Official Report 936KB pdf
The next item of business is a statement by Shirley-Anne Somerville on the United Kingdom Supreme Court’s judgment in relation to the Gender Representation on Public Boards (Scotland) Act 2018. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.
14:48
Thank you, Presiding Officer, for this opportunity to update Parliament on the Supreme Court’s decision to uphold the For Women Scotland appeal. The Scottish Government, of course, accepts the judgment of the Supreme Court. It is a significant legal ruling, and it is right that we take time to consider it carefully.
Before I turn to the details of the judgment, it is important to recognise the tone and the temperature of the surrounding debate, which concerns real individuals in our community, our workplaces and our families and which has often been deeply distressing to them. It should be clear to all of us in the chamber, regardless of our view on any of those matters, including the judgment last Wednesday, that the situation has had a very significant impact on many people.
As the Supreme Court made clear, the judgment must not be used as a licence for division and hostility. The pursuit of equality for women and for trans people is our collective responsibility. All of us in the chamber must ensure that the rights and dignity of all are upheld, and our debate must be rooted in empathy, compassion and equality. Indeed, in his delivery of the judgment, Lord Hodge, giving the opinion of the court, said that the court
“counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another—it is not.”
Let me turn to the judgment. This case centres on the guidance that was issued for the Gender Representation on Public Bodies (Scotland) Act 2018 and the meaning of “woman” that was set out in that guidance, which is the same meaning as under the Equality Act 2010. The Scottish Government successfully defended its guidance twice, in both the outer house and the inner house. However, the Supreme Court is the final decision maker on such legal issues, and it has delivered a carefully considered judgment. The definition of women in the guidance was the definition in the Equality Act 2010, and we were guided on the meaning of that definition by guidance from the Equality and Human Rights Commission, which is the enforcement body for the 2010 act.
As we heard in last week’s judgment, issues arose from a tension between two pieces of Westminster legislation and how they interact. The question of compatibility between the Gender Recognition Act 2004 and the Equality Act 2010 was central to the court’s ruling. In paragraph 8, the Supreme Court said:
“The central question on this appeal is whether the EA 2010 treats a trans woman with a GRC”—
a gender recognition certificate—
“as a woman for all purposes within the scope of its provisions, or when that Act speaks of a ‘woman’ and ‘sex’ it is referring to a biological woman and biological sex.”
The Supreme Court concluded:
“The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the EA 2010 is biological”.
The Supreme Court noted within its judgment that, in the statutory guidance to the Gender Representation on Public Boards (Scotland) Act 2018, Scottish ministers reflected the stance of the EHRC that a person issued with a full GRC in the acquired gender of female is a “woman” within the meaning of the Equality Act 2010. It concluded that the Scottish Government guidance on the Gender Representation on Public Boards (Scotland) Act 2018 is incorrect in relation to its definition of “woman”.
The judgment also makes it very clear that trans people continue to have protection and rights. As the press summary issued by the Supreme Court on the judgment said:
“Trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex. In the light of case law interpreting the relevant provisions, a trans woman can claim sex discrimination because she is perceived to be a woman.”
We fully accept the Supreme Court’s judgment and have begun to analyse the impact. We are amending the guidance on the 2018 act in order to take account of the ruling.
There has been commentary as to the implications of the ruling in respect of the Gender Recognition Reform (Scotland) Bill. The bill was prevented from proceeding to royal assent by an order that was made by the then Secretary of State for Scotland. Following the judgment last week, the Scottish Government has no plans to bring the bill back.
While the UK Government has indicated that it intends to bring forward proposals to reform the Gender Recognition Act 2004, we have not yet seen any firm proposals. This Government stands ready to engage constructively on any plans following last week’s judgment. Gender recognition is a fundamental piece of equality legislation. Let me be very clear: this Government does not support the repeal of the 2004 act.
Immediately following last week’s judgment, I wrote to UK Government counterparts to seek an urgent meeting. That reflects the fact that the judgment has implications across the UK, given that the 2004 act extends across the UK, and the 2010 act extends to England, Wales and Scotland. I am awaiting a response to that letter.
