 Good morning, and welcome to the 32nd meeting of the committee in 2018. I'd like to remind members and the public to turn off mobile phones, and any members using electronic devices to access committee papers should please ensure that they're turned to silent. The first item on the agenda today is consideration of the Census Amendment Scotland Bill at stage 1. This morning we'll be taking evidence from two panels, and I would like to start by welcoming our first panel. We have Rosa Friedman, Professor of Law, Conflict and Global Development at Reading University, and Susan Smith from the Organisation for Women Scotland. Thank you for coming to give evidence to us today and for your written submission. Before I move to questions, just for clarity, because this bill has just been introduced, it might be helpful for the record to make a few remarks about the purpose of the bill. In the explanatory notes accompanying the bill, it states that the purpose of the bill is to make questions on sexual orientation and gender identity in the 2021 census voluntary. We've been told as a committee that the wording of those questions, if they are asked, will be put forward at a later date and Parliament will be able to delivery on them then. However, the bill that has been introduced also makes a change to the schedule of the 2020 census bill by inserting the words, including gender identity, after sex. While it is not in the bill, we understand that consideration has been given to include a third option in the sex question to include a third option, as well as male and female. That is in addition to the gender identity question that is proposed to be asked. Several of our pieces of written evidence have pointed out that this conflates the term sex with gender identity and that that is problematic. We have received a letter this morning from the national records of Scotland who are the bill team. They have pointed out that this might be an issue in terms of the drafting of the bill, and they would be happy to consider anything that the committee recommends in that area. I hope that that is all clear. I would now like to ask Professor Friedman from a legal point of view your view on this particular aspect of the bill. In your submission, you say that conflating sex and gender identity will undermine sex as a separate category protected by law. I assume that you are saying that you are concerned about this because it sets a precedent? Yes indeed, thank you for inviting me to come today. Indeed, if we separate sex and gender assignment, gender identity, gender presentation, however the wording might become, then we are keeping two separate protected characteristics as we have under law. In the same way that we wouldn't conflate race and religion or other protected characteristics, bringing this idea of a third category into sex, a third category being a non-binary gender into sex, or bringing together gender identity and sex in one question, is bringing together two protected characteristics and thus undermining both of them, essentially, in terms of the Equality Act. Just for people who might be unfamiliar with the subject and who might not be clear, my understanding is that gender identity isn't just about people who have had surgery to change their sexual appearance. It's much broader than that, as I understand it. Yes, well, currently, internationally, at the regional, the European level and currently within the UK, we don't have definitions of gender identity. In Massachusetts, they say that gender identity is the gender that someone identifies as and that's their law. In terms of international law, gender identity is similar to what Stonewall says. It's an umbrella term for various different individuals, whether it's people who've had gender reassignment, people who are transsexual, whether it's people who are transvestites, who are cross-dressers and all sorts of other people as well. So, it's a long list, but it's not a definition. So, protecting gender identity or putting gender identity into the census without a definition would lack clarity, would require a definition in terms of moving forward for law. Gender reassignment is currently protected. Gender reassignment is what we have under the Gender Recognition Act. It's about a meaningful transition. There's certain criteria. You have to live for two years. In the preferred sex that you would like to be identified with, you have to have medical certificates and so on. There's no problem from a legal point of view of protecting gender identity so long as it's defined, but I think putting that into a bill now without a definition is going to cause more trouble down the road, not only for this bill, but generally for the precedent that it sets. Can I ask both of you what was the practical effect of such a change being? Well, we're really concerned about, for the users, that obviously biological sex is immutable. Humans are sexually dimorphic, and there are various implications for health providers, especially how many cervical screening programmes do you need to roll out. There are also issues about public sector equality duties to find under the Equality Act. So, looking at pay gaps when we're considering who is doing the caring in society, these things are captured by the census, but if the definition of sex is no longer robust, and we don't really know what the people who are answering the question understand by that definition, then all of that data becomes problematic. So, we think from the point of view of the users, it's really important to have a clear definition on the one hand of biological sex for the provision of the services and the protections that people will need under equality duty, and on the other hand, if the additional question is to be asked about gender identity, it needs to be worked out with the users what they need that information for and how they can best utilise that. So, it's very important if they are saying there's a need for that, that that is also a robust definition, and they also have the end goal in sight as to what that information will provide, but if they both become conflated, their confusions around them, both of them become meaningless. I see. In terms of that particular point about the data, the written submission from the Scottish Transgender Alliance says that the number of trans people is so small and scattered that the effect on the data won't be significant, but there will be no effect on the data. That's why we need to go back to definitions. The number of people with a gender recognition certificate is very small, and maybe the number of people who are what traditionally would be known as transsexuals is very small, but in terms of people who identify as being non-binary, particularly young people, people who identify within the broader umbrella of gender identity, as Stonewall defines it, we don't know what those numbers are. It might be important to have a gender identity question that's separate to sex with a very clear definition of what gender identity means in order to gather that data of how many people there are, because none of us know. This has been one of the big things across all the consultations, across all of Europe around self-identification is that we don't know the numbers. In terms of data, I think it's important to keep sex obviously separate, but to have something on gender identity. We need to know the data around domestic violence in terms of trans identifying individuals. We need to know the data around suicides. We need to know the data around pay gaps. We need to know the data around people who are forced into sex work, because lots of things are bandied around, and this is a very vulnerable community. Having a very separate question would allow us to gather that data and to be able to provide the services that are needed for that community. Keeping that broad-term gender identity without a definition doesn't allow any of us to help to protect this group. Thank you very much, and I move on to Claire Baker, the deputy convener. Thank you, convener. As the convener outlined, the legislation in front of us is about making a set of questions voluntary. Do you support the proposal to include questions on... At the moment, it's defined as religions already in that category, and it suggests admin, sexual orientation and gender identity. Are you happy with those being voluntary, and are you happy with the definitions that are used? We've had some submissions that question the use of gender identity being the description for those set of voluntary questions, but are you satisfied with that and with the voluntary status that's proposed? Rose has obviously really covered a lot of the issues with gender identity and how the definition must be nailed down, but yes, I think it probably is important. It's not really something that's within the remit from the point of view that we're looking at the impact on women and girls, obviously, but clearly there are reasons why people are not comfortable with revealing sexual orientation or gender identity, so I think it's fair that that should be voluntary, yes. I think in terms of definitions, like I said, no one has defined this properly. The United Nations haven't defined this properly. The European Court of Human Rights haven't defined this properly. I think if anyone is going to include something like this in a census, there needs to be a definition so that the people who are answering this can answer it correctly and can answer it to the best of their ability. I'm not particularly happy with the definitions set out. I think that if Scotland wants to take the lead on defining gender identity, that would be great, but I think that there needs to be absolute clarity of what it means so that when people answer it, they are giving the right data. Returning to the sex question, even though the piece of legislation that we have in front of us doesn't address that, I think that there are issues with drafting that can maybe, if you've had a chance to look at the bill to that degree, you might want to comment on. What was going to ask was that the bill team and the Government argued that the first question, which is a binary question, is already a self-identifying question. The guidance that accompanied the 2011 census shows that we already have that, that's the way the question is approached. I suppose your response to that. Do you know if there was any consultation around the guidance in 2011 or were you aware of the guidance that existed in 2011? That's a very important point. I mean, certainly, women's groups were not consulted on this as far as we're aware. I think that it's something that slipped in under the radar and maybe it's an opportunity to break it back out again, because whilst I'm sure there are going to be people who will answer any question in a way that they interpret it, the idea that you can self-define sex has to be supported. If we are going to change definitions of sex, you are going to have to provide a body of evidence and get the chief medical officer to report something from the chief scientific officer. Currently, there is no scientific basis for arguing that there is any fluidity in sex, that there is no third gamete, that there are no human beings who have moved from one sex to another. There's no real-life teresias. It's not something that is possible within the human species. With the healthcare implications, as I've said, your biology entails. From a law point of view, the law is very clear from the April Ashley case, the Corbett and Corbett case in 1970, of a very famous high society transsexual who married a man and they wanted to have the marriage annulled. She didn't want to get divorced and the court looked at whether or not to annull the marriage on the basis that she was a male and two males could not get married at that time under law or whether to annull the marriage on the basis that they hadn't consummated the marriage. It's quite a short case and it goes into quite a lot of detail as to that the judge was a medical man and he looked into how do we define sex and he says, look, sex is around biology and there are three types. There's chromosomes, there's gonads and there's, I'm sorry, it's early in the morning for this. Chromosomes, there's gonads and there's genitalia and sometimes you might only have two of the three. So he went into a lot around intersex that some children are born with internal testes and maybe an external vagina and chromosomes are male. So slightly different to what the average or the regular would be and talked about how one would have to maybe open up the vagina to allow testes to descend but that doesn't stop a person being male because there's two of the three. He also talked about the psychological sex which is transsexuals or at the time the term used was transsexuals what we would now call gender identity or trans identifying individuals and he very clearly distinguished in law between biological sex and between what we would now call gender identity. That remains good law. If we look at the international level the law remains that sex is biology. Sex is around chromosomes around gonads and genitalia and so under international human rights obligations, whether it's the Convention on Eliminating Discrimination Against Women, whether it's a European Convention on Human Rights, the definition of sex is biology. To suddenly turn that around and say we want to have male, female and another category or we will define sex as gender is going against the law and if we want to change the law the way to do it isn't through conflating two things in a bill, it's through actually going through the processes of changing the law. Thank you very much. Kenneth Gibson. Yes, thanks very much. Just follow around from what you've said. The witnesses to follow the Quality Network and Scottish Trans Alliance have given us a document and in the evidence they've said and I quote, a non-binary person as a person identifying as either having a gender which is in between or beyond the two categories man and woman as fluctuating between man and woman or as having no gender either permanently or some of the time. So how do you feel about that? I mean in the accuracy of that reality by your perception? I think gender is a social construct and sex is biology and so if gender is a social construct it's the norms that we expect from one another that we've been socialised and raised with that society expects from us and that we learn very early on no matter what we're learning at home we learn from the world around us. If gender is a social construct then of course people's gender can be fluid, people's gender cannot