to women and girls in Scotland is that you don't matter so I'm going to vote as if women do matter and I'll be voting against the bill before I call Pauline McNeill to speak under rule 9.8.5a I am minded to accept a motion without notice to propose that the next time limit be extended to two hours moved Presiding Officer the question is that the time limit by which the debate on groups 13 and 14 must end be extended by two hours are we all agreed and I call Pauline McNeill to speak to amendment 117 and other amendments in the group Presiding Officer I speak to amendment 117 in my name 128, 129 supporting the excellent amendments in the name of Jack Bailey and others in the group I'll try not to repeat what's been said but there's obviously quite a bit of overlap in this group probably one of the most important groupings I think of the bill itself and I'm in with tackling the issue of the Scottish Government's position that all they have done is reform the process part of the 2004 Gender Recognition Act I don't believe that that is the case the Scottish Government has consistently argued therefore there is no requirement to issue guidance or clarify the effect of holding a gender recognition certificate under the proposed reforms in relation to the 2010 Equality Act in fact the Scottish Government listed right up to this point that it is the responsibility and you heard that again today of the Equality and Human Rights Commission to issue guidance on the effect of having a gender recognition certificate the problem with that statement is that the Equality and Human Rights Commission as Claire Baker mentioned earlier have then and now repeated their view that the Government has amended the bill to such an extent that there now needs to be clarity on the operation of the 2010 Equality Act in my view this is based on the fact that the 2022 bill as we are looking at now is quite different just last week again they said the same the law concerning matters of sex and gender can be complex and clarity is essential for public bodies, employers, service providers and people across the country who rely on it again Reem Asalam who gave evidence to the Equality and Human Rights Committee said the same she said to the cabinet secretary in relation to prisons she said the guidance is not good enough what more convincing did the Government really need to get to this stage and argue but you have now conceded that you will then talk to them Polly McNeill might be aware I'm not sure that the prison service is already reviewing its guidance but I've been managing transgender prisoners for many years some of which are placed in the women's estate some in the men's estate according to risk but she is aware that they are reviewing their guidance to make sure it's fit for purpose in the current day Polly McNeill I do welcome that review from the Scottish prison service and they have consulted more widely and I'm pleased to see that but I'm not comfortable with the notion that this is not for consultation why we're still being criticised as the Parliament for not having the guidance in the first place that makes me uncomfortable with looking at the provisions in the bill while this is not in place because it's essential issue to be debated in this grouping the Jackie Baillie has addressed also about funders for example there is massive confusion I want to address this in some detail if you don't mind under the current and proposed system so it now appears that it is quite impossible for organisations to legally distinguish between those born females and holders of a female GRC and the Government successfully argued this in court and I think that whilst that judgment may be or returned or not it has added to the confusion about this particular aspect particularly of this phrase legal sex now this will undoubtedly lead to confusion of the organisations that are left with the challenge of trying to interpret what that law means so in stage 2 the briefing of the quality human rights committee noted that the proposed form will have significant implications for the operation of the equality act in Scotland to the extent that the expansion to a larger group will have meaningful consequences in relation to the operation of those provisions so I don't think that members should dismiss it lightly that whatever you think of the reforms this particular reform will apply to a larger group of people and we have the guardians of the equality act let's be clear the equality human rights commission are the guardians if you like of the equality act are saying that that makes a significant difference and has meaningful consequences they say in relation to education and school sex discrimination including equal pay between men and women gender pay gaps and measures to address the advantages experienced by women and my contention in this bill is it does not simply just reform that part of the 2004 act which I was a vocal supporter of and still am a vocal supporter of reform but I believe that by removing huge elements of the process and arriving at a framework which is a self-id model then the operation of the equality act does leave some things to be considered and that's what I'm going to, yes I will, yes thank you Pauline McNeill does the member agree with Joanne Lamont when she says that the proposed safeguards are utterly risable Pauline McNeill well I think what the parliament has been trying to achieve actually to be fair in the last day or so is actually to debate some of the safeguards and some of which I think we have achieved so yeah I would agree with that but I wasn't really talking about safeguards per se I think this is a really really important point for me because my contention as I said is that the bill doesn't simply just reform one part of the GRA it actually kind of changes the whole nature of it which is why we as legislators have got to be clear now because the bill tomorrow, tonight, tomorrow, whenever that's going to be that we are pretty clear absolutely clear how it interacts with the equality act I believe that just give me a minute to get my train of thought back please I believe that the Scottish Government have instead stripped out these elements as I've said plus removing all the requirements from the process of acquiring a gender as I spoke to in previous groupings also means that there's some clarity required so I believe that that's why the Scottish Government must publish detailed guidance on the effect of having a GRC I want to speak more to this about what there might be legal challenges to Lady Hildian's judgment and what it might mean so I do think that given what I've just described which is a vastly different bill it's not just a tinking with 2004 then I think that the obligation is for the Government now to indicate what the effect of having a gender recognition certificate is I give way to Rachel Hamilton I thank Pauline McNeill for allowing me in I'm really interested in the arguments that you're making and you and I have discussed this issue through the chair please sorry Presiding Officer but I just want to ask Pauline McNeill if she believes that the Lady Hildian's court ruling that Pauline McNeill is talking about has blown apart the SNP claim that obtaining a GRC does not grant access to the rights and protections of women because the argument that the SNP made in court now confers access to the rights and provisions and rights and protections to women so they've blown apart their own argument by arguing against that it doesn't confer rights and protections to women Pauline McNeill I'm not going to second gas the judgment and what might happen but I want to say this in response I was going to say it anyway so the phase we've heard nothing in the spell changes anything in the equality act now that really depends what your perspective is in the sense because for me I've always assumed the equality act when it refers to sex although it doesn't say so I've always assumed that it means biological sex but for some people they think it's legal sex and what Lady Hildian seems to be saying is that it's legal sex and biological sex my point is there's a great deal of confusion on what this judgment now means so that is my point which is it's the Government's job who are the movers of the legislation to take into consideration the judgment and to tell providers and the general public what the effect of having a GRC is I can't answer what the effect is because I'm a wee bit confused I can't deal with this question of having a GRC not having a GRC so we've heard this argument well you can it doesn't really make any difference what you have on whether you don't because you can be excluded under the exemptions now so I think there is a significant level of confusion about this and it just takes time to get your head round this about where this really does matter so in March of this year cabinet secretary said that the bill does not introduce any new rights for trans people it's a bit simplifying and proving the process for a trans person to gain legal recognition so I do agree that it does make the process simple what I'm not clear about is whether it gives any new rights or not I did want to say something else in relation to the Haldane judgment there are many commentators already saying that the Four Women Scotland judgment would be likely to destabilise existing categories and frameworks for the purposes of reserved matters and equal opportunities and a particular article by Michael Foran who writes for the UK Constitutional Law Association now I realise it's just one academic but this has been discussed obviously since this judgment has only passed on 13 December but here's the important part I think for the Government to consider he and others are of now of the opinion that the possession of a GRC clearly does matter for