Along with the Cabinet Secretary for Health and Social Care, I will be meeting with the EHRC on Thursday and will seek an update on its plans for renewed guidance by the summer. This Government calls for that process to be inclusive and to ensure that there will be engagement with all those on whom it will impact. The guidance is important for Governments across Scotland, England and Wales, as well as public authorities and private and voluntary sector organisations, following the Supreme Court judgment. All organisations must comply with all relevant legislation, and guidance from the EHRC will be key in that process.
I wanted to reach out to stakeholders as soon as possible after the judgment, to give the Government’s initial response and to offer to meet again to discuss the Scottish Government’s on-going work. Stakeholders that represent trans and non-binary people are reporting real anxiety among their networks and service users and concerns about their daily lives. It is significant that the Supreme Court stated in its judgement that the rights of the trans community are enshrined in law. I want to reassure our trans community that you are valued and the Scottish Government is fully committed to protecting everyone’s rights—that includes your community.
I have also had the opportunity to speak to the Women’s Rights Network, and I was grateful for its time and to hear directly from it about its views on the judgment and its implementation. As I have done today, I restated categorically to the network that the Scottish Government fully accepts the Supreme Court’s judgment and is now working on next steps. Given the length of the judgment, it is important to work through it in detail, and I offered to meet again once that work has been undertaken.
An invite was also sent to For Women Scotland. It has chosen not to accept that invite at this time, but it has fed back that it wants us to move on with implementation. I assure it and the chamber that that work is progressing.
I spoke earlier about the principles of empathy, compassion and equality. With those principles, I firmly believe that the role of this Parliament is to provide leadership in ensuring that equality, inclusion and human rights are not optional values but the foundation of a fair society and at the heart of our public services. This Government—and, I hope, all in our Scottish Parliament—will continue to advance equality and protect the rights of women, girls and the LGBTQI+ community. Our work reflects a clear and enduring belief that everyone in Scotland should be free to live their lives with dignity, safety and respect. We will continue to work closely with LGBT+ organisations to ensure that their communities are empowered and that human rights are protected.
Our Parliament has a strong track record of advancing the rights of LGBT+ people, and I am sure that we will all continue to ensure that further progress is made. We engage proudly and visibly with LGBT+ communities during pride season and LGBT history month, and we must do so throughout the year.
The Scottish Government will continue to accelerate equality through our national advisory council on women and girls. We will drive real change in Scotland by challenging systemic inequality and ensuring that the voices of women and girls are not only heard but acted on. Indeed, this Parliament has been at the forefront of many changes, including legislation on domestic abuse and on victims of sexual violence. That is why this Government has, for example, progressed our world-leading equally safe strategy, which tackles violence against women and girls.
However, I am sure that we all recognise that there remains so much more to do to tackle the challenges, barriers and dangers that women and girls face. To that end, I announced at the end of February that the Scottish Government will work in partnership with the national advisory council, as it has requested, to develop an equality strategy for women and girls before the end of this parliamentary session. Those actions demonstrate that equality is not just a principle but something that we are committed to making real in people’s lives every day.
In conclusion, I will return to where I began: the people we all serve. The issues that surround the Supreme Court case are challenging and will need careful consideration so that the public sector can ensure the dignity and safety of everyone who uses its services. It is vital that the EHRC now issues clear and practical guidance in response to the judgment, which has confirmed the definition of “woman” under the Equality Act 2010. There have been many challenging arguments over the past five years, and I hope that we can move to a point at which we again focus on progressing equality for the people of Scotland. The pursuit of equality is not a contest between communities; it is a collective effort to build a fairer Scotland for all and is the foundation on which this Parliament was built.
The cabinet secretary will now take questions on the issues that were raised in her statement. I intend to allow about 35 minutes for questions, after which we will move on to the next item of business.
From the very beginning, my party has been the sole voice of reason in this Parliament in warning of the dangers of gender self-identification. We stood up for women’s rights and urged the Government to drop this toxic and divisive issue.
John Swinney wants to distance himself from it all, but, as Nicola Sturgeon’s deputy and strongest ally, he was right behind it. He was willing to sacrifice women’s rights, including the right to single-sex spaces and services. He voted down reasonable, commonsense amendments to the Gender Recognition Reform (Scotland) Bill, including my own, which would have stopped predatory men, including rapists and other sex offenders, from exploiting self-ID.