exist, people's gender can change. Your sex is a fact, it's a biological reality. In the Netherlands they have three genders available, masculine, feminine and ex, non-binary and I think many people would choose non-binary. You can have your gender defined as ex, non-binary but that doesn't change your sex because your sex is a biological fact. Personally and from a legal point of view there's no issue with how you want to define your gender but gender is not currently a protected characteristic in law so you can define your gender in any way but your sex remains your protected characteristic in law under the Equality Act and there remains exemptions for things like sex segregated services and so it's just about moving them away from one another in order to define them. Now do you have concerns about, if we don't get this right in your view, that it will effectively undermine safe spaces for women for example and allow people who are declared as women but are biologically male, not no gender reassignment, whatever, either through surgery or hormones, whatever, to be able to go to all women events and participate in all women issues and do you think that that's a is that a concern for you in terms of how that might impact on women and girls? It's a general concern obviously it's not really within the scope of this bill it comes really back to the GI. I think this is a number of a lot of what we're talking about. Yeah there's a conflation as we said between sex and gender and for many people it's for a lot of people it's not an issue for a lot of women it's not an issue but there are people who need protections and deserve protections and it's very important that that remains robust that that and sex is obviously a protected characteristic inequality act and we have seen recently quite a lot of conflation across especially councils this idea that it's about gender rather than sex and I think as part of a long-term project it really does need if we are going to start talking about gender and sex we do need to be very very clear where one applies and where the other applies because otherwise it will create problems and it will it will unfortunately create problems for girls and young women especially and and I think well I understand young women's urges to identify out of sex-based oppression by saying I'm non-binary unfortunately I don't think the world works like that I don't think they will benefit from being non-binary I think I think the men will be non-binary so it is really important that even though they might identify as non-binary they are still protected if they are women on the basis that they will face discrimination and they may well face abuse because they are women and so do you feel that perhaps I know we're not going to have the question in this bill would you feel the question should perhaps be voluntary questions on gender and sexual orientation but the the kind of culture question should be what was your sex at birth for example and that should be binary male and female yes yes but I wouldn't even say what is your sex at birth because you can't change your sex so it is what is your sex so even this idea and this language and I think discourse and language particularly where it comes to a bill is so important because it sets precedence what is your sex is the same question as what is your sex at birth because you cannot change your sex every part of your dna has chromosomes which are the same chromosomes as when you're born I think having the mandatory question of what is your sex male or female and then voluntary questions around gender identity and sexual orientation will allow for data to be gathered around vulnerable groups but also data to be gathered that will allow for how many ovarian cancer cases there have been and have they gone up or down that are actually based on biology or will allow for data around refugees and domestic violence services right and how many need to be provided for people based on their sex and also whether there needs to be additional services provided for people based on gender identity or based on sexual orientation or based on ethnicity because we know that sometimes you need to have very specialist services within that group sorry the reason I was asking at birth is because it's to really spell it out if you like because some people might say well I consider myself to the make them themselves might conflate gender with sex and if you don't actually make it absolutely crystal clear by saying at birth people themselves might decide well actually I was born male but consider myself to be female and they themselves mark the wrong box and therefore we don't get the data that you're requesting so it's just about it's just a question of clarification rather than anything else no no I think that's true and I think there will always be some people that say even at birth even if you frame it in that way even at birth I was I was born in the wrong body I have a different brain or you know I you know I was the terminology is I was assigned this right as opposed to the the medical terminology which is determined right um but I think yes I mean it might be that there needs to be a clarification sentence saying this is what sex is and this is what gender is um I think it will be a small group of people and there will always be people sorry I know I'm on the record there'll always be people that maybe don't tell full truths on a census right for whom there might be a question that's slightly political or that you know but I think having a clarification sentence will help the vast majority of people to realise which questions are relating to what and I think it's I think most people realise why it's so important to have the two questions. Thank you, thanks Gimbyr. Thanks very much, Annabelle Ewing. To pick up on that point good morning and thank you for coming in. So the issue of the guidance I mean there is as has been said already guidance under the 2011 census as regards the mandatory sex question which as we have established is not actually a part of this bill but it is a topic of discussion and the guidance is about self-identification and so Mr Gibson suggested perhaps then our guidance could be amended to be sex at birth and I hear what you say about that but what about then you know taking it out of what's in your mind but just what the biology is what your birth certificate says would that be an approach? Taking into account that of course this is being sort of suggested on the basis that there presumably will be a voluntary question on gender identity however that is phrased so the two things kind of going in tandem but in different parts. I suppose the problem at the moment in terms of birth certificates is everything's still up in the air around self-identification the gender recognition act and if people can self-identify for the purpose of the gender recognition act then they are able to change their birth certificate and that's not going to accurately reflect so until we know what the outcome of that is because we know that you know fewer than 5,000 people across the UK have applied for a GRC which is about the numbers that were expected in 2004 but that could go up significantly if there are changes so yes I think it would be a good idea once we know the outcome of that because it all goes back obviously to numbers again and needing to have proper impact assessments because we just don't know what these numbers are going to be at the moment we have no real research or evidence to suggest how that's going to pan out and I think when the GRA was introduced one of the arguments about it was that this was a very very small number of people it was the same argument that's been made with regards to this that when it's such a tiny number of people it's not going to impact the integrity of the data and it's not going to have a massive impact on society but the argument was made that if this became more widespread then it would be problematical and of course now we are in a situation where we don't know how widespread it's going to be and so that does mean we do have to be very clear on on definitions and what we are actually looking at well are you seeing that regard and you know just trying to find a way through all this which is all very you know complex stuff it may well be then that Mr Gibson's suggestion is is perhaps the best way forward because your sex at birth is your sex at birth and it is you know the guidance is designed to try to be helpful to people who may who may look at a question and think I don't know what my answer should be to that and then they can go and look at guidance and the guidance can clarify what position so I mean in law you know have a definition section is a quite normal approach to legislation so it seems then in light of what you're saying that that may be a way forward in this debate. I think that that would certainly be in compliance with sort of international legal obligations human rights obligations in terms of sex being a protected characteristic. I think it will frame it in a way that is people understand you because that's the other thing that I think people sometimes struggle with some of these ideas. I think some of the definitions around gender identity is so broad that we probably all fall under a trans description of some. Okay. That is interesting. Thank you. Okay. Thank you very much. Ross Greer. Thanks, convener. I just quickly pick up on a point that Susan had just made in relation to non-binary people who you would identify as being women. You were talking about young women specifically. Does your point there not essentially boil down to removing their agency by saying that you know better who they are than they do? No, I certainly don't want to get into, you know, it's not about individual rights or individual choices. It's nothing to do with that. It's to do with science and what the needs of those people will be based medical needs apart from anything else. If you're a woman at some point you will need to have cervical screening done. We saw recently that the cancer research campaign for cervix havers or whatever it was. There are people who struggle with that language. There are people who struggle with medical terminology. That's why it's so important that whatever somebody's identity is. I have no issue with people having personal agency, of course not. That's a basic tenancy for our civilisation. But there are going to be medical issues and at some point they may need recourse to services. I think it's true, is it not, in Scotland that women are the highest users of public service? There are reasons for that and those reasons don't go away based on how they perceive themselves. It's two entirely different issues. I think that you're completing there, I'm afraid. I don't quite think that in this case. I was going to mention intersex people, so I've got a specific question about that that I'd like to explore in relation to the question on sex. Now, obviously, some intersex people would be comfortable identifying, for example, in the census, as being male or female. Others don't think that's an accurate reflection of them. Given that the census is about collecting data, for example, using planning of healthcare provision, given that this is a community that often has quite particular healthcare needs, does asking a sex question that only has male and female options not limit the useful data collected that can be then used in, for example, healthcare provision? So, when it comes to intersex people, an intersex person will either have prostate cancer checks or have cervical screenings, because an intersex person will either be male or female will fall into one of the categories in terms of healthcare. Now, of course, there are complex needs like every single one of us has, right? So, for an intersex person there might be complex needs, so some intersex females do not produce, they produce testosterone but don't use, their bodies can't regulate testosterone at all, right? So, that's completely different to all of us in the room, but that doesn't stop that person being female and needing a cervical cancer screening. It means that they might need some additional healthcare based on that slight difference in their chromosomes and in the way that their bodies balance. A little bit like my partner with asthma needs additional screenings in terms of lungs and capacity, but hold on, I'm going to finish and then I'll come back to you. In terms of law, the law very clearly states that there is male and female, the medical evidence very clearly shows that there's male and female. Intersex is a slight variation on what might be the average male, whatever that means, or the average female, but it's not a third sex and in fact many of the intersex awareness groups and campaigners have been very clear that they are not a third sex, that they are being co-opted and used in these debates in order to move political points or in order to try and promote changes to terminology and understanding that is not true and not based on medical evidence. Now, I am not an expert on intersex and I am not myself intersex and I will not speak for the intersex community, but I would strongly encourage you to read what they are saying because their voices are not being heard and they are being co-opted and used in a way that they are very angry about. We have asked the intersex community for further evidence and in fact we are receiving more written evidence today and we hope to hear from them. Just to stick with the point that Rosa said, you mentioned those particular needs. Do you have an alternative suggestion then for how we collect that kind of data to ensure that level of healthcare provision is there? Absolutely. There are two countries where intersex has actually been full-grounded and really protected in terms of additional needs. One is Germany and one is Malta. In neither of those countries have they said intersex is another sex category, but there has been a level of awareness raising both in terms of intersex needs, but also in terms of, and we are now going completely off topic, the rights of children. You are a child born who has an intersex. The agency of that child to consent, the choice of medical practitioners, the choice of parents and these are complex human rights issues because the standard practice has always been that the doctors or the parents or between them or one or other chooses, but what about that child's right to choose and are you allowed to intervene in that way? I think there are all sorts of questions around intersex that need to be unpacked across this country, across the UK, across Europe