the assessment of whether exclusion is objectively justified now I'll deal with this argument in a minute and it's one that Jackie Baillie made very well which is the law requires you to judge whether or not it's proportionate and legitimate to exclude anyone and rightly so you have to see why you think it's proportionate some commentators are saying that given we've just had this judgment what we don't know the possession of a GRC is going to make it potentially more difficult to make that objective judgment now I'm only posing the question I'm not saying that it is if you give me a second I will because I want to make this point thoroughly I'm not saying that it will but the fact that people are already questioning the judgment in this regard and given that it's the Government that have in a sense got to answer this question because you're the ones that are saying no problem here and you can use the exemptions while some people are now saying having a GRC might not be seen as objective to exclude somebody who has one I'll give way to Jeremy Balfour Jeremy Balfour Thank you everybody we've had this judgment for just over a week most of us haven't read the full judgment let alone understood it academics are still working through the implications of it no doubt lawyers are looking at appeal points as well so there is real uncertainty of what this interpretation will mean going forward would she not agree with me that actually the best way forward here will be simply to pause the process until we get some legal certainty so we're not all trying to second guess while most of us aren't practicing day-to-day lawyers Pauline McNeill is a fair point that none of us are practicing day-to-day lawyers we're trying to make our best understanding of it but what I'm saying is that's my understanding but I would like guidance from the Government in terms of they're the movies of the legislation I'm clearly trying to get that now and not wait which is why I've moved these amendments and I want to deal with the exceptions in the 2010 Equality Act again at Jackie Baillie address because they are so fundamentally important that they require the Scottish Government to consult each public authority about the implications of the Act for the Development and Modification of the Authorities Policy on the operation of the exclusions so in December 2021 just a year ago the House of Commons Women and Equalities Committee reported on the Gender Recognition Act stated that concerns raised about the interplay between the Gender Reform Act and the Quality Act fell into three broad categories one lack of confidence understanding among service providers about how to apply exceptions to the need for better guidance to assist service providers with exceptions and three how a system of self declaration might affect the provision of single sex services in a year on from this I don't think these questions have been answered and fundamentally this is the most important point I'd like to make to the Cabinet Secretary if service providers don't feel they have confidence to use the law what is the point of the law and I think again you must provide these organisations with that confidence or I don't think you can continue to rely on this issue that organisations should just make use of and I want to draw some examples on that point Cabinet Secretary is aware I've been trying to get a copy of this letter that Pam Duncan-Glancy raised earlier for ages to see what was actually in it and I do concede at the time I was I did say on the record that I could only read the Times report but I had it for myself and that I accept the letters quite different but what concerns me about Kevin Stewart's letter and it illustrates my point which is he wrote to health boards in October of this year noting that he had been asked questions about the processes and policies Scottish Water Pools were using when managing to NHS in-patient services and that some boards have clarified that there is no specific protocol for the management of this patient group there's nothing in the letter about the law nothing in the letter about the exemptions now surely at least the Government would accept what's the point in writing to health boards without telling them what they're allowed to do by putting the onus on them when actually it's the go... I really think this is why it's atrocious to be honest and I think the Government have got to to live up to the responsibilities this is why I ask that the Government support my amendment and talk to organisations on the ground who have to implement this public policy I mean I think this is the most lacking aspect of the legislation's impact and that is the public policy sphere if you like about how you apply these exemptions public... yes I will yes so Polly McNeill will be aware that the HRC recently issued revised guidance and I think that was partly to take into account some of the issues that Polly McNeill is talking about so I'm not sure what different guidance we would provide in those circumstances because actually I think the revised guidance is the right guidance to cut across that even if we couldn't we can't because it's reserved would just cause confusion I don't think there's any fundamentally wrong with the revised guidance that the HRC have issued I wonder then if the cabinet secretary would address my central point then which is why do ministers not write to health boards and tell them what the guidance is why are you writing to health boards and putting the onus on them to tell you the problem here's the problem they don't have the confidence to use it and I want to give another example of this in Ayrshire and Arran there's policy on trans users there appears to be no mention of the exemptions framework can you see the trend here no one in public the public sector is mentioning the exemptions I don't understand why the Government are not more concerned about this because it really is in the interests of all users it's in the interests of trans patients it's in the interests of all patients it's the interest if you believe in the policy and the legislation to sort this out and this is the worst example because it's the total misreading of the law it isn't even the law the NHS policy in Ayrshire and Arran refers to multiple occasions the fact that certain scenarios of practices may be in breach of the legislation they don't name the legislation or this policy states that placing a trans patient in a single occupancy room to avoid potential difficulties is discriminatory while it's only discriminatory if they have not justified it by being proportionate and legitimate compared to the situation they say of placing a black disabled elderly or lesbian and gay bisexual patient in a single occupancy room and the policy further states that female patients who raise concerns about trans women being put on female hospital wards are comparable with races and they have been told that they will be removed now look I'm not being too hard on the health boards here because I think they probably think they are trying to do the right thing but this is a disaster in public policy terms so why I'm really actually quite annoyed we've got to stage 3 before the Government's acknowledging any of this I want to close the single sex services in the Jackie Baillie to seconds Liam Kerr I'm very grateful and I'm enjoying the member's contribution I think she articulates my concerns as well very well but it does lead me to wonder if the member doesn't get the amendments sought today and the clarifications that have been asked for from the Cabinet Secretary and so the ambiguity and concerns that she's articulated remain and the member nevertheless intends to vote for the bill and if so can she help me to understand why? Any good legislator I have come here today to really press the Cabinet Secretary for some answers I sat through the whole of the stage 2 my contribution to this is very genuine what I'll do when time comes is something you'll find out because at the moment I'm really trying to test the Government on policy issues I want to improve the situation probably Jackie Baillie's covered the issue of single sex services so I won't it was just a reiteration of some of the services such as rape crisis centres have clearly found it very difficult in some instances and I don't think that's good enough it's not good enough for rape crisis centres to feel the threat of being called transphobic for using the exemptions where they can clearly show that it's proportionate and legitimate the Government must stand up for these services who choose to do that lastly my amendment on date sex and gender I just wanted to talk about this briefly I think we need better data I think that the writer and LGBTI forgive me I can't remember his name made this point quite well that we do need to have more data on the transpopulation to ensure we've got better policies affecting them but we do need to collect data on the basis of biological sex Reem Asalim says that she's afraid that the collection of sex and data has been recently prioritised and she says it's led to the conflation of sex and gender data results so we've seen the introduction of recording policies that conflate sex and gender identity in a single category and whilst I recognise the chief statistician published a report on data collection respect of sex and gender identity and trans status in September 2021 he proposed voluntary questions out of the capture of sex and gender and it's clear many organisations are not tracking such information in relation to service users that have been compromised by a lack of separate data on sex and gender identity meaning information can be easily tracked. Police and other services need to collect data on sex and birth declared gender identity separately in order for services to