Sex and gender in the Forensic Medical Services Bill

The Stage 3 debate on the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill will take place this Thursday, 10 December. The purpose of the bill is to improve access to healthcare services for victims of rape and sexual assaults.

One issue that emerged during the Stage 1 considerations of the bill was the importance to victims of being able to request a female medical examiner.

Sandy Brindley, Chief Executive of Rape Crisis Scotland, 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.”

The Stage One report on the Bill expressed concerns about a lack of terminological clarity around ‘sex’ and ‘gender’. The Health and Sport Committee recommended that the Bill be amended to guarantee a person’s right to choose the sex of the examiner:

‘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.’

(para. 90)

Indeed, ‘gender’ is not defined in UK law, whereas ‘sex’ is defined under Section 11 of the Equality Act 2010.

Screenshot 2020-12-07 at 17.53.06

It further defines ‘man’ as a ‘male of any age’ and ‘woman’ as a ‘female of any age’.

Labour MSP Johann Lamont has tabled an amendment to amend Section 9 of another Act: the Victims and Witnesses (Scotland) Act 2014 which, as the Explanatory Notes to the Bill state, ‘provides that victims of sexual offences must be given an opportunity to request that the person who is to carry out a forensic medical examination be of a specified gender’ (para. 37 our emphasis).

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Seeking to rectify this ambiguous terminology, the Lamont amendment states:

“for the word ‘gender’ substitute ‘sex’”

In responding to the recommendation in the Stage 1 report, the Scottish Government stated that it was not persuaded that such legislative ambiguity existed:

‘Section 9 of the Victims and Witnesses (Scotland) Act 2014 ensures that people who access forensic medical examination can request a female examiner and so therefore the Government is not immediately convinced that there is legislative ambiguity on this matter.’

We think that this confidence is misplaced. Section 9 of the 2014 Act refers to the ‘gender of medical examiner’, which is not defined in the Explanatory Notes, and as such can make no guarantee as to the sex of the examiner. Moreover the Scottish Government has made clear elsewhere that it views sex and gender as separate concepts.

In January 2019, in response to a Parliamentary Question from Joan McAlpine MSP on the conflation of sex and gender by Scottish local authorities, the Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville stated that:

“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.”

10 January 2019

In July 2019 the Justice Secretary met a number of women’s groups to discuss whether the Hate Crime and Public Order Bill should provide protection for women. Responding to a number of groups who argued that ‘sex’ should be included as an aggravator, the Minister made clear that ‘gender’ has a wider scope, and unlike ‘sex’, would extend to transwomen:

‘an aggravation for ‘sex’ rather than ‘gender’ could exclude trans-women i.e. if a trans-woman was attacked because they were perceived to be a biological woman rather than because they were trans’.

In September 2019  the Scottish Government established the Sex and Gender in Data Working Group, whose title and remit underscore the difference between the two. Commenting in the press, a Scottish Government spokesperson stated that one of the aims of the group was “to ensure there was no conflation of terms”.

It is clear that from these examples that the Scottish Government recognise ‘sex’ and ‘gender’ as separate concepts, and by extension, that legislating for gender provides no guarantees around sex. If the Scottish Government wishes to ensure that victims of rape can choose the sex of their medical examiner, it will need the clarity that the Lamont amendment provides.

Note: Section 8 of the 2014 Act references the ‘victim’s right to specify gender of interviewer’ (our emphasis). However, given that the Forensic Medical Services Bill is concerned specifically with medical examinations for rape and sexual assault victims, any amendment to this section of the 2014 Act seems likely to be out of scope.