and they are not being addressed properly, but I don't think that this is to do with gender identity. I think intersex, which is a significant population, I think 1.7%, 1.8%. The statistic I was here bandied around is that there are more people born with intersex conditions than with red hair in the UK. I am not saying that. I think there is absolutely a need to think about human rights and intersex individuals, but not in terms of gender identity because it is not about gender identity. It is about medical, chromosonal and biological. That is why I was asking about the sex question rather than separate issues of gender identity. It might be that you could put it in. It might be that you could have a question saying, what is your sex, male or female, do you have an intersex condition? It might be like you might say what is your gender identity or what is your sexual orientation? It could be another voluntary question if you are worried about data on intersex. It should not be lumped into the sex question. It ought to be part of the voluntary questions on what is your sex, that is your protective characteristic, what are your other intersectional needs, whether it is your sexual orientation, whether it is your gender identity, whether it is groma zones, but then someone might say, well, why are you asking about all sorts of other medical needs that people are born with? I do not know how far you want to go with this census in terms of drilling down into data. It does really bore down to that most intersex conditions are unambiguously male or female. An intersex condition will only affect a male or will only affect a female. It is important not to other people to suggest that they are somehow not a proper man or not a proper man. It borders on some very difficult and potentially tricky territory if you try to tell people that they are not quite fully formed as a human being. It is a medical condition. It is a medical condition of sexual development. It is not an identity question. I think that Rosa's point about potentially having a backup, another question, is possible if there is a need to collect the data, but it really does need to be done carefully so that these people do not feel that they are being pushed into a third category, which they really should not be in. We know that trans-identifying individuals, we know that sexual orientation minorities, we know that people of ethnic minorities will face more discrimination, even though the law protects them, they will face more discrimination, more vulnerability than your average straight white man. Do we know that about intersex people? I do not know. This is about medical data, this might be about impact on health and wellbeing, but if the purpose of having these additional questions, which are normally around the Equality Act, is around how do we protect vulnerable groups from marginalisation and discrimination, I think that this is a question for you because you are of Parliament. Whether or not you need that data on intersex, but that is certainly from a from a law point of view. Having a third option of intersex goes against everything that the law says of what sex is. At present, gender identity and sexual orientation, the data is used by local government and other public bodies to fulfil their equalities duties. That data will continue to be collected, but if there is a change, then the implications for that within those organisations could be massive depending on how that is progressed. I would like to get some of your views on how you think that would be managed if that was the case. That is really why we come back to having the integrity of these questions, because that is the point. It comes back to what is the census for. If the censuses, I am sure you all agree, because it is a vast undertaking and it is an expense for government. It has to have a purpose, and that purpose is to provide you or with the evidence that you need to provide the services that the country needs. If that becomes meaningless, then it is just an expensive exercise in self-validation for the person filling it in. I suppose that it comes down to what the users need that data. Obviously, if there is a need, we do understand that in a society that is becoming more and more diverse, there are going to be groups that have additional needs and have different needs. All those needs will need to be considered by providers, and they will need to be looked at. It comes down to making sure that those services are properly targeted. If people can say male or female and there is no guidance and it does not matter, then you are not able to capture the biological information, but you are also not capturing any information that you need to protect trans communities, because you do not know when they have answered that question male or female, whether that is their biological sex or their self-identified gender. It is a really, really important point. Could I perhaps go back to some of the questions that were asked earlier for a little bit of clarity particularly in the questions from Kenneth Gibson, followed by Annabelle Ewing, when you were talking about the sex question and how you define it, if there is also a gender identity question, which is voluntary? The issue of birth certificates came up. If the question said what is your birth sex and had two options, would it be acceptable for the explanatory notes to say that this was a biological definition, because people would get the opportunity elsewhere in the census to answer questions about the gender identity? It would not just be appropriate. I think that it is absolutely necessary that there is some clarity in the guidance notes that explains sex's biology, links to the law on where we have definitions of sex, and there are opportunities to discuss gender identity, which is about personal agency and about social constructs, or however you frame that language, and to make it really clear why. Not just that these are two questions and what the questions mean, but I think that it is really important for people to understand why in these guidance notes we have two separate questions, and that this is about being able to meet the needs of populations and particularly vulnerable and marginalised groups, and that without this data being robust, we are not going to be able to meet those needs, and we are not going to understand the picture of the landscape that is in front of us. I think that in many ways this becomes deeply personal and politicised, these kind of questions, and taking it back that step and saying that if we don't have the data on the number of people whose gender identity does not match their biological sex, and we won't be able to understand the needs of that group, we won't be able to understand pay gaps of that group and discrimination and so on, actually depersonalises it and makes people realise that the purpose of the census isn't about self-validation, the purpose of the census is about being able to plan for populations and demographics and provide services that are needed. I think that there's a kind of elephant in the room here that we're not really getting to, and I tried to touch on it in my original question, and that's the issue of women feeling safe, women's safety, et cetera. Dr Kathleen Stock, who's not actually here, said, and I quote, she basically talks about the sexual orientation question and said basically, if we don't get this right, it will leave room for example late transitioning male trans women who are heterosexual and have penises to self-describe as lesbians, which will leave the data not fit for purpose. Then these are the kind of things that we've seen in the press and media over recent months. Is this actually a concern that you have? We've not really heard if it is today, but I want to know if it is or if it's not. It is, obviously it's a concern, because we want to be very clear that we are not, and certainly not as a group, we do not believe that is the main reason or the majority reason why most people have issues around gender identity. For most people, this is something that is deeply held and that they, in many cases, have no control over. Most people are absolutely genuine in their gender identity, but there are concerns about people who will exploit any openings. I suppose in this instance it makes the data, as Kathleen said, not fit for purpose. The wider concern for society is that unfortunately there are individuals who will join the Catholic Church, they will become youth leaders, they will do anything to exploit openings. That is tragic and sad and there is no reflection on the broader trans community who are just the same as the rest of us and want to get on with their lives and live as they wish. However, we have to be careful that in protecting more group of people we are not making another group vulnerable. That's why it has to be got right to make sure that everybody is protected. Where it comes to having data, both on sex and gender identity, that allows for planning for prisons or for refugees to be able to have services that are sex-segregated and that uphold the Equality Act and services that are gender-neutral. If people want to, women want to, trans-identifying people want to come together in that space, having the appropriate services that uphold the protected characteristics of everyone. In terms of elephants in the room, we're going slightly away from the topic but I'll address this in so far as saying. Gender identity or gender being able to self-identify has come in in a number of countries around Europe over recent years. Do you mind if I veer off topic slightly to answer this? Until about 2012-2013, many countries in Europe, if someone wanted to transition, they were forced to be sterilised. That forced sterilisation happened in countries like Belgium, Croatia, Sweden, Denmark, France. We didn't have that in this country. We don't force people to be sterilised. It's a grave human rights violation. A lot of the laws around self-identification of gender have been in order to remedy that grave human rights violation that was going on. In a country like Denmark where there are six million people and self-identification came in in 2014 of gender, there are already cases of people who self-identified—I'm not talking about genuine people whose gender identity does not match the sex of women—people that self-identified as women and went into sex, well, previously sex-segregated spaces, now women's spaces, and rape people, and six million people. We already have these cases in Denmark and in Norway. In a country like Ireland where self-ID came in, Ireland didn't even force people to be sterilised. They just didn't recognise that there was such a thing as trans until they brought in self-identification law. Sex segregation remains in prisons, remains in schools based on biological sex, not based on gender identity, in Malta where self-identification came in. There, if you are a trans woman and you go to a female prison, you have separate showering facilities and sleeping facilities, and prison guards can choose whether or not they search you if the prison guard is female. These are really complex issues and no one's getting them completely right and no one's fully understanding them. In order to know what needs we have around prisons, we need to know how many trans identifying women there are in a population. We can't know that by conflating sex and gender in the census. In order to know about the needs of, say, refugees or girl guides or whatever it might be, we need to know the numbers of these populations. We need to meet their needs, but we also need to meet the needs of women and girls. In England and Wales, two women are killed every week by a current or former partner, every week. We need to think about the needs of women and girls as a protected characteristic under sex, as much as we need to think about the needs of trans individuals under the gender identity question. I think that very often these conversations focus in on the trans identifying individuals, and it's important and they are vulnerable, and forget completely about the massive vulnerability of 50 per cent of the population for whom sex is a protected characteristic for a reason. That would come back to the prison's question. Obviously, Rosyn, you need the data for prison populations, but we do know that, unfortunately, again, men are more likely to commit violent crime, overwhelmingly 98 per cent of violent crime is committed by men, and we don't really see any change in male pattern violence. Obviously, that has become an issue with men who are placed in women's prisons, and they do tend to be more violent offenders, and women's prisons aren't really equipped to cope with that. Again, that's something that you would have to consider when you're looking at data sets. Do we have to build different prisons or different prison wings? How are we going to accommodate that? Unless you have the right data again, you don't know that. There's obviously been an issue with the girl guides, for example, about whether they allow in people who are self-declared or not, etc. How do you feel about that? The issue of girl guides, for me, again, just from a law point of view, not an expert on girl guides, but the issue is not around... Some people have issues around whether a male teenager is self-identifying as a teenage girl is in girl guides or not. I put that to one side. Girl guides has allowed girl guide leaders who self-identify, male-bodied people, who self-identify as women, to then become leaders in the guides, and they have a policy where they do not inform the parents of the children that that leader is a self-identified trans woman and that leader may well be taking those children away, you know, whatever girl guides do for a week in, you know, forests or youth hostels camping, exactly. Like I said, not an expert on girl guides. But they're not informing the parents, and these are children, and this is a safeguarding issue, and I, as a parent, want to be able to consent to my child being away in a mixed sex space, whether based on safety, whether based on religion, whether based on the fact that this is my child, and my child is under the age of 16, and I have the right to be informed. But again, these become really complex issues because you have to say, well, if a trans woman has the right to a private and family life, under article 8 of the European Convention of Human Rights, would the girl guides be in some form of breach of, you know, their duty towards that trans woman, if they were to inform the parent? I don't know, we haven't had a test case. I think the answer is, don't