The Scottish Government is seeking to “prepare the ground” to act when new guidance on gender is issued, the country’s most senior civil servant has insisted.
Permanent Secretary Joe Griffin came under fire from MSP Michelle Thomson, who told him it was a “very poor look” that 10 weeks on from the landmark Supreme Court ruling on the definition of a woman, the government had “not done anything about it”.
Mr Griffin insisted the Scottish Government was “taking action where we think that is appropriate and possible”, pending a further update from regulators at the Equalities and Human Rights Commission (EHRC).
But with two women’s rights groups – For Women Scotland and Sex Matters – now threatening further legal action against the Scottish Government, Ms Thomson told the top civil servant he should “get on it”.
She challenged the Permanent Secretary on the issue in the wake of the Supreme Court ruling back in April that the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex.
That judgment came about after a challenge to the Scottish Government by For Women Scotland – with ministers, including First Minister John Swinney, making clear that while they accept that, they are waiting for further guidance from the EHRC before acting.
Ms Thomson however pointed out that at Holyrood the Scottish Parliamentary Corporate Body has ruled that the use of toilet facilities designated as either male or female will be based on biological sex – preventing trans people from using the toilet of their preferred gender.
Mr Griffin insisted there is a “range of action we have been taking already”, adding that Social Justice Secretary Shirley-Anne Somerville had tasked him with leading a short life working group “to take stock of the actions we need to take”.
Speaking as he gave evidence to MSPs on the Finance and Public Administration Committee, Mr Griffin said: “These are the actions we are taking while we wait for the end of the EHRC process to review their statutory guidance.
“Once that is finalised we will then be able to take a further series of actions.”
He added: “We are taking action where we think that is appropriate and possible, pending the finalisation of the EHRC guidance.”
When Ms Thomson then demanded to know what action had been taken “beyond talking about taking action”, Mr Griffin told her: “Specific actions, I can’t give you that right now.”
But he insisted the work being done was looking to “prepare the ground” so that the government is ready to implement changes once the EHRC guidance is finalised.
The Permanent Secretary said: “We in the Scottish Government are in a very similar position to the UK Government and the Welsh Government in our understanding of our responsibility being we need to wait for the guidance for the implementation of some actions.”
But with two potential further legal challenges that Ms Thomson said could potentially result in a “significant loss of public money”, the SNP MSP told him she was “staggered why you are not acting now”.
Mr Griffin said the advice he was given “remains nevertheless that we should wait for the statutory regulator to finalise their guidance”.
He added: “I am assured that the advice that I’ve got is the correct advice.
“We find ourselves in a very similar position to our colleagues at Westminster and in Cardiff.”
But Ms Thomson told him: “I think my firm advice to you would be to look afresh at that. It is no justification under law, frankly, to say: ‘Ah well, that’s what everybody else was doing.’
“The Supreme Court judgment was compellingly clear, there is a threat of two further legal actions. My firm advice to you, Permanent Secretary, would be to get on it, because I think you are ultimately the accountable officer responsible for ensuring the Scottish Government upholds the law.
“And regardless of your view in this matter, I personally think it is a very poor look that we’re 10 weeks later and we haven’t done anything about it.”
