Clause 9 - General
Gender Recognition Bill [Lords]
Public Bill Committees, 11 March 2004, 3:30 pm
Mr Tim Boswell (Daventry, Conservative)
I beg to move amendment No. 18, in
clause 9, page 5, line 16, after 'purposes', insert
'including legislation relating to discrimination'.
Mrs Marion Roe (Broxbourne, Conservative)
With this it will be convenient to discuss amendment No. 44, in
clause 9, page 5, line 16, after 'purposes', insert 'defined by this Act'.
Mr Tim Boswell (Daventry, Conservative)
In a sense, this is the most important clause in the Bill. We have been dealing with the machinery for determining how we lead up to this and we now come to the change of legal gender and status. In one sense, I have no difficulty with that. I know that one of my hon. Friends has, and I want to listen to his arguments on the matter very carefully. I also need to hear from the Minister how it will operate in practice.
First of all, I need to make a point that may pave the way for later discussions. The main concern of the Bill is legal status: the right to a private life, which is found in article 8 of the convention, and the right to marry. Those rights are secured by the Bill, as is the related issue of discrimination. The explanatory notes state that a person having been born a male
''would, in law, become a woman for all purposes.''
The notes go on to say:
''She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.''
The first part of my amendment is designed to confirm that the legal changes are what philosophers would call ontological in relation to the status of a person as a man or woman, and are recognised by their gender recognition certificate, which would function as a birth certificate for them in their acquired gender and relate to the important issues of their ability to marry and not to be discriminated against in their new gender.
It is entirely consistent with my position on the Bill that I have no problem with those concepts, but the amendments would enable us to go a little wider. Ministers should explain the other legal purposes that might be involved and what might be excluded—we shall examine that when discussing subsequent clauses and the ''small print'' that limits the broad condition.
My hon. Friend the Member for South-West Bedfordshire (Andrew Selous) will obviously want to speak on the matter. I know that concern has been expressed, particularly in faith communities. We shall want to discuss whether the rights in the Bill, including safeguards for ministers of religion, are sufficient, or whether there will be unanticipated consequences. The group of amendments deals with discrimination. I am
happy for the Minister to respond in those terms. I may want to make wider points about the drafting of the clause in the next group.
Mr Andrew Selous (South West Bedfordshire, Conservative)
Amendment No. 44 would clarify exactly what rights are established by the Bill for transsexuals, and for many other organisations. It seeks to balance the legitimate and proper rights that the Bill will give to transsexuals with the rights of others, because I believe that they will be very severely and, in some cases, very negatively impacted by the Bill's proposals.
I will illustrate my points by taking three different examples. If we look carefully, we will see that whereas ''gender'' is used in just about every other area of the Bill, ''sex'' is distinctly used twice in subsection (1). In another place, Professor Lord Chan, a professor of medicine, drew attention to the serious issues surrounding the transfusion of blood. Certain people can be adversely affected by the transfusion of female blood. He said:
''Let us take the example of a person who says that he is male and is in fact female from the point of view of the chromosomes. We know of a rare but dangerous syndrome of people who have been transfused with blood from women and there is a transfusion reaction.''
He continues,
''it has been recorded in the United Kingdom in about 50 cases. On medical grounds there is a need for a person who has received a gender recognition certificate to disclose what their sex was at birth.'' —[Official Report, House of Lords, 29 January 2004; Vol. 657, c. 413-414.]
If we take subsection (1) literally, as I see it, it will not be possible for the National Blood Service or a hospital to find out the original birth sex, or chromosomal identity, of the person giving blood. If a person gets an adverse reaction because of that, serious legal cases will result. That is an extremely important point. It may happen only in a minority of cases, but we have discussed several issues that may occur only in a minority of cases and we must consider it.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
I am interested in the example. Certainly, one can suffer an acute reaction because of an antibody found in the blood of some women who have been through pregnancy. Would one solution to the hypothetical problem not be to ask the donor under medical confidence whether they have been pregnant, as one is asked, controversially, about one's sexuality? I do not believe that the Bill prevents that being inquired into during that procedure if it is felt medically necessary—of which I am not certain. Perhaps we should be exploring that rather than undermining the clause.
Mr Andrew Selous (South West Bedfordshire, Conservative)
I am not sure that the amendment seeks to undermine the clause; rather it seeks its precise meaning. The hon. Gentleman makes the sensible point that there are other issues, such as what would happen if the person did not give a full and accurate answer to the question of sexuality. If we are discussing receiving an adverse reaction from a blood transfusion, the National Blood Service and hospitals need to ascertain a definitive answer to such questions.
Mr Andrew Selous (South West Bedfordshire, Conservative)
No; I shall continue, if I may, and return to the hon. Lady.
I wish to move on to a second example, which I want to treat sensitively and not in any way trivialise or sensationalise. Let us consider the case of gender-specific changing areas in public baths or swimming pools, which many of us have in our constituencies. I tabled new clause 6 and hope that we reach it later, so I will not talk about the issue at length. As I read clause 6, it makes no provision for the managers of public swimming pools to have the power to set up arrangements in a way that will not cause gross offence. Taking the example of somebody who has a gender recognition certificate—[Interruption.] The Under-Secretary of State for Work and Pensions seems to mock me, but I ask her to hear me out, because I think that the issue will be of concern to many people.
