Justice Secretary Humza Yousaf condemned for refusing to say if there are only two sexes
Scottish Political Editor of The Herald
The SNP Justice Secretary came under fire as MSPs debated possible changes to the Government’s controversial Hate Crime Bill.
Labour MSP Johann Lamont tabled a series of amendments designed to find out whether ministers believe there are more sexes than male and female, and if so what they are.
However, Mr Yousaf conspicuously ducked the question, and opposed Ms Lamont’s ideas for changing the Bill, saying it was important to be “inclusive, particularly of non-binary persons”.
Ms Lamont said she was “concerned” that Mr Yousaf had failed to say if “he believes there are two sexes”.
Some campaigners argue that sex, like gender, is fluid and on a spectrum, while others, including Ms Lamont, argue it is binary and immutable.
The issue is part of the often heated debate on whether the advance of transgender rights is happening at the expense of sex-based women’s rights.
Ms Lamont proposed changing the Hate Crime Bill so that it included the words “a reference to sex is a reference to being a woman or a man”, as well as changing references to “persons of a different sex” to “opposite sex”.
The Glasgow MSP said this would make the Bill consistent with the 2010 Equality Act, which says sex is either “a reference to a man or to a woman”.
Ms Lamont said she had been “anxious” about even tabling the amendments given the backlash to other MSPs for proposing changes to the Bill around transgender identity.
She said: “I was very concerned, and I continue to be concerned about the ability to stress test this Bill and the provisions within it and some closing down of the debate.
“I think it is essential we can have an open and rigorous debate.”
Although she ultimately decided against pressing the amendments at Stage 2, she reserved the right to put them to a vote at the final Stage 3 of the Bill.
She told a virtual meeting of the Justice Committee: “I do want an explanation from the Cabinet Secretary for the use of the term ‘a different sex’.
“It’s clear in law there are two sexes, and that definitions matter, and if we’re going to change from the language of the Equality Act, I think there is a responsibility on the Cabinet Secretary to explain why.
“We know that there is actually in some places a debate about whether indeed there are only two sexes or whether sex is on a spectrum, and I don’t think we should ignore that debate.
“If that is what is being suggested then we need to be clear about that.
“I want to simply use the terms as referred to in the Equality Act.
Johann Lamont pictured with her husband, Archie. Picture by Bill Heaney
“The purpose of my lodging these amendments was to ensure that we have an explanation from the cabinet secretary whether in fact the Scottish Government believes there are only two sexes, and if there are not, what are those other ones.
“I do think think it’s essential in legislation where we’re changing from what’s in the Equality Act that we have that explanation.”
But Mr Yousaf said he agreed with Green MSP John Finnie and Liberal Democrat Liam McArthur that “different sex” was a phrase already used in Scottish legislation, including civil partnership laws supported by Ms Lamont.
He said: “[There is] a need to have these debates, as uncomfortable as some of them may well be and sometimes.
“I could not support these amendments if they are brought forward and pressed by Johann Lamont, neither at this stage nor indeed if they are brought again at Stage 3.
“Simply because as legislators and lawmakers we should be consistent in our approach to legislation.
“Different sex is a term that has been used, as John Finnie said, in legislation which actually Johnann Lamont herself has voted for previously.
“I think consistency is important. I think precedent legislation is important.
“But also I think being inclusive is important too, and organisations such as the Equality Network, such as Stonewall Scotland, support the use of the term different sex because they believe it to be, and I agree with them, to be more inclusive, particularly of non-binary persons.
“I would respectfully disagree with Ms Lamont and be interested to hear why she changed her thinking from previously supporting different sex to now wanting to support opposite sex.”
Ms Lamont replied: “I note the emphasis that people have made on respectful debate.
“Because there is a difference between saying ‘You’re a different sex from me’ to saying ‘a different sex’.
“It’s not semantic. I haven’t changed my position.
“The definition that we’re dealing with is that in the Equality Act, and I haven’t heard an explanation of why that would change.
“Of course, it’s important to be inclusive. And of course it’s important to be respectful. Of course, it’s important to understand about how people feel about themselves and the world.
“But we’re simply dealing with a definition here, and a definition that’s in the Equality Act.”
She went on: “I do hope that at some point we can hear the cabinet secretary confirming his view that there are two sexes.
“One of the things that has changed is that there is now a conversation about there being more than two sexes and that it is a spectrum.
“It’s not going to be defined and determined in this Bill, and that’s why at this stage I want press it, but it is part of the debate that’s going on around this area.”
SNP MP Joanna Cherry said Mr Yousaf had felt unable to answer the question in case he unleashed “a torrent of abuse and threats”, and it indicated “we have reached a bad place in our public discourse”.
Tory Convener Adam Tomkins thanked MSPs for their work on the controversial legislation, and said work on devising a clause to protect freedom of speech while also criminalising hateful speech and deeds remained ongoing.
The Parliament has yet to set a date for the final vote on the Bill, but ministers have said it will be before the end of the current session in late March.
Jamie Gillies of the Free to Disagree campaign, which opposes the Bill, said: “It’s highly concerning that the shape of free speech provisions in the Hate Crime Bill – perhaps the most controversial piece of Holyrood legislation in recent years – is still being decided weeks before a final vote and behind closed doors.
“Given the concern over the bill, strong free speech clauses should already have been agreed to by all parties.
“MSPs can’t afford to get this bill wrong.
“Doing so could erode precious democratic freedoms and see the parliament returning to the legislation years down the line.
“It would be prudent for MSPs to defer scrutiny of the stirring up hatred offences until after the May election.
“New proposals could be brought forward and discussed over time, with renewed input from a wide range of stakeholders.”
Picture of Dumbarton (above) by Sean Davenport, of SD Media