Gender Recognition Bill [HL]

– in the House of Lords at 1:45 pm on 29th January 2004.

Alert me about debates like this

Votes in this debate

Report received.

Clause 1 [Applications]:

Photo of Lord Tebbit Lord Tebbit Conservative 1:50 pm, 29th January 2004

moved Amendment No. 1:

Page 1, line 3, leave out "gender" and insert "sex"

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, this is a re-run of our discussions in Committee and, bearing in mind the rules of the House, there is no need for it to delay us long. There is a major defect in the Bill in its confusion over sex and gender. Is the Bill about a change of sex or a change of gender? In the words of the noble Lord, Lord Filkin:

"The Government do not base their argument that there is a simple or conclusive medical definition on whether a person is of one gender or one sex or another".—[Official Report, 13/1/04; col. GC5.]

That is a view that many people outside this building would find remarkable. He has made it plain that even when the biological evidence—which is not a single test, but three tests, those of chromosomes, genitalia and gonads—points conclusively to a person being of one sex he, like Lord Justice Thorpe, would allow the one subjective test of what a person thinks, perhaps as a result of a psychological disorder, to decide whether he or she should be regarded as male or female. The overriding test would be the subjective one as opposed to the objective one.

Then, in a masterly and concise summary of the Government's position, at the same column he went on to say:

"I do not wish, partly out of ignorance but partly because I do not think that it is central to our debate, to engage in the great medical diversity on this matter".

At heart, the Government's view is that this is a legal issue. I notice a nod from one of the lawyers in the House. It does not make sense to say that a person's sex is decided by the law, as opposed to biology. However, I am always willing to offer a way out. I am willing to give the noble Lord, Lord Filkin, the benefit of the doubt and to offer him the chance to use the word "sex", rather than the word "gender" in the Bill. I hope that he will now do what he would not do in Committee and will tell noble Lords what he thinks to be the difference between the two, why he regards the word "sex" as inappropriate and why he prefers the use of the word "gender".

In order to try and help him, I have also tabled a new amendment, Amendment No. 128, which adds to the clarity of the Bill by offering clear definitions of gender and sex. This will improve the Bill, whatever other amendments the House chooses to make. I would be happy to add to the definition of gender in the amendment that I have tabled, Amendment No. 128—I shall direct the attention of noble Lords to it. I have suggested that in the definitions clause we should add that:

"'Sex' means the biological categorisation as male or female by virtue of chromosomes, genitalia and gonads.

"'Gender' means the social and cultural categorisation as male or female by virtue of personal choice or lifestyle".

I would be happy to add, "or by legal decision", if that made the lawyers more comfortable.

There is no necessity to argue that case any further and I shall be extremely interested to hear whether the noble Lord, Lord Filkin, has had any further thoughts about it.

I think it may be helpful to him if I say, before I sit down, that at a later stage I shall try as regards some other amendment—I am not yet sure which—to raise the question of how the Armed Forces will deal with the question of transsexuals who wish to join the Armed Forces and present themselves with a certificate of their re-registration of birth. I know that that will have been heard outside this Chamber and that it will give the noble Lord an opportunity to make a comment on it later. I beg to move.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, this is the first time that I rise to speak on Report. I am distressed that the minimum allowable time between Committee and Report has been applied to the Bill. There were a number of difficult issues raised in Committee, which really demanded much more discussion, dialogue with officials and consultation than has been possible—except for a meeting, for which I was very grateful, that I had with the Minister yesterday evening. In no way do I wish to appear churlish, but I suggest that consideration should be given to those of us who do not have hordes of officials to support us and who, as in my case, could be involved with another Bill at the same time. It is in the interests of the House that greater thought should be given to the logistics and practicalities involved in ensuring that such complex legislation is thoroughly considered on its passage through this House.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, it may be of help to the noble Baroness, Lady O'Cathain, for me to comment that my understanding is that the timing of Bills is a matter that is discussed through the usual channels. Her Front Bench will have been involved in those discussions. I am sure that those concerned will take note of the point that she has raised.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the noble Baroness for those remarks. It is really for poor, humble, little Back-Benchers who do not have the resources to deal with these matters that I made the point.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, the noble Baroness stretches my imagination to breaking point by describing herself as a poor little Back-Bencher.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, I echo what my noble friend says. I attended some of the Committee sittings and it was a Bill that, for all kinds of reasons, revealed the defects of considering legislation in Committee. That makes the point that my noble friend has brought to our attention more relevant.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, having made that point, and after thanking the Minister for accepting it, I shall move on.

I support my noble friend Lord Tebbit in his amendment. He needs no assistance from me, because he is doing a masterful job, as he did in Committee. He has the advantage of having truth and logic on his side because the basic proposition of the Bill is mistaken. A man cannot become a woman. A woman cannot become a man. He also has the advantage of being able to point to considerable disagreement among the medical profession world-wide. I have made the point before that we normally legislate only when we are sure about the science and when we can be sure that what we are doing is the best thing for the people affected. Psychiatrists and psychologists are far from being of one mind that attempting to change sex is the best solution.

The Minister will probably say that the European Court of Human Rights compels us to legislate in this way. But it causes one to ask whether, if Europe required us to legislate that sheep could become goats and goats sheep, we would do it. Is there no point at which common sense would override and the Government would say, "No, that is simply too much. Enough is enough"?

Amendments Nos. 1 to 4 and 6 to 11 in the name of the noble Lord, Lord Tebbit, and his proposed Amendment No. 132 to the Title have the virtue of at least making it plain on the face of the Bill that we are not just saying that a person can change his or her gender in law under this Bill but rather his or her sex.

Amendment No. 128 gives a succinct explanation of the difference between gender and sex. As has been pointed out, sex is a clear biological categorisation. Save in a tiny number of cases worldwide, doctors have absolutely no difficulty in determining a person's sex by reference to physical indicators. Gender, on the other hand, is really a modern invention. It conveys the idea of a fluid, changeable view of your own sexual identity that is governed not by any physical, medical or biological criteria but solely by perceptions—your own and those of other people.

I have said before and say again that I feel genuine compassion for those who struggle with their sexual identity. The overwhelming feeling of being trapped in the wrong body must be just awful. However, sex change is not the only solution. During our debates there has been little consideration of the possibility that a person who feels this way might overcome it by reconciling with reality. Transsexual rights groups obviously promote the idea that a sex change is the answer, but others disagree, especially the families who get left behind.

Let me quote from an account of the struggle faced by a family when a husband became obsessed by the idea of becoming a woman. The wife tells how selfish he became, including spending the family budget on makeup and beauty treatments for himself. Mercifully, he changed his mind after being challenged by a sermon. The wife says:

"We had 2 weeks of battling and anguish, and he clearly was in turmoil, but it did make him realise that he had a family that cared for him and wanted the best for him. He decided to stay and change, realising that he was about to destroy everything he had worked so hard for over thirty plus years . . . The thought of what could have been leaves me cold. If he had been encouraged by others, or legislation to pursue his own way, he would have left six devastated lives in his wake".

Clearly, that family could all have saved themselves a lot of grief if they had just gone along with him. There would have been a form of resolution if the wife had been willing to pretend to be his lesbian lover, as he wanted. But they could not. They did not believe it was true that a man could become a woman. They could have avoided conflict by abandoning their absolute beliefs about sex and gender, but it was unthinkable for them to do so.

This Bill abandons absolute beliefs about sex and gender. In so doing it makes it more difficult for people who are not willing to do so. I hope that by having this debate again on the basic mechanism employed by the Bill, the Minister will again address his mind to the impact this Bill will have on third parties.

I believe we may hear that some consideration is to be given to wives and children in the gender recognition process. This is a concession which has to be welcomed warmly, but the Bill itself is wholly misconceived. I remind the House again of the words of that tortured wife who believed that if legislation had encouraged her husband to believe that he could change his sex,

"he would have left six devastated lives in his wake".

Photo of Lord Turnberg Lord Turnberg Labour 2:00 pm, 29th January 2004

My Lords, I must first apologise to your Lordships for not being able to be present during the earlier stages of the Bill. I regret that but I say in mitigation that I have read every word of those debates in great detail and very carefully. Therefore, I hope that noble Lords will forgive my intervening in this set of amendments. I should express my interest as a retired physician and retired professor of medicine, but in neither capacity have I been involved in the care of transsexual people, so to that extent I am neutral.

In earlier debates and today the noble Lord, Lord Tebbit, made a robust case for the belief that a person's sex is determined at birth by the genes on their chromosomes and that it is these which determine the development of those characteristics which we recognise as male or female—sexual organs and other characteristics. It all seems so straightforward and black and white, but unfortunately that is not quite the whole picture. One's sex is only a part of one's gender. It is an important and essential part but not the only part as it is now clear that genes, although having a strong influence on a person's inherited characteristics, are not the only determinant. We now know that genes determine only the likely trajectory of development and not the final picture. In the case of a person's gender that is certainly the case. For example, hormonal makeup, psychological development and probably some features of brain structure do not necessarily follow a specific set of genes. Indeed, other genes on other chromosomes all play a role in determining sexual characteristics, and this says nothing of the role of environmental factors which we cannot ignore.

In the case of the genes on the" and Y chromosome it is, of course, undeniable that they are extremely strong determinants of gender, but even there we know that there is an infinite variation in the degree of masculinity and femininity which an individual displays. The point here is that in a very small minority of individuals it is clear to them and often to others that the" and Y genes which determine their perceived sex at birth are quite out of sync with everything that they feel and know about themselves now. That is determined by a whole host of genetic and non-genetic factors. Therefore, I am not convinced by the noble Lord's arguments for these amendments; namely, that the" and Y chromosomes are the final arbiters.