In the light of the momentous Supreme Court judgment, John Swinney owes an apology to the people of Scotland, but especially to women. This harmful ideology must now be rooted out of our entire public sector—schools, prisons, hospitals and policing. Far too much time and taxpayers’ money has been wasted on it already. The country needs to move on. Politicians must focus on the concerns of people in the real world.
I have three questions. Will the SNP Government now say sorry? Will it give a clear and categorical commitment not to resurrect the Gender Recognition Reform (Scotland) Bill in any way? Will it guarantee that gender self-identification will be excised from public bodies?
I hope that Russell Findlay heard the part of my statement in which I talked about the Gender Recognition Reform (Scotland) Bill and the fact that the Government has no plans to reintroduce that work.
Importantly, I also mentioned in my statement that the Government absolutely accepts the judgment of the Supreme Court. We have acted in good faith on the question. As I said in my statement, it was important that the Supreme Court recognised that the work that the Government undertook on the issue was based on EHRC guidance. However, now that the Supreme Court has made its decision, it is important that we move forward to look at policies, practice and guidance across Government and public bodies. As I said in my statement, that work has begun and I will keep Parliament updated as it progresses.
The judgment from the Supreme Court in the case of For Women Scotland v Scottish Ministers was unanimous and clear. The term “woman” in the Equality Act 2010 relates to biological sex.
The Scottish Government has, however, got itself into a position in which it encouraged practice to get ahead of the law. The Government has issued guidance to a range of public bodies, including the NHS, that now needs to be revised at considerable cost to those organisations in time and money. It is not just a matter for the EHRC. Can the minister set out the timetable for the Scottish Government producing revised guidance, and can she advise members when it will be implemented in the NHS and across the public sector?
It is also the case that the SNP Government’s track record in relation to legal action is poor, whether such action is related to aspects of the Salmond inquiry and former First Minister Nicola Sturgeon or to the Supreme Court action on an independence referendum. There have been at least 10 failed cases and this is another case for which the taxpayer is picking up the tab. Can the minister advise the Parliament how much taxpayers’ money has been spent on defending this case and all the other unsuccessful legal actions taken by the Government?
As I said earlier, the Government won cases on the matter in the inner and outer houses of the Court of Session. However, the Supreme Court is the final arbiter and, now that it has made its judgment, it is important that we respect that judgment. It is also important for the Scottish Government to undertake cases when we need to explain and defend our position. Once the judgments have been made, it is important that we respect them and move on. That is exactly the point that we are at.
We will be able to publish the cost of the case when it is fully complete. As further costs might emerge, at this point I am unable to give Jackie Baillie a number. However, those matters will be made public—that is certainly what I have done in previous cases. I will keep the member updated on that.
Jackie Baillie mentioned the guidance. In respect of the guidance, whether that is in the NHS or elsewhere, it is important that we take account of what happens on Thursday when I and the Cabinet Secretary for Health and Social Care meet the EHRC. I have listened carefully to press reports that the EHRC intends to have guidance in place by the summer, but I look forward to getting a bit more detail on that in person and to seeing how much more information the EHRC can provide at that meeting. I hope that Jackie Baillie will forgive me for saying that, of course, that will be up to the EHRC, because it is its guidance and its timetable.
As I am still waiting for that meeting with the EHRC, I am not in a position to say when guidance will be updated across Government. It is important that I hear directly from the EHRC first, rather than just going on what I have read in the press. My colleague and I need to have that meeting with the EHRC on Thursday.
I assure Jackie Baillie that, across the Scottish Government and, I am sure, across the public sector, we are looking carefully not just at guidance but at policy and practice. Those matters—[Interruption.] If members on the Conservative benches will forgive me, I will be happy to take their questions in due course, once I have responded to Jackie Baillie.
Once we have the timetable from the EHRC, and as we know more about what the EHRC intends to say, the Scottish Government and I will be able to move forward across the Government guidance .
I, too, accept and respect the court ruling.
As the cabinet secretary has said, Lord Hodge stated that the ruling should not be viewed
“as a triumph of one or more groups ... at the expense of another”,
and he stressed the legal protections currently afforded to trans people.