undertake rigorous risk and impact assessments when considering proportion and legitimate concerns. I apologise that it's a long contribution one of the reasons why I wanted this moved into another grouping so I could address it in conclusion I am clear in my own mind that if we want the legislation to work it is quite different you have to resolve these issues without going to the heart of competency you have to give confidence to public service providers otherwise the Jackie Bailey says the term proportionate means of achieving a legitimate aim is a absolutely meaningless phrase in law if you cannot tell your public sector providers what it actually means in the first place thank you very much thank you Ms McNeill and I will call Clare Baker to speak to amendment point of order Douglas Lameston while the debate has been taking place I noticed that there are members at home trying to make interventions but speakers aren't able to see that are you able to tell us are they meant to be told that there's interventions or are they meant to notice that on the screen while they're speaking I think Douglas Lameston for that I was not aware of that I will ask for that to be looked into certainly it should be the case that those who are participating remotely should be able to make that clear to members who are speaking in the chamber but I'll ask for that to be looked into thank you very much Mr Lameston and I'll call Clare Baker thank you so amendments 118 and 119 in this group focus on the need for guidance on the operation of occupational exceptions which considers section 22 of the 2004 gender recognition act and schedule 9 of the 2010 equality act so section 22 of the gender recognition act 2004 makes the disclosure of protected information related to an individual's trans status a criminal offence is to prevent a crime and schedule 9 of the equality act 2010 allows occupational exceptions based on both gender reassignment and sex when it is a proportionate means of achieving a legitimate aim so at stage 2 I secured an amendment which has been incorporated into amendment 90 today which requires the Government to consider the need for further exceptions to the offences under section 22 in devolved areas and if they decide not to specify why not and amendments 118 and 119 complement this as they address the issue of guidance and Presiding Officer I had intended to bring forward amendments which would have given the opportunity to debate the appropriateness of section 22 of the 2004 act if the offence should be civil rather than criminal if malicious intent should be identified for example but these were real to be out with scope and that is why I find the debate around the equality act challenging the Government is correct that the bill is not adding or taking away any rights for trans people but they don't recognise or think it is relevant that the significant changes being proposed to the process changes the context in which those rights are being granted the rights contained in the 2004 act and being upheld in the 2010 act by the EHRC and the ruling from Lady Haldane reflected a social contract between the individual and society it has been described as a key to a lock I appreciate this bill moves the process in another direction this bill is about the individual making the decision alone and while the argument and with the argument there's an argument that impacts on no one or it concerns no one else but by making the changes to this process the rights afforded by the 2004 act will be extended to potentially very different cohort of people as the process is being made simpler de-medicalised and less bureaucratic and in this context we need to have clarity over the operation of the exemptions and exceptions in the equality act so the 2010 equality act facilitates delivery of single sex services when it is proportionate and legitimate but the current lack of clarity is leading to confusion over how the law is interpreted this confusion is there both for providers of such facilities and for users being aware of what they can or cannot expect or what they are entitled to expect under existing equality legislation in the 2019 consultation on the draft gender recognition reform bill the Scottish Government themselves highlighted the situation which requires clarity the consultation said that some people in an organisation for example in the HR department may know about a person's trans history but those actually taking the decisions on staff deployment for example line managers may not the consultation goes on to say that to use the general occupational exemption 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 the statement can be made in relation to section 22 of the 2004 act which makes it a criminal offence to share protected information this has led to confusion from employers and in public bodies for example a Scottish health board and an FOI said 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 Presiding Officer this is not accurate a health board can exclude on the basis of gender assignment regardless of whether or not someone holds a GRC they can exclude someone from delivering female only care under the 2010 equality act the lack of clarity around the effect of section 22 is having a chilling effect it suggests that public bodies believe that section 22 prohibits information to the extent it prevents them from delivering female only care although the government consultation in 2019 said that information can be shared so I believe it is incumbent on the government to provide guidance on occupational exemptions to service providers which clearly sets out the interaction between this piece of legislation section 22 of the 2004 act and schedule 9 of the equality act while the equality and human rights commission have issued guidance on occupational requirement and exceptions the interpretation of that guidance on public bodies across Scotland continues to lead to confusion I do not believe that it is out with the boundaries of the Scottish Government's powers to provide clarity on these issues and the briefing for the stage 2 of the bill as I said earlier in relation to the UK and Scottish Governments they must ensure clarity for employer and service providers on the law the Scottish Government should recognise their responsibility to provide guidance which employers could use on the occasions that they wish to exercise an occupational exemption which they are able to do with the support of the equality act when it is proportionate for legitimate aim it would also provide clarity for service users as it would emphasise the EHRC guidance and make it clear the circumstance in which they can expect an occupational exemption to be considered that would provide much-needed clarity for the provision of single sex services I would ask members to support amendment 118 as it requires the guidance to be subject to parliamentary approval this is a complex area that I think would benefit from parliamentary scrutiny and 118 would provide for that so we have a number of amendments before us today on guidance most of which I understand are not going to support so I have got two final points one is if the Government's guidance which is amendment 54 will not cover the areas that MSPs are raising can they clarify which areas will be covered by their guidance and secondly I was struck by the UN special reporter on violence against women and girls evidence she gave to the Equalities Committee on Monday and here I'm going to highlight her views on the shortcomings of guidance she said she said it would be helpful to issue guidance but frankly on its own that is not enough that would be a bandage solution to wider and more systematic flaws with the process and the draft legislation as it stands I suggest again we go back and address all these different pieces because they're all linked to each other and that we do not suggest this would be a magical solution to some of these issues as a result of non-binding guidance some things must be clarified and spelled out in law that is what women's organisations and many victims expect my amendments are asking for guidance and I think this would improve the implementation of the bill and I am urgent members to support it but I have to say I am concerned that guidance will not resolve the challenging issues that myself and others have raised this afternoon thank you Ms Baker and I call Rachel Hamilton to speak to a move amendment 120 and other amendments in the group thank you Presiding Officer I move the amendment in my name my amendments in this group would place two requirements on ministers that I believe offer them an opportunity to clarify the interaction between this bill and the protection of single sex spaces and provide reassurance to both providers and users of those spaces amendment 120 requires ministers to provide and publish guidance on how this bill will affect single sex services whilst amendment 121 ministers to prepare and publish a report on the impact of this act on the provision of single sex services these amendments aim to provide clarity on the operation of single sex exemptions within the 2010 Equality Act for the providers of single sex spaces in relation to this bill many people have quoted Rima Salam today the UN special report on violence against women and girls and she provided evidence to committee on these matters and she said that women could self exclude from female only spaces as a result of this bill so far women have received absolutely no reassurance from the cabinet secretary that their rights will be protected within this bill the debate around this has been I believe repeatedly shut down and brushed aside Mr Salam also said sorry do you want to make an intervention oh right Mr Salam said that the scot sorry do you want to make an intervention could