The Bill has nothing to do with whether such individuals should or should not change their gender—they have already made their decision and gone ahead and done it—it is about whether, having done it, they can be recognised in law. These are people who have suffered torments about their identity for years until they are convinced that they are expected to behave in one gender when they know in their hearts that they are another.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am most grateful to the noble Lord for giving way. I think that I would be able to follow him even more closely were he to say how he defines "sex" and "gender". It seems to me that he is using the words in a rather muddled fashion.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, what I am suggesting is that sexual determination does not necessarily coincide with gender determination. Sex plays a part but it is not the whole part. Sex is determined by one particular set of genes whereas gender is determined by a whole host of genes together with other factors.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am most grateful to the noble Lord but that is not the point. I understood that to be the case that he was making but what he has not told me is what is his definition of the words "sex" and "gender".

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, that can mean a variety of things. The noble Lord is talking about a person's sex. That you may define biologically if you so wish—that is determined by" and Y chromosomes—but even that is not distinct. Some people are born with two"s and a Y. In any event it is not as clear cut as the noble Lord suggests.

I am talking now about the people who have gone through the process and have decided at long last after a long struggle that they are another sex than the one they had at birth. When they accept the need to change, it takes enormous courage. It is not a trivial pursuit. Then they have to go through an elaborate and searching set of procedures over a prolonged period of time. That, again, is not trivial. These are the people we are talking about who have made enormous sacrifices. I can see absolutely no reason why such individuals, having already made an irrevocable decision, should be deprived of the status and rights that this Bill would allow them. I am afraid that I cannot support the noble Lord's amendments.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs

My Lords, what a pleasure it is to follow the noble Lord, Lord Turnberg, who stated his position so clearly—a position that I think helps many Members of this House to understand the issues in this Bill. At this early stage of our debates this afternoon I apologise in advance—as I already have to the noble Lord, Lord Filkin—for my unavoidable absence after about six o'clock this evening.

I thank the Government for the very intensive, high quality and continuing level of consultation that has taken place since the Committee stage of the Bill. It is entirely unreasonable to complain about the short time that has passed. I believe that we have all had plenty of time to consider this Bill over the months since we knew it was going to be introduced. Compared with many Bills there has been a predictable type of correspondence at a predictable level which has not overwhelmed us. I believe that we have had plenty of time for consultation.

I invite the Government to adhere to a now almost classical adage. I hope that I shall be forgiven for using a few words of Latin: Et timeo Tebbitos et dona ferentes. I am perfectly prepared to translate for the noble Lord if he would like me to.

The noble Baroness, Lady O'Cathain, spoke with her usual persuasiveness, candour and conscientious approach to what she really believes. She is wholly opposed to the Bill, as is the noble Lord, Lord Tebbit. They have made that clear on numerous occasions. Understandably from their viewpoint, they would wish to find a way of wrecking the Bill at any stage including the present one. One accepts that that is a conscientiously held view.

However, I say to the noble Baroness that what she has said was not fair to the legal profession. The anecdote she used illustrated the danger of using carefully chosen anecdotes which misrepresent what occurs in the very real and difficult world of those who make the extraordinary decision to have gender reassignment. The idea that it is made over a short time is completely unrealistic.

I have the advantage shared by one or two other Members of the House in having been a lay member of the General Medical Council for 10 years. A number of other Members of this House have been professional and academic members of the General Medical Council in its old, unwieldy, massive and thankfully now over-and-done-with form.

The Conduct Committee of the General Medical Council, of which I was an active member for five years, would take an extremely dim view, I am sure, of any doctor or group of doctors who did not start from the viewpoint, as they always do, of trying to discourage people who are interested in the possibility of gender reassignment from going through that process. The psychological profiling and the social as well as medical care that is given to people who go through the process starts from the viewpoint that it is all extremely painful, literally; that it involves enormous adjustments to one's body and one's life and that one should have it done only if absolutely certain. It is a process which lasts not one minute less than a few years. They have to live in their acquired gender for a period of two years at least. That is enshrined in the proposed legislation.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the noble Lord for his comments about the approach I have taken to the Bill. There is a slight misunderstanding here which I would like to clear up. It is not necessary to have the gender assignment process to get to the stage in the Bill where one obtains a gender recognition certificate. It is not necessarily true that in cases where there have been problems, as I have indicated, they would be the result of the operation or the gender assignment process. There a great deal of difficulty arises. If people say that they have always felt that they wanted to be man and that they will live as such for two years, they can then go to the gender recognition panel and say, "I am a man, please give me recognition. That is the way I feel". That is my understanding of the matter.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs 2:15 pm, 29th January 2004

My Lords, with respect to the noble Baroness, she should re-read the Bill because that is not what it says. It is an extremely difficult process which includes two years of living in the acquired gender to obtain a gender recognition certificate. One of the requirements of the Bill is that the tribunal which hears the case should be satisfied that there is a permanent intention to live in the acquired gender.

I am saying that there are guarantees in the medical and legal processes that protect members of families from a temporary whim. The ways in which the human mind works, even within the bounds of what is generally called "normality", are extraordinary and unpredictable. As I say, the protection is built in. I am sure that the General Medical Council would take a very severe view of any doctor practising in this area who did not use the utmost care.

One should not forget that if a person undergoes severe and detailed psychological treatment or, even more to the point, major surgery without the proper procedures being gone through by the medical profession, the perpetrators of the changes would be committing very serious criminal offences for which undoubtedly they should be convicted by criminal courts. We say to the Government that this is an issue about which they should stand firm and hold to the purpose of defining gender as a matter of law.

The noble Lord, Lord Tebbit, seems unable to distinguish sex from gender. I suggest to noble Lords that it is a male, female or ambiguous biological component of humanity whereas gender is the legal status of a person as a man or woman in law. Surely, that is a difference which anybody can understand.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I do not know what is the inability which causes the noble Lord not to understand, not to be aware of or to ignore the fact that I have tabled amendments to precisely define the difference between sex and gender. The noble Lord will have heard the exchange I had with the noble Lord, Lord Turnberg, on the subject. How can the noble Lord then say that I seem to believe that they mean the same thing?

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs

My Lords, the noble Lord has made an attempt to create a distinction, but I do not accept that he makes it. Furthermore, with great respect to the noble Lord—and I mean that because I respect him enormously especially as a parliamentarian—it is the purpose of this legislation to provide for the legal status of a group of people who have been defined by national and international courts, as well as by the usual political process, as requiring not just the protection of these Houses of Parliament, but also definition in law. The clarity of the definition offered in the Bill is considerable. In so far as there is any clarity in the definitions offered by the noble Lord, it is not a clarity that would offer anything to anyone except myself and my learned friends.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I rise to return to this interesting element to our Bill about which we have spoken on a number of occasions. I have even less confidence that there will be a meeting of minds at the end of the debate. I perhaps signalled my dubiety when we spoke about it at Second Reading. Nevertheless, the noble Lord, Lord Tebbit, is entitled to hear the Government's position on these issues even though neither he nor I expect that we will necessarily agree or rejoice in that.

I share some of the pain that the noble Baroness, Lady O'Cathain, feels about parliamentary timetabling. This is one of three Bills that I am currently taking through this House. Two of them are being debated at the same time this afternoon. I find it difficult to be in two places at once and therefore I am being helped in relation to the other Bill. I am told by the Chief Whip's Office that, when it comes to taking any notice of people on timetabling considerations, the government Minister's view is about the last in the queue. That is perhaps for good reasons.

The noble Baroness spoke about the ECHR. She is quite right. As we said previously, we have an obligation—it is one with which we are perfectly comfortable—to adjust our domestic law in order to be compliant with ECHR law. That is not the centrality of our position and, even if there were no ECHR obligation, we believe that it would be right to act in that way. We consider it right to give legal recognition to the very small number of people in our society who, I believe, currently suffer an injustice. I shall develop that argument later.

The noble Baroness is also right to trail the subject of third parties. I hope to be able to say something helpful about that when we reach later amendments. I thank the noble Lord, Lord Carlile, for his kind offer to translate the Latin. However, even my hopeless Latin was just about good enough to give me the gist of his sentence.

I turn to the centrality of this issue. In essence, the Government's view is that a person's sex, as the noble Lord, Lord Turnberg, signalled, is more than his or her chromosomes. I do not want to detain the House for too long on this matter but I believe that the Oxford English Dictionary gives about four separate meanings for the word "sex", none of which is reduced simply to "chromosomes".

There is not a great deal of fruit in spending a lot of time on trying to define the meanings of those words, although there are distinctions between them. The meanings have changed over time and are still changing. The word "sex" now has more of a social and psychological connotation than it would have had 20 or 30 or so years ago. As we all know, language is mobile.

However, the reason that I do not consider this matter to be central to our deliberations or that we should spend a great deal of time debating it is that I suspect it is not the central dividing issue between us. While I accept that chromosomes are one of the primary sexual characteristics, there is also a range of secondary sexual characteristics. Gender identity is also determined by a range of psychological factors.

In Committee, I quoted a little from the judgment of Lord Justice Thorpe in the Court of Appeal on the Bellinger case. With the patience of the House, I shall repeat it because it may have relevance for those who were not present on that occasion. Lord Justice Thorpe said:

"Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche".

I believe that there is eminent sense in that and the Government consider it to be good advice to us in our deliberations.

We do not believe that continuing disputes about linguistic terminology is a reason for delay. The Government's position is that there is an injustice for a very small number of people in our society who are absolutely convinced that their real-life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a very thorough, careful, proper and patient process of testing and validation by the state and by medical experts, the state believes that it is right and fair, as well as in accordance with European law, to adjust that anomaly in the very limited number of circumstances in which it applies. Perhaps I may remind the House that that is relevant. Our best estimates—no one has a final figure—are that probably about one in 17,000 people suffer from gender dysphoria. The fact that there are so few does not mean that as a society or a state we should not be concerned with trying to give them the legal recognition that they believe they are owed.

