Dr Lynne Jones (Birmingham, Selly Oak, Labour)

I want to query the necessity of this clause, which was not included in the draft Bill but was inserted at the insistence of certain peers who seem to be living in a fantasy world in relation to allegations of threats that the Bill could jeopardise the way in which sports are governed. For example, one newspaper article referred to the following suggestion:

''The Gender Recognition Bill . . . has put the entire future of competitive sport in jeopardy''.

The noble Lord who moved the amendment said that there would be plenty of sportspeople who would attempt to use such rules to get an edge.

The idea is that somebody could change their sex at will. A male could apply to become a female and gain an advantage over other women in competitive sport. That really is a fantasy, and I am disappointed that the Government have gone along with such a notion. The clause allows sports bodies to discriminate against transsexual people on the basis of a necessity to secure fair competition or the safety of competitors. Sports bodies already have the power to decide safety matters; if they thought that a boxer would cause himself harm by going into the ring, they could stop him from participating. So, I query the safety aspect of the clause.

There is the idea, based on science fiction, that people change from one to sex to the other at will. The Bill does not allow that. Somebody seeking recognition for the gender that they perceive themselves to have always been in must have lived in that role for two years and received some, if not all, medical treatment for the condition. So, the idea that a man could become a ladies' champion is an unrealistic and fictional concept because any man treated with feminising hormones is likely to be at a disadvantage to the very fit women that currently compete in sport at the highest level.

It is appropriate for the Minister to respond to the question of why it is necessary to include a clause that allows unnecessary discrimination against transsexual people.

Mr Tim Boswell (Daventry, Conservative)

I counsel the Minister not to accept the arguments, however charmingly advanced, of the hon. Member for Birmingham, Selly Oak (Lynne Jones). She is right on the principle, which is that the Bill is of

general application to legal status, and we should test any derogation from that quite seriously. We recently discussed such a precise point in clause 16.

The hon. Lady has no doubt assiduously read the debates in another place on the matter. My hon. and noble Friends Baroness Buscombe and Lord Moynihan, who share the dubious pleasure of participating with me on our culture, media and sport team, were engaged with some practical problems not dissimilar to the concerns about the practice of religion voiced by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous). I am glad that they persuaded the Minister to introduce an entirely measured and appropriate new clause.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

Does the hon. Gentleman accept that neither the individual sports governing bodies nor the International Olympic Committee have requested the derogation?

Mr Tim Boswell (Daventry, Conservative)

Perhaps not in such terms, but I am well aware from the work that my friends whom I have cited have done that there has been some concern, which they have pursued with the governing bodies to a satisfactory outcome. In parenthesis, the IOC, which was considering the issue parallel to them, has no further observations to make. The Minister may want to include that in his concluding remarks.

I say to the hon. Lady that of course the clause is not a blank cheque for discrimination. I would share her concerns if it were. It ties exclusion to two objective tests that ultimately could be heard by the courts. I think that we all wish that that sort of thing should not get to the courts. The tests are those of fair competition and the safety of competitors. If push came to shove, a governing body would have to justify itself. Basically the problems are, in certain cases, real and have been wrestled with by governing bodies in the past in relation to shot-putters, weightlifters and so on. They do not arise simply in relation to transsexual people, and I do not wish to pretend that they do. I do not think that the debate has been conducted in tabloid terms and I do not intend to change that.

There could be difficulties for some governing bodies in particular areas where there is a clear sex or gender advantage, especially in a minority sport where the governing body would not have huge resources to resist the challenges. The other aspect of the matter is that, where there has been settled practice for dealing with these difficult issues, it has generally worked fairly for all competitors. There is also a duty to competitors not in that position. So, while I understand the difficulties of the issue and where the hon. Lady is coming from, and look forward to the Minister's response, I do not seek to encourage him to accept the amendment.

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

I accept the arguments made by my hon. Friend the Member for Birmingham, Selly Oak. Clearly, there will not be many transsexual people who play competitive sport. That is partly because there are not many people who play competitive sport at any

significant level. However, it is also because the transition process, and the treatment that transsexual people undergo, can affect their bodies substantially.

Clause 19 is not, however, premised on the idea that all transsexual people pose a threat to competitive sport. Indeed, it expressly does not apply to transsexual people as a class. It permits a sporting body to restrict the participation of a transsexual person only if it is necessary to ensure fair competition or the safety of other competitors. That means that wherever a transsexual person does not have a competitive advantage, by virtue of having previously been of another gender, a sporting body will not be entitled to exclude that person from competition. The Government do not wish for transsexual people to be unnecessarily excluded from sporting competitions and we do not think that clause 19 creates that scope.

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

Let us consider the example of golf. Many people play golf, including many transsexual people. A transsexual woman may become a member of a golf club and participate not only in her own private games but in competition. Those are generally either handicapped or split into genders, for sporting reasons. In golf clubs, I suspect that the split may also be for cultural reasons. No matter how good that woman is, she may well have a more distant drive, on the basis of greater strength, if that is retained from her previous gender. How does the Minister expect golf clubs, which will probably want to prevent them from participating, to include any transsexual women in such competitions?

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

From the cuttings that I have read, I know that there is a golfer in that situation. That must be a matter for the sporting body. The hon. Gentleman knows that there is nothing to prevent a sporting body from asking the question and considering the matter in the context of their sport, and that the IOC will shortly publish guidelines to assist sporting bodies in making such determinations. The decision is properly for them. The clause seeks to set out the ambit of fair and safe competition, but any decision imposed to ensure either fair competition or the safety of competitors must be in accordance with the law and justified under article 8.2 of the convention.

Any piece of human rights legislation must balance the rights and interests of one set of people against those of others. Clause 19 does so in the context of sport and, therefore, should remain part of the Bill.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20 ordered to stand part of the Bill.