front benches the system speaking across the chamber ms Hamilton ms Hamilton could you resume your seat please ms Hamilton could I ask you to resume your seat please could I invite Mr Brown and Mr Finlay to the system speaking across the chamber while ms Hamilton is speaking we've conducted this debate so far in a courteous and respectful manner and we expect the chamber to continue in that fashion with that invite ms Hamilton to resume your remarks thank you ms Salam said that the Scottish Government's proposals would open the door for violent males who identifies men to abuse the process of acquiring a GRC and the rights associated with it and that the Scottish Government does not provide for any safeguarding measures to ensure that the procedure is not as far as can be reasonably assured abused by sexual predators and other perpetrators of violence these include access to both single sex spaces and gender based spaces today the Scottish Government have failed to provide clarity and reassurance to provide many of us who are asking and users of single sex spaces despite the many opportunities that have been presented to them to do so and the out of hand rejection of a number of colleagues who have continued to push this concern that it is not represented by them it is represented by others out with this building out with this chamber people who are very concerned I also want to highlight evidence that was taken by the committee from the HRC and many members of the public mbm and others who expressed similar views that this issue must be addressed in the bill I want to commend Jackie Baillie, Pauline McNeill and Claire Baker for their contributions we will be supporting all the amendments that they have put forward and I'm not going to repeat many of their very clear arguments that they have articulated very well but in her closing I would like to address some of the issues that haven't been addressed today which are as the impact of Lady Haldane's ruling and I would like the cabinet secretary to tell me how protections on the basis of sex are impacted by Lady Haldane's court ruling for example can a woman raise a sex discrimination case if their comparator is a male who has a female GRC or the positive measures by all of us here in a cross chamber who want to reach gender balance in public boards and does the Haldane ruling mean that gender balance on a public board could be 50% men and 50% trans women effectively extinguishing the hard fought protections of women thank you I think I moved my amendment you don't need to move it at this stage anyway I'm much obliged before moving to the next speaker can I just respond more fully to Mr Lumsden's earlier point of order thank you again for raising it I've asked officials to check as indeed broadcasting that the remote system is working as appropriate it does however rely on members noticing that it's appearing on the screen and therefore it may be a useful reminder that there will be members who are participating remotely who may wish to make an intervention and therefore if a colleague could be aware of that I think that that would be helpful with that I moved to Pam Gosall to speak to amendment 61 and other amendments in the group thank you firstly like others I would like to thank all the organisations who have sent the things through to help inform this debate I would also like to thank all the hundreds of emails and letters and cards we have received which I'm sure everybody has received in this chamber and lastly before I start my amendment the debate I wanted to thank all the parliamentary staff for obviously last night staying on but looking at the time I think I'm going to thank them ahead of time that looks like we will be here again in another late night so thank you since day 1 I have made it clear that my goal is here to seek balance no good legislation ever comes from betraying the rights of one group to the convenience of another in other words while I truly believe that improvements to the gender recognition process would be beneficial for trans individuals this should not come at the expense of women and girls vulnerable individuals and children who require the protection of the law at stage 2 of the bill my colleagues and I try to make amendments to uphold some form of safeguarding against bad faith actors which are not included in the SNP government's flawed legislation we even tried to postpone this legislation given the evidence that came to light in the form of recent ruling by the Scottish Supreme Civil Court further damning evidence outlined in a letter from the United Nations special repertoire on violence against women and most recently polling which suggests two thirds of Scottish electorate opposes the key principles of this bill but clearly the Scottish Government is charging ahead and not listening to many voices pleading for this bill to be postponed John Mason I thank the member for giving way so far her remarks have been quite general but does she think that self exclusion might particularly impact on ethnic minority women and people from religious minorities I thank the member for asking that question absolutely I will affect one of my amendments later on how I talk about that I have mentioned it many times in the committees but I have also mentioned it many times in this chamber that we must have a balance right for everybody and coming from a being background I will be speaking about this and letters we have received so I hope the member will be eager to listen later on thank you today I stand here hoping the Parliament will support my amendments which seek to offer even just reassurances for women that this Parliament is committed to upholding their rights at this stage in the process it has come down to making minor amendments in the hope that there will be at least some form of reassurance for women some form of comfort that their rights are under the 2010 Equality Act and not being completely eroded at stage 2 I propose amendments which would have required Scottish ministers to publish information on the impact of the act on single sex spaces and services yes to no surprise they were voted down at stage 3 today I ask that Parliament supports my amendments 61 and 123 amendment 61 places a requirement on ministers to prepare and publish a report on the impact of this act on self inclusion from activities or services no later than one year after section 2 comes into force I ask that the report includes information on self inclusion by both women and men and in different activities or services amendment 123 places a requirement on ministers to prepare and publish a report on the impact of this act on funding for single sex services and to consider what steps if any the Scottish Government consider necessary to ensure appropriate funding is available to single sex services presiding officer for years this Parliament has been making genuine progress in his attempts to ensure that victims feel heard to ensure they have a safe space to ensure they have the support network but this bill risks doing that the opposite risks marginalising already marginalised women it risks re-traumatising victims vulnerable women particularly victims of domestic violence may forgo seeking refuge in domestic abuse shelters whereby they might encounter biological males this amendment therefore calls for data collection to obtain a figure on how many women are excluding themselves for such activities this is highlighted by the fact single sex victim support services are so few and far between that Vera's place which opens its doors last week is set to be the sole single sex support service for victims of sexual violence in Scotland's capital it begs the question why does it take the feminists like JK Rowling to step in and provide a solution to an identified problem while the SNP Government sits on its hands and denies such problems exist on Monday at committee I asked Reem Assalim the United Nations special rapporteur whether given that ring ffencing funding was out with the scope of the bill the next best option was to place a requirement on minister to review the impact of the bill on funding for single sex services Mrs Assalim agreed that placing this requirement on ministers would be justified I also refer you to her letter from Mrs Assalim where she writes in the case of Scotland that it has been difficult to determine the exact scale of self-exclusion given that hard and comprehensive data is lacking for several compelling reasons she later says general recommendation number 28 makes it clear that in complying with their obligations to eliminate discrimination against women under article 2 of the convention of the elimination against women state party should provide for mechanisms that collect relevant sex disaggregated data enable effective monitoring facilitate continuing evaluation and allow for the revision of supplementation of existing measures and the identification of any new measures that may be appropriate presiding officer it is vital that service providers in Scotland enable to provide single sex services while Reem Assalim believes funding must be ringfence for a certain proportion to be single sex to balance the needs of different demographics without placing them in conflict I was told that ringfence for a certain proportion of single sex and gender based services out of scope of this bill made it clear however that is not our job to question why some women want to access to women only spaces but it is our job as a state and as organisations to reduce the barriers for access and this is what is required by an intersectional approach therefore I propose that the Scottish Government at the very least monitor and review the impact of this act on self inclusion and funding for single sex services I would urge all members to back amendments 