Therefore, the Bill is about legal recognition and it will define a person's sex in law. We consider the arguments about the meaning of the words "sex" and "gender" to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words "sex" and "gender" has changed over time and no doubt will do so in the future. While the meaning of the word "sex" is not the same as that of "gender", the word "sex" is increasingly in use in ways that go beyond a narrow biological definition.

In addition, medical recognition of gender dysphoria has never been wider. The Chief Medical Officer recognises that, and treatment has been available on the National Health Service for many years. A small number of people are convinced that their real-life gender is out of congruence with what is recorded on their birth certificate as their legal status. We believe that, after a process of proper testing and validation, it is right and decent, as well as in accordance with law, to close that discontinuity.

I also say, with courtesy, that, while I respect the differences of opinion, I struggle to see the great mischief or harm in what we are doing in this respect. It seems to me that it is an act of a civilised society and I cannot see the damage that would result to others. By that, I do not seek to provoke those who have put many hours of debate into these issues because I respect their difference of view. However, at this point, I should state my view on this as well. Therefore, with regret, I cannot accede to the amendments proposed by the noble Lord, Lord Tebbit.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am, of course, disappointed but not unduly surprised by what the Minister said. He tempts me to enter into a Second Reading debate. It is a temptation that I shall resist manfully. As we proceed through some of the other amendments, he may see more clearly my objection to the Bill—not least the objection that it would require officials to certify something which was simply not true.

On the subject of the way in which the business is managed, which has received some criticism today, I should say that I am extremely grateful to the Government Whips' Office for moving out of this group Amendment No. 86, which I did not believe belonged there. We can deal with it later. Therefore, I am grateful for that.

I understand the dilemma facing the noble Lord, Lord Filkin, who is expected to be in two places at once. It is a very difficult situation. I can only offer him the possibility of the judgment of Solomon as one way out, although I do not think that he will be particularly keen to take it.

The Minister seemed to introduce a new concept, which I believe we might call "linguistic relativism". It seems to have led him to the conclusion that we should legislate using words whose meanings we do not understand and which mean different things to different people. I do not believe that that is a good way in which to legislate. If we use a word in legislation, we should be prepared to state its meaning clearly and unequivocally and say how it differs from the meaning of other similar words which might be used as a substitute for it in legislation.

The noble Lord, Lord Turnberg, suggested that I might not understand the relationship between the words "sex" and "gender". However, sadly, when it came to the point, he could not define either of those words, which he used quite freely, nor say what he meant by them. Again, if I may say so, it seems to me that that is a lacuna in his argument.

I was brought up in a profession which, like that of the noble Lord, places human life in the hands of its practitioners. However, it was one in which we were expected to know precisely and absolutely the meaning of the words that we were using because, if we did not, it would prejudice life. Recently we have seen in the medical profession one or two spectacular cases where doctors did not understand the meaning of the words "left" and "right", let alone anything else, and thereby prejudiced life.

The noble Lord, Lord Carlile, says that to substitute the word "sex" for "gender" would wreck the Bill. It must be a very delicate Bill if it would be wrecked by substituting a word that we can not define with another word that we can not define—but which says pretty much the same thing anyway. That does not seem to have the savour of a wrecking amendment. I find the matter profoundly unsatisfactory. Of course, I am a realist and we need to move on with the debate on other amendments. I do not propose to divide the House on this amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 11 not moved.]

Schedule 1 [Gender Recognition Panels]:

Photo of Lord Chan Lord Chan Crossbench 2:30 pm, 29th January 2004

moved Amendment No. 12:

Page 13, line 11, leave out "or chartered psychologists" and insert "recognised as currently practising in the field of gender dysphoria in the United Kingdom, or who have an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service"

Photo of Lord Chan Lord Chan Crossbench

My Lords, I rise to speak to Amendment No. 12 and all of the other amendments in my name—Amendments Nos. 13, 15, 16, 20, 22 and 23. In Grand Committee I did not speak on the composition of the gender recognition panels, because I was researching the requisite qualifications of the medical members proposed in Schedule 1. Therefore I shall dwell first on Amendment No. 12.

Clearly, the role of medical members of the panel is to determine the validity of applications, in particular the clinical diagnosis of the applicant. Gender dysphoria, as the Minister said, is accepted as a medical condition by the Chief Medical Officer of England and patients are entitled to treatment on the National Health Service.

In clinical practice consultant psychiatrists validate the diagnosis of gender dysphoria. As it is a specialised area of medical expertise only a limited number of consultant psychiatrists are recognised as specialists in gender dysphoria. I have taken the liberty of excluding chartered psychologists, because in current practice they do not diagnose independently people with gender dysphoria. Clinical psychologists are technically members of the medical profession. Diagnoses of that medical condition are made by consultant psychiatrists, who may use the services of a chartered psychologist to determine the psychological profile of the patient.

When considering something as important and, literally, life changing as an application for gender reassignment and for a gender recognition certificate that overrides and cancels a person's birth certificate, I am convinced, as I hope other noble Lords are, that the expertise of the gender recognition panel must be of the highest professional proficiency. Therefore, Amendment No. 12 is designed to identify registered medical practitioners who are currently practising in the field of gender dysphoria in the United Kingdom, or consultant psychiatrists in the National Health Service who are registered with the General Medical Council.

In Amendment No. 13 I ask for two medical members to be appointed to all gender recognition panels. My reason was influenced by the current re-examination called for by the Attorney-General of all criminal cases involving more than one sudden infant death in a family, where a medical expert has been used by the prosecution. A similar situation has arisen in the past week in the case of the United Kingdom's best known expert on trans-sexualism, who is a consultant psychiatrist at Charing Cross Hospital, and is being investigated by the GMC after claims by a dozen patients that he put their health at risk—according to an article in the Guardian on 20 January. I quote:

"Consultant psychiatrist Russell Reid, a specialist in gender identity disorders, allegedly breached standards of care by prescribing patients with sex changing hormones and referring them for genital surgery without adequately assessing them".

The standards by which Dr Reid should have conducted his practice have been recognised by other consultant psychiatrists in the field, who say that the guidelines they use are set by the Harry Benjamin Gender Dysphoria Association, based in Minneapolis. The guidance states, the article continues,

"that patients should have been living in their desired gender role for at least three months before prescribed hormones, or had at least three months of psychotherapy. Patients should also undergo a minimum of 12 months' hormone therapy and live in the desired gender for the same period before referral for gender change surgery".

Therefore, as other noble Lords and the Minister have mentioned, it is a long process and a decision that the person wanting to change his or her gender has to consider very carefully. Regarding that problem of medical experts, we see that the recommendation in Schedule 1 states that there should be just one medical practitioner as a member of a panel. That position is no longer tenable because of the difficulties that arise from expert witnesses with a medical background. In view of such allegations it would be best practice to have two medical members on a gender recognition panel.

Amendment No. 15 arises from the need to be sure that applicants for gender recognition certificates have been convinced that their condition is permanent. The period of two years in which the applicant has lived in his or her acquired gender needs to be verified to avoid complaints such as those levelled against Dr Reid. The GMC is investigating allegations that the patients did not have enough time to change their minds about their preferred gender. Although all transsexuals consult their GPs, who refer them to consultant psychiatrists, the nature of their condition may lead some to change their minds about gender reassignment. I hope that all transsexuals have the support of their families and partners when they apply for a gender recognition certificate. To establish that support, the transsexual person should obtain confirmation from two qualified witnesses—naturally one would think of doctors, but they could also include close family members and partners—to verify that the person has indeed been living in the chosen gender for two years.

That leads me on to Amendment No. 20 which deals with evidence: evidence which makes it clear that any applicant for a gender recognition certificate should have been under the care of a registered medical practitioner practising in the field of gender dysphoria or a consultant psychiatrist specialising in gender dysphoria.

I have not come across the names of non-medical practitioners who currently practise in the area of gender dysphoria. It is therefore appropriate that the Bill specifies the qualifications of medical practitioners who are recognised and whose reports are the evidence needed by the gender recognition panel. After all, we have identified that gender dysphoria is a medical condition recognised by the Chief Medical Officer, so it is only appropriate that medical evidence is produced from reports by medical practitioners.

I tabled Amendment No. 16 because it is true that the majority of applicants have undergone sex reassignment surgery because of the two years which has been given for them to be convinced that they would live in the gender of their choice. Sex reassignment surgery is a sign that the applicant is convinced that it will be a permanent change. From experience of transsexuals in Australia, New Zealand and parts of the United States, there should be no doubt that such an individual should be given a gender recognition certificate.

Of course there will be some transsexuals who on medical grounds of serious life-threatening diseases are unable to undergo sex reassignment surgery. Those cases can be judged on individual merit by the gender recognition panel.

Another reason in favour of the amendment that requires applicants to have undergone sex reassignment surgery has been the regular reports of the rape and murder of transsexuals that I have read. They have taken place in Australia and in this country. The view I have gained is that most such tragedies affect transsexuals who have not undergone sex-change surgery. When an individual has undergone sex-change surgery, there is no reason to deny her or him a gender recognition certificate.

