By Trina Budge

A little-talked-about bill on forensic medical services is currently progressing through Parliament which aims to improve conditions for those subjected to rape or sexual assault, allowing for self-referral to a health service for the collection of forensic evidence and deferring any decision to report the crime to the police until a later date. Central to this proposed law is the right for a person to request that the “medical examination be carried out by a registered medical practitioner of a gender specified by the person”[my emphasis].

With that one word the Scottish Government has once again entered the fray of the self-identification of sex debate, which in this instance would allow male practitioners who declare themselves to be women to be included in the pool of female doctors requested by rape victims. They need not have obtained a Gender Recognition Certificate or even made any changes to their appearance.

The cruelty of specifying gender and not sex cannot be underestimated. Evidence given by Rape Crisis Scotland states 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”.

Traumatised women should not be re-traumatised by unexpectedly encountering a male doctor (regardless of his personal gender) after requesting treatment from a female doctor. Nor should victims feel they must self-exclude from medical services due to uncertainty over being guaranteed a female medical practitioner, or fear accusations of bigotry for making such a request. Unfortunately, numerous such cases have already made the headlines.

To their credit, members of the committee who are scrutinising the bill have recommended its amendment to say “sex” instead of “gender”. The Government has chosen to disregard this, stating it is “not immediately convinced there is legislative ambiguity”.

This is a peculiar stance to take as conflation between sex and gender, and the ensuing conflicts between women’s and transgender rights are prominent in other legislation such as the Gender Recognition Act reform and the Census amendment, to the extent they are splitting the SNP down the middle.

What is not in any doubt is that the term “gender” is not defined in any law. Both Scottish and UK governments, as well as the Equality and Human Rights Commission, are clear that sex and gender are not synonymous. Sex is defined in the Equality Act as a “reference to a man or a woman”, and a woman as a “female of any age”. The Government has even gone so far as setting up a working group to ensure the two categories remain distinct from each other – which may have been instructive had the pandemic not postponed its work.

In order to train and recruit more female examiners health boards need to be able to use the Genuine Occupational Requirements, which are based on sex, and specified in the Equality Act. Trying to recruit on gender leads to confusing policies which breach sex discrimination laws. Similar ambiguity over gender has already led to health boards reintroducing mixed-sex wards and policies encouraging cross-dressers into female changing rooms.

It is essential the bill clearly states what it promises to deliver. The wellbeing and recovery of rape victims is paramount and they are entitled to request a female examiner and know that this is exactly what will be provided. This can only be achieved if the correct terminology in law is used. Sex matters.

Trina Budge is co-founder of For Women Scotland