61 and 123 in my name I of course support other amendments such as 111, 120, 121, 72, 73, 127, 130 and 92 which seek guidance on and the protection of single sex spaces and services I also support amendments 117, 128 and 133 which seek guidance on the effect of this act how GRC impact the equality act 2010 I will also be supporting amendment 112 which states that this act does not affect the provisions and gender recognition act 2004 I also support amendments 118, 119 which requires ministers to issue guidance on the disclosure of protected information related to GRCs for the purpose of occupational requirements I also lend my support to amendments and 129 and 136 which seek to consult interest groups such as public authorities and women and girls however I will be voting against amendment 54 in the name of the cabinet secretary which requires ministers to consult and provide guidance on this act to bodies they deem to be promoting equality and human rights because ultimately it's clear that from consultation on this bill alone many groups remain feeling unheard so how I do not have that complete faith that the Scottish Government will consult on a fair basis I understand my earlier response to Mr Lumsden's point of order wasn't entirely audible in other parts of the chamber wasn't picked up by the microphone so just to clarify the system for remote interventions is working but it does require members to be keeping half an eye on the screen so I hope that reassurance is helpful and I think entirely appropriately and timely the next speaker is Sue Weber to speak to amendment 72 in other amendments in the group and Sue Weber joins us remotely Miss Weber if you could hold on a second Miss Weber the audio doesn't appear to be working I will investigate that as soon as possible Is that one better? That is much better Miss Weber Next to myself, there you go Right, thank you very much and yes thank you for bearing with me with those interventions I was trying to get in previously I have four amendments in this group which seek to compel Scottish ministers to provide clarity to women and girls about when services can be single sex and when they cannot pretty much the practical operations of the bill amendments 72, 73 and 74 seek to do this through Scottish Government issued guidance while amendment 92 seeks to enshrine this through secondary legislation so I move the amendments in my name starting with the guidance amendments, amendment 72 sets out a duty for Scottish ministers to provide guidance in relation to service providers being able to offer their service exclusively to those who are female at birth irrespective of whether their person has a gender recognition certificate and now we've all heard today that the recent court of session confirms that under the Gender Recognition Act 2004 an individual obtaining a gender recognition certificate has their sex changed for all purposes including under the Equality Act however we have heard consistently and continue to do so today that the Scottish Government appears to maintain that this does not apply to the provision of certain single sex spaces and if that is the case it would be very useful for them to highlight in which circumstance it is still awful to exclusively provide a space or service just to those who were born female for example a domestic abuse charity or indeed for somebody to request that a service be exclusively provided by someone who was born female like a cater I mean I have received correspondence from a severely disabled female who relies on extremely intimate care intimate personal care and she would like to ensure that her cater was born female so we need to understand how this would transpire so she can maintain her dignity after all she's entitled to this too the bill retains the purpose of the original gender recognition act 2004 so the effect of obtaining a gender recognition certificate is the same in law the public deserve clarity over when it is lawful to either provide or request services exclusively for women who are female at birth and Pauline McNeill has spoken about the confidence that the public are needing and the current confusion that is existing so that is why I have another amendment 173 which specifically compels Scottish ministers to provide guidance as to how this bill will interact with the exceptions that are outlined in schedule 3 of the equality act it's of no use for SNP ministers saying that the bill will have no impact on the exemptions in the equality act when stakeholders have been very clear that they are unsure how these exemptions apply to their specific organisation so perhaps when the cabinet secretary responds to this today she can name examples of where it is proportionate to discriminate against those with a GRC for the purpose of providing a single sex service because the current providers do not have this information and legislation after all we're sitting here some of us in a state of confusion is never written in a language that most people or organisations can interpret without lawyers and therefore share with their service users or indeed customers language that explains in plain English what it means to them specifically and importantly in practice the cabinet secretary insists that the guidance is clear but I'd suggest it's the very opposite given the interventions in the chamber that make it clear that this is not the case organisations, public, private and third sector need clear guidance which they can trust is lawful telling them that they can still provide single sex spaces or services and that is what amendment 74 aims to achieve the guidance should be as comprehensive as possible covering as many different organisations that will have to confront the problem of whether they are legally allowed to exclude those with a gender recognition certificate from accessing female-only services and any ambiguity must be removed Pauline McNeill spoke about that in NHS Ayrshire and Arran if I get the health board wrong apology as I was kicked out for a moment and my last amendment amendment 92 offers the Government the Scottish Government an alternative path to achieving the goal that I seek although it is not contradictory with my earlier amendments and both can be passed instead of producing guidance amendment 92 would as part of the regulations commencing section 2 of the bill to provide those regulations to set out to the service providers and users what they are lawfully able to provide or request service for those who are female at birth only we are here to make good law and as part of that we have to provide certainty to the public about the legal implications of all legislation that passes through this chamber ambiguity must be removed and I do not believe that certainty has been provided by the SNP ministers throughout the passage of this bill and last week's Court of Session makes it even more difficult for members of the public to discern whether single sex spaces must include those with a gender recognition certificate or otherwise despite my many other objections to this bill I hope we can all agree on the need for legislation that is clear and in plain English and I so hope you will all support my amendments today. Thank you very much Mr Webbank and I call Jamie Greene to speak to amendment 133 and other amendments in the group, Mr Greene. Thank you Deputy Presiding Officer and can I thank members for their contribution thus far I think it's actually been a very thought provoking debate and for the most part courteous I think that's an incumbent duty on all of us to lead by example on the subject as contentious it may be it's also entirely possible to completely disagree with someone but absolutely respect the passion with which their speech was made that's a respect that's been afforded to me in my contributions and I think it's a respect that I also owe other members for their contributions similar to other amendments in this group and I don't want to rehash any of the arguments that have already been made my amendment 133 touches on this issue of the bill and any perceived interaction with the 2010 Equality Act. The basis for that is to address concerns that many have that the legislation might infringe our impact on the 2010 act. Of course not everyone agrees with that premise many organisations have written to us to say that they do not believe that it impinges on the 2010 act they do not believe that this will affect people's access to single sex spaces I was particularly struck by the contribution that we were given by organisations such as Women's Aid Scotland an organisation I have a lot of respect for who have been actually transinclusive for a very long time irrespective of whether those who come for help hold or do not hold a GRC and it's because of the type of work that they do that I respect their opinion who am I to question it. Moreover we received communication from the Equality and Human Rights Commission who were also particularly clear in their view that nothing in this bill affects the Equality Act 2010 I presume that underpins the amendment that was passed at stage 2 however there's always a however in this debate there are many people who do believe that it does my reporting requirement on this simply asks the Government to vindicate that position their position, the position of many other organisations indeed my own position that if this bill does not affect the Equality Act 2010 then let the reports show that because we can then come back to Parliament in three years time and say that we were right that's the point of it but here's where I do think there is an issue there clearly is a deficiency of clarity we've heard evidence from a number of stakeholders we've heard evidence today and in the past about a number of scenarios that we should discuss and we're right to