Finally, I tabled Amendments Nos. 22 and 23 so that objective evidence is obtained of the applicant's determination to live in the preferred gender. These amendments should also help to exclude applicants who are not qualified to obtain a gender recognition certificate. I beg to move.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I apologise to the House that I have been unable actively to participate until this stage. I want simply to reinforce most strongly the points made by the noble Lord, Lord Chan, particularly that of protecting the patients and the medical member of the panel. The wording of the Bill strikes me as containing a small wording conflict in that it includes clinical psychologists as medical rather than clinical members of the panel. That might have been a more accurate description. But the importance of being trained in this very small and highly specialised area, dealing with people who are undertaking complex decisions—the rigors of which were eloquently outlined by the noble Lord, Lord Carlile—indicates that Amendment No. 13 in particular is crucial to protect all involved in the process.

Photo of Lord Turnberg Lord Turnberg Labour 2:45 pm, 29th January 2004

I want specifically to address the amendment moved by the noble Lord, Lord Chan, which introduces the need for surgical intervention. I can well understand the noble Lord's desire to be absolutely convinced that the people who wish to be given a gender recognition certificate should have demonstrated beyond doubt that they are sufficiently determined by having surgery to change their gender. But I am afraid I cannot accept that as being a mandatory procedure.

Of course many will have had surgery, but it is worth remembering just what this type of surgery entails. In a woman who wishes to be regarded as a man, it would involve the removal of the uterus and the ovaries, probably a bilateral mastectomy, and possibly plastic surgery to construct a phallus. In a man, it would involve removal of the penis and testes, with the possible construction of a vagina.

I am sorry to be so graphic, but I want to emphasise that these sorts of operations are not undertaken lightly. And as with all operations, they are not without risk. Most individuals are likely to be fearful and others may simply not be fit. The fact that most do go through with all this is a testament to their determination, but to insist that they all do so seems quite unnecessarily cruel. To demand surgery to confirm a diagnosis of dysphoria also seems perverse: we do not insist in law on surgery to make any other sort of diagnosis—cancer and the like. I am afraid I cannot support that particular amendment.

Perhaps I may be forgiven for returning to the dilemma of the noble Lord, Lord Tebbit, over sex and gender. The sex of an individual may be defined entirely in biological terms as possession of" or Y, or both, genes. It cannot be defined in terms of other sexual characteristics such as external genitalia because they do not always coincide at birth with the chromosomal determinates. Some babies at birth are difficult or impossible to sex. So if we are to be entirely clear, it is the chromosomal features only.

When we come to gender, this is the state that can be defined only in terms of possession of multiple factors which take into account the physical and psychological make-up of an individual, which can be defined and which make up the totality of that individual.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

One does not have to support the Bill to support these amendments, which impose a much more rigorous standard of testing on those who wish to go forward for gender recognition. There is evidence that there are people who have been rail-roaded through sex-change operations without any consideration of the alternative. The noble Lord, Lord Turnberg, has just given us a graphic description of what is involved in all this. I touched on the subject when I spoke to the amendment tabled by my noble friend Lord Tebbit and I shall return to the point when I move my Amendment No. 19.

It is an obvious failing that the Bill as drafted contains no requirements of psychiatric evidence. It could be that there are severe psychiatric reasons why such a change should not be made. Yet such evidence could be excluded. The panel may never see it and I do not believe that that is right. Furthermore, these amendments would create a system of assessment which was left open to abuse. By selecting the right medical expert and learning to say the right thing at the right time, transsexuals could quite easily pass the test laid down by the Bill at present.

I read recently that there are websites which teach transsexuals the right things to say when being interviewed by medical professionals. They advise them, basically, on how to cheat; on how to present the classic symptoms of gender dysphoria in order to get the operation they feel they want. I have no doubt that with the growth of cyberspace there will soon be websites advising on the best way to get a gender recognition certificate. We must take steps to limit the scope of that kind of abuse.

A more rigorous regime is all the more necessary because the medical profession itself seems to be in turmoil over the appropriate standards to be applied in these cases. Some medical professionals working in this area feel that some of their colleagues are less than rigorous in assessing people. Indeed, the noble Lord, Lord Chan, has given us a description of one such case. Perhaps some professionals feel that their duty is simply to give the patient what he or she wants. I suggest that that is a dangerous approach to take. Not only is it a dangerous approach, but it is an enormous step to take.

Sadly there is plenty of evidence that people regret having a sex change. Only today my attention was drawn to a television programme broadcast in September of last year on ABC, the Australian broadcasting network. It was called "Boy Interrupted" and was about Alan Finch who, with the support of health professionals, had sex-change surgery at the age of 19. He now says,

"Anatomically, I was never a woman . . . Everything was fake about it from top to toe".

At age 31 he decided to change back to his biological sex.

There are many unresolved issues and many uncertainties about the whole process. That goes back to the points that I made at Second Reading and in Grand Committee. Today, just as an aside, we have another uncertainty: the noble Lord, Lord Chan, and the noble Baroness, Lady Finlay, suddenly made me realise that as a lay person I did not have the definitions clear in my mind. I would like confirmation that a medical doctor is a member of the medical profession, but that a consultant clinical psychologist is not a member of the medical profession. Is a consultant clinical psychologist a member of the health profession? There are health professionals as well as medical professionals. It is just so complicated.

In the Bill the least we can do to try to make matters less complicated is to ensure that the medical assessment through which applicants go is thorough and genuine and not just a rubber-stamping of their current wishes.

Photo of Lord Tebbit Lord Tebbit Conservative

I thank the noble Lord, Lord Turnberg, for his post-mortem comments on amendments that have already been debated. Turning to the present matter—Amendment No. 12 in the name of the noble Lord, Lord Chan—it seems to me that the extra precautions that he would insert as regards additional members of panels and matters of that kind, are thoroughly sensible and reasonable. But, like the noble Lord, Lord Turnberg, I hesitate to follow him on the subject of Amendment No. 16. He said that it would indicate whether a person had been willing to undergo the sex reassignment surgery, which I prefer to call sexual mutilation. In parenthesis, we Westerners criticise primitive tribes for their sexual mutilation practices, but perhaps those people should read the Bill and consider this kind of matter.

The noble Lord, Lord Chan, said that a person would have to be convinced that he or she really was a transsexual. Yes, but that conviction could come about through a serious psychological disorder. I do not believe that it would be appropriate to persuade people who were suffering from a severe psychological disorder, which may perhaps be temporary or which certainly may not be completely permanent that, to achieve the objective which their disorder told them to follow, they should be subjected to irreversible surgery. That would be going too far. I go along with the noble Lord, Lord Chan, on all the amendments in this group, barring Amendment No. 16. I believe that that amendment goes too far and that it would be unduly cruel to people for whom we all have very great sympathy in their dilemma.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

Before the moment passes, I celebrate the fact that the noble Lord, Lord Tebbit, and I agree on one point. That is a comfort to me, if not to him.

The problem with these amendments is that while I respect the objectives behind them in terms of trying to ensure that there is a credible process, they tend to add to the complexity and they tend to focus on the process rather than on the outcome. By doing that, they attempt to fetter the discretion of the panel. I shall return to why I believe that the panel needs to carry the burden that we, as legislators, will impose on it, rather than us over-specifying the mechanisms by which it is to fulfil those duties.

The panel must be satisfied that the criteria set out in the Bill have been met. That is its job. First, it has to be convinced that the person has or has had gender dysphoria. I shall not speak at length about the process of diagnosing and treating gender dysphoria. The noble Lord, Lord Carlile, spoke about that earlier and we may have spoken about it also in Committee. In essence, it is not a sudden process; it takes many years. It requires an initial diagnosis which is likely to involve psychotherapy, psychological tests and other medical tests. That is followed by a process of real life experience, so that before further medical treatments are given, the reality of the person's conviction is tested in the fierce crucible of living out in the real world in the gender that they believe to be true for them.

After that process has been under way for a good period of time and if it is appropriate after a further assessment process, hormone treatment can be undertaken. Subsequently— again if it is appropriate and advisable—there can be surgery. I shall not go into detail; the process is available from a number of sources, and I stress how necessarily cautious and lengthy it should be and needs to be.

Clearly, the test of gender dysphoria has to be carried out by a specialist. A person working in the area of gender dysphoria will have to make the critical judgment of whether a person has gender dysphoria as a precondition of an application to succeed. Amendments Nos. 20 and 22 provide that there must be two diagnoses of gender dysphoria, one from a registered medical practitioner and one from a consultant psychiatrist. We do not see the need for that. The panel will not simply take the diagnosis of gender dysphoria from anyone at large. It will have a list of people who work in the area of gender dysphoria, which will be drawn up in conjunction with the professional bodies to ensure that evidence comes from reliable sources. If there is any doubt in the minds of the members of the panel they will make further inquiries. Therefore, the burden is on the panel to be satisfied that the diagnosis of gender dysphoria is one on which they can lean and if in doubt they should not do so.

Next, the person must prove that he or she has lived in the acquired gender for at least two years and provide medical evidence of treatment that has been received. That evidence will be considered by the panel. So a person will have a diagnosis of gender dysphoria from a specialist and evidence of living in the acquired gender for at least two years. A person must provide evidence of medical treatment and will have to convince the panel that he or she intends to live permanently in the acquired gender. That is a proper and substantial process of testing.

Amendment No. 15 would add that a person must have lived successfully in the acquired gender. I do not know what weight to put on that, but it also adds that two witnesses must attest to the fact that the person has lived for at least two years in the acquired gender.

Quite rightly, the approach taken by the Bill is that the panel has to satisfy itself that an applicant has lived in the acquired gender for the past two years. It leaves open the evidential requirements, which is how one should treat judicial panels. They should be at liberty to decide what evidence they believe will satisfy them; if they are not satisfied they should ask for further evidence; and if they are still not satisfied they should refuse the application. We do not need to specify exactly how they go about their business. The panel will be chaired by a circuit judge. Such people are not unaware of proper process.