have self-identified trans women as girl guide leaders, because if we're going to think about the proportionate and legitimate aim of having sex-segregated spaces in the girl guides, when we're going to think about the harms that potentially could be caused to the girls, not just over physical violence or safety, but also over excluding children who are from religious backgrounds, who would not be then allowed to join. Proportionate and legitimate aim is we keep the sex-segregated girl guides. So, keeping the, go back to the senses, convener, of keeping this question simple and straightforward and binary is essential? Yes, and any other equality needs can be captured by additional questions. Since we have, since we have for your dovetopic. I'm sorry, I wouldn't just say it's essential in terms of capturing the data, it's also what's required under law. Since we have for your dovetopic, can I ask you, because we're talking about safeguarding issues, has there been any reliable data captured on, you mentioned offending rates for both violent crime and sexual crime are obviously much higher amongst people of the male sex, we know that, that's a fact. Has any data been captured on self-identifying trans women who have their offending rates in these areas? Are they the same as men or do they change to be the same as women's offending rates? Recently, the Guardian had to retract something that Professor Stephen Whittle wrote when we wrote Six Legal Opinions on the Gender Recognition Act for the Guardian, maybe six weeks ago, two months ago. Professor Stephen Whittle had put in that trans women have a lower offending rates, have the same offending rates as females. A Swedish study has shown that trans women have the same offending rates as men. There is no difference in terms of violent offences as to whether or not someone has transitioned or self identifies as trans or whether they remain a man having been born male. The fact that the Guardian had to retract this and has changed it online is down to a fair play for women who have brought out these statistics into the public realm. Part of those statistics might be that there are people who will self-identify as a woman in order to access female spaces in order to offend. We're not saying that every trans individual, like I wouldn't say that every man, is going to be a violent offender. We know it's a very small minority, not all men and not all trans women. That being said, we can't take the individual as taking away from the general rule. The general rule is that women overwhelmingly are attacked violently by male bodied people. The male bodied people are the overwhelming violent offenders, even if I imagine none male bodied person in this room would ever dream of doing such a thing. We need to protect women from anyone that's male bodied because of those violent offences. I'm not disputing the figures that you gave, but you will recognise that the trans community is often, more often, the victims of crime and has a high level of physical assault among the trans community that's perpetrated against them. The big debate is the Gender Recognition Act that's coming forward and what we're looking at today, which is around self-identification. That's where the debate is focused. Do you recognise that in some ways that might, I don't know, do you agree or not that this detracts me from issues around violence against the transgender, transphobia against access to medical services and other issues that affect that community? The focus is very much on self-identification. Do you think the focus is in the debate, please? That's why we need to have two separate questions, because we don't have the data and we all want the data, because we all, I hope, want to protect every vulnerable and marginalised person in our society and we know that the trans population is a vulnerable and marginalised group in society. But if we don't have the data on how many trans-identifying individuals there are in a society, we can't understand what the discrimination is. We can't understand what the levels of domestic violence are, what the levels of suicide rates are, what the levels of violence in the street is, what the level of forced prostitution is. If we conflate the two, we're never going to be able to meet the needs of this very marginalised group. Yes, of course, trans individuals face massive discrimination in society without a shadow of doubt and violence. Women also do. The reason I said that that rate of two women a week in England or Wales are killed by a current or former partner is that this is not recognised enough. There have been eight trans individuals who have been killed over the last 12 years and that's eight too many in the UK. We know this from trans remembrance. We also know that there have been 12 murders carried out by trans identifying individuals over that same period of time and each murder is senseless and not right. We only have these few tiny figures because we don't have proper census data. We're all grasping around in the dark trying to work out how to help a very marginalised community, but we don't know the size or the scale of the problems or of the community itself, which is why this bill could set a very good precedent for being able to capture proper data that's accurate. Whether there are differences within the community because obviously there are so many different definitions of what constitutes a trans person and there are, within that there are biological males and biological females. Having robust data would break that out and be able to see which of the groups were at most risk. Where that was problematic, actually one point about violence is that you're most likely to be a victim of violence as a man in fact. I think that's true isn't it? Men, because men attack each other. That comes back to a broader societal issue that there's a problem with male violence that we need to solve, but we're not going to solve that problem of male violence by putting women at greater risk. We need to separate that out as well. Thank you very much for that. Just to wrap up, unless there was any other members that want. Annabelle? On going back to the bill and the although it's been a very interesting discussion and thank you for that but the voluntary question on gender identity. Now I think some of the submissions at least have suggested that that's a not terminology that's preferred and they would rather have trans status or trans history or trans status slash history. Would you feel that that would capture all that we have been talking about today or should that be one of a sort of subset of because we do have to look at that issue and that's what we're tasked to do in getting back to the bill. I think in terms of protected characteristics in terms of quality acts there ought to be a question on sex, there ought to be a question on gender reassignment because these are protected in law. Gender identity like I said has not been defined it's not gender reassignment it's much broader than that even Stonewall haven't defined it they've just given us a list of who might fall under it right that I think sex and gender reassignment probably need to be mandatory questioned well sex certainly but gender reassignment as well it's a protected characteristic we can't elevate one protected characteristic to mandatory and leave one floundering as a voluntary status. Gender identity is not a protected characteristic we need to catch data on this but it can be voluntary but there needs to be some form of definition or in the guidance notes some form of explanation that your sex is your biology gender reassignment is if you've actually gone through the steps required and gender identity is something wholly different indeed but when we get to that gender identity then do we you know the some of the submissions have suggested score out the phrase gender identity insert trans status slash history no because trans status slash history I suppose is um is gender reassignment that's that's your trans status have you gender reassignment under equality act is your trans status whereas gender identity is I think something much much broader and I I do recognise that there are plenty of submissions that don't want to include gender identity at all um I think I've made it clear that I I think it's an important one to include so long as there's a definition but but the definition isn't your trans status because there are people who are non binary and they don't have a trans status but they would say that they but they would fall under this broad category of gender identity. So should we seek to approach by way of a list then a non non exhaustive list? If I had the answer on how to define gender identity I don't I mean I'm very happy to write to you afterwards and send you a various different definitions of gender identity from various different jurisdictions and the international level and at the interamericas level and at the european level um and you can decide which one you might want to adopt or which parts you do um it's a really tough question the UN independent expert on protecting sexual orientation and gender identity minorities from violence and discrimination which is a very long title um broads out a report in july 2018 looking at violence and discrimination against gender identity minorities and he doesn't defy gender identity and I know him quite well that he's very good um we haven't we haven't quite got there so it might be that you have a non exhaustive list it might be that you have a sort of broad definition um bearing in mind that you know by the time that the census happens there will be advances in how gender identity is understood and you know I don't know how easy it is to then stop amending things through that in mind now it's a reasonable point to look to the future and we're running over did you have a it's important one and I should have asked about it earlier right so I think it was Susan Smith who's talking we're talking about intersex he said that intersex people were being co-opted and used to advance and maybe it was sorry it's sorry it's Professor Friedman and I'm just wondering who's using them and why and what is the political agenda so I think just to clarify I think there's been quite a lot and there's been quite a lot of intersex individuals and experts who work on intersex issues so medical experts saying that over the last few years organizations or individuals who are seeking to advance the fundamental rights of trans individuals have started talking about that there is no such thing as two sexes and then saying because look intersex people are neither male nor female and that is not true and is also deeply offensive to people who are intersex who are male or female you know intersex people can have children can father children right you have to be male or female to do that if you were some sort of third space now there there has been quite a big pushback on this that intersex people say we're not trans there might be some intersex people who are trans right but they're not trans by virtue of being intersex and that by co-opting intersex to say there is no such thing as two sexes because look at these kind of people that are somewhere in the middle it's actually undermining the ability of intersex people to say like I was talking about before about human rights of children to be able to advance their needs and and that are based around being intersex it would be the purpose of anyone pursuing that agenda well the purpose is that there are there are experts and groups out there who want to conflate sex and gender because currently under the law you can have sex segregated spaces so even if someone has a gender recognition certificate someone is trans um they're not allowed to access certain sex segregated spaces these organisations have therefore said if we can get rid of the idea of sex of two sexes we can get rid of that protected characteristic essentially in fact right and we can call everything around gender and in order to try and get rid of sex they can't get rid of sex in terms of the law so they've either used the words interchangeably in policies so we've seen this in NHS policies where the NHS has been advised to use a word gender not sex and suddenly we've got mixed sex towards because they are gender segregated and self-iding and all sorts of problems all they've been trying to say well there's no such thing as just the two sexes so they've co-opted the intersex community who'd fall into male or female and said look if we have intersex then it must be that sex is a spectrum and if sex is a spectrum then we can all fall anywhere we want and then we can all walk into any spaces we want to that's what i meant by co-opting thank you for that clarification we're going to have to wrap up now but i just wanted to ask you one specific question about the census questions for for clarity and it's this this third option in the proposed third option in the sex question in addition to the gender identity let's call it the gender identity question when the Scottish Government or the national records of Scotland consulted on this certain stakeholders said that in addition to a gender identity question there had to be a third option for non-binary people in the sex question but when when i looked at stonewall's definitions of trans non-binary is one of the comes under the trans umbrella as they call it so i take it that it would be acceptable to move for non-binary people to identify themselves in that other gender identity question away from the sex question do you see what i'm saying very clearly as we've said all along sex is is dimorphic and that that's it non-binary stonewall do list as a under their trans umbrella and it is an identity issue it doesn't change your fundamental but there are non-binary women who get pregnant and there are non-binary men who father children and they still need the same screening programmes as we've said and there still needs to be consideration you know if they commit a crime which prison population they go into that is not going to change the non-binary option doesn't transform their physical being into something else so it's it's definitely falls within the identity umbrella rather than the sex question can i thank you both for coming to give evidence today and now we will have a brief suspension before we change panels thanks i would now like to welcome our second panel we are joined by Vic Valentine the Scottish trans policy officer for the Scottish trans alliance and Tim Hopkins the director of the equality network thank you very much both of you for coming to give evidence today and also for