This is the proposed six word amendment to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill which will be heard in the Stage 3 debate on Thursday 10th December.
The Bill aims to improve services for those who have experienced rape or sexual assault by allowing access to a forensic medical examination without the need to report to the police. It was clear from the evidence given to the Health and Sport Committee at Stage 1 that it was very important to victims to be able to access a female medical examiner.
Rape Crisis Scotland stated in their evidence that “The single most common complaint we hear from survivors of sexual crime about their experience of the forensic examination is lack of access to female doctors.” NHS Lanarkshire also commented that the “patient’s choice of sex of forensic examiner must be guaranteed by this legislation”.
We noticed that while the documents accompanying the Bill, including the SPICe Briefing and the Policy Memorandum refer to the sex of the medical examiner, the Bill’s Explanatory Notes state that a victim could request that the person carrying out the medical examination be of a specified gender. This originates from Section 9 of the Victims and Witnesses (Scotland) Act 2014:
We submitted a letter to the Committee in June 2020 to express our concerns around the lack of clarity in the terminology, and that it would be unacceptable if this resulted in traumatised women undergoing intimate examinations by males (regardless of their personal gender), even when a female doctor was requested.
The subsequent Stage 1 report by the Committee agreed that biological sex and gender could be different, and that since the intention of the Bill is to give the individual a choice of sex of the examiner, an amendment was recommended to guarantee this right.
However, in their response to this recommendation, the Scottish Government stated they were not convinced there was any such legislative ambiguity.
We think this viewpoint is incorrect and asked the Cabinet Secretary for Health, Jeane Freeman, to reconsider. Gender is not defined in the 2014 Act, nor in the Explanatory Notes of the Bill; gender is not defined in any Scottish or UK legislation. It is open to interpretation and as such cannot guarantee the sex of the examiner will be as requested.
For example, Zero Tolerance define gender as shown below. We are at a loss why someone who has been subjected to rape would need a choice of medical examiner based on how much they perform/express femininity or masculinity, regardless of their sex.
The term sex, on the other hand, is well understood and is defined in the Equality Act 2010 as a “reference to a man or a woman“, and a woman is defined as a “female of any age“.
The Equality Act also provides for the recruitment of women if this is a genuine occupational requirement of the role. Since a primary objective of the Bill is to increase the number of female doctors it is essential that it encompasses the same terminology.
Both the UK Government and the Equality and Human Rights Commission are clear that the terms sex and gender are not interchangeable and are two different concepts. The Scottish Government have also made this clear in a response to a Parliamentary Question, where the Cabinet Secretary, Shirley-Anne Somerville, stated “The protected characteristic of sex in the Equality Act 2010 relates to being a man or a woman. We accept that sex and gender are distinct concepts.“
Since then, the Scottish Government has established the Sex and Gender in Data Working Group to ensure the two categories remain distinct from each other. A spokesperson said its aim was “to ensure there was no conflation of terms”. It is perhaps unfortunate the group’s work has been postponed due to Covid-19, as it may have been instructive for this Bill.
The current stance of the Scottish Government is therefore rather odd: if it is understood that sex and gender are separate concepts, then it follows that legislating for gender will not necessarily provide the requested sex of the examiner. If the Bill truly aims to guarantee victims of rape the right to choose the sex of their medical examiner then the legally correct terminology must be specified. This is the clarity that Johann Lamont’s amendment will provide.
It is fitting that the last word comes from Cara Mackay, a member of the Survivors Reference Group, who were enlisted to help shape the Bill:
“So I say this, with the utmost respect to all. When a female is sexually assaulted and seeks refuge at self referral, I will not stand for gender to be the priority. We must assume that a female survivor of a male attack would want to see a female examiner….If we need to be specific about seeing someone of the same sex on first contact after an attack you better believe that’s the fucking priority.“
An MSP has pointed out to us that Section 8 of the 2014 Act refers to the victim’s right to specify the gender of the investigating officer who is to carry out the interview, and that this is not included in the amendment to substitute with “sex”. It would certainly be preferable if this could be similarly changed, but it seems likely to be outwith the scope of the current Forensic Medical Services Bill, which is solely concerned with establishing medical examinations for rape victims on a self-referral basis.
The Bill already modifies the relevant sentence in Section 9 of the 2014 Act to remove reference to a “constable”. Johann Lamont’s amendment seeks to provide further clarity.
- Our earlier blog post, detailing our letters with the Committee and Ms Freeman
- The Herald: “Agenda: New bill must not conflate sex and gender”
- The Scotsman: “Transgender debate: MSPs must stand up for women’s ‘sex-based rights’ in key vote on Bill to help rape victims”
- Wings Over Scotland: “The human sacrifices”
- Cara Mackay: a blog by a member of the Survivors Reference Group who were enlisted to help shape this Bill
Update 10 December 2020:
Parliament voted For the Amendment with 113 votes, Against 9, and Abstentions 1.
The transcript of the full debate is in the Official Report, and can also be watched here (from approx 17:12)