The panel must satisfy itself that an applicant has lived in the acquired gender for the past two years, not two witnesses. The applicant can submit further evidence if he or she wishes; or the applicant can be required to do so if the panel is not satisfied.

Finally, the amendment also requires that the two witnesses attest to the applicant's assertion that he or she intends to live permanently in the acquired gender. Again, we think that it is the job of the panel to take what tests, measures, evidence or inquiries it thinks appropriate to meet that test. It is not a good use of our time to seek to fetter the discretion or specify the processes by which a judicial panel should meet the burden the legislation imposes on it.

If, on the sum of the evidence, the panel is convinced that an applicant has taken decisive steps to live permanently in the acquired gender, has or has had gender dysphoria, and has demonstrated a commitment to live in the acquired gender, only then will it give a certificate. If it is not satisfied, it will not do so, nor should it.

Amendment No. 16 seeks to add an additional criterion: that a person must have first undergone reassignment surgery. I do not wish to add much. A number of noble Lords have said why they believe that that is wrong. I start with an explanation. Most people who have gender dysphoria undoubtedly wish to have surgery. The individual wishes to bring his or her bodily state into alignment with that person's profound belief. Most will have done so. To require those persons to do so is wrong for all the reasons given by the noble Lord, Lord Tebbit, and others. One should not force that process on people as a necessary test.

Some people may be too old to be able to cope with the rigours of surgery. It would be wrong to deny them legal recognition if the three tests in the Bill were met. Let me not labour that point.

I turn the argument round the other way. It does not mean that the process is any the less severe. Clearly a person who has gone through the horrors of surgical realignment in this way does in a sense demonstrate how severe his or her conviction is that there is a problem which needs to be remedied. I signalled in Committee that where a person has not had surgery I would expect the panel to be more alert in inquiring whether there were sufficient evidence of commitment to a permanent change. That is not the same as saying that a person who has not had surgery should not be recognised. It is to say that the panel would want to inquire why the person had not had surgery. If it was because at heart there was doubt in the person's mind about whether he or she was going to make a committed and permanent change the panel would not grant a gender certificate. I do not think that we are at risk in this respect. The panel is likely to want to inquire more in such circumstances.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 3:00 pm, 29th January 2004

My Lords, I thank the Minister for giving way. That is my point. If a person goes to a gender recognition panel, the individual can have in mind the fact that he or she wants to change gender but does not want to undertake surgery for all the reasons that have been explained. That person can convince the panel yet be in a situation where he or she was going to cheat. I am sorry, but that is the reality. When I made the point earlier, the noble Lord, Lord Carlile, chided me.

One of my great concerns about the Bill is that an individual can have a gender recognition certificate without having surgery. It depends on how determined that person is in his or her own mind about the belief that he or she is of the opposite sex. I find that very distressing.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I do not want to labour the point because we have given these issues considerable attention in Committee and today.

Such people who do not have surgery are few. There are usually good reasons for them not having done so. If the panel is not convinced that those persons are committed to living in a permanent state it will not grant them a gender certificate. However, to turn it the other way, for the state almost to say that unless people go through a process of bodily mutilation they will not have a legal recognition is wrong. I regret that we shall not agree on that issue.

I turn next to the composition of the panel. The medical member is not there to make a diagnosis. The diagnosis is to be provided by the person practising in the field of gender dysphoria. The medical member is on the panel to ensure that the medical evidence is properly understood and can be inspected or further inquires made if appropriate. The panel will be working with a list of medical practitioners and chartered psychologists who practise in the field of gender dysphoria.

With regard to there being several on the panel, few practitioners could be described as working in the field of gender dysphoria. Putting two on the panel would have significant disadvantages. It would also mean that they would frequently be seeking to make judgments on their own clinic or clinical work which, again, is clearly judicially flawed and, therefore, there would be further practical problems. So they are there to inquire into the medical evidence not to make the diagnosis.

On the interesting point about members of the medical profession raised by the noble Baroness, Lady Finlay, clinical psychiatrists are covered in Clause 3 under the term "registered medical practitioner". Chartered psychologists are members of the British Psychological Society, a professional body with which we shall work in developing the process. Having said that, I shall look further at what the noble Baroness said. If I have missed the point and dropped the ball, I shall come back to her before Third Reading.

I am sorry to have spoken at length but it is an important group of issues. I hope that I have stated clearly the Government's position.

Photo of Lord Chan Lord Chan Crossbench

My Lords, I thank the Minister for that reply and all noble Lords who spoke. I accept that surgery is the end point and should convince anyone that the applicant is genuine. I concede that it would be difficult to make it a ground on which to provide a certificate. That would be seen to be cruel.

However, with regard to evidence and diagnosis, as I sought to outline, there are suspicions that within the medical profession medical opinions are given which may be extreme and not necessarily balanced because the medical practitioner is convinced of a certain point. With two medical members on the panel that issue would not arise.

Whether or not we like it, the ultimate issue is the diagnosis—being convinced—particularly if the applicant has not had surgery and there are other issues to consider. I admit that I am not familiar with the process and legal composition of a panel but that was the main purpose underlying Amendment No. 13. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Chan Lord Chan Crossbench

moved Amendment No. 13:

Page 14, line 7, leave out "one medical member" and insert "two medical members including—

(i) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and

(ii) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service."

Photo of Lord Chan Lord Chan Crossbench

My Lords, I beg to move.

On Question, amendment negatived.

Clause 2 [Determination of applications]:

[Amendments Nos. 14 to 18 not moved.]

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 19:

Page 2, line 10, at end insert—

"(4) The panel must reject an application under section 1(1) if the panel has issued a gender recognition certificate to the applicant on two previous occasions."

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I tabled an amendment in Grand Committee which raised the issue of whether a person can go through the gender recognition procedure a second time in order to return to his or her biological sex. The Minister may remember that in Grand Committee on 14 January I moved a similar amendment. In dealing with Clause 9 I said that,

"many people change their minds and revert to their real gender, or oscillate between the two".—[Official Report, 14/1/04; col. GC64.]

I quoted the Government as being behind that statement. The Minister cited a percentage figure of 1 per cent. Of course 1 per cent does not square with "many". I have since discovered that the source of the "many people" quotation was from page 5, paragraph 5.1 of the Home Office report of the Interdepartmental Working Group on Transsexual People published in April.

One does not have to look hard to find examples of people who wish they had never changed. The Sunday Telegraph Magazine of 15 November 2003 reported the case of a person called Claudia, who deeply regrets his decision to have reconstructive surgery and assume the identity of a woman. He said:

"I changed for all the wrong reasons, and then it was too late . . . I was seen for 45 minutes by a psychiatrist in private practice, and I believe I was railroaded into thinking that an irreversible operation was the only solution. It made me feel they were just in it for my money".

He went on to say:

"I feel like this sex change has just made me into some kind of freak. I'm not a real woman, I am a sex-change".

That is tragic. It is a side of the transsexualism debate that seems to be swept under the carpet, although I notice, as has been said already, that the Guardian of 20 January 2004 reported that the UK's best known "expert" in transsexualism is being investigated by the General Medical Council after claims that he sent patients for sex-change surgery without adequately assessing them. The Sunday Telegraph Magazine stated that the same person was involved, while running a private practice as well as working in the National Health Service,

"in controversy over the condition known as body dysmorphic disorder, (BDD), where sufferers can experience a desperate urge to rid themselves of a limb".

Dr Russell Reid was one of the psychiatrists who referred two patients with BDD to a surgeon for leg amputations. The article continues:

"'When I first heard of people wanting amputations it seemed bizarre in the extreme,' he said in a television documentary at the time, 'but then I thought, 'I see transsexuals and they want healthy parts of their body removed in order to adjust to their idealised body image,' and so I think that was the connection for me. I saw that people wanted to have their limbs off with equally as much degree of obsession and need.'

But to what degree should doctors be acquiescent to the 'obsessions' and 'needs' of patients?"

It appears that the sex-change proponents have created all the running on this issue, yet there are genuine deep concerns by professionals which do not seem to be considered. The same article in the Sunday Telegraph Magazine referred to:

"Dr Fiona Mason, a forensic psychiatrist with an expertise in gender issues, is seriously concerned about the practices of some private clinics dealing with transsexualism".

She said:

"'I can't imagine assessing anyone suffering from a serious disorder in under three hours. It can take three years to assess patients with complex problems. The trouble with some private clinics is that the patients are just given hormones after an hour-long appointment, which can have an irreversible effect on the body.'

Some critics are even going as far as to say that psychiatrists have not, in fact, 'discovered' transsexuals but created them. That is, that once 'transsexual' and 'gender-identity disorder' (GID) become common currency more people began interpreting their experience in these terms. Specialists working in gender-identity clinics made similar complaints about their patients as early as the mid-1970s".

Clearly, there will be some people who will go through gender recognition only to want to change back again.

In Grand Committee, the Minister assured me that the Bill already provides for that. However, it must be said that it is not clear on the face of the Bill. I know he will tell me that we must not put words into the Bill that do not need to be there, but we should have some reassurance, if only for people like Claudia, that it is possible to go back to your true sex in law, even if the surgery is not reversible.