Does the cabinet secretary agree that any implications of the ruling, which forms part of a complex area of law, must be discussed sensitively and carefully, with the right advice in respect to all groups affected?
Fulton MacGregor is quite right to use the words “sensitively and carefully” and “with the right advice”. That is why, in my answer to Jackie Baillie, I mentioned the meeting that I will be having with the EHRC.
I say once again that we accept the judgment of the Supreme Court. We have to remember that it has had a real impact on people across our communities and in our workplaces, and many have found that distressing. However, as we move forward with the implementation of the Supreme Court judgment, we always have to ensure that we proceed on the basis of the rule of law, equality and inclusion, and respect for human rights for everyone. I reassure Fulton MacGregor that the Government will be holding to those principles: the rule of law, the work and the judgment of the Supreme Court, equality and inclusion, and human rights for all.
Scotland’s public bodies are, by definition, an extension of the Scottish Government. Last week, the Supreme Court exposed the Scottish Government’s fallacy, but the SNP’s reckless ideology has become embedded, like Japanese knotweed, in our public institutions.
While this smacks of asking an arsonist to extinguish the fire, will the cabinet secretary secure written assurances from all the Government’s public bodies that they will put in place policies complying with the Supreme Court ruling within three months of her meeting with the EHRC?
It is important to give the EHRC more time than the meeting that we will have on Thursday. With the greatest respect to Tess White, I can absolutely understand the need, desire and indeed obligation for pace on this matter. We will see what the EHRC is able to share with Scottish Government ministers on Thursday.
I can give Tess White the reassurance that, across the Scottish Government, work has now begun to ensure that policies, practices, procedures and guidance are absolutely compatible with the judgment of the Supreme Court and with the law. The rule of law is exceptionally important to the Government—right across the Scottish Government and right across the public sector. Further to that, this is a matter not only for this Government but for other Governments in the UK, so it is important that Governments can have discussions on the issues, to be able to deal with the collective challenge of ensuring that our guidance is fit for purpose.
Many trans people in Scotland and across the UK will be confused and frightened by the Supreme Court judgment. Can the cabinet secretary clarify again how the rights of trans people, including those who already hold gender recognition certificates, can be protected and upheld?
Last Thursday, I met stakeholders representing the trans community and non-binary people. It is exceptionally important to recognise the real distress that people from those communities are reporting.
In paragraph 100 of its judgment, the Supreme Court talked about the Gender Recognition Act 2004 and gender recognition certificates. Other aspects of the Supreme Court judgment have perhaps had more public scrutiny and traction in the media, but it is important to draw the attention of the Parliament and wider society to what paragraph 100 says about the 2004 act, the continued relevance and importance of GRCs, and the provision of a legal recognition of the rights of transgender people.
I hope that that gives some reassurance as we go into what is a difficult time for many members of the trans and non-binary community.
It is important that the court’s ruling and the court itself are respected. We should also reflect, as the cabinet secretary did, on the words of Lord Hodge: the judgment must not be read as
“a triumph of one or more groups ... at the expense of another”.
I return to the issue of the legal advice that the Government receives. As has already been raised, this is not the first case that the Scottish Government has lost. It joins a long line of court cases that the Government has lost on not just this subject matter but many others.
Does the cabinet secretary have confidence in the legal advice that ministers receive from the legal directorate? Given this point of reflection, and given the number of legal cases that have now been lost by the Government, will she consider reviewing how legal advice is sought by the Government and how it is delivered and acted on?
Paul O’Kane is absolutely right to talk about respecting the court ruling and discussing it in the right manner, as Lord Hodge said. I thank Paul O’Kane for the basis of his question.
When we talk about this particular case, it is important to recognise—I make no apology for restating this, Presiding Officer—that the Supreme Court said in its judgment that, at all times, the Scottish Government followed the guidance of the EHRC when developing its own guidance. I would have thought that that is what stakeholders and Opposition members would like us to do. The Supreme Court has made a judgment on that guidance. It is important that we reflect on that, and it is important that the EHRC updates its guidance as well.
That is exactly the basis of the case that we brought forward. Having said that, I accept the Supreme Court’s judgment, and we will move forward with that basis of implementation.