your written submissions and i don't know if you were here for the first the first evidence session so i'd like to ask something relating to that in the stakeholder exercise that the national records of scotland carried out they ask people about a gender identity question although i know that the terminology around that is changing and also about the sex question in the census now as well as the proposal to have a gender identity question which is voluntary your group also wanted a third option in the sex question can you explain why why you argued that particular position yeah sure so we already know from the guidance from the last census that trans people were supposed to answer the sex question in line with their self-identified sex so for trans men they were able to select male regardless of their biological sex characteristics at birth and regardless of what was on their birth certificate and trans women were able to select female so we were really happy with that approach to it but for some trans people non-binary people they were then left without being able to make an answer to that question in the same way essentially unable to answer it truthfully or in line with how they live and identify and so i'm a non-binary person and if i were to receive the census and there were only those two options i would feel really unsure or uncertain of what exactly was the right way to respond what one would be truthful what one would provide nrs with useful information about who i am or how i live because i don't feel that either of those of those options would and we did a big survey with non-binary people back in 2015 and we spoke to about 900 people across the UK and we asked them about how they kind of felt about the fact that forms often did only provide these these two male and female options and people were felt that it was it was something that reminded them of a lack of inclusion and recognition of society and three quarters of people said that they wanted to be able to tell tell people in complete forms using terms that described how they actually lived and about 68% said that they wanted that to always include a kind of third other option so we just feel that in order to maintain the data set of the sex question which is very clearly told trans people that they should be responding to it in line with how they live and identify that we need to add a third option to make sure that that doesn't only apply to trans men and women but also applies to non-binary people as well yeah but you heard me saying at the end of the last session that under the stonewall definition of the trans umbrella non-binary is part of that trans umbrella and the argument was made that it's non-binary is an identification as opposed to biological sex and now that we've got this different from the 2011 census now that we've got this other question about identification um the sex question could capture identity about biological sex which is important for health data and so on and you would have the opportunity to express your identity whether non-binary or whatever under this other voluntary trans question so the the voluntary question that's currently proposed isn't designed to ask you about your identity again it's supposed to ask you about whether or not you are trans or have a trans history so if you imagine that all people living and identifying as women would tick the female box at the sex question so that would include trans women and all other non-trans women and then there will be an additional question that says do you consider yourself to be trans or to have a trans history and then all trans women would tick yes at that question so it wouldn't ask you again how do you think of your gender identity and have a sort of male female non-binary option it would be saying do you consider yourself to be trans or have a trans history so the sex question is about what is your self-identified sex how do you live and identify and the trans question which is called gender identity in the bill but is actually a trans status or a trans history question then goes on to ask you if you are a trans person so you can still by using those two questions together clearly identify which people who say female are trans women and which people who say female aren't but it's it doesn't repeat a question to ask about your identity if you see what i mean so how do you respond to the arguments that it's important to capture data on biological sex because what you're proposing doesn't will not capture 100 accurate data on biological sex it will capture completely accurate data for biological sex characteristics at birth for probably just over 99% of people because for almost everybody in Scotland their biological sex characteristics at birth and how they live and their self-identified sex now are totally the same of course the sex question is massively important for things like health planning but sex is only a proxy for making decisions about sex specific services don't get me wrong it is a completely useful proxy but for example not all females need cervical screening because they may have had hysterectomies and we can't tell that just by knowing that they're female that they'll automatically need cervical screening and actually for trans people sex is a much less useful proxy whether you ask about their biological sex at birth or how they're currently living and identifying many of us have medical transition treatments many of us make changes to our bodies so actually just asking what our sex characteristics were when we were born doesn't give you current up-to-date information about our health needs for example of you know a much larger proportion of trans men will have hysterectomies as part of gender reassignment treatment so actually to count them and insist that they label themselves as female in order to count them for cervical screening is not actually going to be useful because so many of them will not have the body you would anticipate if you assume that all female all people who select female at that question automatically need cervical screening. I first want to say thank you very much to committee members for allowing me to come along at the last minute to replace my colleague Hannah. Unfortunately her father was taken seriously ill last night so she wasn't able to come but I'll do my best to answer the questions. Vicks already explained that the data you would get from a question that insisted that people responded according to the sex they were assumed to be at birth by their appearance that the data you would get to call that biological sex isn't really any different for health planning purposes than the data you would get or you got in 2011 from the question as it was in 2011 which was effectively a self-identified sex question as you've already heard. The 1 per cent of people who were trans were told in 2011 to answer it according to the sex that they believed themselves to be and in fact ONS issued guidance for the England and Wales census for 2001 saying exactly the same thing so this has been going on now for two decades. You don't get data that's significantly more useful for health planning if you do ask about biological sex than if you do what we did last time and the time before. There's another issue as well. The committee has heard that biological sex is what's protected by the law. That's actually not true. If you read the guidance that the equality and human rights commission publish about the equality act and about the sex protected characteristic, it focuses on legal sex and legal sex and what you've heard called biological sex are not the same thing. One of the previous witnesses referred to a case four decades ago about a trans woman called April Ashley but the law has changed a lot since then. The European Court of Human Rights ruled in cases called Goodwin and I versus the UK back in 2002 that it's a human right to have your gender identity as a trans person recognised and you have the right to change your legal sex to match your gender identity and that's what the Gender Recognition Act does. As a result of that case, it was brought in in the UK. The UK was one of the last countries in Europe to do that and came in 2005. Since then, of course, anybody who's applied for and got a gender recognition certificate, their legal sex is different from their biological sex, from the sex that they were assumed to be when they were born. It's their legal sex that is protected under the Equality Act. Thank you for that. Do you think that biological sex is of any relevance whatsoever? Biological sex characteristics are certainly important for healthcare. If you have a cervix, you may need cervical screening but, as Vic has already said, forcing trans men to call themselves men in the census under a biological sex question would not help you with your health services planning because many trans men have had hysterectomy so they do not have a cervix. As Vic said, information that you get about sex in the census is very useful for broadly planning. However, you have to take into account individual circumstances as well. Individuals, for all sorts of reasons, may or may not need that service, so other women who have had hysterectomy. I'm just trying to pin down your organisation's view generally of sex as a protective characteristic because I know that when you made a submission to the 2015 select committee in Westminster, the Women and Equalities Committee, that was looking at all those issues, your submission argued that sex exemption should no longer be a figure in things such as hiring people for particular jobs. It's not our position at all that that's the case. There are specific exemptions in the Equality Act that allow you, for example, in a sex-segregated space or in a sex-exempt job, the presumption is that a trans person for those spaces and jobs will be treated in the gender they live and identify as unless these specific exemptions are invoked. For example, women-only services, female sex-only services are presumed to be inclusive of trans women unless specific exemptions are used. We don't think that it should be necessary to exclude trans people exclusively on the basis that they are a trans person. We think that if you take a person-centred approach to service delivery and you think that an individual is genuinely unsuitable for your service, that we don't see why there would be an instance where just because a person is trans that would be the thing that made them not suitable. We absolutely support the maintenance of women-only spaces and roles that are just for women when those are important. What you are saying is that those sex-exempt jobs, for example, support workers for someone who was disabled delivering intimate services, is so that people have a choice to say that they don't want a person with a male body performing these intimate services. My understanding was that you argued against that in 2015. We think that anyone should have the right to refuse any individual when it comes to intimate healthcare if they don't feel like that person would be able to do that in a way that felt respectful and useful for them. We would see no purpose in forcing somebody to be provided care by someone that they didn't feel comfortable with. Why did you argue against sex exemptions in 2015? I suppose that the position was more specifically that we didn't think that trans people should not be included in line with their identity in absolutely all circumstances. We thought that there were clearly cases where trans people would be appropriate people in order to take those sorts of positions in line with their identity, so it was more about it not being invoked in a blanket way. Thank you, convener. The proposal in front of us for the census amendment suggests that we put questions on sexual orientation and gender identity into a voluntary category, along with religion, which is already there. From the submissions that are supportive of that proposal, do you want to just say a bit about why you think it is important to go into the voluntary part of the census? Obviously, we are still some way from complete equality for lesbian, gay and bisexual people and rather further away from complete equality for trans people. I think that for that reason, to force somebody on pain of £1,000 fine to specify to the Government what their sexual orientation is, for example, would not be appropriate at the current time. That is why we think that the question should be voluntary. We often recommend to people who are collecting sexual orientation data for employment monitoring purposes or whatever that you have a prefer not to answer option in the answers. It is equally good to specify that the question is going to be voluntary at the top of the question, which is what NRS recommends. If the questions are voluntary and people might not want to answer them, they might not feel comfortable answering them, should we bother asking them at all? Are we going to receive helpful data from the question in that? Yes, definitely. The Scottish Government had been asking a sexual orientation question in their national surveys since 2011. They published data in 2017 based on the 2016 surveys. There are about 21,000 people, I think, who were asked questions in 2016 in those surveys. You get some useful data out, you get some information about how many lesbian, gay, bisexual or other sexual orientation people there are and they got two statistically significant facts from that sample of 21,000 people. One was that lesbian, gay, bisexual and other sexual orientation people have rather worse health than the general population, and the other, I think, was to do with people being more likely to live in areas that are deprived areas. The amount of information that you can get out that is statistically significant is not much out of a sample of 21,000 people. The big advantage of asking the questions in the census is that you have a sample of 4 million or so adults and you get much, much more useful information. We know that there will be some underreporting, but, for example, you can still tell the difference between how many lesbian, gay and bisexual people there are living in Glasgow compared with the number who are living in Inverness, and that kind of thing is important for the provision, the planning of services. We know that people move around the country. Even though there is a level of underreporting, you still get really important data. You can still tell for the people who did report themselves as, for example, lesbian or gay, you can tell, for example, what their health outcomes are like compared with people who reported themselves as