Let us take the case of somebody who becomes a legal female as a result of the Bill, but has had no sex-reassignment surgery. That person is in the public changing areas of the local public swimming pool and there are women and young girls—daughters with their mothers—in that area. As I read the Bill, the management of that public swimming pool will not be able to do anything about that. I see hon. Members shaking their heads. If they give me clarification and reassurance on the issue, I will be delighted.
Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)
The hon. Gentleman appears to be suggesting that transsexual people are just exhibitionists who want to cause offence. Frankly, that is ridiculous.
Mr Andrew Selous (South West Bedfordshire, Conservative)
Absolutely not; I resent that suggestion. I am not talking about anybody trying to give offence.
Mr Andrew Selous (South West Bedfordshire, Conservative)
Let me respond to the Minister's point.
The fact is that public baths and swimming pools in this country have public changing areas. I think that the presence of somebody who is legally a woman but has not had any sex-reassignment surgery in an area where there are young girls and their mothers is a serious issue that the Bill does not address. Frankly, I think that our constituents will think that as well.
Dr Lynne Jones (Birmingham, Selly Oak, Labour)
There is legislation on the statute book relating to anti-discrimination against transsexuals in employment. When we drafted that, the same issues were raised about whether a transsexual person should be required to use, for want of anything else, the disabled persons' toilet in their place of work. That was ruled out and it would now be regarded as discriminatory. Since that legislation was introduced, there have been no problems with it. I concur with my hon. Friend the Under-Secretary that the scenario that the hon. Gentleman raised is ridiculous and anathema to the transsexual community.
Mr Andrew Selous (South West Bedfordshire, Conservative)
I am not talking about the transsexual community, but about the rest of our constituents, who might go into a public changing area. That is different from the example of toilets. In a public changing area, there are showers and people walk around fully naked in the normal course of events as they go to have a shower or change in a communal area. That is an issue that has not been addressed and needs to be thought about. I use it by way of example and do not want to dwell on it. In fact, we will come to it later when discussing new clause 6. If any members of the Committee or the Under-Secretary can reassure me, I would be delighted. I have not received any reassurance, or heard any proper arguments against what I am saying.
The last example that I shall cite, on which I also do not want to dwell at length because we will come to it in a later series of amendments, is that of religious bodies in general. I mean religious bodies of all faiths, as well as all denominations of Christianity, the Free-ers and the established churches. There is a genuine fear that vexatious litigation could arise out of clause 9(1). Hon. Members may be aware of a recent case in south Wales, in which Diane Parry sued the local Baptist church, which won the case. The judge said at the time that he believed that Diane Parry would have won had the Bill been in force. I ask the Minister on what basis he can say that Diane Parry would not win her case if the Bill were enacted? I will ask that question again when we discuss other amendments.
The question was asked by the right hon. Member for Swansea, East (Donald Anderson) on Second Reading and I do not believe that he was fully satisfied with the Minister's answer. I know of two current legal cases involving other churches. It may be part of the law of unintended consequences, but I am sure that it is not what the Government intend. Press for Change is concerned about the matter and do not want religious bodies to come up against such vexatious litigation, which will waste a lot of time. I do not believe that that is what the Government want; Ministers should know that there are not only real worries but that legal cases are being prepared.
Mr Tim Boswell (Daventry, Conservative)
I am grateful to my hon. Friend for giving way and for having acknowledged that it would not be in the interests of the transsexual community, or its wish, for such vexatious litigation to be pursued.
To clarify matters, will my hon. Friend tell me whether, in his understanding, the problem with the legislation would be specific to faith communities? Does he believe that faith communities might be targeted by vexatious persons seeking to make a point and that in fact the legislation would be of general application, although in practice it might end up a considerable threat to the churches and other faith communities?
Mr Andrew Selous (South West Bedfordshire, Conservative)
I think that all faiths are worried about aspects of the Bill. I gave three different examples: blood transfusions; gender-specific changing areas; and religious bodies. The religious bodies have genuine and serious concerns, which they feel are not adequately addressed in the Bill as drafted.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
I am interested in what the hon. Gentleman says. I know that many people share his anxieties and it is right that we debate them. I would be grateful if he briefly expanded on his reference to Second Reading, as he did not set out the facts of the case. If he will clarify the issue, it will help us to judge the validity of his argument.
Mr Andrew Selous (South West Bedfordshire, Conservative)
My knowledge of the case is that Diane Parry was a man; her adopted gender is that of a lady. She attended a church in Wales and was insistent on certain rights within that church that were thought to be pastorally insensitive in respect of other members of the congregation. It is a delicate matter relating to a private area of life and it is not for us to judge how any church or faith should conduct their services or the life of the church. The whole thing led to great distress on the part of the congregation and it resulted in an extensive and lengthy court case. There are at least two other cases that are under way.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
We may come to this in relation to discrimination, but if it was an issue of employment or vocational training, it is probably already covered. If Diane Parry was seeking the right to worship in the church, if anything that is a goods and services issue, and I do not understand the suggestion that she would have a case even after the Bill becomes law—sadly. I am still a little uncertain about the relevance of the case. I hope that, if the hon. Gentleman thinks that there will be a whole series of such cases, we will be able to get further details when we discuss discrimination.
