Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)

I had got as far as the letter ''l'' in ''law''. I was saying that the Sex Discrimination Act 1975, uniquely in British discrimination law history, went further than European comparators—directives—in protecting rights against discrimination. It was the product of the last liberal Home Secretary that we have had, from any party: the late Roy Jenkins. The 1975 Act provided for a bar to discrimination on the grounds of sex or gender in relation not only to employment and vocational training, but to education, housing and the supply of goods and services. The sky has not fallen in on this country because of those protections.

As the Minister has acknowledged, many of us feel—certainly everyone in the Liberal Democrat party feels this, because it is our party policy, and many people in the Labour party feel it, too—that those sorts of protection should be available to other groups of people, and not only to people who would otherwise be discriminated against on the ground of gender. I will quote from paragraph 98 of the initial report of the Joint Committee on Human Rights on the draft Bill, although sadly nothing has changed since the draft Bill in this respect. The report states:

''It seemed to us that it would be strange to make such discrimination unlawful in one field covered by the 1975 Act but to continue to permit it in other fields covered by the same Act. This prompted us to consider whether discrimination against people on the ground that they have undergone, are undergoing or plan to undergo sex reassignment therapy would constitute unlawful discrimination on the ground of sex in the fields of education, housing and the supply of goods and services.''

It is not clear whether British courts would take the same view as the European Court of Justice did in the case of P v. S and Cornwall county council, when it judged that it was hard to separate one's status as a transsexual pre or post-surgery—in the process of transitioning—from sex itself.

After consideration, the Joint Committee stated, in paragraph 99, that it did not feel ''sufficiently confident'' that it could rely on that achieving the desired result, so it asked the Government for their view on

''the desirability of extending the legal protection against such discrimination under the 1975 Act from employment and vocational training to education, housing and the supply of goods and services.''

It explained that the Government said that it was not a high priority and that the most pressing need was

''to amend the law in relation to employment and vocational training in order to comply with Community law.''

That is like saying, ''The only thing that we will consider to be a top priority is what we are forced to do'', rather than considering the merits of tackling the problems of discrimination.

We have already heard from the Minister that there is discrimination against people in this area. I believe that to be unacceptable, and I would have hoped that a Government that thought that it was unacceptable would legislate to prevent it, particularly considering that the issue is so closely related to sex and gender, an area in which the Government, and the Labour party, for the past 28 years, have felt that discrimination is inappropriate.

Paragraph 100 states that the Government told the Joint Committee that they

''did not consider that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields.''

I find that astonishing because it is clear that there is a problem. The Committee did not accept the Government's approach. It states:

''The evidence provided by our correspondents shows that there is a significant amount of discrimination against transsexual people in the supply of goods and services, particularly pubs and clubs, and in housing, where homeless people may be left without access to a hostel because the people in charge of hostels for men and women respectively refuse to take in people on account of their status as transsexuals. This is borne out by other anecdotal evidence.''

It was of the view that there is a pressing need to protect transsexual people against discrimination in areas other than employment and vocational training.

Mr Tim Boswell (Daventry, Conservative)

Perhaps my intervention will preclude the need for me to make a speech on the matter. Would the hon. Gentleman agree that in cases such as the hostel situation that he cites, if a person is transgendered and has assumed the gender of a woman for all purposes in law, discrimination against her would apply if no provision were made for her as a woman?

Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)

No. If she were not allowed in a woman's hostel, it would not be because she is a woman. She cannot get the protection of the Sex Discrimination Act on the basis of her gender. She would have to argue that she is being discriminated against not as a woman—and the comparator would not be the rights that men get—but because she is a transsexual. British law does not cover that situation. The hon. Gentleman gave a useful example, which shows the distinction between the two forms of discrimination.

I share the view of the Joint Committee that

''there is a risk that the legislation in its present form might give rise to a violation of the right to be free of discrimination on the ground of status in the enjoyment of Convention rights, under ECHR Article 14. Gender reassignment affects a person's status, and the relationship with status will be still clearer when a person can obtain a gender recognition certificate with legal effects.''

That makes the point that after the passage of the Bill the Government are more liable to be subject to a successful action on that basis. The Joint Committee also says that

''the supply of goods and services, housing and education fall within the ambit of the rights under ECHR Article 8 and Article 2 of Protocol No. 1. Discrimination in those fields on the ground of gender reassignment may therefore engage the right to be free of discrimination under Article 14, taken together with those rights.''

That is a restatement of what I said earlier, and is the clear view of the Joint Committee.

It is not satisfactory that the Government, who have plenty of time to think about the issue, do not consider it a pressing need. Even though we do not have an amendment before us today, there will be a need to examine the matter at a later stage. I shall leave the Government to make their response, and I shall respond to that response—rather like the Joint Committee—when I speak at the end of the debate, but I would like the Under-Secretary to explain whether he feels that the Government will be able to resist claims made under articles 14, 8, and 2 of protocol 1. Is his confidence in that, and the legal advice that he has received, affected by the passage of this legislation, where the status is provided for formally by the Bill?

