Opinion: Securing legal clarity in the Forensic Medical Services Bill

Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie of MurrayBlackburnMackenzie comment on proposed changes to a bill approaching stage three at Holyrood.

This week an important bill will reach its final stage in the Scottish Parliament. The Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill aims to improve access to healthcare services for victims of rape and sexual assaults. The bill commands strong cross-party support.

During stage 1, Sandy Brindley, chief executive of Rape Crisis Scotland (RCS) told the committee: “The feedback that we have from survivors is that the most important issue is access to a female doctor. The lack of access to a female doctor is what causes the most trauma.”

Ms Brindley’s statement raises two separate issues. The larger, and harder to solve one, is the substantial under-supply of qualified female examiners. The other, simpler to address, concerns the clarity of the law.

Section 9 of the Victims and Witnesses (Scotland) Act 2014 already provides that victims of sexual assault may request an examiner of a particular “gender”. The act does not however, define ‘gender’.

The underlying issue here is that gender is used increasingly to describe how a person identifies, rather than their biological sex.  In its stage one report on the bill the Health and Sport Committee concluded: “We consider the definition of gender could be ambiguous in the bill, which has the potential to cause distress to individuals undergoing forensic medical examination. We recommend the bill be amended to guarantee an individual’s right to choose the sex of the examiner.”

The Scottish government rejected this argument, stating it was “not immediately convinced that there is legislative ambiguity on this matter”. And yet the Scottish government has made clear elsewhere that it regards sex and gender as different things. The Cabinet Secretary for Social Security and Older People has stated that “We accept that sex and gender are distinct concepts”. The Justice Secretary has argued that adding an aggravation for ‘sex’ rather than ‘gender’ in the Hate Crime and Public Order Bill could exclude trans-women. The government’s Sex and Gender in Data Working Group was established, in part, “to ensure there was no conflation of [these] terms”.

It is against this confused background that Labour MSP Johann Lamont has tabled an amendment to the bill which would, in turn, amend Section 9 of the 2014 act. Aimed at providing legal clarity, the amendment states simply: “for the word ‘gender’ substitute ‘sex’”.

As well as ‘sex’ having a clearer everyday meaning as a physical characteristic, it is also the term used in the Equality Act 2010. The Equality Act is relevant here because it allows people of only one sex (which the act defines as being either male or female) to be recruited for certain roles, using the “Genuine Occupational Requirement”. This is a provision which may need to be called on in order to increase the supply of female examiners. For that reason alone, harmonising the language between the two acts makes sense.

The Scottish government’s continuing resistance to making this change has dismayed and puzzled some of its own supporters, and caused one member of its Survivors Reference Group to state her distress publicly.

Yesterday RCS intervened on the Scottish government’s side. In a Scotsman column, the chief executive rejected the need for the amendment, arguing “the terms sex and gender are often used interchangeably. Replacing one word with another will have no impact on the availability of female doctors. The amendment misses the point.”

The desire to keep a focus on the need to recruit more female examiners is wholly understandable. Why RCS feels so strongly that this is an argument against amending the 2014 Act is less easy to understand. Moreover, its assertion that sex and gender are interchangeable is at odds not only with various Scottish government statements, but also departs from its own position when responding to the Scottish government’s first consultation on Gender Recognition Act reform. Co-written with a number of other Scottish women’s sector organisations, this stated that “the terms ‘sex’ and ‘gender’ are used interchangeably in the consultation document. This does not reflect either feminist analysis or the way in which those terms generally appear in equality policy and law. In parts this has obscured the proposals in a way that seems unhelpful”.

On Twitter, RCS said: “Don’t let gender row obscure the need for changes to the way rape survivors are treated in Scotland.” But if a “row” is overshadowing other important issues, that is only because of the remarkable degree of resistance to what is a straightforward proposal for legal clarity.

The Lamont amendment would implement the committee’s recommendation, smooth the path for single sex recruitment, and is supported both by women who have experienced sexual assault and by those who know that one day they too may need these services. Most crucially, none of the amendment’s critics appear willing to argue directly that the amendment is wrong in itself. If the Scottish government and now RCS really believe its effect would be neutral and view the ongoing argument as a distraction, the logical response is to let the amendment proceed.