Seòmar agus comataidhean

Thank you, convener—I am happy to have the opportunity to speak once again on this issue. At the outset, I note that the former Education and Skills Committee produced an in-depth and comprehensive report—I do not know whether members have seen it—as the bill that became the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 progressed through Parliament in the previous session of Parliament. I recommend reading that report.

Sexual abuse, and specifically child sexual abuse, has been swept under the carpet for too long, and victims have been left without the support that they desperately need. As several colleagues will be aware, I have been working on the issue with constituents for a number of years. I think that it is fair to say that my understanding of the trauma that they have suffered over a prolonged period, as they seek justice and redress, and my discomfort and disquiet at the way in which victims are retraumatised and left open to suffering secondary abuse, continues to deepen.

The redress scheme was designed to make it easier to access redress than taking a case to the civil court. However, the Criminal Injuries Compensation Authority already has a similar redress scheme in which the decision is based on the balance of probabilities. That is different from a criminal court, which decides on the basis of “beyond reasonable doubt”, and the victim does not need to wait for the outcome of a criminal trial if there is already enough information to make a decision on a case. Crucially, however, the 2021 act suggests that the victim would waive their right to take future civil action and any subsequent payment from civil action, and if there had previously been a criminal injuries compensation scheme payment, the act would require that it be reimbursed.

I welcome the redress scheme, but I think that it is flawed. Most important, the 2021 act was designed to provide financial redress to survivors of historical sexual abuse while in care in Scotland. Welcome though the legislation is, it is too narrow in scope. When I questioned the Deputy First Minister on the eligibility criteria for the scheme, and on whether victims of sexual abuse in a school setting, for example, should also be included, he responded by saying that the scheme is designed to compensate those in situations where the state—a care home, in this case—had undertaken parental responsibilities.

However, the bill that led to the Education (Scotland) Act 1980 used the term “in loco parentis”, which has the effect of transferring parental responsibilities to schools temporarily. There are many allowances as to where that can be true, including specifically for the Fornethy survivors. That being the case, the 2021 act is flawed and could, I believe, leave the Government open to a challenge in the European Court of Human Rights and from the Equality and Human Rights Commission, because of its inequality of approach to the victims of a crime, especially such a heinous crime.

Members may be aware that there was a related case in which the judge found that the Irish Government had misrepresented a ruling by the European Court of Human Rights by excluding children who were abused in Irish schools from a redress scheme. Although I accept that the issues in that ruling are not exactly the same, it suggests that the 2021 act could be open to a similar legal challenge. Again, the Fornethy survivors sit directly in that path.

As I said, the 2021 act was and is very welcome, but it is incumbent on us to ensure that it is the very best that it can be for all those who have been victims of such a heinous crime and have to carry that burden throughout their lives. Financial redress will not heal their wounds, but it will at least perhaps give them comfort that their voices have been heard, and in the acceptance that they have been victims.

However, I think that more needs to be done on understanding the journey of those victims—both those who speak out and those who initially cannot do so. The repeated trauma of retelling their story to multiple agencies, and the lack of accessibility and adequate support, are all part of the jigsaw.

I have absolutely no doubt that the Government has a commitment to those who have suffered such a crime, but I think that it needs to be braver. It will need to look beyond the limitations of how the 2021 act is currently deployed for those who have suffered in similar ways but are currently excluded, including the Fornethy survivors. If the Government does not do that, it will require the legislation to be amended further down the road. We need to make the act everything that it could be. I speak on behalf of the Fornethy survivors and all those other child abuse victims who are yet to have similar redress.

Amendment 103 applies to any governing body or authority that needs to make a decision on the inclusion of trans people in sporting activities, especially with regard to

“any safety concerns or .... material advantage that may be gained as a result of change of gender resulting from this Act”.

As has been said, the Equalities and Human Rights Commission has stated:

“By broadening the group of trans people who will be able to obtain legal gender recognition, the proposals have significant implications for the operation of the Equality Act in Scotland. Whilst the Equality Act makes provision to treat people with the protected characteristic of gender reassignment differently from others sharing the same legal sex in certain circumstances and where justified”—

sport is one of those—

“such provision does not apply in every context contemplated by the Act.”

The reasons why we must include these amendments in the bill are as follows. First, as I have said, sport, globally, is in turmoil as it tries to deal with the trans community’s participation in sport. I have mentioned the mess that sport has made of dealing with the intersex community and its inclusion in sport—to the detriment of that community and to the detriment of sport.

There is variation from sport to sport, from country to country and even, in the US, from state to state. That means that some trans athletes participate as a woman locally but must compete as a man nationally or internationally.

Sports national governing bodies are unsure of the legalities under which they can act. They may leave themselves open to court action on the grounds of prejudice. Conversely, if a trans athlete is injured, or injures a fellow competitor, the sport may be left open to legal action for failing to take appropriate action to protect the safety of participants. In other words, I say to the cabinet secretary, many sports are not taking any action, for fear of making the wrong decision.

Currently, in international sport, the determination of sex involves a swab on the inside of the cheek. That determines a competitor’s sex, for life.