discuss what happens in GP surgeries of care in public bodies in sports organisations in youth groups, in religious places these are all points which have been respectively made by members well intended points made today we heard them from Pam Duncan-Glancy from Mitchell Hamilton Claire Baker, Pam Gossel Paul McNeill who's not here at the moment but I respect what they had to say because there is a perception that any changes that we do make as a result of this bill may have a knock-on effect now I know what the cabinet secretary will say and I probably agree that none of this is new, people already hold GRCs, people are already able to be excluded from certain spaces under existing legislation they have been able to be excluded for a very long time and indeed many people are excluded from those places I believe this bill does not change that, others disagree but here's the but and it is an important but despite my support for the changes that the bill proposes and let me assure the chamber that support has not come easy it remains clear that there is ambiguity and there remain concerns now we have a job to do we have a job to listen to those and listen respectfully to those concerns we have to ask ourselves is it a reality that there are organisations in our constituencies, people that we have heard from who are afraid about breaking the law by being exclusive do they fully understand the guidance that already exists, the cabinet secretary said that that guidance is wholesome, fulsome, robust and quite clear but from what I've heard in the chamber today from contributions it clearly isn't there clearly are people who are nervous and unsure about the guidance are they clear, are they certain are they comfortable with using existing laws and legislation are they comfortable that by being exclusionary they are not breaking the law that's a point that Pauline McNeill spoke to at great length, the question for us is how do we fix that my amendment as you can see really takes no side in the debate over whether this bill does or does not interact with the 2010 legislation but I do struggle with the opposition to my amendment that somehow a reporting requirement will unpick the 2010 act I ask simply in what way will reporting unpick the 2010 act I do not know genuinely the answer to that opposition and I am genuinely trying to be helpful as I've done in many other groups as I hope members would concur Jackie billy made some excellent points in her contribution around amendment 111 specifically that she believes that robust, clear and well signposted guidance may put to bed some of that ambiguity and concerns in Sue Weber's words, just given plain English guidance she's right to talk about a policy vacuum that has that we've allowed to exist and get worse over many years she's right to talk about interpretations of existing legislation or variations of interpretation that exist across different bodies we have let that happen whilst this bill in my view does not change any of those rights any of those exclusions any of those interactions clearly some people think that they do and by having this debate and by revisiting the 2004 act it is inevitable that those old arguments are brought back to the fore and I don't think we should be afraid to tackle them what we have to do is consider are there small organisations out there who are struggling to interpret what this new legislation might mean for them I think the answer is yes there are organisations out there who really do want to do the right thing for trans people who present to them I firmly believe that they also want to do right for existing service users as well and that is to be respected I cannot be accused in any way of wanting to unravel this bill through any amendments that we're looking at today I really can't see how anyone who's could accuse me of wanting to unravel the bill far from it it couldn't be further from the truth but where I do think is there must be a middle ground through this whether that's through guidance whether that's through reporting yet in a second through some of the amendments proposed in this group which on the face of them seem quite sensible, unambiguous helpful, useful I think we have a duty to look at them and the merits of each amendment that we present to those today and I've listened to those arguments that have been very well made I'll give way to the member Daniel Johnson I'm very grateful to the member for giving way and can I first of all commend him on the tone and the way that he's engaged with the debate full stop but more critically for those who advocate this change those of us who believe that it's important clarity is really important and that's what the word that's been used time and time again so for those that seek to benefit and when they do it but also those that seek for the continued protections the quality act they need clarity too is that not ultimately what everyone whether they're coming inside of advocating for this or indeed caution on this should be seeking to promote and insurers within this bill Jamie Greene Can I thank Mr Johnson for his intervention I don't disagree with the word he's just said I think clarity is an easy thing to request it's not always easy to achieve though and that's part of the problem that we have how much of this do we have to put on the face of the bill how much of this would appear in secondary legislation how much of this will appear in guidance I don't think it's actually enough to say it's not our responsibility as Government to produce this guidance these are independent pieces of advice that public bodies will deliver for their own service users I think that is taking a step back a step too far back I think Government has a duty to help to offer that clarity in guidance where it can I think more could be done I would very much welcome in summing up with the Cabinet Secretary he commits to some of that improvement and I don't think it's unreasonable to ask for it the question that we're facing though is whether we do put some of this on the face of the legislation I guess what I have been nervous about and I won't pretend I haven't been is that by referring to some of these other pieces of legislation reserved or otherwise and I think the member made a it was either Mr Johnson or Mr Meyer made very valid points about other pieces of legislation I do refer to reserved legislation and reserved matters but they haven't been unpicked in any way but some bills have been unpicked and as I said it's no great secret that nothing I want to pass today should result in unpicking this legislation I want to see the improvements that this bill seeks but in doing so it is really important that we do it in a way that does find that much needed compromise that I spoke about right at the beginning of today and indeed yesterday all I would say is ask members and the Government to try and seek that compromise where it is possible and not to resist for resisting sake thank you thank you very much Mr Greene I'm now called Daniel Johnson to be followed by Jeremy Balfour thank you very much Deputy Prime Minister and can I thank members that have spoken so far I think this has been a very thoughtful section of debate I mean ultimately what we're talking about are matters about people's identities how they live their lives and when it comes to those matters nuance is important context is important those are points that I made during stage 2 when I was moving amendments or regarding guidance for very similar reasons to the ones that Jackie Baillie moves hers this afternoon it's really important that we understand individuals perspectives that we ensure that they have the help and support that they need and that we understand the complexity and sometimes even the contradictory nature some of these rights and perspectives have and the thing about the equality act is that it delivers that it's a bill that actually takes something that's very complicated but delivers that nuance and it delivers balance it doesn't do so by trumping one set of consideration another it does so in a respectful and reflectful way but the issue I think we're contemplating this afternoon is the fact that the practical effects of the equality act and the legal structures and mechanisms sometimes don't necessarily accord in particular with regard to single sex exemptions and I think I would just highlight what Jamie Greene has just said my understanding is that the legal mechanics are not altered either by this bill or indeed by Lady Haldane's judgment but I think what is issue here is that perhaps the distinctions that people think exist in the equality act don't quite exist in the way that they think they do that while it is possible to distinguish between people who were born with a gender at birth in terms of the single sex provision that is delivered through the equality act is by making those exemptions on the basis of that person's transgender not on the basis of their underlying biology or physiology now that has the same legal effect in practice and that is in fact the way that the equality act that we are also familiar with and has been so successful in the 12 years since it's been implemented works but I think what we do in passing this bill I think raised questions in terms of the scale and context I think that Pauline McNeill and Claire Baker very rightfully pointed out but ultimately also and I think in the interventions that Michelle Thompson made and also Ash Regan it's about the confidence of people to actually draw down the rights that they enjoy of those how they will continue to be able to do so and indeed for those that we entrust to oversee systems in both the public sector and elsewhere to actually implement those rights that are important because the context has changed and in two fundamental ways first of all