MSPs overwhelmingly vote to replace gender with sex in rape support law

The change in terms put forward by Labour’s Johann Lamont was backed by 113 MSPs.

The LibDems and Greens voted against, while the SNP's Christine Grahame abstained.

Currently, Section 9 of the Victims and Witnesses (Scotland) Act 2014 allows victims of sexual assault to request an examiner of a particular gender.

But yesterday in Holyrood, the Labour MSP Joanna Lamont moved an amendment to the Forensic Medical Services Bill to change that to sex.

In its stage one report of that bill, Holyrood’s Health and Sport Committee, warned that the definition of gender “could be ambiguous in the bill, which has the potential to cause distress to individuals undergoing forensic medical examination.”

The Scottish Government initially rejected this argument, stating it was “not immediately convinced that there is legislative ambiguity on this matter”.

However on Thursday, ministers dropped their opposition.

Opening the debate, Lamont told colleagues the change was about clarity and doing what was right for traumatised women. 

She said: “In giving people rights, in giving women victims of rape and sexual assault rights, in giving all survivors of sexual violence rights, we need to be precise. 

“Sex is defined in law, and gender is not. A right is not a right, if it’s unenforceable. We owe it to survivors to listen and treat them with respect.” 

Her colleague Monica Lennon said that some of those backing the amendment were ”blatantly hostile towards trans women, and the trans community.”

She added: “Clearly, there are some people who want to exclude trans women from working with women and girls to have disclosed rape or sexual assault.”

Responding, Lamont said "Forgive me if I focus on survivors in this debate. We should centre the experience of survivors and ask what is right for traumatised women. These women are not responsible for what people say on Twitter or on Facebook.

"These are women and men who are not responsible for those who choose to weaponize every single bit of politics that this country seeks to defend or argue.

"These are women who are traumatised and have asked through the years that things should change and overtime they have, and we should listen to them now.

"And if people want to debate the definition of what a man is, and a definition of what a woman is, if they want to look at the Equality Act and change it, I am more than happy to be party to that debate, but that is not the argument we are having now.

"This legislation deals with what is reality no of what a woman is what a man is, and oh my goodness, what abuse and violence are too."

Green MSP Andy Wightman was one of those who voted against. “For many people, this seems to be a debate about anything other than the victims of sexual assault,” he said. 

He argued that the change in wording would make no real difference to the implementation of the law, and that the courts would interpret legislation in line with what the intentions of Parliament were.

"I'm not convinced that it is necessary to make any amendments to 2014 act to secure its principal purpose of ensuring that victims have some say in the sex of their examiner and their interviewer. And the conflation of sex and gender in this context is not in my view, particularly problematic. It's very clear from the intention behind the 2014 Act in principle section eight and section nine, that it was indeed to provide access to a female doctor where a female victim requested that."

Health Secretary Jeane Freeman agreed. She said “Changing the wording in the 2014 victims act makes no differences as this amendment will not affect the operation of the underlying law here or the already established rights of women to request a female examiner. And for the same reason, whether the amendment passes or not, that does not, indeed could not affect the rights of any other person involved in these vital services.” 

However, she added, the government would not "be opposing the amendment in this group, because it does not and cannot change the existing and established law rights and practice in this area, which we will uphold.”

MSPs later unanimously backed the Forensic Medical Services Bill.

One of the key components of the legislation allows victims of sexual assaults who are aged 16 or over to refer themselves for vital medical examinations without having to first report the attack to the police.

Freeman said this was "important in giving people control over what happens to them at a time when that control feels like it has been taken away".

The Health Secretary also pledged there would be £1 million of new funding in next year's Scottish Budget to help implement the legislation.

This, combined with £500,000 announced to improve the NHS response to child sexual abuse, takes the amount of money being invested in improving forensic medical services to £10 million over four years, she said.

Tory Donald Cameron stressed the need for more female medical examiners, saying that women currently make up about 60% of forensic doctors in Scotland, compared to 30% in 2017.

But he added that Rape Crisis Scotland had noted there are "still not enough women carrying out forensic examinations for rape survivors to be guaranteed access to a female doctor".

Cameron said that was a "hugely important point for the Government to acknowledge and seek to change".

The legislation also requires health boards to provide care that seeks to avoid retraumatising those who have been the victim of a sexual attack.

Rape Crisis Scotland welcomed the legislation, saying: "Introducing self-referral in Scotland is a vital step towards ensuring survivors have as much control over their own experience as possible.

"No-one should ever be pressured or coerced into reporting sexual violence and having the ability to capture and safely store potential evidence without having to commit to reporting is necessary and important."

But it added work to recruit more female examiners must be an "urgent priority".