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We discussed that last week, and I gave a number of extensive examples of how someone could show that they were living in their acquired gender. Those already exist under the 2004 act, so we are not changing anything in relation to the various ways in which someone could demonstrate that—they remain the same. We are talking about someone committing an offence and its being shown that they did not live in their acquired gender and had no intention of doing so. Evidence could be led showing the various circumstances of how they lived their life.

In relation to Jamie Green’s amendment, we are talking about an aggravator. The person would be in court because of the crime that they had committed, and if it can be shown that they had falsely obtained a gender recognition certificate in addition to that, the aggravator would be appropriate because of the seriousness of doing that. As Jamie Greene alluded to, the aggravator would send a clear message that that would be a very serious offence.

As I have set out, I want us to try to do all that we can, but our approach must be proportionate, and it must be possible for us to collect the information—it must exist in some form for us to be able to collect it.

I am happy to continue to have discussions about what could be included in an amendment at stage 3 to pull in as much information as possible, if that would be helpful. However, I do not want us to commit to collecting information that we do not think is available.

I also support Jamie Greene’s amendment 136, but as I think that what it proposes would be better incorporated into the wider review after three years, I will seek at stage 3 to incorporate its provisions into the requirements for post-legislative review. I hope that Jamie Greene will be minded to be content with that.

Amendment 156, in the name of Claire Baker, would place a duty on ministers to review the operation of section 22 of the 2004 act, including whether the criminal offences remain appropriate and whether any further exemptions are necessary. Under section 22 of the 2004 act, it is a criminal offence for a person who has acquired protected information in an official capacity to disclose the information to any other person. Protected information refers to either a person’s application or their gender prior to obtaining a gender recognition certificate. It is vital that a person’s right to privacy is protected in that way. We are not amending section 22 of the 2004 act.

There are already several exceptions to the criminal offence in section 22, such as when the disclosure is for the purpose of preventing or investigating crime. We can make further exceptions by way of regulations, but only when an exception relates to devolved matters.

Amendments 80 and 81 in the name of Pam Gosal are similar to those proposed by Claire Baker, but there is no requirement to publish a report of the review or any timescales, so I do not support those amendments. However, as I said, I agree that it is important to review legislation, so I support Claire Baker’s amendment 156 in principle, although I would seek to work with the member, given that the way in which the amendment is drafted raises several issues, including in relation to the limits on the power of ministers to make an order under section 22(5) of the 2004 act that does not relate to devolved matters. The addition of the words

“within the legislative competence of the Scottish Parliament”

does not in itself solve that issue. It would therefore need to be further amended at stage 3, if the member is happy to work with us on that.

I turn to Brian Whittle’s amendment. To be clear, the bill makes no changes to the rules for the participation of trans people in women’s sport, whether that is professional, amateur or in schools. As Brian Whittle is more than aware, governing bodies set their own policies on the participation of trans people under the Equality Act 2010, and many of them have done that. The UK sports councils, including sportscotland, published guidance for transgender inclusion in domestic sport back in September 2021. In addition, it is not clear that the information that he proposes be collected is currently obtainable.

We have listened to what people have said, and it is in recognition of that and in an effort to address some of those issues that we have brought forward the MAPPA regulations, which the Cabinet Secretary for Justice and Veterans—for the very reason of recognising the issue—has committed to putting in place before the bill is enacted. When we discussed these amendments, I explained why a blanket ban is not ECHR compliant. I went into that in some detail, for all the reasons that I am sure that Pauline McNeill and others will understand. Therefore, a risk-based assessment is the best way. The MAPPA regulations that the justice secretary is bringing forward are absolutely in recognition of those concerns.

Jamie Greene’s amendment 133, which relates to a false application and aggravation of offence, and which we have accepted, is about sending out a very strong message that, if someone who has falsely obtained a GRC goes on to commit a crime, that should be considered to be an aggravator. In that way, we recognise all those issues. Therefore, it is not fair to say that we do not recognise them. What we are trying to do is address them in a way that is legal and competent, within the bill or through other processes such as MAPPA, which the justice secretary has agreed to address.

Okay—I apologise.

The clarity of the bill comes from the overarching “for the avoidance of doubt” amendment in Pam Duncan-Glancy’s name. If you start to pick out different parts of the 2010 act, you give more prominence to different elements of it, which creates confusion and opaqueness. Having the whole 2010 act be beyond doubt makes it clear.

As I have said on a number of occasions, the operation of the 2010 act is for the EHRC to lead on. On the cross-border issue that Foysol Choudhury mentioned, we are working with the UK Government on a section 104 order, and we will continue to work with it, as we would on any piece of legislation in relation to any cross-border issue.

Maybe I could just finish this point.

I have explained the effect of the bill. However, I have had discussions with members who are keen for the bill to include a provision on interaction with the 2010 act, as they have said when moving their amendments. Amendment 37, in the name of Pam Duncan-Glancy, provides that, for the avoidance of doubt, the bill does not modify the 2010 act. I can support that amendment if the committee chooses to agree to it. It covers the entirety of the 2010 act rather than specifying particular sections or elements of it.

I was going to go on to address amendments 23 and 104, but perhaps I could pause at this point.

As others have said, a later group of amendments will deal with the bill’s interaction with the Equality Act 2010. Amendments in that group seek to clarify that the bill does not change all or part of that act, and I state now that I propose to support an amendment stating

“For the avoidance of doubt”

that this bill does not modify that act. There are, I believe, specific circumstances that justify such an approach, but, in general, provisions that simply state “for the avoidance of doubt” something that is very clearly the case add nothing of value to legislation.

On amendment 21, the bill amends specific sections of the 2004 act. It does not amend section 12, which states:

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

Because we are clearly not changing that part of the act, amendment 21 is entirely unnecessary and I do not support it.