It is not just about national governing bodies but about coaches and teachers, and it is subjective. I speak as a coach. I have been a senior coach for 20-odd years. I was the chair of Athletics Coaches Scotland and am a member of the European Athletics Coaches Association. We are in turmoil. We do not know how to deal with the issue, because it is so subjective. Sport does not employ its participants. We are not subject to employment law. The problem is that, if I make a decision that is based on safety, that is subjective, and I am open to legal action.

I was asked by a national governing body whether it would be acting illegally if, on the grounds of safety, it took action to prevent a trans athlete from competing, given that the trans athlete had a material advantage due to the sex in which they went through puberty. As I have said, it is not just national governing bodies that have to make such decisions in sport; teachers and coaches have exactly the same issue when selecting teams. The fallout from a wrong decision is significant.

If a male and a female athlete are of the same size, the male can generate approximately 160 per cent of the force that the female can generate. A person who was born male and has transitioned to female retains many of the male characteristics that give a huge unfair advantage.

When women go through puberty, the quadriceps angle of the hip changes. Is that important? Absolutely. It is physics—it is about the application of power. A male’s bone density, muscle mass and heart and lung size are one third greater than those of a female. Especially, therefore, in sports in which contact is made, we are asking females to compete, potentially, in an arena in which the person opposite them will be able to deliver a much greater force to a much weaker frame. Then there is the issue of menstruation, which was highlighted by Dina Asher-Smith and by Eilish McColgan this year. In any sport in which power and speed are significant elements, there is a significant risk of injury.

When it comes to trans men competing in women’s sport, they are likely, if they are transitioning, to be going through hormone replacement therapy. Those hormones are illegal, according to the World Anti-doping Association. In other words, that is tantamount to legalised doping. Currently, most trans men still compete as women, because they cannot be competitive in men’s sport.

I will give examples from my sport. The world record for the 400m for women was set in 1985 by an East German by the name of Marita Koch—that was during a time when there was state-sponsored doping. Since 1985, not one woman has got near that performance. However, last year, 10,000 men ran quicker than that. A man could be ranked 1,000th in the world, then transition and all of a sudden be a world record holder.

Another example is Tori Bowie, one of the greatest sprinters in the world, who has won the Olympics and the world championships. However, last year, men ran quicker than her 15,000 times. It is just an unfair playing field. Surely we cannot have women excluded from sport, as is currently happening, because politicians cannot make decent law and will not take responsibility.

Do not think that this is just happening at elite level, because it is happening across all age groups and abilities in our schools and our sports clubs. I have seen it.

As I said to the cabinet secretary, I think that it is fantastic that the New York marathon and the Boston marathon are taking a stance on the issue by creating a non-binary category. That category tripled in size in one year, which says to me that we are now offering trans athletes the opportunity to participate and they are confident about coming forward. Those numbers will only increase exponentially, and we have to be aware of that.

There are more than 1 million women and girls participating in sport in Scotland. It has been a long fight to try to get equality between men’s sport and women’s sport, and we have come such a long way in my lifetime with regard to the events that women are now able to participate in and parity of prize money.

In making this legislation, it is imperative that the Government considers the impact of the bill across all of society and does not pass the buck. We have to protect women’s rights and we have to protect the trans community—I refer again to what happened to Caster Semenya.

We all want equality across society, but you cannot create equality for one group by creating inequality for another. The Scottish Government cannot hide from the potential safety issues, and those must be dealt with prior to the passing of the bill. We cannot wait until there is an injury before amending the legislation.

Sport is already gathering that information. As I said, in many sports, when someone enters a competition, they must specify whether they are male, female or non-binary. It is actually simple to gather that information, and it is incredibly important.

As I said, across the globe, from sport to sport, people are struggling massively with this issue. I am not sure what is happening with track and field, but at one point cycling accepted trans women in women’s competitions, but then that policy was changed, and rowing currently accepts trans women in women’s competitions. At the moment, sport does not know how to deal with the issue. Difficulties are faced not only by national governing bodies, which I will talk about later, but also by teachers and coaches across the world and in this country. It is important that, as the bill progresses, we understand the implications for sport.

The Equality and Human Rights Commission says that, as it is currently drafted, the bill impacts on the Equality Act 2010 in certain circumstances. It is important for sport to gather that information so that we can understand how to act on it for the benefit of all.

Having listened carefully to the cabinet secretary, I will press amendment 1. It has been mentioned that the numbers are small, but we already know what the numbers are. In this year’s New York marathon, there were 45 finishers in the non-binary category, three times more than the year before. We must ensure that we collect data. If that trend continues, the non-binary category will grow and grow. That is great, but we need to understand the impact of that, including on other categories.

This is already a live issue in sport, and it must be dealt with. We must collect data. I am not suggesting anything in my amendment that is not already happening in sport.

I am telling you what is happening out there, cabinet secretary. Sports national governing bodies are not making the right decision, because they are frightened of ending up in court. That is what is happening out there.