My amendment would make it clear that reversal is possible at the same time as limiting a person to only two changes. That would allow a person to change his sex to a woman and then back to a man, or vice versa, but he or she could make no further changes after that. Otherwise, of course, it is possible that person could change back and forth throughout life. That would clearly be ludicrous, not to say very damaging for the person himself or herself. I know the Minister will say that the gender recognition panel will always be terribly sensible and it would never allow that, but we cannot be sure under the current wording. If he thinks a person should not be able to make multiple changes back and forth, he should be prepared to see a limitation placed on the face of the Bill. I beg to move.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 3:15 pm, 29th January 2004

My Lords, I thank the noble Baroness, Lady O'Cathain, for clarifying almost the double elements of this issue. The first element—and I do not think there is an issue between us about whether it is possible—is on the limited number of tragic cases where a person who might, after having gone through this enormously difficult and traumatic process, decide that they had made a mistake and wish to revert. Let me put it on record that while the number of such cases is likely to be extremely small, under the Bill it is completely open for the panel to grant the application to revert if it is convinced. The panel will be applying those three tests very seriously, and it will be applying them even more seriously because the person is reverting back.

On the second element, the noble Baroness suggested that we should put a provision on the face of the Bill to stop people making changes back and forth. I do not think that is necessary. The panel is there with expertise to make judgments. The central judgment it has to make in this respect is whether it is convinced that the person is committed to living permanently in that gender. I cannot think of circumstances—for example, in the extreme case of a person who has changed once and then has changed a second time—in which a panel would be convinced that it would grant legal recognition for a third change. I cannot conceive of a situation where a panel would be open to persuasion that that was possible.

One might ask, "Why not put the provision on the face of the Bill?" But why should we fetter the role and the duty of a judicial panel? We will give it clear criteria and through this legislation it should be left to get on with that job. Therefore, I think the law will allow exactly the change the noble Baroness wishes to allow. If the panel is convinced that a person has genuinely made a mistake then reversion is possible. I cannot see that there is a need to go further than that in the legislation.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the Minister for his reply. As always, he listens carefully to my arguments, and I to his. The onus is on the panel. My simple amendment would be helpful to the panel, so that another client could never come back, and would remove any doubt about it. The Minister and I are at one on the point that there should be a limit. However, the Minister is placing the onus on the panel, whereas I believe that it would be better to have it on the face of the Bill so that we could help the panel.

The Minister made the point that the amendment would fetter the role and judicial competence of the panel. I say that it would be a belt and braces measure to ensure, first, that the panel is not put into a very difficult situation and, secondly, that it could not happen, which I am sure neither of us wants.

I will read carefully what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Evidence]:

[Amendments Nos. 20 to 23 not moved.]

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

moved Amendment No. 24:

Page 2, line 42, after "required" insert "by order made"

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, this amendment concerns Clause 3(6)(b) of the Bill, which states:

"Any application under section 1(1) must include any other information or evidence required by the Secretary of State".

It does not specify the form in which that requirement is to be made. It is a general requirement, not a specific requirement relating to a particular case. Presumably, therefore, it must be made in some kind of document that will be circulated to all people who need to know about it.

The purpose of Amendment No. 24 is to provide for the requirement under Clause 3(6)(b) to be made by statutory instrument, but not one that involves any parliamentary procedure. The requirement that it should be made by statutory instrument reflects the concerns of the Delegated Powers and Regulatory Reform Committee. As was explained when I raised the question in Grand Committee, in paragraph 7 of its report, the Delegated Powers and Regulatory Reform Committee said:

"The prescription by central government of the particulars or evidence to accompany applications as part of a formal procedure is often made the subject of rules or regulations, whether or not subject to a Parliamentary procedure. This accords with the view that the prescription of general rules about these matters has the characteristics of a legislative, rather than a purely administrative, act. For this reason we considered whether, in this instance, the particulars and evidence should be specified in a statutory instrument, to which the usual publication requirements will apply".

Paragraph 8 continues:

"The reason given by the Government for wishing the matter to be left to 'administrative' action only is that the details are likely to change. We recognise that this is a good reason why the details should be left to regulations, but, given the flexibility of the delegated legislative procedure, it does not provide an explanation why there should be no formal procedure of any sort".

The report makes further comment, which I shall not read now.

In Grand Committee, the noble Lord, Lord Evans of Temple Guiting, the Minister speaking to this amendment, said:

"It might help if I clarified what the power will be used for. It will be used to set the questions that are asked on the application form. Its purpose, therefore, is very narrow. That is why we do not believe that any parliamentary scrutiny is necessary. The application form will ask questions that will enable the panel to determine an application. Contact details, for example, will have to be requested. At the same time, the application form will contain questions relating to the criteria in the Bill. The application form may, for example, ask an applicant to specify what evidence is being supplied to satisfy the panel that the applicant has lived in the acquired gender for at least two years". [Official Report, 13/1/04; col. GC 31.]

The difficulty is that the power could be used to cover fields very much wider than those referred to by the Minister on that occasion. It could, for example, be used to bring into effect a provisions similar to those contained in Amendments Nos. 15 and 23, tabled by the noble Lord, Lord Chan—the requirement that evidence be given of a particular fact by two witnesses. Although the Government may intend to use it simply to specify what is put on the application form, if one looks at the language, it is quite clear that it could be used to set out the nature of the evidence that the Secretary of State will require for presentation to a panel in order to prove any of the conditions that have to be satisfied before a gender recognition certificate can be granted.

I am not suggesting that there should be a parliamentary procedure. However, it seems to me that we require a degree of formality and accessibility to Government websites, which would be provided if the matter is dealt with by means of a statutory instrument rather than a circular. I hope that the Government will feel able to think again about that issue. I beg to move.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, in preparing for today's debate, it struck me, perhaps belatedly, that that may have been what was behind this amendment, so that the Bill would not be open to being twisted and turned in the future. I shall reflect on that point. In so doing, I do not want to raise any optimism, but I believe that that will probably short-circuit our discussions.

Our argument is as set out by the noble Lord, Lord Evans, in terms of the benefits of flexibility. We also believe that the ability to ask for information is clearly circumscribed by the three criteria set out in the Bill by which the panel will have to be tested. Nevertheless, that does not satisfy the point made by the noble Lord, Lord Goodhart, that it could be taken away over the hills. Therefore, without for a moment signalling that we shall accede to it, I should like to reflect on the point.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Buscombe Baroness Buscombe Conservative

moved Amendment No. 25:

Page 3, line 2, at end insert—

"( ) In the case of an application under section 1(1) from a person who is married, a Gender Recognition Panel may take evidence from the spouse and children of the applicant before making any determination under section 1.

( ) Evidence from the spouse or children may include a report from a chartered psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant.

( ) The spouse or children of an applicant shall have the right to offer oral and written evidence to a Gender Recognition Panel and, before issuing a certificate, the Panel shall have due regard to the effect of issuing such a certificate on the spouse or children of an applicant.

( ) In the case of an application under section 1(1) from any unmarried person, a Gender Recognition Panel may take evidence from the partner or children of the applicant before making any determination under section 1.

( ) In the case of minor children, evidence may be given by a representative appointed on their behalf."

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I begin by suggesting to the Minister that in order to overcome his dilemma or compromise position of having to be in two places at once because he is involved with another Bill, which is in Grand Committee, if we did not have Grand Committees and all our legislation was considered on the Floor of the House, that problem would not arise—

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

I thank the noble Baroness for giving way. I intervene to say that I am also involved elsewhere at this time. I am rather pleased at that, because it spares me from having to spend another day on the Committee stage of the European Parliamentary and Local Elections (Pilots) Bill.

Photo of Baroness Buscombe Baroness Buscombe Conservative 3:30 pm, 29th January 2004

My Lords, I return to what I consider to be the issue of paramount importance: that of the family of the applicant. As noble Lords will have noticed, I have altered the amendment tabled in Grand Committee to introduce the element of choice, so as to enable the gender recognition panel to be able to take evidence from the spouse and children of the applicant before making a determination under Clause 1. That evidence could take different forms, as proposed in my amendment.

We had a good, thoughtful debate on the issue in Grand Committee. I was grateful to all noble Lords who took part. Some points raised gave me pause for further thought. I said then, and still firmly believe, that the concerns of the family should be taken into account during the process of gender reassignment; that a holistic approach to the process is the right route; and that my amendment would help, rather than hinder, the process. That said, I take on board the cautionary note proffered by the noble Lord, Lord Carlile, in Grand Committee. I would not want to encourage a climate similar to that of the contested divorce. In most instances, that would be unhelpful.

The trouble with the Bill is that only the interests of the applicant appear to matter. When I first read it, I could find no reference to children, spouses or partners of the applicant, except in two lines of Clause 12. I found that deeply disturbing.

I am reminded of the words of the right reverend Prelate the Bishop of Winchester in Grand Committee, when he said:

"At this point it seems crystal clear that the Government are, without remainder, giving rights to one set of people and taking no notice of the rights of another".

In response, the Minister was also crystal clear. Although confirming that central to human rights legislation is the balance between rights and responsibilities, he said:

"The tough answer is that the right which the panel will decide whether or not there is evidence in the application to grant"— gender recognition—

"is not a right that can be balanced".—[Official Report, 13/1/04; cols. GC36-39.]

That is tough, and I keep returning to the fact that our hands are tied.

We have no choice but to respond to a judgment of the European Court of Human Rights. We have obligations under human rights law. In Grand Committee, the Minister offered to consider the matter further. I am pleased to confirm that we had a helpful meeting; the Minister has encouraged me to listen to what he has to say today in response to the amendment.

We have considered the matter at great length. I, and several other noble Lords, want to be reassured that the rights, interests and concerns of the family will be taken on board throughout the process of gender reassignment and should be considered by the gender recognition panel. I beg to move.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs

My Lords, we have sympathy with the aims of the noble Baroness. It is vital that in the process—and at the right stage—the views of the family, if it has views on the matter, should be taken into account in an assessment of whether the person who makes the application is appropriate for a certificate.