Mr Andrew Selous (South West Bedfordshire, Conservative)
There are further cases. The relevance of the case is the fact that Churches are not wealthy organisations. They have got other things to do; they do not want to spend their time in the courts. People who go to church and put money in the collection plate on a Sunday do not want it to disappear in expensive lawyers' fees—even if the Church wins the case, as it was able to in this instance. There is real doubt about whether it would have won the case if the Bill had been law. The case is valid and serious.
I want to respond to a point raised by the hon. Member for Birmingham, Selly Oak. I do not think that she is correct about the use of public changing facilities. I am informed that issues have arisen and caused concern in relation to gender-specific changing areas.
Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)
The only difference that the Bill could make to a case such as the one that the hon. Gentleman mentioned—I still do not quite understand the facts as he put them—is in respect of whether the applicant in the case was recognised legally as a woman. Is he really arguing that in some instances somebody who has a gender recognition certificate following the enactment of the Bill should not be recognised as a woman?
Mr Andrew Selous (South West Bedfordshire, Conservative)
No, I am not arguing that. The Minister tries to put the case too simply. When it comes to the conduct of religious activity, all members of religious bodies sometimes have to accept the discipline and pastoral guidance of the leaders of those bodies. Diane Parry was unwilling to accept that and
launched an expensive legal case. Current legal opinion is that she would have won that case had the Bill been law. I have to tell Ministers and members of the Committee that there are massive concerns about the issue. It will not go away and they will find their postbags filling up with letters about it from large numbers of their constituents between now and Third Reading.
Dr Lynne Jones (Birmingham, Selly Oak, Labour)
Will the hon. Gentleman explain what he meant by pastoral practices? I think that the Committee is still in the dark about exactly what it was that this individual was prevented from doing that resulted in litigation. Obviously, it is undesirable to require litigation, but I am intrigued about what she was seeking a remedy for.
Mr Andrew Selous (South West Bedfordshire, Conservative)
One of the things that she wanted to do was preach in the church. The pastoral team at the church in south Wales was not happy for her to do so at the time. That should be decided by the local leadership of any church, and it was one of the issues on which she took the Church to court. Some Committee members may seek to belittle the matter, but I can tell them that it is one of real concern. There are cases outstanding in law, and the issue will be increasingly focused on during the next few weeks.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
Some interesting issues have been raised by the hon. Gentleman. Amendment No. 18, tabled by the hon. Member for Daventry, is unnecessary and tautological. I know that he was using it to probe some of the issues, but I think that we shall have interesting debates on amendments Nos. 16 and 17 that will be more productive.
To respond to the hon. Member for South-West Bedfordshire, we will get a chance when debating new clause 6 to deal with changing room issues if we wish to do so. I am happy to leave it until then, and would encourage other hon. Members to do so because it may not be necessary to deal with it now.
The facts set out by the hon. Gentleman on legal cases are important. It seems to me that if preaching in church—I understand that that may be only one of the issues—were employment, it is likely that the Church would be covered by the genuine occupational exemptions under the Sex Discrimination Act 1975. The 1999 regulations cover transpeople, but where there is a religious vocational element, they do not force employers to take on transpeople—nor, indeed, would they force the Catholic Church to have women priests. There is a vocational exemption.
The right to non-discrimination already exists. It is not predicated on the holding of the certificate. That is one issue dealt with by the next group of amendments. One can already access protection against discrimination in employment and vocational training—before the Bill comes into force. One of the worries is that such protection, which has had to be fought for in case law, particularly in the case of P v. S and Cornwall county council, may be felt to be lost, because everything will revolve around a later stage of the transition: the possession of a full certificate.
I have not read the judgment—I will be happy to do so before Tuesday if there is an opportunity to debate it then—but I do not understand why the judge would say that the possession of a certificate will make a difference to the strength of the case, particularly if it is a question not of employment but of access to worship. I am not an expert in the field, but that might be considered an issue of goods and services. For example, a church may say, ''You cannot come in and use our facilities in public worship because of your status.'' Churches will be allowed to continue to do that because the Government are not willing to extend to transsexuals, or gay and lesbian people, the rights under the Sex Discrimination Act 1975 and the Race Relations Act 1976, which prevent private and public bodies discriminating on the grounds of racial equality.
The hon. Member for South-West Bedfordshire is entitled to make his point, and I would not criticise him for doing so. When any change in law takes place, it is a worry that there may be litigation, but 'twas ever thus. It is a good thing that people who may wish to discriminate, for good reasons or bad, are forced and advised in advance to consider whether they are wise to do so, and to examine whether they have the protection of the law, regardless of what their conscience dictates. That applies to race relations, where people have strong views, and should apply in the case of discrimination on all grounds.
If we get a chance to discuss discrimination later on, we will be in a position to judge whether the matter is one of serious concern. At the moment, I cannot see how it could be, even from the point of view of those who have raised objections. I do not think that the Bill changes much in respect of litigation in matters of discrimination.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I shall attempt to cool down some Committee members. Understandably, many have been concerned by what has been said.
We have made it clear that the Bill's basic principle is that the issuing of a gender recognition certificate will mean that a person's gender becomes, for all purposes in law, the acquired gender. We believe that that takes account of legislation relating to discrimination. For that reason, amendment No. 18 is unnecessary. Clause 9 refers to sex as well as gender. Hence, although discrimination legislation is in terms of sex rather than gender, clause 9 would nevertheless mean that the acquired gender or sex of a person would apply.