Speaking to the Equalities, Human Rights and Civil Justice Committee, Victor Madrigal-Borloz, the United Nations independent expert on sexual orientation and gender, commented:
“Mention has been made of trans rights, but there is no such thing as trans rights or gay rights or lesbian rights; there are human rights of people who are gay, human rights of people who are lesbian and human rights of people who are trans.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 21 June 2022; c 44.]
Given that, what steps is the Scottish Government taking to uphold human rights for all?
Joe FitzPatrick will be aware that the Government has been working on a human rights bill, and we are absolutely committed to bringing that forward in the next session of the Parliament—subject, of course, to the 2026 elections. It is important that we continue our work on the detailed policy proposals for that bill, which we hope to be able to publish before the summer recess. That will allow constructive engagement on that important piece of work so that we can move forward with what I see as the Parliament’s good track record on developing human rights for all.
Last week, I was at the UK Supreme Court and witnessed a monumental legal judgment on the definition of the word “woman”, which was issued thanks to the excellent work of For Women Scotland. In recent days, statues have been defaced, death threats have been issued against women’s rights campaigners, and the deputy convener of the Equalities, Human Rights and Civil Justice Committee, Maggie Chapman MSP, has been seen on video accusing the Supreme Court judges of bigotry, prejudice and hatred. That is shocking behaviour and has been condemned by the Faculty of Advocates. Does the cabinet secretary condemn that behaviour? What action is being taken by the Scottish Government to guarantee the safety of women?
It is important that, for the avoidance of any doubt, I answer that away from the issue in question and give a general response, which is the response that we should give to every example of such behaviour.
There is no excuse for vandalism or criminal behaviour, and there is no excuse for death threats, regardless of whom such behaviour comes from, regardless of whether that is towards activists or members of this Parliament, and regardless of people’s views on the Supreme Court. It is very important that I say that. Regardless of what people’s views have been at the beginning of this discussion or at any stage in it, there is no excuse for criminal or poor behaviour. Those of us in the chamber have a particular responsibility with regard to that.
I say again that the Scottish Government accepts the decision of the Supreme Court and respects its right to issue it.
A number of trans constituents have got in touch, distressed about the judgment. It is still unclear how it will impact many situations in practice, and although reviews of policy will be carried out with the necessary thought and time, not everybody will consider things so carefully. People have jumped to conclusions, and that has a direct and immediate impact on interactions in the real world.
I reassure those affected that I continue to be their ally, and many of their neighbours have reached out to offer their support as well. Can the cabinet secretary offer any further reassurance for the LGBTQ+ community in the Highlands and Islands and beyond, and will she speak to the Scottish Government’s position on upholding and progressing their rights?
I thank Emma Roddick for that question. I once again restate this Government’s determination to uphold human rights for all communities, including the trans and non-binary communities. Trans men and women are our friends, neighbours, work colleagues and members of our family. It is important that we recognise that the trans community has always been, and will always be, a valued part of our community.
From the discussions that I have had with members of the trans community, I am sure that there is a great deal of upset and worry following the Supreme Court’s decision. That is why this Government—and, I hope, this Parliament—will go forward with careful consideration and due diligence, in a manner respectful of everybody involved.
Last weekend, thousands of trans people and their friends and allies gathered across the United Kingdom, including on the streets of Edinburgh, Glasgow, Dundee and Aberdeen. Trans people, like any of us, want to be able to live their lives without fear of prejudice or violence, but they are concerned about how their lives will be affected, including their access to healthcare and other essential services.
I welcome the cabinet secretary’s comments about advancing the equality of women, girls and the LGBTQI+ community. However, what further assurances can she provide today that the dignity and safety of trans people will be upheld and that they will have access to the services and facilities that they need in order to participate fully in daily life?
We should all be able to live without prejudice and violence in our society. It does no one any favours if there is prejudice and violence, or even just the threat of violence, as we discuss particularly sensitive issues. I said in my answer to Emma Roddick that it is important that we recognise the trans and non-binary community as our friends, neighbours and members of our family. That is how I will continue my work as minister with responsibility for equalities.
The Scottish Government, in our acceptance of the Supreme Court judgment, will have to look at policies, practices and procedures across Government. That may mean that services and facilities have to be delivered in a different way in some aspects, but it is important that everyone has access to services and facilities. That is an important point that we will continue to consider.