heterosexual, even though there is some underreporting in the lesbian and gay cohort. The bill describes it as gender identity. The submission from yourself suggested that that should be called a trans status question rather than a gender identity. I have heard from the previous panel their concerns about lack of definition around gender identity. Obviously, if we take the bill as it is presented to us, that would then be on the face of the bill as a description. Do you want to say a bit more about why or what you feel about the use of gender identity and do you think that it should be changed? I think that it is my understanding that, because this one is mostly about deciding whether the sexual orientation and gender identity or trans status question is voluntary, that they are able to define it in a broad way. It will not be until the regulations come out about the actual wording of the questions that that will determine how they are asked. It is definitely NRS in its latest round of testing, a very much testing question that is, do you consider yourself to be trans or have a trans history? I think that, if it would be useful and provide greater clarity to have the way that the question is described in the bill more closely match what the wording of the question would be, then it could be worth thinking about changing that. I also think that gender identity is broadly used to refer to the strand of equality work that focuses on transgender people. I believe that that is why that was the decision to use this, because there is nothing to say that, as data needs change, the sorts of questions that NRS might want to ask trans people within a census might change and then they will not have to revisit the Parliament every time in order to be able to request those questions of voluntary. It was my understanding that it was to say that there will be a question that pertains to transgender equality. We will call this question gender identity, but the actual question that we will ask in the 2021 status is a trans status trans history question. We would say that gender identity is a very widely used term. For example, by the United Nations, they talk about sexual orientation and gender identity when they are talking about discrimination against those being gay and bisexual and against transgender people. We think that gender identity is okay as the headline term for this. Just as with other subjects in the census, the detailed questions are considered later and there will be statutory instruments around those. We would be comfortable with the bill staying as it is, although we would prefer to see the question being more specific. NRS is continuing to do testing to find the best question. I have one final brief question. The submissions from yourself often describe the trans population as being so small. It is also a relatively small number of non-binary people. I am arguing that if people were able to have the flexibility around the sex question, if we were to go down a non-binary route, the figures are so small that they would not really impact much on data. In the wider debate, there is a kind of discussion around a generational shift that maybe the next generation will come along and have a different attitude to those things than my generation now. I will fall into that category. Do you think that that would be tracked by the SNP? It is just a question whether you describe it. It is emphasised that it is such a small amount. The general discussion seems to be that there is an increasing amount. There is a younger generation to have a different view of that. Do you have any views on that? Do you still maintain that it is a small population and that it would not affect any of the data to an extent? The 0.6 per cent estimate that we use comes from a Williams institute paper that drew together a large number of state-level surveys done across the US and pulled all of the figures that they found to come out with this average across the US. That would be 0.6 per cent, and that was done and published relatively recently. I do not think that there has been such an enormous shift that we would anticipate seeing a figure much bigger than that overall. Is it 0.6 per cent? Was that people who had transitioned? No, so those are all state-based surveys that just ask a self-identified sex question. They allow someone to self-identify how they describe their identity and whether or not they are trans. Thanks very much. Tavish Scott. I will move from one generation to another. A gown. There is a wogidol tree, a lyric in there somewhere. I just wanted to go back to Tim Hopkins to a point that you made to the convener earlier on. I may have just missed this altogether, but I think that you said about the definition law that, if I may say so, you contradicted the earlier panel about the definition. Can you just say—I missed that. Can you explain that again, please? Yes. The Equality and Human Rights Commission are very clear that when the Equality Act talks about sex, it is primarily talking about your legal sex. Your legal sex is not the same as your biological sex when you were born because people can change their legal sex using the Gender Recognition Act. There is another important point as well. That is when we are talking about discrimination against people, which is what the Equality Act is about. Every protected characteristic you are protected, not just if you have that protected characteristic, but also if people think you have that protected characteristic. If somebody thinks that you are gay but you are not and discriminates against you because they think you are gay, then that is sexual orientation discrimination. The same applies to sex discrimination, which means that if you are a trans woman, for example, who does not have a gender recognition certificate, so you are still legally a man, but you are discriminated against at work because you are a woman, because you live and present as a woman, then that is sex discrimination under the Sex Discrimination Act, regardless of the fact that you are not legally a woman and certainly regardless of what your biological sex was at birth. The definition of sex in the Equality Act is much more complex than even legal sex, and it is certainly not biological sex. Thank you for that. Does that matter in this context of the census? What is the import of that to our discussion about the census? That is a good question, because the data from the census is used for different purposes. One of the purposes that it is used for, for example, is a baseline for data that is collected by other bodies. Generally speaking, other bodies when they collect sex data do collect lived sex. They do not ask personal details about your genitals or biological sex. Data is also useful for measuring the amounts of discrimination. I would say that discrimination you face according to how you live your life and how you present and how you are believed to be. If you are a trans woman who lives as a woman and presents as a woman, you will be treated as a woman and you will face discrimination as a woman. If you are a trans man who lives and presents as a man, you will not face misogynistic discrimination because you are treated as a man. In terms of measuring the impact of discrimination, it is actually lived gender, lived self-identified sex, the sex that you live as, which is the important thing. Earlier this year, this Parliament passed the Gender Representation on Public Bords Act. That act requires, as you know, public bodies to push their boards up to 50 per cent, at least, women. That definition defines women as including trans women who are living as women. It would be rather strange in terms of getting baseline data if the census asked for something different than that. That is what we are aiming for. We are aiming for our public boards to have at least 50 per cent women. The Parliament has already decided that that should include all women who are identifying as and living as women, including trans women. We believe that the census should ask for the same thing. If I could make one other point on that answer. Our colleague James Morton, who is the manager of the Scottish Trans Alliance, is a man. Some of you here have met him. He looks like a man. He acts like a man. He is a man. I think that anybody who has met him would think that it would be quite ridiculous if he had to fill in the census form saying that his sex is a woman. That is what he would be forced to do if you have a question asking about biological sex at birth. I think that it would be very retrograde. It has not happened for the last 20 years. James filled in his sex as a male when he completed the census in 2011. I do not think that he should be forced to effectively lie and say that his sex is female on this census. That is very helpful. Your main contention is that we should be consistent, I suppose. I do think that consistency is really important from census to census. I think that the data will be more consistent if you stick with the fact that your sex is a man. Thank you very much. Thank you very much. Annabelle Ewing. Good morning, gentlemen. Thank you for coming in. On the number of important issues that are raised, are you saying that the status quo should prevail? To make the point that the bill is not about the mandatory question, the bill is about the voluntary part, but obviously the discussion has gone wider. However, is your position that the mandatory question should remain the same, so that it should be male or female, and the guidance indicating the issue of self-identification? Is that your position, in light of what you have just said? Not quite. Do you want to go first? Scott? Yes. It almost, but we want there to be the third option added to allow non-binary people to also answer in line with their self-identified sex. We are very happy for this sex question to remain compulsory. It is massively important for all kinds of planning and measuring inequality. We are very happy for it to be compulsory, but I want to be able to answer that sex question in line with who I am, how I live and how I identify, and I want to be given the opportunity to answer that in the way that all other men and women are able to answer it. In terms of the discussion that we had with the first panel, one suggestion in terms of a way forward was to reflect the issues of self-identification in the voluntary section of the census, for the reasons that were discussed at some length in the first panel, and the issue of gender identities of social construct, the issue of biological sex, sex at birth and so forth, and the issue of data that can be used to the best possible advantage, including for people that will answer different questions about self-identification to ensure that that data is actually captured properly as well. Would that approach then not fulfil those objectives, i.e. have the mandatory binary sex question and have the voluntary gender identity question, however that is defined and I would like to go on to that in a minute, but would that not capture the data to the best, which is the purpose, in fact, of the census? I think that there's the option that we support, which is that there should be the mandatory sex question with three options that trans people can answer in line with their self-identified sex, so it wouldn't be a sex at birth question. Then there would be a gender identity question that was actually a trans status in history question that asked, do you consider yourself to be trans or have a trans history? That would capture that what proportion of people who answer female at the sex question are trans women and weren't female at birth and what proportion of the people who select male are trans men, and it would also allow non-binary people to tell you that they are neither men nor women, they are non-binary, and you can figure out what proportion of them. However, if you were to introduce a mandatory sex at birth question, male, female, and then also a second question that asks what is your self-identified gender or what is your self-identified sex, and that then said male, female, and non-binary, although you would have a similar output in terms of yes, you would be able to identify which people there was a change between. In that second option, you force people to reveal quite private and personal information about their biology that isn't necessarily relevant, as we've already discussed around things like health planning. I think the principle of trans equality and the movement towards trans equality and politics has been to say that how you live and identify should be respected and is more important than reducing you simply to your biological characteristics at birth. I don't think anybody is trying to reduce anybody to anything. I think we're just trying to work our way through this. We have heard very strong evidence this morning that sex is a biological condition, it's a biological fact, as of sex at birth. How people choose to live their life is absolutely a matter for them, and they should be free to do so. The mutable fact is, in terms of the evidence that we've just heard, that sex is a biological fact. What we all, I hope, would be seeking to do is to get to a position that respects people's rights and people's identities and respects other people's rights and identities, including implications that a different approach may have for other groups of people, including, of course, as has been mentioned in the earlier session, women and girls. I think that that's what we're all really trying to get towards. In that regard, having the mandatory question remain a binary question and having a gender identity question, as a voluntary question, trying to capture other positions and other self-identifications in order to get the correct data seems to me to be have some rationale to it. In regard to the gender identity issue in terms of definition, so it seems from what Vic is saying that this has been preordained by NRS to do with trans identification. I mean, it's this Parliament ultimately that is looking at the bill and will have a view on different terminology used, but it may be therefore that that would exclude other people. How do you deal with that in the gender identity voluntary, but if your view is that that is actually interchangeable with a trans status, if you like? What about other people who are not in that position and self-identify in some other capacity? What about them? Should the gender identity therefore not be a wider definitional approach, involve a wider definition approach? It's an open question. I'm just seeking your views. I'm not sure if I totally understood. Are you asking