I turn to amendment No. 44. The basic principle in clause 9 allows for relative simplicity in the Bill. Clause 9 contains a general proposition about the effect of the issuing of a full gender recognition certificate, and hence avoids the need to spell out each and every instance in law for which gender is relevant. I have no doubt that the hon. Member for South-West Bedfordshire is uncomfortable with the basic principle of the Bill, and his concerns are genuinely felt and
sincerely held. He may not accept that a person who changes gender under the process in the Bill has, in some sense, truly changed gender.
Mr Andrew Selous (South West Bedfordshire, Conservative)
May I clarify one or two matters? I support the fact that the Bill tries to address genuine grievances and concerns where transsexuals are concerned. I am extremely unhappy about a number of the ways in which it attempts to do so. I fully accept that someone can adopt a different gender, but there are genuine difficulties regarding the course that the Bill takes regarding chromosomal birth sex, and those are shared by a wide number of people. I would be interested to hear the Minister respond to the points that were made on blood transfusion.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
As I have said, I have sought to be generous, but it will be the case that the person has changed in the law. That is all that the Bill seeks to establish. I ask the hon. Gentleman, more gently than I might when not in Committee, what he is really saying when he expounds on the subject of changing rooms. Is he saying that there should be signs above changing rooms saying, ''No transsexuals''? I say to him quite intently that for many reasons we have moved a long way from such signs.
Mr Andrew Selous (South West Bedfordshire, Conservative)
The Minister is being less than his normal courteous self. I do not know whether he has had a chance to look at new clause 6—and it would be inappropriate for me to dwell on it—but if he has taken the trouble to read it, he will have found that the last part states:,
''providing reasonable provision is made for transsexuals.''
I am talking purely about the offence that, understandably, could be perceived, particularly by very young girls with their mothers in changing rooms, if they came across a lady who had adopted a female gender, but who was physically male because she had not had sex-reassignment surgery. That is a valid point. Committee members who have young daughters will identify with that concern.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
The points were well made by my hon. Friend the Under-Secretary of State for Work and Pensions and my hon. Friend the Member for Birmingham, Selly Oak. The natural conclusion of what the hon. Gentleman has said is that there should be some other third category or some sign that reads, ''Not for you, no transsexuals.'' That is the logical conclusion of what he has said, and I find that offensive.
The effect of the amendment would be that the acquired gender would count only for the purposes defined in the Bill. The hon. Gentleman's amendment is, effectively, a wrecking one because the gender recognition certificate and the acquired gender would apply solely for the purposes of the Bill—hence be worth only the piece of paper that the certificate is on.
The amendment would either create an unworkable mess of law and practice or require the Bill to set out all the purposes for which gender is relevant. That would require the Bill to be lengthened considerably, and given the number of times that sex and gender are referred to in our legislation, it would be very difficult,
if not impossible, for it to be comprehensive. The result would be that the transsexual person would, in practice, be considered to have two genders at the same time—albeit for different purposes. That would be an impossible position for anyone.
On the hon. Gentleman's blood example, the National Blood Service has considered the issue and does not believe that there is a problem at all. I am advised that blood does not need to be identified by gender. I am sure that we will be able to have a further discussion about church matters.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
As it happens, there is a proposal for gender-specific provision because of the very rare condition of transfusion-related acute lung injury. Therefore, the matter is under review, and I believe that there is a trial in Newcastle. Nevertheless, I agree with the Under-Secretary that blood is not a problem, as it is possible to ask people who donate blood whether they have had a pregnancy, for example, and that information is subject to normal medical confidentiality. It may be possible to clarify to the satisfaction of us all that if such checks proved necessary, there would not be an obstacle under the disclosure rules.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
The advice that I have given is from the Department of Health, but I am grateful for the intervention of the hon. Gentleman, who clearly has experience in such matters.
Anti-discrimination protection for transsexual people does not extend into the area of the provision of benefits, facilities and services. The hon. Member for Oxford, West and Abingdon alluded to that. As I said earlier, we will be considering the extension of protection in the context of EU sex discrimination measures. The law already provides freedom for religious organisations to manifest their members' beliefs in such respects, and we do not expect the provisions of the Bill to alter that. I know that some Christians and members of other faith groups have no difficulty at all in admitting transsexual people to their congregations but that others object. The Bill does not change that situation.
Mr Andrew Selous (South West Bedfordshire, Conservative)
Let me make it absolutely clear that I do not seek in any way to prevent transsexuals from being part of faith communities. It is absolutely right that they should be. I would want them to be fully involved in the life of churches, as I made clear on Second Reading. However, members of churches must accept the ethos, pastoral oversight and, occasionally, discipline from the pastors concerned. Sometimes issues will arise from that perspective; that is a serious point. The matter has been raised by the Evangelical Alliance, among others. It represents more than 1 million Christians in this country and has had fed up to it concerns from its grass-roots members.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
On the basis of what I have said, I ask the hon. Gentleman to withdraw the amendment.
Mr Tim Boswell (Daventry, Conservative)
I am grateful to the Minister for his clarification. In a sense, we have had a skirmish, which has been a dry run for future debates on specific issues. The Minister will know that I agree with him about the Bill's general principle. We will, however, need to test the operation and the implications of the Bill. I understand his point. Indeed, the purpose of my amendment was partly to reinforce the case for opposing discrimination. I have no problem with that. We do, however, need to be as constructive as possible, as feelings are running high in Committee and elsewhere. It may help the process if I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Tim Boswell (Daventry, Conservative)
I beg to move amendment No. 14, in
clause 9, page 5, line 17, leave out 'sex' and insert 'gender'.