My party accepts the judgment of the Supreme Court and the legal clarity that it provides, but we also recognise that the trans and non-binary people whom we all represent will be afraid today. They are concerned about what the judgment will mean for them in practice and about what rights and protections the law now provides them with. Given the tone of some of the attendant coverage around the judgment, they will even have questions about how welcome they are in our society. Does the cabinet secretary agree that there is now a job of work for both of our Governments to do with some urgency to provide them with the reassurance and the legal guidance that they need in order to live their lives with acceptance and in dignity?
Alex Cole-Hamilton raises a very important point. He is quite right to talk about the real fear in the trans and non-binary community. People in that community are afraid, and it is important that we all recognise that. In recognising those fears, we also have to follow our work through on the basis of what the judgment means in practice for the trans and non-binary community. How welcome those people feel is not just about what it means in practice but is about how we carry on our debate and discussions on these issues. It is important that we talk about the practicalities and also the perceptions that people will have and will pick up in the way that we carry the debate forward.
I give Alex Cole-Hamilton my assurance that, as we move forward with the implementation of the Supreme Court judgment, we will give very careful consideration to ensuring not just that we are obeying the rule of law in implementing that judgment, but that we are doing so in a sensitive manner and that we are speaking to everyone, regardless of people’s opinions and what community they are part of. It is important that we speak to everyone; but then, once we have spoken to people, our policy, practices and guidance will always be based on the rule of law.
I note the conciliatory tone that the cabinet secretary has adopted. I am especially pleased now that women’s voices will, eventually, be listened to. I add to the list, in addition to For Women Scotland, the likes of Sex Matters, Murray Blackburn Mackenzie, which has done such sterling work, LGB Alliance and so on.
Many of us noticed at the weekend the really quite shocking and disgusting language being used at some of the debates, including wishes to urinate and defecate on women. It is ironic that sex was not included as a protected characteristic in the Hate Crime and Public Order (Scotland) Act 2021, with the promise that there would be a misogyny bill. Can the cabinet secretary give any indication of when that bill will be introduced—I appreciate that it is under a different portfolio—and, fundamentally, whether it will have women as a sex class at its heart?
Again, I reiterate that there is no excuse for poor, bad or, in particular, criminal behaviour. There is simply no excuse for that, and that is particularly pertinent when we are discussing an issue of such sensitivity and one where, as Alex Cole-Hamilton and others have spoken to, there is real fear from people who have raised their voices.
Michelle Thomson is quite right to point to the fact that gender or sex was not part of the hate crime legislation. I know that she is well aware of the work that has been undertaken towards a misogyny bill. We are now carefully considering the impacts of the Supreme Court ruling on the work that will be undertaken on the misogyny bill. The Cabinet Secretary for Justice and Home Affairs will be able to update Parliament in due course, but I stress once again that it is important that we take time to look at the 88-page judgment from the Supreme Court and give it exceptionally careful consideration, particularly in relation to an issue of such importance as the misogyny bill.
The SNP has tied itself in knots trying to define what a woman is. John Swinney still does not know. Discussing women’s rights has been met in and outside this chamber with accusations of transphobia. Stating the obvious has led to women being called bigots, but, thanks to the Supreme Court, we all know where we now stand. Will the cabinet secretary now apologise to all women who have been vilified, lost their jobs or experienced sexual harassment, voyeurism, serious assault or intimidation, all because of her Government’s self-ID policy? Will the Scottish Government instruct all public sector authorities to settle any on-going legal cases or employment tribunals relating to the provision of single-sex spaces?
Presiding Officer, it would not be appropriate for me to comment on on-going legal cases. That is an important obligation on Scottish ministers.
As I have said before, the Scottish Government carried out its work on the guidance on gender representation on public boards in good faith, using—as the Supreme Court said in its judgment—the EHRC guidance. That is what was followed as we developed our guidance. In saying that, we of course recognise and accept the judgment of the Supreme Court; that is exactly why we are now moving forward to the implementation of that judgment. The rule of law must be followed not just by the Scottish Government but by everyone who is impacted by the Supreme Court judgment.