It is to be noted that one test under Clause 2—indeed, the primary test under Clause 2(1)(a)—is that the panel must be satisfied that the applicant has, or has had, gender dysphoria. One would assume that if a proper medical and psychological process is carried out, an assessment of the views of the family will be part of the evidence-gathering of that process. By the time the case reaches the panel, there will have been detailed psychological and psychiatric assessments—as already happens in all such cases.

Further, what the noble Baroness asks for is already provided under the Bill in appropriate cases. Clause 3(6)(c)—Clause 3 being entitled, "Evidence"—states that an application must include

"any other information or evidence which the Panel which is to determine the application may require".

If that means what it says, if the panel has any doubt about evidential aspects of the process that has led the applicant to the panel, the panel has absolute discretion to inquire into those matters set out—or summarised, at least—in the amendment.

The hearing before the panel is too late for the evidence for which the noble Baroness provides in her amendment to be considered. In making its decision, the panel must decide on the four criteria set out in Clause 2(1). In a few cases, the family may remain implacably opposed at that stage. Nevertheless, if those criteria are satisfied, the determination of legal status must be made; that is a requirement placed on the panel.

What I have said, in a rather long-winded way, is that the Bill already provides for the process that the noble Baroness has in mind in the disciplines that are applied to each applicant before they ever reach the panel. I therefore suggest that, although I agree with the spirit behind the amendment, it is superfluous.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

My Lords, I welcome the fact that the noble Baroness, Lady Buscombe, has retabled the amendments. Notwithstanding the points made in Grand Committee by both the Minister and the noble Lord, Lord Carlile, and what the noble Lord just said—I have read Hansard and listened carefully to him now—it is important that in the second line of the first paragraph of the amendment, we now have the word, "may", not "must". I welcome that change.

It is still important that written in the Bill should be the clear encouragement to the panel, even at what the noble Lord, Lord Carlile, is right to say is a late stage, to take seriously the concerns of the spouse, partner or children, and for them to know that they are being taken seriously. The panel should be required to take them seriously, and they should have the opportunity to be heard.

It is not simply a matter of a family being, as the noble Lord, Lord Carlile, suggested, implacably opposed. That puts the whole matter in far too adversarial a context. It is entirely possible and, to my knowledge, sometimes the case, that there is profound concern and anxiety about the mental, spiritual or physical well-being of the person—who may indeed be well down or through the process of gender change; or of that of the children, spouse or relatives; or of both intermingling.

It is worth noting that the amendment does not suggest that the panel must do what it is asked by those to whom the amendment would give the right to offer advice—to whom the panel would be asked to listen. It states that the panel should have "due regard". As I understand it, that phrase makes entirely clear that it must take note of, but need not be bound by, that advice. It means that it must listen to what is being said to it; not that it must agree with it or, in the end, that its decisions must be bound by it.

That seems to me both proper in itself and—to take another element in the amendment—because I take the noble Baroness to be testing, I believe extremely importantly, whether in the Bill the Government really are committed to what she correctly reported as the Minister's tough line in Grand Committee. To the extent that I as a lay person in these matters can read the human rights legislation—in Grand Committee I pointed to some parts of it that were quoted by the Court of Human Rights in the Goodwin case—it requires all concerned to be engaged in a balancing act, or a holding intention, of one right and another.

I was surprised, even shocked, by the Minister's tough line because as a layman in this regard it seemed to me deeply questionable. It is extremely important that this should be explored both in this matter and others. If the Government are prepared to note this tension between rights and duties in the matter of sport, and I judge them to be doing so correctly, they also need to be seen to be doing so for their own good, let alone for straight justice, in relation to children—in other legislation, the rights of children are said to be paramount—spouses, partners and the proper concerns of the churches and faiths, which are reflected in a series of amendments to the Bill. I am grateful that the noble Baroness, Lady Buscombe, has brought these amendments back in this slightly revised form. I will listen to the Minister with great interest. From her discussions with the Minister, she has whetted my appetite and I hope that he may have something of real interest and significance to say.

Finally, I, too, am required to be in two places at once. I made my apologies to the Minister earlier and I apologise to your Lordships' House now. There is a point beyond which I shall have to attend an unavoidable engagement in a church in my diocese this evening.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I am very pleased to be able to support my noble friend's amendment. One of the obvious gaping holes exposed during Grand Committee was that the gender recognition process gave no right to the family of a transsexual to have any say. I said that this emphasised that the Bill was about the rights of transsexuals and nobody else. Whispers have told me that there is likely to be some movement from the Government on this.

I hope that this bodes well for some other concerns we have about the Bill. I do not intend to rehearse all the arguments again. Suffice it to say that it seems unthinkable that a wife and children of a man—or indeed the husband and children of a woman—who went forward for gender recognition would be denied a say. I refer back to the story I read earlier about the terrible pain endured by the family of the transsexual man who thankfully changed his mind before it was too late. It was clearly tortuous for all of them, not just for the man involved. It is right that at the very least people in that situation should be allowed to put their views before the gender recognition panel.

It is possible that the Human Rights Act will come into play. I understand that the European Convention on Human Rights includes a right to fair trial and a right to be heard when a tribunal determines one's rights. I am sure there are some good legal minds who would be able to extend that to encompass the family in relation to the gender recognition panel. A wife whose husband was being changed in law to a woman could make a convincing case that her human rights were being breached if she were denied a right to be heard. Her rights would be very seriously affected by the decision of the panel. I do not believe that the panel should have absolute discretion.

The noble Lord, Lord Carlile, drew our attention to the Bill. It does not make it clear that the family would necessarily be encompassed in that consultation. I welcome the right reverend Prelate's great contribution that due regard has to be taken. I have absolutely no hesitation in congratulating my noble friend on her amendment. I hope that I can welcome the Government's willingness to think again.

Photo of Earl Ferrers Earl Ferrers Conservative 3:45 pm, 29th January 2004

My Lords, before the Minister responds, may I say that I very much hope that he will agree to the amendment. It seems almost impossible to believe that in the case of a man changing to a woman, his wife or children should not at least have access to the gender recognition panel so that they can give their views. The panel does not necessarily have to accept them but at least they ought to be heard. I hope the Minister will agree to the amendment.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, this is probably one of the most interesting and difficult issues we have to address in relation to the Bill, although there is probably some fierce competition for that title. When I talked about toughness in Grand Committee I was not talking about social toughness; I was talking about intellectual toughness. What I meant by that was that, under the statute that we are considering, the panel had a duty to make a decision as to whether the tests had been met to grant a change of legal gender to the applicant. Those three tests have been discussed many times. What I said was tough and difficult—whilst being emotionally sympathetic to the issues we have discussed—was having a process by which a judicial panel was asked to make a decision as to whether a person met those tests for their gender to be recognised and then to decide not to give it because the wife was unhappy. That was the toughness of the issue which we face and which we have been reflecting on in Government to see if nevertheless we can find a way of addressing what one has respect for—the human issues that lie behind that.

I shall now set out our thinking on this. I will also write to participants about this issue because it is important. That will give a little time for us to reflect on it before Third Reading. However, I can at least set out the position. In summary, there is not much problem in principle with allowing wives' and children's views or evidence to be put into the panel. The problem is about whether that should affect the decision of the panel. I am relieved to see the noble Lord, Lord Tebbit, nodding and agreeing with me on the intellectual toughness of that. We have been thinking about finding a way, which is consistent with the tests that the Bill sets out—including dysphoria, permanence, the two-year requirement and so on—of ensuring that the interests of the wife and child are properly considered at a time when it is possible for them to have an effect on the process. To put that at its shortest, we think it hinges around the consideration of permanence. By that I mean the panel has to be convinced that the test is permanent. There is a line of thought that goes that a person who applies for gender change to be recognised and is married and may have children, is in probably the most difficult situation. We want to ensure that that person and their family have fully considered the very painful and difficult implications of what the person wishes to go through throughout that process.

In short, the process of testing for gender dysphoria and treating it—the process set out in the Harry Benjamin International Gender Dysphoria Association standards—emphasises that professionals should discuss all the consequences of a change in gender for the person, their family and their work colleagues. It further says that the therapist should work with a transsexual person to accept the need to maintain a job, provide for the emotional needs of children, honour a spousal commitment or not to distress a family member as currently having a higher priority than the personal wish for constant cross-gender expression. So, good clinical practice already sets the issues out.

The issues should be explored as part of the therapeutic investigation early in the process. That seems right. In a sense, it is too late, two or three years down the line, when the case is with the panel, for that to be dealt with effectively, apart from allowing the family to give supportive evidence that may be relevant to the application to the panel. In many cases, applicants will wish their family to give evidence in that way.

In the guidance that will be given to the panel, we will make it clear that, if an applicant is married and/or has children, it is particularly important to recognise the burden placed on that person by the social situation that they are in and to test whether they have thought through the seriousness of the change that they are making and the effect that it will have on others, as well as themselves. Therefore, if there is guidance to the panel that it is to look for evidence that that has been properly tested, it leaves the door wide open for the applicant to put evidence from the wife and child into the panel's processes. More importantly, it gives a clear signal, at the start of the process, that the applicant will be tested at the end of the process on whether the issues of concern to the family have been properly considered as part of a therapeutic process. That will not be done in order to balance the interests of the family against the application—that cannot happen, for the reasons that I gave—but to see whether there is a greater risk of impermanence because of the social pressures on the applicant as a consequence.

I fear that I have spoken at length, but I hope that I have set out the argument clearly. I will put it in letters to noble Lords. Without completely impossibly corrupting the responsibility of the panel, one can build into the process a mechanism to ensure that the interests of the wife and children are given proper consideration. In any event, any decision by the panel is only an interim one, for a married couple. A divorce cannot take place until the court has considered whether appropriate ancillary relief decisions have been made and the interests of the children recognised. The court process for married applicants also has a check. Unless the court is satisfied that the normal divorce tests of ancillary relief and care for the children are met, the applicant cannot change the interim gender certificate into a permanent one. There are, in a sense, two tests. That allows us to build up a robust process that is fair to the applicant but is also fair to the wife and children.