Mrs Marion Roe (Broxbourne, Conservative)
With this it will be convenient to discuss the following amendment: No. 15, in
clause 9, page 5, line 18, leave out 'sex' and insert 'gender'.
Mr Tim Boswell (Daventry, Conservative)
In a sense, this is a cardinal issue, which generated a great deal of heat in another place. As the Minister knows, it is not my style on the whole to cook things too much in advance. I want to introduce some general considerations into the debate and see how the debate flows on them. They relate partly to what might be termed good housekeeping under the Bill and through the operation of the law. The Minister will realise that those considerations underlie concerns that I have expressed in my probing of the Bill's operation.
My hon. Friend the Member for South-West Bedfordshire will be more sure than I am about an absolute distinction between the sexes. There is still a view about that. There is also the subsidiary but equally important issue about whether there is a continuing and coherent distinction between the definitions of sex and of gender. Those are, of course, separate issues that could overlap. The medical jury is still out on the former issue. A single chromosomal test seems to me to be insufficient to determine the matter, and there are cases in which we shall never be wholly certain. However, we know that many people in the transsexual community strongly believe that they need to make a change in order to answer to their underlying identity, which I respect and which I believe members of Committee generally also respect. I remind the Committee that, without exception, there has been a warm pastoral welcome for transsexuals, including in many of the faith communities that my hon. Friend stands up for. The issue is how this is interpreted in detail.
I am conscious of the Committee's time, but the Minister needs to spend a moment explaining the basic philosophical issue. I suspect that the words ''sex'' and ''gender'' have been used interchangeably to some extent, even if they are conceptually different.
During consideration of another Bill, I found by chance a recent article in The Times Higher Educational Supplement, of all places, which referred
to an academic study that suggested that that had happened, and that for several reasons there had been creep, if I may put it that way, towards the use of the word ''gender'', partly because the word ''sex'' has sexy implications, and partly because it was believed to define unduly. Another reason was that people tended to use the word ''gender''. I do not know whether that is politically correct or not, but I suspect that people do tend to use the words loosely outside this place. The Minister referred to that earlier when he talked about the old phrase ''a sex change''.
My first question to the Minister is whether he believes that there is a coherent and important distinction between ''sex'' and ''gender''? If he wants to answer that question, does he believe there to be a total and definable distinction between the male and female sexes? He may see that as a separate issue. He can hardly fail to remember the debates in another place about that question. I agree with a point that he made in response to another amendment that the Bill is about legal concepts and the legal handling of persons in relation to their acquired gender. We do not argue about that. I think that we need the Minister to give us some understanding of how it will work in practice.
Although, in a way, the wording is clear, it starts by talking about gender, and in subsection (1) starts referring to sex. With great respect to everyone, including the draftspeople, that seems a non sequitur. We have moved from one to the other without defining the difference. That may be because they are interchangeable. It may be also—I suspect that this is the real reason—because the Minister wants to use inclusionist language.
We already have the Sex Discrimination Act 1975. I do not argue about the principle behind that Act, with which I agree. However, if we do not refer to sex as well as gender we may not be able to use those concepts. I think that it would be helpful to the Committee if, in a calm and dispassionate way, the Minister could pick his way through the issue.
To summarise the questions, is there, in the Government's view at least—the Committee cannot speak for the Almighty, but people may feel strongly about the issue and are entitled to different views—a difference between sex and sex, between male and female? Is there an absolute difference? Is there a difference between sex and gender? Will the Bill be comprehensive in dealing with those issues, so that persons who have acquired a new gender do not miss out on rights that they would have acquired had they acquired a new sex as well? Might somebody challenge their rights in respect of that change?
That sounds like a series of tutorial questions. We need to have that underlying set of issues clarified, not only because they are serious and deep issues about identity, but because they are important to the operation of this law. We do not want to get ourselves into confusion about terms. Frankly, when I tabled the amendment, I was concerned about the apparent shift from one concept to another, and I seek the Minister's help in clarifying that.
Dr Lynne Jones (Birmingham, Selly Oak, Labour)
The hon. Member for Daventry moved his amendment in a sensitive way. He attempted to probe an important issue, which, I am sure, would have been raised by other Members if he had not raised it.
Earlier, the hon. Member for South-West Bedfordshire stated that, in his view, biological sex cannot be changed. Unfortunately, when he said that, I was unable to be in Committee. He made some remarks about the aetiology of transsexualism. Our knowledge of the causes of transsexulism is not complete, but it is likely that it is multifactorial. The important point is that members of the transcommunity feel that they should be recognised in their gender identity, irrespective of the cause of that phenomenon.
It is important to note that, based on existing knowledge, the experts in the field of transsexualism take the view that it should be regarded as an intersex condition. While it may be true that the sexual identity of the majority of people is clear and can be based on their chromosomes and gonadal identity, that it is not the case for a significant number of people—different groups of people, indeed, of which transsexuals may be one.