The ruling provides clarity on the interpretation of two pieces of legislation, both of which were passed at Westminster. Can the cabinet secretary say any more about any relevant engagement with the UK Government going forward?
My officials are meeting their counterparts from the UK Government on Thursday 24 April. As I said in my statement, I wrote to the UK Government immediately following the judgment, seeking an urgent meeting. As the UK Government and the Scottish Government work through the impacts of the Supreme Court judgment, it is important that discussions take place, both at the official level and—I hope—at the ministerial level. As I think I said in my statement—for the avoidance of any doubt, I will say it again—I am still waiting for a reply to the letter that I sent to the UK Government.
The cabinet secretary has indicated that she is soon to meet the EHRC to discuss guidance. I have previously raised the issue of how intimate care in medical and care settings is delivered and the patient’s understanding of the description of a woman doctor or carer. Does the cabinet secretary think that the Supreme Court judgment has any implications for the definition of a woman in those settings? Will that be part of the planned discussions with the EHRC?
Of course, the amount that we will be able to discuss in one meeting with the EHRC will be limited. As I am sure that Claire Baker will understand, particularly since the Supreme Court judgment, there is quite a lot to get through, so she will forgive me if I am not quite sure how much of that discussion we will be able to have on Thursday. Following that meeting, I hope that there will be a regular dialogue so that the EHRC can keep the Scottish Government informed about its work. It is up to the EHRC—rightly so, as it is independent of all Governments—to take forward that work on guidance. However, it is important for us to know the timetable for that work—or, at least, to know when the EHRC hopes that the timetable for that work will be published.
I hope that what we are able to discuss on Thursday will provide us with the principles and a wider understanding. We might not get to the level of detail that Claire Baker wishes us to get to on Thursday, but, as we work through this in the NHS and in other parts of Government, ministers will keep Parliament updated as guidance changes or if policy and practice change. I give her that reassurance.
There is not a single mention in the cabinet secretary’s statement of the huge amount of taxpayers’ money that has been wasted by the Scottish Government arguing about the definition of a woman. Taxpayers expect their money to be spent on helping our NHS, improving our roads and keeping our streets safe, not on court cases that aim to defend the indefensible, so will the cabinet secretary come clean with the public and confirm how much money was spent by the SNP Government to argue against biological sex in court?
As I said, the Scottish Government had already taken its case to both the inner house and the outer house of the Court of Session, and the reason that it got to the Supreme Court was that due process was followed. Now that we have got to the final decision point, we respect the court’s judgment on that.
I hope that Meghan Gallacher will genuinely understand that the final costs of the case are still being calculated. The judgment was issued only in the middle of last week, and some final aspects of the case still need to be finalised, but, once those final costs are calculated, they will be published in due course.
I go back to the cabinet secretary’s response to my colleague Paul O’Kane. In her statement, the cabinet secretary talked about the Scottish Government successfully defending its guidance twice. That seems to have arisen because the Scottish Government followed the EHRC’s advice. Does the cabinet secretary have any concerns about the quality of advice that the Scottish Government is receiving when it is just taking into account another body’s legal advice, and will she look at that?
With the greatest respect to Martin Whitfield, I say that the EHRC is not just another body—it is the arbiter and regulator of issues to do with equality. To be quite frank, I would be astonished if the Scottish Government did something that was not reliant on EHRC guidance. The EHRC is not just another body—that is why it is important that the Supreme Court referred to the fact that the Scottish Government had followed EHRC guidance, and that was the basis on which our case was taken forward.
We all owe For Women Scotland and the many people who supported them a huge debt of gratitude. One of them is in the public gallery with us today.
By contrast, this Parliament and this Government have let the women of Scotland down badly. They lectured us about tone, including again today, and patronised us while, at the same time, giving away women’s hard-won rights. This Parliament and this Government turned away as women’s reputations were being trashed and women were being suspended from or hounded out of their jobs simply for stating that sex is immutable, and they refused to listen when women were being harmed in single-sex spaces, services and sports. Politicians who did not stand up for women should hang their heads in shame.
How did this Parliament and this Government get it so wrong and let Scottish women down so badly? If I can contradict the cabinet secretary, I would say that there should be no more delay in acting on the judgment, because Scottish women have waited long enough.