I do not support Tess White’s amendments 135 and 142, which seek to introduce a duty for ministers to take steps to promote understanding of the bill and to report on that within six months of royal assent. The Scottish Government has held two of the largest public consultation exercises ever undertaken for a Scottish bill and we have published impact assessments, explanatory notes and a policy memorandum. Further information is available on our website. The committee has also conducted a public consultation and taken evidence, producing a thorough and very detailed report. We have engaged with stakeholders and will continue to do so as part of our implementation work, should the bill pass, and we will, of course, engage with users in designing the application process. National Records of Scotland will provide guidance on the process for and the effects of obtaining a GRC. Christine Grahame’s amendment 71, which was agreed to last week, also ensures that all necessary information will be made available on the National Records of Scotland website.

I also do not support Jeremy Balfour’s amendments 137 and 138, which state:

“For the avoidance of doubt, nothing in this Act alters the effect of Article 9 of the European Convention on Human Rights”

while also requiring regulations on the interaction of the bill with article 9. As the committee knows, acts of this Parliament cannot alter the effect of the convention. The amendment brings ambiguity, not clarity. It is not clear what sort of provision could be made in regulations under amendment 138 or who that provision would be addressed to.

I turn to Fulton MacGregor’s amendment 111. As the committee heard in evidence, the Scottish Prison Service already uses comprehensive individualised risk assessments to determine how trans prisoners are managed, whether or not those prisoners have a gender recognition certificate. I am happy to repeat that today, for the sake of the record. Adding provisions to the bill that simply state

“For the avoidance of doubt”

something that is very clearly the case do not generally add value to our laws. Therefore, I do not support amendment 111, but hope that I have given reassurance by emphasising again the Scottish Prison Service’s comprehensive individual risk assessment process.

Pauline McNeill will be aware of the correspondence that we have had with the Equality and Human Rights Commission, which was one of the main advocates for changing the gender recognition certificate process just a year ago. We have tried to understand some of the concerns that it has raised, as well as the change in position. We are still trying to seek clarity on that, as is the Scottish Human Rights Commission.

I have examined the issues that the Equality and Human Rights Commission has raised, and we have tried to take many of the issues that members have raised on board, including in some of the amendments that I have accepted. Even where the risk is, I think, minuscule, perception is important. Many of the amendments that I have accepted have been in the space of trying to reassure people, and I will continue to do that.

We will bring together a number of the amendments that have been lodged and we will reflect on the discussion around the committee table with regard to the art of the possible and what can be included in that stage 3 amendment. The only caveat is that I am not going to commit to gathering information that it is not possible to gather, simply because it does not exist. If what is proposed can be done and is proportionate, I am content to work with people in advance of lodging that stage 3 amendment to consider what the art of the possible might be in that respect. I hope that people are content with that.

We are open to that. People have talked about the increase in the number of people obtaining a gender recognition certificate, which is true; however, the numbers are still really small. In fact, if we break it all down into the various aspects, the numbers are actually so small that it makes the data very difficult to record.

In principle, I would say yes to your question. If there are things that we do not yet gather but which we think we could gather—and if doing so is proportionate and the numbers are not so tiny—I am happy to consider that. We are potentially talking about single figures, however, and it is very difficult to record such data, even in just a practical way.

Tess White’s amendment 143 places a duty on ministers to report every two years on the impact of the eventual act on education, health and criminal justice. We think that that is too broad a requirement, and we do not support the proposal. Likewise, with regard to amendment 144, which would require the registrar general to report on the number of certificates issued to people who had previously obtained one, it would likely not be appropriate to publish information about such a tiny group of people. I therefore cannot support the amendment.

Amendment 148, also in the name of Tess White, requires ministers to consult, within six months of royal assent, on how they should report on the impact of the bill on women and girls, to report on that consultation and then to make regulations, setting out their plans for reporting on that impact. The effect of the phrase

“regulations setting out its plans”

is unclear, so I will not be supporting that amendment. Nor will I support amendment 155, which prevents section 2 from being brought into force until after the regulations required under amendment 148 have been made.

I have said, though, that I will work with people on a proportionate, balanced and doable group of areas to be reviewed. I hope that, on the basis of that, members will not move some of their amendments. I have indicated the ones that I am happy to accept.

On Rachael Hamilton’s question, I will not talk about a live court case, except to state again that the position of the Scottish Government is no different from and is entirely consistent with that of the Equality and Human Rights Commission. That is all that I can say on that.

On the second question, which was about whether I think that exemptions under the 2010 act matter, of course they do. That is why I have said on numerous occasions that those exceptions are important, should remain and are not affected by the bill. Pam Duncan-Glancy’s amendment puts that beyond doubt—if there ever was any doubt.

Pam Duncan-Glancy gave a clear account of why her amendment is important, so I do not need to say any more on that.

I can confirm to Foysol Choudhury that single-sex service exemptions apply, but they have to be proportionate. The EHRC guidance sets out the proportionality and gives examples of the types of services that it would envisage could be exempt from allowing trans women, for example, to access them. The guidance talks about what proportionality means for a service provider.

On Claire Baker’s contribution, I will need to look at the letter that she referred to, but I am happy to have further discussions with her about the issue. It is about getting the balance right and being very clear about which is the lead organisation in these matters, whether that is employment law, which is reserved, or something else. We would look to the EHRC to lead on that, but that does not mean that we do not have an interest or that we cannot work with the EHRC on further guidance that it may wish to develop and issue. It is about recognising and respecting the lead organisation and its role. I am happy to have further discussions with Claire Baker if there is further thought that we can give to the matter, if that would be helpful.