if there should be more options other than just three for people to be able to say? I'm talking about the voluntary part of the census as proposed to include a question on at the moment in terms of the wording used as gender identity. Now, you've made some statements to the fact that you feel that actually what is being intended for the two-year work with NRS is actually a question about trans identification, but I'm asking then the question that, assuming for the sake of argument that we have a mandatory binary question on sex, would therefore this not be an opportunity in the voluntary question on gender identity to capture non-binary to capture other people as opposed to just trans? So which other people do you think that you would like it to capture other than trans? I'm asking you the question, would there be other categories of people non-binary, for example, that might want to make that point in that part of the census? I think that the key point here is that this is about the protected characteristic. So the protected characteristic is called in the Equality Act gender reassignment. In some other countries it's called gender identity when the equality act went through at Westminster, the UK Government. Sorry to interrupt, but I'm not talking about the mandatory part at the moment, I'm just talking about the voluntary part. Yeah, so that's what I meant. So the purpose of the voluntary question is to capture people who are affected by the protected characteristic of a gender reassignment, so that all of your protected characteristics are covered. Now we think, we've done quite a lot of work with asking trans people that they are the people who have the protected characteristic of gender reassignment, including non-binary people. We've done quite a lot of work asking people about what question do they think would suit, what would they answer and so on. And we think the question that says was the effect of do you identify as trans or have you identified as trans in the past is the best way to capture those people who have the protected characteristic of gender reassignment. We think it's easier to understand than saying do you have the protected characteristic of gender reassignment, which is quite legalistic. So we're not totally wedded to the wording that NRS has proposed at the moment, but it is all about capturing those people, trans people, how many trans people are there, those are the people who are affected by the protected characteristic of gender reassignment, just as you do for the other protected characteristics. Coming back to the sex question for a moment, the crucial question here is should that be about biological sex, should it ask about legal sex or should it ask about the sex that you live as? We are absolutely clear in our view that asking about the sex that you live as will first of all be consistent with the previous sentences, secondly give you the most useful information for the reasons that we've already discussed and to not do it would also be an invasion of privacy. The European Court of Human Rights has been very clear that the reason trans people are allowed or have the ability to change their legal gender is to protect their privacy and asking people about their biological sex characteristics when they were born is a breach of their privacy. At the very least, the question should ask about legal sex and not about biological sex so that it protects people's privacy in the way that the European Court has been very clear it should be protected, but in our view it's consistent with other legislation and with the previous two sentences to ask about how you live your life, about yourself identified, lived gender, the gender you interact with other people in. Can I just do a quick supplementary to that? How do you live as a particular sex? I think that that's... I wanted to be very clear that we do not have a kind of stereotype of what it means to live as a woman or to live as a man and that we feel that if you do the things in category A then you must therefore identify as or advise first. We know that men and women can live in a huge variety of different ways but for trans people I'm a trans person it is about a deep held sense of discomfort with knowing that other people who you interact with have a different sense of who you are from who you feel yourself to be and wanting to take steps and make efforts to make it clear to other people that despite the assumptions that they might make about you those aren't things that feel like they line up with your identity and you want them to be able to see that it's meaningful to you that the way you feel about your gender and how you live your life is different. I was just trying to kind of like really drill down on your how does one live as a particular sex. As Tim said it's sort of you know like without resorting to gender stereotypes. I think that most people when they talk to other people they in some sense present themselves either as men or women. They expect that the other when when I speak to another person I expect that they will assume that I am a man and I don't contradict that. I use he pronouns about myself and I'm comfortable for other people to call me he him. If I was a trans woman then I would obviously want other people to call me she and her like any other woman does. So really I'm talking about those kind of interactions. We live in a gendered world and when we interact with other people one of the first things we think about is their gender. So it would be based on things like clothes for example? It doesn't have to be of course because many people wear all sorts of clothes and you know gone are the days thank goodness when women when it was thought strangely that a woman wore a poor pair of trousers. So the fact that you wear a pair of trousers doesn't stop you being a woman and it doesn't stop the trans woman being a woman. So what is it then? What is it to live in a particular sex then if it's not about that? What is it? It's about your self-identity and the way you express that self-identity to other people. I am a man. I've always known that I was male. I believed I was a boy when I grew up and when I interact with other people I'm happy to discuss the fact that I'm a man. In fact I'll assume that most people will assume that I'm a man when they talk to me and if subjects come up as I say people will use he pronouns for me I don't find that a problem. It strikes me that we could have gone down the road of male and female brains which you know for many feminists is just something that's quite anathema that you know like internally we're all human beings not male or female. I totally agree and we very much don't think that gender stereotypes define a person's gender identity. There was nothing about my interests, my likes or dislikes, my personality that meant that I couldn't be a woman or grow up and live as a woman as we would have expected based on what my body looked like when I was born but actually the idea of that to me felt wholly impossible and suffocating and I just knew that that wasn't who I was and I think it is a very difficult sense of certainty about that discomfort to be able to convey to other people because I appreciate that for the vast majority of people it's just an automatic thing and it isn't something that requires but I think it's just it is absolutely just the case that for trans people we do just know that those cues that other people make pick up on about us just do not match up with our sense of who we are and that's why we do things and make changes and ask people to try and work with us to see us differently. Ross Greer, thank you. Much more was going to ask, but it's actually just been covered, but following the conversation that we had with the previous panel, Tim, the equality network represents the intersex community in Scotland as well. I was wondering if you'd like to expand a little bit on how what's in the bill might or might not affect the community. It's very important to say that we don't represent the intersex community, in fact we don't claim to represent anybody, we just speak up for people's equality. Our intersex project is at a very early stage and we're in the process of speaking with intersex people in Scotland and in the rest of the UK to identify what people's needs are and that's in advance of the Scottish Government consulting about intersex equality, which they'll be doing next year. We work very closely with an organisation called Intersex UK, which is one of the UK intersex organisations. They have a number of key priorities for change, including one that was mentioned by the earlier panel, which is the disregard for young intersex people's bodily autonomy when they have surgery, for example, performed on them when they're too young to consent to it to make their sex characteristics look more usual. We are supporting intersex UK in those calls. They are not calling at the moment for the census to include a question about intersex status or what your sex characteristics are. They are calling for the Equality Act to be amended so that people are protected from discrimination because they are intersex, because they have what's called variations of sex characteristics, that is, their bodies, either in their chromosomes or their gonads or their genitals or their hormones, do not match what is considered to be typical for male or female. We would like to see the Equality Act amended to protect from discrimination on that grounds, but at the moment that is not a protected characteristic and at the moment people are not calling for that to be added into the census as a separate question. The question would arise if you asked about biological sex rather than, as has happened for the past 20 years, self-identified sex, then I think that you would need to consult with intersex people about exactly how they would want that handled. However, as we've already explained, we think that that would be a very retrograde step in any case. The previous witnesses said in the evidence, for example, for women in Scotland, that human beings are sexually dimorphic and an individual's biological sex is an unchangeable characteristic. Is that something that you would agree or disagree with? Certainly, as far as biological sex characteristics are concerned, that is hormones, genitals, et cetera. Some of those are obviously not unchangeable because sometimes people have surgery to change some of their sex characteristics. In terms of chromosomes, you can't change your chromosomes, but it's not as simple as people are either XX or XY. There are people with XXY chromosomes. There are people whose bodies have more than one chromosome in them. Things are not black and white. Okay. One of the things that you mentioned earlier was about privacy. You talked about privacy, but surely the kind of three questions that you're looking for would make privacy less likely because if you have a situation whereby you're asked what was your sex at birth, for example, male or female, and then you have a voluntary question about whether it's gender or what's called trans identity, however you want to answer it, that allows people to protect their privacy. Should it be a compulsory question that asks whether you're male, female or if you're like other, that is less likely to allow people to have privacy because it's a compulsory question? If the sex question is going to be compulsory, then if it asks about sex at birth, that is going to be an invasion of privacy because people who are living as men or women, trans men or women, will have to answer that question with the opposite of the way they live, so a trans woman will have to put male and that is an invasion of her privacy. If the question asks about your self-identified sex, then a trans woman will be able to put woman and her privacy is protected from that point of view. The other, the question about gender identity we think should be voluntary, but there is an overall issue about how you protect people's privacy and answering even the voluntary questions. That goes to something else, it goes to the arrangements for doing the census and the arrangements that need to be put in place so that individuals who share a household can fill in the individual form in a way that is private and anerous, I know, are putting a lot of thought into exactly how that can be done so that you can do that without the people who share the house. I think that you've raised an important point there, it's one person per household that fills in the form and then sometimes that can cause obviously issues and concerns in certain households where people may not be open necessarily to having a member of a different identity. I'm not really, I still think though that if you've got the three categories that makes privacy more difficult, so I'll have to agree to disagree on that. One of the things though that I think came out from the previous session, I'll have to coax it a wee bit, was there's clearly an issue among some women's groups about people being able to self-identify in the potential threat to females, which was expressed by the previous panel, of this. I think that the reason for that possibly is the rapid growth in the trans community in the last decade or two. I mean the number of people who are trans isn't it, it's grown, I think, 700 per cent. I saw a figure, I don't know if that's accurate or not, over the last five years. How would you reassure those women who have concerns about safe spaces etc in terms of those issues? I'll give you a very quick answer and then I'll let Vic continue. I know because Vic did touch on it a wee bit earlier on I suppose in terms of the home care thing that I'm talking about and wider issues. I mean my quick answer to that would be that I strongly urge the committee if you have concerns in that area to speak to the organisations in Scotland that are providing women only services to the most vulnerable women in Scotland. So organisations like Rape Crisis Scotland, Scottish Women's Aid, all these organisations now provide services that are trans inclusive, so they provide their services to trans women. They've been developing that over many years and they have worked through those issues to ensure that they know that they are providing safe services. I'm very sure that those organisations and organisations that work for women generally in Scotland, like in gender, would be very happy to speak to members of the committee and to give further evidence on this. Okay and I question ask the first panel something that's fair to ask of yourselves is the quote actually in the quality network in Scottish Transiline submission where