I can go through as many power and speed-based sports as you like. Some are making one decision, while others are making a different decision—to the detriment of women. That is happening out there, cabinet secretary. It is not a matter of having a bit of paper telling us what the rules are; if the rules are clear, can you tell me why they are not being applied across the whole of sport? The approach is not working, and something has to be done properly to deal with the situation.

I appreciate your letting me in, cabinet secretary. What I am saying to you is that sport is not doing this well; in fact, it is doing it really badly. It has a history of doing it really badly, because it does not know how to apply those rules. Pauline McNeill has given you the example of Glasgow Life as a body that is not applying the Equality Act 2010 properly. That is happening across the board.

It is not a case of these things differing from sport to sport. If a sport requires power and speed, trans women have an advantage. If all those involved in sport—I am talking not just about national governing bodies, but teachers and amateur coaches like me—do not get absolute clarity from the Government about what is happening, women will be put not just at a disadvantage but in danger. I do not for the life of me understand why the Scottish Government does not understand that we need really clear guidance across the whole country.

Good morning. I thank the committee for allowing me to speak to my amendments to the bill. I want to say at the outset that, along with every other MSP I know in the Parliament, I am in full agreement that every person should be treated equally, irrespective of colour, creed, religion, sex or gender.

However, I do not think that you can create equality for one section of society by creating inequality in another section of society. What I am looking for—I am sure that this is what we all want—is everybody to have equal and fair access to all aspects of society, including sport. My amendments are on the impact on sport, because, as drafted, the bill’s impact on sport will be significant. These issues are already happening in sport, and the bill, as drafted, will accelerate that.

The committee deemed sport important enough to include it in its investigation, but it did not take any evidence from sportswomen. Instead, it decided that trans activists and men would suffice. That speaks to a global issue, because women participants are being warned not to speak out when confronted by the prospect of competing against trans women, which silences those who are most impacted by the issue.

Amendment 1 would insert into the bill a responsibility on the part of the Scottish Government to report on the impact on sport of the eventual act. Amendments in this group would require the Scottish Government or the registrar general to publish information, guidance or reports on the operation or impact of the provisions, once they are implemented.

There is precedent here, and the reason why we need that provision—and the reason why I am worried—is that sport is not set up to deal with this. We do not need to look too far into the past for an example of that. Caster Semenya was the Olympic 800m champion. She is intersex, and sport just did not know how to deal with it—and dealt with it appallingly. Caster Semenya herself was treated appallingly, and that still happens.

The Equality and Human Rights Commission has highlighted several areas in which the effect of the bill’s provisions on the operation of the protections from sex discrimination in the Equality Act 2010 is unclear. It has urged that further consideration be given to that before legislative change is made. There would be an additional requirement to publish information and guidance and to publish reports on the impact of the eventual act. Some of the examples that the EHRC gives relate to the trans community and also to sport. That data could usefully assist in ensuring the effective implementation of the act and monitoring its impact in practice. It recommends that these amendments be considered.

We should look at what currently happens in sport. All I am asking is that we register and understand what the impact would be on the participation of transgender people in sport. Sport already does that: we know how many people participate by age, by sex, and by disability—although, I have to say, I hate that categorisation, but, obviously, there are Paralympic categories. We need to ensure that we protect women, specifically, and trans people.

Sport is trying to look at how to deal with the issue. I notice that, for competitions, there are now three categories: men, women and non-binary. However, there is nowhere for those in the non-binary category to participate. They must still choose whether to compete as men or as women. Therefore, it is hugely important that we continue to do what sport has always done, which is to measure what is happening in the sport to understand the categories, and we need to do that in order to understand what the impact will be. As I said, sport itself is struggling to deal with this. I ask members to vote for amendment 1, for the protection of women and the trans community.

I move amendment 1.

Cabinet secretary—

Cabinet secretary, you indicated that you will not support my amendment 1. According to the Equality and Human Rights Commission, by removing some of the safeguards, you are having a significant impact on the operation of the Equality Act 2010 in Scotland.

Here is the reality: we cannot hide from the impact of the bill and not prepare guidance for sporting governing bodies, coaches and teachers. It is not a case of whether women will get injured, or when, because it is already happening.

I have seen that personally. As you know, I have three daughters, one of whom is a young teenager who participates in a combat sport. At one contest, standing opposite her was a trans woman bigger than me. That is the reality in Scotland right now. Thankfully, that trans woman recognised her advantage and restricted herself. That will not happen all the time. Women will get injured if we do not clarify what the rules and regulations are for sporting governing bodies, coaches and teachers.

I am afraid that that is factual, cabinet secretary, because that is happening around the world.

I want to develop that point with Anjum Klair. Chris Brodie brought up the issues around city centres, including that, with the rise in virtual and hybrid working, there is less footfall. Of course, that has had an immediate impact on many city-centre businesses that perhaps have not managed to adapt as quickly as they needed to. Has Covid put our city centres under pressure? What needs to happen there? My view is that, after Covid, many businesses expected to fall back to where they were before, but their workforces are resisting that and almost demanding that the hybrid working system continues.