the scale and scope of the people that can enjoy transgender certification will be expanded so people will be having to make those decisions more often they will also we are entrenching within law the principle of self-identification that therefore I think means that we have got a much more complex is where someone may be seeking to uphold their rights so this is complex we're adding to the complexity and for those arguing and advocating for this bill that's not a problem in fact we should be celebrating that because this is nuanced it is complicated and actually we should be reflecting that nuance in the complexity but we ultimately must also be providing support to those that we seek to uphold the law because it is more complicated because ultimately what is really at issue here is that when we're seeking to implement safe places some of the detail and nuance is critically important and that nuance being around a person's anatomy or biology or physiology however we want to describe it now I think those contexts are very narrow indeed but when those contexts come into play when they are of importance those details are incredibly important and it is therefore vitally important that we have the clarity that we've just been discussing so people can make those determinations and I think the very fact that we are discussing this has been such a loud public debate so much controversy has had the chilling effect that we've discussed people lack the confidence about how and when to apply these principles and that is ultimately why we must give people that confidence that we must give them the confidence what has changed and what has not changed about how they apply that and ultimately that is a primary responsibility of government because this government has a responsibility to ensure that public bodies uphold the law not just within the scope of the law that we have competence to legislate in this place but over law as a whole be that Scottish law UK law or indeed international law and just because the law refers to a bit of legislation does not mean that we seek to legislate on it just because the law relies on a definition made elsewhere does not say that we are seeking to exert competence and just because we confer rights on people that are defined or administered by laws set elsewhere does not mean that we seek to change that law or legislate upon it and I think that is important because it's clear that we've done that in the past we have given rights of people to vote who have particular immigration statuses we have given rights to other people on the basis of what has been defined in other bits of law and those bits of legislation have not been unpicked it's a legitimate thing for us to do it's legitimate for us to rely on those definitions it's legitimate for us to seek to be clear about how public bodies uphold the law whether that be UK law or Scottish law and indeed I would say the duty of government to do so that is why amendments 111, 113 Jackie Baillie's name are so important because they provide that clarity and why we need them over and above the HRC is because context is important if you read the EHRC guidance while it is useful it doesn't explain how this will work in schools it doesn't explain how this will work in prisons it doesn't explain how it will work in hospitals and I think we are all surely aware that those contexts have their own particular considerations understandings and sensitivities and that's why the government in its duty to help public bodies uphold the law, comply with the law must produce guidance on how this law will interact with the Equalities Act this is fundamental because ultimately if we don't provide that clarity we are doing a great misjustice to the principles that this bill seeks to promote it will make it harder for people to both enjoy their rights whether they are transgender or indeed people seeking to enjoy the rights of single sex exemptions so if nothing has changed let's make that clear we need the guidance, we need these amendments thank you very much thank you Mr Johnson Jeremy Balfour to be followed by Maggie Chapman thank you can I agree with Pauline McNeill I think the amendments we have been debating within this group are perhaps some of the most important amendments that we will be debating over in the next couple of days I would like to start with the permission of the Minister by quoting a constituent who has been watching Mr Bake at home on television and she's asked a specific question of the Cabinet Secretary her email said this as a charge nurse on day shift short staff as usual I am sent a clinical support worker not a registered nurse from a staff bank who I have not met before and is obviously male a female patient on reward has stated that she only wants female staff to provide intimate care for her the CSW from a staff bank intends to accompany another female and give that individual a bed bath I reiterate the patient has requested female only care I do not know what to do as a staff nurse do I protect my patient or do I protect the NHS from being sued could the cabinet secretary please clarify the situation for me this is why I stand to speak in some of these amendments because we have heard from other speakers that there is clarity but there is an individual serving our society here in Lothian who doesn't know what to do I not sure I fully agree with the previous speaker Mr Johnson that there is clarity in regard to what the law is I think we've heard from Pauline McNeill from Jackie Baillie from others that there is not clarity in the law Daniel Johnson I'd be very grateful my point is really the fundamentally the mechanics of the law have changed but actually the nature of the debate does require greater clarity because I think we've reduced that clarity so actually I'm agreeing with the member Jeremy Balfour My apologies then to Mr Johnson and if we were debating these amendments six or seven days ago seven days ago, eight days ago I think there would have still been lack of clarity but the decision from the court of session has put greater insecurity around what we mean by these definitions no lawyer worth their sort is going to jump to a legal judgment within seven days of reading it there needs to be time for reflection there needs to be time to work out what her leadership was saying and there needs to be time to work out how will this actually work in practice, how does this relate to other areas of the law just in case I forget to come back to this because it is an important point that Jeremy Balfour has raised first of all I would point the constituent that is referring to the guidance that is specific for employers that EHRC have produced and that's important because the genuine occupation requirement exception under the equality act does provide that a person must not be a trans person where there is a requirement due to the nature and context of work if proportionate now that exception could be used in health service for example where intimate health the judgment lady holding judgment changes none of that that is the position under the equality act it was the position two weeks ago it was the position last week it was the position today none of that changes and I hope that he can reassure his constituent on that matter Jeremy Balfour but I think cabinet secretary you missed the point what does the staffness do to get that patient washed and dressed if that is the only choice they have at the time I'm not going to get into big debate about staff shortages within our NHS at the moment but we all know that there is a limited number of staff on each ward and that doesn't give the guidance of what does the staff what does the charge nurse do there and then on that shift and clearly any advice has not been given down from NHS Lovian to these people in charge of wards to decide I don't think with respect that clarifies it so as I was previously saying I think we do need a moment to pause surely our primary purpose within this Parliament is to make good law to make law that actually helps everybody within Scotland and until for me there is clarity from others with better legal understanding than myself around the judgment I do think this is an opportunity for us to pause if I can move briefly to the specific amendments amendment 54 as we've heard in the name of the cabinet secretary we would require the Scottish Government to produce guidance about the operation of the gender recognition reform bill in preparing this guidance Scottish ministers would consult statutory bodies concerned with promoting equality of human rights this all sounds well and good but I will not be supporting this amendment right because the Scottish Government's track record of consulting bodies concerned with human rights has been constantly one sided as we've seen out the progress of this bill women's right organisations have told us that they feel ignored throughout this process and we've seen people like the UN special repertoire for violence against women and girls have their voice ignored in favour of another male UN that the Scottish Government prefers to listen to so I will not be supporting a Scottish Government amendment that will allow them to dictate who they deem to be promoting equality in human rights for the purpose of producing guidance to vote against this amendment amendment 111 in Jackie Baillie's name would require Scottish ministers to produce guidance on the operation of this act on the prison of single sex services and the amendment specifically meant in settings such as schools healthcare facilities and prisons for example I'm very happy to support this amendment because these public service providers need clarity as I've said a moment ago on this act that will impact them and where the setting services can be provided so that those born