Mr Andrew Selous (South West Bedfordshire, Conservative)
We are returning to a point raised by the hon. Member for Colne Valley (Kali Mountford) at the start of the Second Reading debate. People with intersex conditions, who have what I think is sometimes referred to as ''ambiguous genitalia'' are, as I understand it, a separate group of people and quite rare. They are distinct from those people who wish to adopt a different gender. I believe that I am correct in making that point.
Dr Lynne Jones (Birmingham, Selly Oak, Labour)
There is the question of how one might regard sexual identity. Sexual identity is not just about gonadal and chromosomal identity; there are other factors in that determination, such as brain identity and the reaction of a particular organism or cells to hormonal influences.
Events pre-birth and at puberty may change a person's sex, and I refer the hon. Gentleman to the current medical viewpoint. I have a document from the parliamentary forum on transsexualism, which is authored by eminent clinicians, including Dr. Domenico de Ceglie of the Tavistock and Portman NHS Trust, who is an expert in sexual identity in children; Mr. James Dalrymple; Professor Louis Gooren, University of Amsterdam; Professor Richard Green of Charing Cross hospital; Professor John Murray of the Johns Hopkins hospital in the United States; and Dr. Russell Reid.
The parliamentary forum has been advised by many of those eminent individuals and is now advised by Dr. Kevan Wylie, who is a consultant in sexual medicine and a consultant psychiatrist at the Porterbrook clinic at the Michael Carlisle centre in Sheffield, and organiser of the Royal College of Psychiatrists gender disorder working group. I can say with confidence that transsexualism should be regarded as an intersex condition.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
I shall briefly support what the hon. Lady has just said. I suggest to the hon. Member for Daventry that in the intelligent way he put his question, he has answered it, because in Committee we have been spared the debate that the House of Lords had on Lord Tebbit's amendment, arguing that two people, each with XX chromosomes, or XY chromosomes and the same external genitalia should not be allowed to marry subsequent to the passage of the Bill.
I commend the Hansard record of that debate because it clarifies the three gross criteria that one could use to determine physical sex: chromosomes, gonads and external genitalia—and they may not match in a small minority of people. That is all immaterial, however, because the Bill seeks to judge the legal gender for the purposes of achieving those rights and subsequently being able to marry and achieve other rights in the new acquired gender. Subsection (1) makes it absolutely clear that for legal purposes the person's sex will change to the acquired sex as the legal gender changes. That is so there is no different legislation with different terminology that might imply that different rights are accessible.
The hon. Member for Daventry hit the nail on the head by saying that there has been a change of terminology. Gender has crept into legal terminology where previously it was sex, or perhaps the other way round, or it varied—I am not an expert on 18th and 19th century legislation. Who knows what terms they would have used?
For our purposes, the key point is that the legally acquired gender changes the legal sex for the purposes of law. As long as the panel is satisfied that a gender recognition certificate is appropriate, it does not matter what the external genitalia are, or what the chromosomal make-up is, even if it is clear and consistent with the gonads or the external genitalia—all of which can vary.
The hon. Member for South-West Bedfordshire and Lord Tebbit could never be satisfied; there will always be people whom they cannot categorise satisfactorily. The hon. Gentleman and Lord Tebbit would need a separate amendment to legislate for each phenotype, genotype and mixture of the two.
Mr Andrew Selous (South West Bedfordshire, Conservative)
I also pray in aid Professor Lord Chan, who thinks the same way as I do on these issues, and is widely respected in another place. With reference to the debate that we have just had, I say to the hon. Gentleman that there is confusion about intersex conditions and transsexualism, which is basically gender dysphoria. The hon. Member for Birmingham, Selly Oak read out a list of experts and I question whether they would genuinely say that an intersex condition is the same as transsexualism.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
That is not the point. I presume that the hon. Gentleman is a supporter of the thinking of Lord Tebbit, and my point is that that approach is fatally flawed because sex cannot be defined physically according to gonadal or external genitalia appearance or chromosomes. That is not an option, even if the
Government were minded to adopt it. If a Government of the hon. Gentleman's party were making law, they would find it impossible to legislate on that basis. The Bill provides a legal gender and the clause makes it clear that when acquiring a legal gender one is also changing sex, if that is necessary, to that of a man for the purposes of other legislation. It is entirely appropriate that the Bill should do so and I support the Minister in resisting the amendment.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I am grateful to the hon. Member for Daventry for the way in which he introduced the amendment and the important issues behind it. My hon. Friend the Member for Birmingham, Selly Oak dealt very well with some of the medical and scientific points supporting the amendment and the hon. Member for Oxford, West and Abingdon stole some of my thunder.
The basic principle of the Bill in clause 9 is that the issue of a gender recognition certificate will mean that a person's gender will become, for all purposes, the acquired ''gender''. For example, an applicant who was born male would in law become a woman. There are many places in law where the word ''sex'' is used rather than gender. Clearly, it would be ludicrous if a person were treated as being a female whenever the law referred to gender, but male whenever it referred to sex.
The Joint Committee on Human Rights highlighted the potential for uncertainty as to what a transsexual person would be considered to be in law. In response to that, the Government inserted an explicit mention of sex as well as gender in clause 9. Amendments Nos. 14 and 15 would remove that reference and could then lead to a situation that the Joint Committee feared—that is, a person being treated as male for some purposes and female for others, depending on whether the law refers to ''gender'' or ''sex''.