it says that a non-binary person is a person identifying as either having a gender which is in between or beyond the two categories, man and women, as fluctuating between man and women are having no gender either permanently or some of the time. Now I can understand people who have a trans identity. I'm struggling with this some of the time. I mean you know I'm not really how can we have robust census data if people are having an identity some of the time. I mean I just wonder if that can be explained for me but yeah sure so we it's a hard definition to say without taking a breath isn't it. We use the term non-binary as a kind of catch all definition for all trans people who wouldn't say just the word man or just the word woman describes their sense of themselves and the kind of expanded version that you read out gives examples of the various kinds of ways in which the word man or woman might not feel like it describes themselves so even if somebody has a fluctuating gender identity or a sense of themselves that shifts we would categorise that person as being sort of permanently non-binary because having a gender identity that shifts would make you the sort of person who wouldn't use the word man or woman all of the time to describe themselves. Does that make sense? It does in a way but are you suggesting therefore that their identity is a kind of psychological thing rather than something that's a bit more physical because the whole the key point that was made by the previous panel was about obviously biology and dimorphism which we've talked about but are you saying therefore that for these people their identity is psychological? I think for some people some aspects of how they feel about their sex are yeah about a kind of about how they perceive themselves how they think about themselves it is an aspect of identity rather than about what their physical body is like. Pick up on some of Kenny Gibson's points. I'm going back to an issue that was raised by the convener I think at the beginning in picking up on this discussion you know the issue of the the example of a vulnerable woman that wants to have intimate care provided by women so we've had that discussion you say that you don't want a blanket exemption but there could be in your view you would count it in some exemptions if we go down the route that biological sex is no longer to be taken into account in that regard but self-identification is so would that not though mean that you know the onus then would change and the onus would be on the vulnerable person the vulnerable woman to prove that they fall within some exemption so the onus would change at the moment the woman says I want intimate care provided by women it's quite clear that that intimate care will be provided by a woman who was born as a woman not who may from time to time psychologically identifies a woman but actually a woman who was born a woman and if then the exemption approach is taken and it's not to be a blanket exemption it begs the question then you know the onus then is on you or your family to prove that actually you fall within that exemption I don't know if that's really where people want to end up in this important debate yeah I don't think that's maybe what you intend I don't know I don't think that the kind of scenario that you just outlined as a scribe would be what I would be proposing would be a good outcome for this so a person who did not permanently and constantly identify as a woman in we wouldn't describe as a trans woman and we wouldn't think that that person would be eligible for women only roles but who would make all these decisions on a sort of moving basis you know of care who would make all these decisions how would all this happen and that's why you know that the you know as because a lawyer to trade you know that the fundamental approach to definitions is a very important thing because it makes things clear you know because you have to then take into account a whole series of what ifs and what ifs and what ifs and that's why a legal approach to definitions is quite important because it tries to anticipate that there will be so many different circumstances pertaining to issues that have are impacted by definitions of whatever it is and I just see you know fundamental problems down the line I see that the mandatory question remaining a binary question the voluntary question including gender identity if people wish to on a voluntary basis provide that information I hope they do because the purpose is to collect the data I see that as a straightforward approach that reflects people's rights but also of course reflects other people's rights to have intimate care for example provided by somebody with the same sex that's my answer that would be fundamentally what needs to be decided here is whether the compulsory question is going to ask about those three things I mentioned earlier biological sex legal sex or the sex that you live as that's the fundamental question if the answer is the third of those I'm bearing in mind that's what's been done for the last 20 years then we would argue there has to be a third option but the only reason for putting the third option in it's not to count trans people it's to give non-binary people an option that they can truly answer so they don't have to be dishonest by ticking either the male or the female box that's why that's why there's a change from 2011 that's the only reason for a change in the compulsory question from 2011 it is not about counting there hasn't been a change yet because that's what we're all discussing of what NRS has proposed that's the well they've you know that this bill going back to the point there's on about the voluntary section it's not about the mandatory but that's been clarified by the NRS this morning sorry sorry sorry sorry sorry so Stuart hasn't asked a question and he's indicated he wants to ask a question Stuart I knew he had to pop out earlier so no thank you if you're not just it's to follow up on the question from Kenneth Gibson it was on the on the issue of a given time the census is about helping to plan services for the future but if someone were to at that particular time they felt as if they were a man or a woman but later on the then change their mind so at the time of the census being completed the information was accurate but I'm trying to understand in terms of how to how that would then play out in terms of the service planning that any government and any public body would then have to attempt to do bearing in mind that the information could then at some some period of time shortly afterwards then become inaccurate it's just to go back again to the idea that in in totality the sex data is incredibly useful for planning sex specific services but for each specific individual census response you don't necessarily absolutely know from someone's response to the sex question even if they are not a trans person so you know it's got nothing to do with their gender or being a trans person you do not absolutely know with full clarity what their sex specific healthcare needs are just from what they've answered to that question so although it's not impossible that some people who have a shifting sense of how they would describe their sex would answer one way and actually if you asked them to complete the census three weeks later they would describe it another way in terms of the broad overall use of the sex data it's that wouldn't we can't foresee that that would have an impact I don't think I could just add of course many other questions on the census the information just does change over time so for example the census asks about your employment and that's important also for planning services but of course your employment status can change over time as well okay well thank you thanks just a couple of supplementaries to wrap up one relating to Kenneth Gibson's question about shift fluid fluid identities you'll be aware of the the story of the credit suisse director Philip Bunce or Pippa Bunce who spends half of the week as Pippa Bunce who identifies as a woman and the other half of the week he's Philip Bunce identifying as a man in terms of the question how would you expect Philip or Pippa to answer the sex question on any particular day I think that that's I don't know that I would be able to answer that question um we we in terms of how we would probably think of that person's identity we would probably describe them as a non-binary person and we would probably therefore say that they would answer the third other option on the self-identified sex question but obviously I couldn't presume to know he or she identifies as a woman on particular days and actually one of women's award actually understand it in the uh some financial awards in the city one of women's award so would it be acceptable for Pippa or Philip to identify as the sex or gender that they identify with on that particular day just happened to be when he was filling out or she was filling out the census I think that each person who completes a census is able to select whatever box they want to anyway regardless of if they're a trans person or not a trans person I don't I don't feel able to kind of say which one I think that they would need to tick okay that's fine and the other thing I wanted to wrap up if you'll be with me is I've now found your submission to the women in equality select committee transgender inquiry and in your submission this is the Scottish transgender alliance you say that you want the equality act 2010 should be amended to remove the genuine occupational requirement allowing some jobs to require applicants that must be cisgender that's not trans and replace it with a genuine occupational requirement allowing posts delivering trans specific services to exclude cisgender people so basically what you're arguing there is that there should be a genuine genuine occupational requirement for trans services but not for services to women that's what it says there are two different well there are more than two but there are sex genuine occupational requirements and there's also in the case for trans people and the occupational requirement is reversed so for example you can have a job that requires that that applicant be a woman you can also however have a job that requires that an applicant not be a transsexual that's the language that the law would use so we were saying that the latter of those two requirements it should no longer be only that you can require a post to not be held by a transsexual but in fact that some posts for example organisations like mine might require that a post told her be a trans person right okay right thanks very much and finally I just wanted to raise the issue that you mentioned earlier on in terms of the equality and human rights commission's advice the first panel referred to the garden newspaper I invited people to to give legal advice on this whole issue of gender recognition from a variety of different points of view now one of the people that they invited was Julian Norman who is a barrister in London and they pointed out that actually the equality and human rights commission advice on singles sex spaces had actually changed and although originally they said that um that they you know someone who had a gender reassignment characteristic could enter single sex spaces they had changed that and it was now more ambiguous their advice were you aware of that there are two separate issues here that first of all what is the meaning of sex in the equality law my understanding is the equality and human rights commission are very clear about that they talk about legal sex not biological sex the second is about these exemptions and it is a single sex service for women for example allowed to turn away a trans woman without that being gender reassignment discrimination whether or not that woman has a gender recognition certificate and the answer is yes because that's what the law says so what the HRC are saying there is that a single sex service can turn away a trans woman even if she has a gender reassignment a gender recognition certificate and therefore is legally a woman they can turn her away because she's trans because of the exemption without being taken to court for gender reassignment discrimination having said that all of the services in Scotland that provide these crucial services to women don't do that but there is that legal ability to do it that's a separate question that's about gender reassignment discrimination it's a separate issue from what the meaning of the term sex is in the equality act which the commissioner very clear is about legal sex and not about biological sex there's a wider debate here and things are shifting and if you read that guardian article people eminent all eminent lawyers seem to have different views on this and I think that's one of the criticisms that there is a lack of clarity so in a way this committee's been asked to look at some of these big fundamental issues and crystallising the census bill at a time when there is some legal uncertainty even amongst the experts would you agree with that I mean certainly there's a big debate going on at the moment as you know about the gender recognition act the UK government and the Scottish government both have proposals on that that is going to have some impact on the way the census is perceived when it happens so the timing from that point of view for this bill fortunately this bill doesn't specify what the sex question should be the gender recognition act bill is as I understand it being promised by the Scottish government for the 2019 to 2020 Scottish parliamentary year so by the time this committee if it is this committee gets to look at the census order which specifies the subject matter of each question and the census regulations that set out the actual question paper will be much further along in terms of that process of developing the new gender recognition act so from that point of view I think that's going to be the key point at which you want to look very closely at what the Scottish government is proposing the wording of the question should be and as I say I think by then things will be a lot clearer in terms of what the future of gender recognition law these reforms that the Scottish government has proposed what those will look like than they are than they are now because we're now what 10 months away 9 months away from the point where the Scottish government will be announcing in its legislative programme for next year what they're doing about the gender recognition act well thank you very much for coming to give evidence today and we shall now move into private session thank you