I would hope that we could all agree that tone is important in this. I have heard from members today about the fears and concerns of both activists who have taken—
You have been getting it wrong so consistently, and women have been patronised—
I am sorry, Presiding Officer—I am slightly struggling. I was going to say that I am struggling to know whether Ms Regan wants to make an intervention, but I have just remembered that this is a statement. Nevertheless, I am happy to try to answer her questions, if she will let me.
I think that it is important that we look at the tone in all of this. We have heard today the concerns about threats and intimidation to the women who took the case, and also threats and intimidation towards the trans and non-binary community. That is why the tone is important—it is important for everybody who is involved in this.
As a Government, we have always respected single-sex spaces and respected the exemptions in the Equality Act 2010, and it is important that we move forward on that basis. I can reassure the member that there is not a delay and the work is continuing, but I hope that she would also recognise that the EHRC has an important role to play in this, which is why what it has to say on the matter—both what it may be able to say on Thursday in our initial meeting, and in its guidance that will follow—is so exceptionally important.
I appreciate that the debate raises many emotive issues and that there are strong views on all sides, which is to be accepted and respected. However, whatever one’s view on the debate, I hope that we all accept that at the heart of it lie people: human beings, who are our fellow Scots—those who vote for us and those who do not.
It is also true that gender recognition certificates have been issued in Scotland for nearly two decades. Although those relate to a relatively small group of people, many of the holders of those certificates will now be wondering what legal rights, if any at all, the certificates still offer them. My question is on a specific technical level: is the Scottish Government willing to undertake any legal advice or analysis or to offer guidance to holders of those certificates about their future and their day-to-day lives?
I welcome Jamie Greene to his new position in the chamber. It is important that he talked powerfully about the fact that people are at the heart of the matter. As we go through the discussion, regardless of people’s views on the issue and regardless of their views before the Supreme Court reached its judgment—it has reached its judgment and we must move to implementation—we must always bear in mind, as he rightly says, that people are at the heart of everything that we do.
I mentioned in previous answers and in my statement that important parts of the Supreme Court judgment, such as paragraph 100, refer particularly to gender recognition certificates. The 2004 act was passed by Westminster, and it has been there for some time. It is important that we now reflect on what is in the judgment from the Supreme Court about the importance, still, of gender recognition certificates and on the Supreme Court’s statements about the rights of the trans community due to gender reassignment still being protected in the Equality Act 2010.
The position of NHS Fife in relation to the Sandie Peggie employment tribunal must now be entirely unsustainable in the light of the Supreme Court judgment. Like me, the cabinet secretary will have constituents in Fife—thousands of individuals—who have been waiting too long for vital treatments because NHS Fife is starved of resources, and yet it is spending what must now be hundreds of thousands of pounds in legal costs defending the indefensible. Is it not time that the Scottish Government instructed it to throw in the towel and to stop wasting our money?
As Murdo Fraser well knows, that is a matter between the employer, NHS Fife, and the employees. It is subject to on-going judicial proceedings in the employment tribunal, and it would not be appropriate for me to comment on a live case.
The cabinet secretary has stated many times that the rule of law is important and must be followed right across the public sector. I trust that that extends to organisations that receive grant funding from the Scottish Government. Will the Scottish Government now support organisations financially only if they respect and abide by the rule of law?
As I have said on a number of occasions, it is important that the Scottish Government, public bodies and other organisations reflect very carefully on the Supreme Court judgment and ensure that they abide by not only the Equality Act 2010 but all other relevant pieces of legislation.
That concludes the ministerial statement.
On a point of order, Presiding Officer. Will you accept a motion without notice, under rule 8.14.3 of standing orders, to extend the debate to allow those of us, including me, who requested to ask a question of the cabinet secretary to put our questions to her on this monumental statement? It is only right that the Parliament is able to hear all voices on the issue and, I hope, to get answers from the Scottish Government.
Thank you, Mr Ross. The Parliamentary Bureau discussed the allocation of time for the statement this afternoon. That time was extended, and I have now extended the extension. It is important that we protect time for other issues. There will be further opportunities this week to put questions to the Government on the matter.
That concludes the ministerial statement.
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