Amendment No. 18 proposes to take care of that problem in relation to sex discrimination law. However, the law includes references to sex in many other places; there are literally thousands of other references. For example, in reply to the points raised by the hon. Member for Daventry, some provisions require certain tribunals, such as social security appeal tribunals and disability appeal tribunals, to have at least one member of the same sex as the claimant. A number of provisions also require a person to disclose his or her sex or to give information in relation to another person's sex—for example, section 92 of the Road Traffic Act 1988 and section 11 of the Public Health (Control of Disease) Act 1984. A search of legislation showed that there are 2,288 references to ''a woman'' and 7,061 references to ''a man''. That may have something to do with the advances that women have made since the 1960s for all sorts of historical reasons. That is what we have sought to deal with by establishing gender and sex in clause 9.
Clause 9 makes it clear that, wherever it is necessary to decide the sex in law of a person who has an acquired gender, or to say whether that person is a man or a woman, male or female, the question must be answered in accordance with the person's acquired
gender. The clause therefore deals fully with the Joint Committee's concern, and for that reason I hope that the hon. Gentleman will withdraw the amendment.
Mr Tim Boswell (Daventry, Conservative)
I thank the Minister for that clarification. In legal and operational terms—and, indeed, in explaining the origin of the changes that were made—it is entirely persuasive.
I am sure it is equally clear to the Minister that there are people who feel, on the grounds of their own belief and commitment, that that change cannot take place; or they may have reservations about the nature of that change; or they may seek to draw an objective distinction between sex and gender. I do not feel that I am placed to resolve those matters. I leave it to the good sense of the Almighty. I realise that many people feel strongly about those matters, and they are entitled to do so.
Whatever the underlying views of the legal definition issue may be, if no practical circumstances arise from it—and I suspect that they do not, other than the danger that there might be some silly irregularity with people changing gender almost capriciously because of the way that the legislation was drafted in the past—I will go along with the Minister's explanation. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Tim Boswell (Daventry, Conservative)
I beg to move amendment No. 16, in
clause 9, page 5, line 19, leave out subsection (2).
Mrs Marion Roe (Broxbourne, Conservative)
With this it will be convenient to discuss the following:
Amendment No. 17, in
clause 9, page 5, line 23, leave out subsection (3).
Mr Tim Boswell (Daventry, Conservative)
There are possibly three time references here.
A full gender recognition certificate becomes valid at a point in time, and at that point the gender of the person becomes the acquired gender. That is straightforward.
However, things will have happened in the past. The first part of subsection (2) clearly states that the proposed legislation
''does not affect things done, or events occurring before, the certificate is issued''.
The explanatory notes confirm that. We cannot rewrite the history of the person involved and we do not seek to do so. If they did something as a man, the fact that they subsequently acquired the gender of a woman is irrelevant to the act that took place.
Will the Minister give me further clarification on what the second part of subsection (2) means? That is the purpose of amendment No. 16. The explanatory notes are not wholly pellucid. I think it is meant to recognise that, although the gender change took place at a moment in time, enactments that refer to people in their different genders were already in place; and because those refer to a particular gender, and the person that we have in mind was not of that gender at
that time, those enactments would not apply to them until after the date of the gender recognition certificate. At that point, they will have changed gender, and that continuing legislation might now be applicable to them.
I cannot imagine a real-world case, but I can synthesise one that may be helpful to members of the Committee as we relax from these difficult concepts. Imagine a situation where it is said that no male shall be prosecuted for speeding if they exceed the speed limit by less than 15 per cent. I am not canvassing that idea to members of the Committee. If a person had previously been female, they could not have availed themselves of that legislation; but if they then became a man, they could do so from the date of their change. I say that only jocularly because I would be grateful if the Minister would explain how things would work.
Amendment No. 17 relates to subsection (3), which is again a little time-neutral, and is potentially more worrying. I think that I am right in saying that their lordships would describe this as a Henry VIII clause, which means that the Government can change primary legislation when they need to do so. Their lordships tend to get rather excited about that—perhaps not always with bad reason. We should not give the Government unbridled powers to change legislation unless there is a very good reason for that.
I understand what is going on. The complexity of legislation that refers to different genders—the Minister touched on this—is so great that however extensive the search through the evidence, something may come up and it may be necessary to change something in another enactment because it is giving rise to difficulty, or some other change in subordinate legislation may required. I do not know how that will work. The issue comes up again in clause 23, which contains explicit powers to modify statutory provisions. I hope that the Minister, if he can take us through this and explain what is going on, will satisfy me and I shall be able to withdraw the amendment.
Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)
I would like to raise a question about subsection (3) now, rather than under clause stand part, since amendment No. 17 seeks to delete it. I have concerns about the watering down, whether deliberate or, as I hope, unintentional, of protection against discrimination in relation to subsection (3) taken with clause 14 on discrimination, which in turn introduces schedule 6. Schedule 6 refers to discrimination being unlawful on the basis of someone being given a new gender under the Bill—that is to say, being in possession of a full gender recognition certificate. Clause 9(3) states:
''Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.''
Of course, schedule 6 will be a provision in the Act.
Let me just explain the basis of my concern. It is important that I get some satisfaction in relation to it. The problem is that there has been previous case law, such as P v. S and Cornwall County Council in the European Court of Justice, that provides that people who are transsexuals are protected against discrimination in relation to employment under the Sex Discrimination Act 1975 by virtue of that
jurisprudence. P v. S and Cornwall County Council took place in 1996 and a full gender recognition certificate was not required. Indeed, the rights to non-discrimination were acquired at some point during the transition. How far along might be a question to be decided in relation to the facts of each case. Nevertheless, clearly they were acquired before the achievement of the full gender recognition certificate. Something similar happened in the case of KB in the European Court of Justice.