women and girls only again I think there is lack of clarity due to the decision in the court of session last week around these issues amendment 112 I understand is not removed by the member but actually I think it is a good amendment and I would have supported it if she had moved it I've seen also in Ash Regan's name further clarifying nothing in the bill effect the definition of sex in the equality act of 2010 and why this is important that it is stated I know again as a result of the recent court of session ruling those who have a gender recognition certificate are included in the definition of sex and this is something the Scottish Government has failed to address in the terms of single sex space provision nevertheless it is important to put on the face of the bill that the definition under the equality act is not ordered to avoid confusion for the public amendment 117 is another amendment requiring the production of guidance this time in relation to the effect of having a gender recognition certificate again the public deserves certainty on this point but the Scottish Government are expanding the number of people who can apply for certificates so it is inevitable that organisations who interact with people obtaining gender recognition certificates so specifically is essential amendment 129 also requires the Scottish ministers to consult public authorities on the implications of this now we have heard different comments from the Scottish Government but the Scottish Government consult all the time on bodies and organisations and I still haven't felt clarity on why they simply won't do it on this occasion amendment 128 also in Parliament Neal's name puts beyond doubt that nothing in this act affects any requirement to collect data on sex which is also a sensible amendment and I will support amendment 118 and 119 in Claire Baker's name again requires Scottish ministers to provide guidance on occupational exceptions to the effect of distortion information about a person's gender recognition stated for the purpose of any occupational requirement amendment 118 is slightly stronger in the guidance that will require the approval of the Scottish Parliament but both are in my view good amendments that will be needed given that new occupations will be forced to interact with holders of a gender recognition certificate and it should not be an offence for them to disclose someone's gender recognition certificate status if it is part of their job amendment 127 in Jackie Baill's name is one of the amendments that the Scottish Government has requested to be withdrawn the reason is they claim it will change the effect of the equality act which of course is a reserved issue now I am absolutely clear that no amendment should be supported if it were to legislate and reserve matters but it is far from clear that the Scottish Government interpretation of amendment 127 is correct after all it seems to restate what is already set out and is already stated in law and I hope the member will move it as I understand it the effect of the amendment is that it puts on the face of the bill paragraph 28 of the equality act which allows for discrimination against those who have undergone gender reassignment surgery when providing a single sex service even if an individual holds a gender recognition certificate now the cabinet secretary will often say that this bill has no effect as she said again this afternoon will have no effect on the ability of single sex service providers to exclusively provide the services that were born as a woman only but she now claims that making this claim a bill will put it at risk of a legal challenge so the question is cabinet secretary which is it because her positions are seemingly contradictory so I will be supporting this amendment unless the cabinet secretary can provide a compelling evidence it would be an incompetent amendment which I highly doubt to do Finally amendment 130 from Jackie Baillie would also secure protections for single sex services in the bill by stating that providing a service only to persons of one sex is lawful if it is in accordance with schedule 3 of the equality act I'm also happy to support the amendment on the basis of protecting single sex services even I don't think that this will give adequate protection but it takes us further down the road As I said at the beginning of my remarks from a constituent watching Mr Baillie this afternoon there is lack of clarity I believe without these amendments and if this becomes law there will be lack of clarity about how this will work in practice bad law is bad for Scotland is bad for our citizens and is bad for this reputation of the Parliament I was supported Thank you Mr Balfour I know called Maggie Chapman to be followed by Carol Mopping Thank you Presiding Officer At stage 2 the bill was amended by Pam Duncan Glancy to include an avoidance of doubt clause that put on the face of the bill clearly that this legislation does not modify the equality act 2010 Indeed because the equality act is UK government legislation this bill cannot modify it I would say to those who have argued that it was only last week that we knew following Lady Haldane's ruling what sex in that equality act 2010 means I would say this those familiar with transgender law will know that in May 2021 19 months ago in their book entitled A Practical Guide to Transgender Law Nicola Newbegin and Robin White clearly define exactly the same meaning so last week's judgement should not have come as a surprise to anyone and the cabinet secretary has committed to publishing guidance that many people seem concerned about on the operation of this legislation as her amendment outlines the only other point I want to make in this grouping is this if you support the principles of this bill and want to see those principles enacted then please do not vote for any amendment that risks its legislative competence it is one thing to have challenges to a piece of legislation made and we accept that that will happen but it is one thing to have those challenges made and not upheld it is quite another to have any any one of those challenges upheld trans people because this is who this bill is for trans people should not have to wait more than the six years they have already waited to see this bill enacted because of months or even years of legal wranglings or further delays thank you when I originally thought to speak in this group I wanted to speak to just my colleague Pauline McNeill's amendment however having listened very carefully to the debate I really want to say I cannot speak about some of the other points from some of the very considered speeches that have been made I cannot mention everyone obviously but I do appreciate the effort that people have put into speaking in this grouping I want to in particular speak about my colleague Jackie Baillie's contribution where she spoke about how as legislators we have to make sure the public has confidence in what we have done and I think others have contributed to that and clarity on legal obligations particularly public bodies around the obligations and the equality act for both women and for transgender people and others have mentioned that my original contribution was talking about the fact that we have talked a great deal about obtaining a GCR but the amendments in Pauline McNeill's name in 117 and of course other contributions from members has quite rightly highlighted the issue as to what extent does a GRC affect the rights obtained under the equality act. That is the crux of much of the opposition to the bill as it has gone through and in many cases people asking, worrying about what will become of the rights and freedoms of women especially in settings of refuge and treatment The 210 equality act makes clear that the delivery of single sex bodies when it is proportionate and legitimate is protected but the bill before us seems to cloud that understanding as we have heard which is an outcome that benefits no one and gives no public confidence As members have given evidence and clarified in this debate the equality and human rights commission have said the government have amended the 2004 act to an extent that clarity on the operation of the 210 equality act is necessary and I'm not going to go back over those arguments because they've been made very well from other people I will do Liam Kerr Again, it's a very measured and interesting contribution like Pauline McNeill's one earlier but that leads me to pose the same question to the member that if the member doesn't see the amendments that she's calling for today so that the ambiguity and the concerns that she's rightly articulating remain does the member nevertheless see herself voting for it and if so, can she help me to understand why? I thank the member very much for that intervention I know he has done this with other members Can I be absolutely clear that I have come to the chamber today to go through all of these amendments, I have spent hours and hours and hours because this is an important debate so I will be considering every amendment and I thank members who have indicated where they are and are not supporting but I have been considering every amendment as we go and I will continue to do that One of the points that I wanted to put on record is that I have been concerned that it seems some believe even asking questions around these as we have gone through this asking questions around these matters is of itself offensive but I want to say that I am glad tonight that we have had this debate and I thank members here in the chamber for being able to discuss these matters. I think that that has been a very important point in terms of the public and public confidence I would argue that the reason these matters keep being discussed and debated is precisely because we do not have clear answer