It is disappointing that the Government are proceeding so slowly on these matters. There have been moves supported by all parties for an embracing equality Act that would solve such problems once and for all. I would like to use this opportunity to lobby the Under-Secretary on that issue. He will not have to sit through proceedings such as these if he avails himself of the opportunity to take what he knows is the right step, which is to ensure once and for all that we provide protections, and the bodies required to police them, in a satisfactory way.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

Once a person has recognition of their acquired gender, he or she will be protected against discrimination on the basis of that acquired gender, in the same way as any other person of that gender is protected. The entirety of the Sex Discrimination Act 1975, as it applies to men and women, will apply. That protection on the basis of gender or sex extends to the provision of goods, facilities and services as well as employment. There is the separate issue of protection from discrimination on the basis of gender reassignment. Discrimination against a male-to-female transsexual person may occur either on the basis of being a woman, or on the basis of being a transsexual person.

Protection from the second variety of discrimination already exists in the realm of employment and vocational training. It flows from the equal treatment directive and the decision of the European Court of Justice in P v. S and Cornwall county council, to which the hon. Member for Oxford, West and Abingdon (Dr. Harris) referred. In that case, it was decided that, in European Union law, sex discrimination included discrimination on the basis of gender reassignment. Certain exceptions apply to the

existing protection, but schedule 6 removes most of them for individuals who have recognition in the acquired gender.

It is true that the Bill does not extend the existing anti-discrimination protection for transsexual people to goods, facilities and services. The Government were pressed on that point by the Joint Committee on Human Rights. We made it clear that we will continue the UK's approach to dealing with discrimination issues in conjunction with our EU partners. A new sex discrimination directive that extends to goods and services was published in November last year and negotiations on it are now under way. As a result of the European Court of Justice decision, the negotiations will consider effects on transsexual people. We want to ensure that the issues raised by the Joint Committee and others are properly considered and that there is consultation not only with the transsexual community but with businesses and other parts of the community, such as religious groups and the voluntary sector.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

Representatives of the transsexual community were very much involved in the generation of the guidelines when employment regulations were introduced following P v. S and Cornwall county council. At that time, the supply of goods and services was raised. Can my hon. Friend the Minister confirm that nothing in European law prevents the Government from introducing anti-discrimination measures in the Bill?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I know that my hon. Friend did a great deal of work on that piece of equality legislation, which deals with training and employment for transsexual people. She is right in saying that there is nothing to prevent the Government from acting. However, as I indicated, we are in discussion with our partners in Europe. We have a draft directive as of three months ago, and it appears that there will be legislation on the matter. The Government welcome that and believe that it is right to have that dialogue with our European partners, come to a conclusion and then take the matter forward.

Mr Tim Boswell (Daventry, Conservative)

Would the Minister also agree that if the issue is discrimination against transsexual people, as opposed to those whose gender has been reassigned, it is important not to create classes of discrimination between persons who are transgender but have not applied for a gender recognition certificate and those who have? Both may have exactly the same medical conditions and, notionally, suffer the same kind of discrimination.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

That would rightly be a matter for discussion with our partners in Europe. There may be different views on the matter. Not everyone will apply for the gender recognition certificate. My party is committed to people having equality before the law.

Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)

Can the Minister give an undertaking that, if it is decided that there will not be such a directive because negotiations fail in Europe, the Government will introduce their own legislation to provide for that under the extension of the provision to the other parts of the 1975 Act?

Further to the point raised by the hon. Member for Daventry (Mr. Boswell), if our European neighbours require surgery as the basis for the equal treatment directive, will he assure us that that will not be the Government's approach and that the protections that we have in this country, when we eventually get them, will apply to post-surgical transsexuals who are in transition?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The hon. Gentleman has much experience of this place. I cannot commit the Government to either of the points that he raises, but I can say that the Government are in discussion with their European partners. We stand square behind equality on such issues. We are pleased to bring forward this legislation, which improves the situation for transsexual people. Our position in discussing with our European partners extensions to the equality regime regarding goods and services is clear, but I cannot commit the Government to when and how that will come to pass. That would predetermine the outcome of these important discussions. However, should we reach that horizon, it is important to realise that transsexual people will have that equality throughout the European Community, and that must be a goal worth striving for.

When a recognition system is in place and we have seen the impact on the treatment of transsexual people in society and the benefit of the discrimination protection on the basis of the acquired sex, we shall be in a much better position to go through the process and to agree an informed and thorough approach with our partners in Europe.

When the Joint Committee commented again on the issue in its second progress report, which was published last month, it said that

''we accept that it might be reasonable to await the outcome of the negotiations for an EC Directive on sex discrimination in the field of goods and services.''

It continued:

''We hope and expect that the Government, when participating in those negotiations, will use its best endeavours to ensure that full account is taken of the need to respect the right of transsexual people to be free of discrimination''.

I can assure the Joint Committee and this Standing Committee that we shall do so.

Dr Evan Harris (Oxford West & Abingdon, Liberal Democrat)

I do not expect to say much more about that schedule, but the Minister did not complete the quote. I wonder whether that was because he read the only bit of the quotation that his officials gave him. It continued

''on the ground that they have undergone, are undergoing or plan to undergo gender reassignment therapy.''

Can the Minister clarify that his failure to read that out was not a sign of policy in that respect?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I have volume 1 of the report in front of me, but I do not have volume 2 to hand, although I can obtain it. There was no attempt to mislead the Committee. I intended to acknowledge only that the

Government want to move in that direction with respect to our European partners, but we must await the outcome of those deliberations.

Question put and agreed to.

Schedule 6 agreed to.

Clause 15 ordered to stand part of the Bill.