Tim Boswell (Daventry, Conservative)

I beg to move amendment 195, in clause 7, page 5, line 25, leave out ‘proposing to undergo’ and insert ‘considering undergoing’.

The Committee will remember that we had a full discussion in Thursday’s debate on the issues affecting persons who are in the process of, or contemplating, transgendering. It is unnecessary and inappropriate to pick up the whole of that discussion, but I said that I had missed out by not moving an amendment on the specific point raised. I have now done that to give the Minister a chance to respond. My hon. Friend for this purpose, the hon. Member for Hornsey and Wood Green, might want to say something on it, too.

The Committee knows—we debated this and it is not an issue between us—that any persons contemplating transgender issues and their future are not in a simple situation. They are a small minority, and that is why they need our support and attention. The decision  might be initiated at an early age, or it might take years to make a decision. It might not, in certain cases, go forward to surgery, medical treatment, the formal process of gender reassignment or the acquisition of legal status in the new gender as set out in the Gender Recognition Act 2004. It is a complex and sensitive picture and almost all individuals will be different.

We are grateful to the Solicitor-General for introducing a more sensitive definition. The amendment simply seeks to tidy up something where the definition could be even better. The difficulty with the words chosen by the Government, which appear in clause 7, are that they require the person at the first stage to be “proposing to undergo” a process of reassignment of their sex. I think that is a little too precise for the circumstances of the case. I vaguely recall the Oxford philosopher, J. L. Austin, who created a new class of what he called “performative utterances”—if someone got up and said, “I name this ship the Queen Elizabeth”, it was difficult to deny that they were actually naming the ship the Queen Elizabeth. It could be that if a person said formally and put it in writing, “I am proposing to undergo a process”, that would be a performative utterance. They would have deemed themselves to be doing so, and they would automatically receive the benefit of protection of the protected characteristics.

In the real world, it is not like that at all. People are ambiguous—they make tentative inquiries, go and see a doctor, talk to a counsellor and start thinking about it. It would be better and more sensible in those cases if the protection, which is rightly intended by the Committee, was extended to those persons whose status is not wholly determined, but are thinking about it. That is why I came up with the phrase “considering undergoing”.

I stress to the Committee that that would not be a test with no evidence. If there was an act of discrimination, the person involved would have to show some evidence that they had been “considering”. They could not make it up afterwards—or rather, they would have to convince a court that they had such evidence. But it would be more informal than saying, “I am proposing to undergo a process.” It would be saying, “I am not quite sure where I am, but I need to think about it. It might transpire in the process of gender reassignment.” It would be a softer but not non-existent test. It is entirely consistent with the advances that we have already made—we are just taking it a stage further.

I say to the Solicitor-General that I have proposed those words because they were the first ones that came into my head—I have no proprietary interest in them. If she can come up with a better way to catch the more nuanced definition of people starting on the process and extending the protection to them—indeed, some of them will really need it—the Committee will be grateful. As I said, I will not stand on the words, but I think the issue is worth considering.

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