The concern is that we may be seen to be going backwards. Clearly, we are subordinate to European law, but, where there is case law, it is not entirely clear what the situation would be. The concern is that because schedule 6 refers to amending the 1975 Act to provide protection from discrimination
''against a person whose gender has become the acquired gender under the Gender Recognition Act 2004''
in several places, that might mean that there is perceived to be some rowing back, and that, if not in law—each case could be tested again in the European Court of Justice or in our courts—at least in understanding, some people may feel that the right to lack of discrimination, at least in employment and vocational training, is only achieved when a full certificate is granted.
Perhaps it would be opportune for the Under-Secretary not only to clarify that point—I would be happy if he says that he wants to clarify it at a later stage of consideration of the Bill—but also to reassure us that that is not the effect or intention of clause 9(3). Otherwise, the clause may be a barrier to the courts taking a wider view of protecting people against discrimination, as the European courts sought to do in the cases that I mentioned.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
Amendment No. 16 would delete subsection (2). The Government believe strongly that the laws relating to legal status, and to marriage, benefits and pensions, should have prospective effect only. All kinds of very complicated issues would be raised if the Bill were to have retrospective effect. Hon. Members know that Governments of different complexions frequently make that point when legislation is discussed in Committees.
If a change of gender was retrospective, the existing marriages of transsexual people could be void. If the change of gender counts back in time, it might be argued that the person was of the acquired gender at the time of the marriage. Without subsection (2), therefore, a transsexual person might find not that the marriage has to end before recognition is given, but that if recognition is given the marriage never existed at all. As such, we cannot provide retrospective recognition for some purposes and not for others. Our laws should be clear, have general effect and only be prospective in nature.
Amendment No. 17 would remove subsection (3), which provides for exceptions to the general principles of recognition in the acquired gender. The Bill provides that once a person is recognised in the acquired gender, he or she becomes that gender in law.
That is the effect of subsection (1), which is, perhaps, a central part of the Bill. We do not envisage the need for many exceptions to the general principle, but there may be the need for some. Clause 16 provides an example of such an exception. It preserves the hereditary principle and states that the acquired gender of a person is not to count for the descent of peerages or titles. That caused some discussion in another place.
The Joint Committee on Human Rights asked whether subsection (3) should apply only to future enactments. It was concerned that it would allow the general principle in subsection (1) to be qualified by the interpretation of past enactments. The Government do not believe that that is the case, and the Joint Committee has accepted our view. Subsection (1) refers to the effect of a change of gender in law. It will not be possible for that to happen before the Bill is enacted. No past enactment could have referred to a person who has been issued with a gender recognition certificate and thus changed gender in law, and therefore no past enactment could qualify the rights of a person who has changed gender. Clause 9(3) has effect only in relation to future enactments or other provisions in the Bill, such as clause 16.
The hon. Member for Oxford, West and Abingdon raised a further question posed by the Joint Committee, which asked what was meant by ''subordinate legislation'' in subsection (3). It was concerned that a local authority might use it to limit the rights of transsexual people. It is clear, however, that all public bodies are bound by their obligations under articles 8 and 12 of the European convention on human rights to provide transsexual people with recognition and the right to marry in the acquired gender.
Mr Tim Boswell (Daventry, Conservative)
As I understood the argument made by the hon. Member for Oxford, West and Abingdon, the right conveyed by article 8 is not exclusive. It could not have bitten on people who had acquired a new gender because that is not possible until the Bill becomes law, although there have been cases of anti-discrimination. The implication of what the Minister says is that before the issue of a full gender recognition certificate, it would still be possible to take cases, if they were covered by European legislation, to the European Court of Human Rights on grounds of discrimination, notwithstanding the fact that the full process had not been concluded.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
The hon. Gentleman jumps ahead of me, but if I make some progress he will find that we are travelling in the same direction.
If, to use the Joint Committee's example, a local authority were to pass byelaws limiting the extent to which a person was treated in the acquired gender, they could be challenged under provisions in the European convention on human rights. Subsection (3) does not impede such a challenge. The reason for including ''or any subordinate legislation'' is to cover any limited exceptions that may need to be made to the general proposition in subsection (1). There may be instances in which it is appropriate to make such an
exception in subordinate legislation, and any exception would have to be consistent with the European convention.
If subordinate legislation were used to change the rights and responsibilities of men and women, and if there were a justification for treating a person recognised in their acquired gender differently from any other person of that gender, it would be odd and deeply impractical if the exception had to be made in primary legislation. It might mean that the altered rights and responsibilities would take effect at different times—at one time for men and women, and another for men and women recognised in their acquired gender. In its second progress report, published earlier this year, the Joint Committee therefore said that subsection (3) does not pose a significant risk to the rights of transsexual people.
Discrimination protection will exist prior to the issue of the gender recognition certificate for things that it already covers, such as employment and vocational training. Schedule 6 discontinues some of the exceptions for people who have recognition, so the Bill enhances protection in existing areas. On that basis, I hope that the hon. Gentleman will withdraw the amendment.