As the House will have noticed, I speak without looking at my notes. I would welcome the House's liberality and ask it to reflect on the matter. I shall put it all in writing to the House, so that we can see whether we have found a way through the difficult moral dilemmas that does not corrupt the integrity of the process. I thank the noble Baroness, Lady Buscombe, for her thoughtfulness on the matter, but I ask her to withdraw the amendment, at least at this point, for the reasons that I have given.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I thank the Minister for his response. I also thank particularly my noble friends Lady O'Cathain and Lord Ferrers for their support. I thank the noble Lord, Lord Carlile of Berriew, for his sympathy for the spirit of the amendment, although I cannot agree with the noble Lord that the amendment is otiose. In a sense, I am considering the perspective of the spouse and the children. I believe that Clause 3(6)(c) focuses on the perspective of the panel and the information that the applicant might wish to include, as opposed to the information or evidence that the spouse or children might wish to include.

That said, I am grateful to the Minister. I welcome also the support of the right reverend Prelate the Bishop of Winchester, who has clearly thought the matter through in a way similar to the way in which I have done with regard to the difficult dichotomy between rights and responsibilities. When we come down to it, the Bill focuses on the rights of the applicant.

There is no question but that the Minister has responded to our concern. Of course, I would prefer to see our amendment made. I accept the difficulty that the Minister highlighted with regard to including in the Bill a provision that relates to a late stage in the process. I hope that the Minister will assist me and other noble Lords by writing to us, first, with regard to the timing of the introduction of the guidance that will be attached to the legislation and, secondly, to help us to understand better how the process will be effected, such that the interests of the spouse and family, where they exist, are tested. In other words, at what stage will their evidence be included? Will it be an ongoing process, leading up to the application to the gender recognition panel? Will it be enough for evidence from a wife, spouse, partner or family to be offered once, or will consideration of the interests of the family continue right through the difficult process leading to gender re-assignment and the application to the gender recognition panel?

I am grateful to the noble Lord for the opportunity between now and Third Reading to consider what he tells us in writing before deciding whether it is enough to have the matter dealt with simply in guidance—I accept why he wants to do that—as opposed to having it in the Bill. I am grateful that the Minister and his officials took considerable time to tackle such a difficult and important issue. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

moved Amendment No. 26:

Page 3, line 5, at end insert—

"( ) If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so."

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, I move the amendment and speak to this disparate group of amendments on behalf of my noble friend. The amendments arise from discussions in Committee, and I hope that they will address the concerns raised at that stage and be welcomed by your Lordships. In moving Amendment No. 26, I shall speak also to Amendments Nos. 46, 71, 118, 119, 120, 121, 123 and 125.

Amendment No. 26 relates to a request by the gender recognition panel for further information when determining an application from a transsexual person for recognition in the acquired gender. In Grand Committee, the Government indicated that it was not uncommon for judicial panels to request further information when they consider a case. We agreed that it was good practice for a panel to give its reasons for such a request, not only to assist the individual to provide the correct information but to reassure him that it is necessary. Therefore, on behalf of my noble friend, I propose that a requirement to give reasons should be enshrined in law.

Clause 7(2) allows the Secretary of State to determine the fee that should be charged for making an application to the gender recognition panel. At present, this power is not subject to any parliamentary procedure. The Delegated Powers and Regulatory Reform Committee did not recommend a change, but invited the House to question the Government about why no parliamentary procedure was required.

Of course, fees are routinely changed, often increasing annually with inflation. However, I am alive to the concerns of the Members of this House that Parliament should have some scrutiny over the fees that are charged. Subsequent to comments made in Grand Committee and given that all other court fees are set by order, subject to the negative resolution procedure, we agree that the fees for an application to the gender recognition panel should be set in the same way. Amendments Nos. 46 and 123 achieve this. Again, I hope that the House welcomes this move.

Clause 22 sets out a power to modify statutory provisions in relation to persons whose gender has become the acquired gender, or any description of such persons. This power is delegated separately to the Secretary of State, to the Scottish Ministers where the provision to be made is within the legislative competence of the Scottish Parliament, and, similarly, to the appropriate Northern Ireland department. It is a narrow power, designed to ensure the proper working of Clause 9 and the fundamental proposition that once a full gender recognition certificate has been issued to a person, that person's gender becomes, for all purposes in law, the acquired gender.

Legislation has used gender-specific terms and categories for centuries, and while we have been thorough in trying to identify what problems may arise from a person changing gender in law, we cannot discount the possibility that problems requiring an adjustment of statutory provisions will be needed. These adjustments will be to give effect to the principle that a person is to have all the rights and responsibilities appropriate to the acquired gender.

If the Bill is enacted, Parliament will have agreed the basic principle—that a person is to have the rights and responsibilities appropriate to the acquired gender. The power to modify statutory provisions will be used only to ensure that this principle has full effect.

The question of ensuring that before exercising those powers there should be appropriate consultation was raised in Grand Committee. The amendment proposed by the noble Earl, Lord Mar and Kellie, was entirely sensible and an important safeguard. I am therefore introducing government Amendment No. 118, which I believe will achieve the desired objective.

The next two amendments in the group, Nos. 119 and 120, are consequential. The Bill makes provision for the particulars to be held on the gender recognition register to be prescribed by secondary legislation. This is the same provision as for other registers—for example, the birth register. From time to time, the set of details held on these registers is changed. The same flexibility should exist vis-a-vis the gender recognition register. That is the responsibility of the Chancellor of the Exchequer. It is therefore necessary that the powers in Clause 23 should extend to the Chancellor as well as to the Secretary of State. The two amendments achieve that purpose.

Amendment No. 122 implements two recommendations of the Delegated Powers and Regulatory Reform Committee. Again, I hope they will be welcomed by the House. Applicants who already have recognition overseas may apply on a simpler procedure whereby they have to prove that they have recognition overseas and that the country in which they have recognition is an "approved country or territory".

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, just to put the record straight, the noble Baroness referred to Amendment No. 122 when I think it should be Amendment No. 121.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, whenever the noble Lord, Lord Goodhart, has challenged parliamentary counsel, as he has done on at least three previous Bills, he has been proven to be correct. I am sure that he is correct about this, too, in which case I apologise.

Applicants who already have recognition overseas may apply on a simpler procedure. As the Bill stands, under Clause 2(4) the Secretary of State has the power to specify a list of approved countries or territories. The power will be exercised only after consultation with the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland.

At present, Clause 23 provides that countries are "approved" by an order made by the Secretary of State subject to the negative resolution procedure. In its report, the Delegated Powers and Regulatory Reform Committee agreed that it is appropriate that approval should be given by order, as the list of approved countries will change from time to time. However, it was concerned that on the face of the Bill it was not explicit that only those countries that have criteria equivalent to our own would be approved. It was concerned about future policy changes which might change the criteria by which other countries were approved for these purposes. The committee therefore concluded that the negative procedure would not provide an appropriate level of parliamentary scrutiny for a power of such potential significance in the context of the Bill and recommended that the affirmative resolution should apply.

Taking into account the views of those noble Lords who, in Grand Committee, expressed similar reservations and the recommendations of the committee, we are proposing an amendment to Clause 23 which I hope will find favour. It will provide the assurance sought. The power to prescribe approved countries will now be subject to the scrutiny and approval of both Houses.

Let me turn to the amendment as it relates to paragraph 11 of Schedule 3. At this point, Amendment No. 71 is also relevant. The Delegated Powers and Regulatory Reform Committee recommended a change to the provision in Schedule 3, paragraph 11. That provision seeks to accommodate a regulatory reform order that is already under way and which relates to the registration system for England and Wales. We explained that the original purpose of the paragraph was to enable the registration provisions contained in the Bill to be amended so that the gender recognition register conforms to the forthcoming changes being brought about by the General Register Office in England and Wales. I think this is a matter of some concern to the noble Baroness, Lady Buscombe.

The Delegated Powers and Regulatory Reform Committee accepted this argument and that the scrutiny process for the order could be shortened as proposed. However, rather than altering the requirements for an order under the Regulatory Reform Act 2001, the committee recommended that the Bill should give an express power for Part 1 of Schedule 3 to be amended, and that any such amendments should be made by affirmative resolution.

The amendment to paragraph 11 of Schedule 3 fully meets the committee's recommendation and I hope that it finds favour with noble Lords who, in Grand Committee, drew our attention to the matter.

The final amendment in this group, Amendment No. 125, is, again, a drafting amendment. Clause 21 includes the power to specify further exceptions to the prohibition against disclosure. Clause 21 provides that the power may also be used by Scottish Ministers in areas within their competence. Unfortunately, however, the present version of Clause 23 does not subject this power, in contrast to the power given to the Secretary of State, to any parliamentary procedure. The amendment corrects this unintended omission.

I hope that your Lordships will agree that we have sought to meet the concerns expressed in Grand Committee and by the Delegated Powers and Regulatory Reform Committee and are happy to accept these amendments. I beg to move.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, as a number of the amendments result from points made by us in Grand Committee, we naturally welcome them. The amendments on points that we did not make ourselves all seem perfectly sensible. We are therefore entirely happy with all the amendments.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I also welcome the Minister's response to the concerns that we raised in Grand Committee, and entirely agree with the noble Lord, Lord Goodhart, that the other matters that the Minister raised today make sense. We support the amendment.

On Question, amendment agreed to.

Clause 4 [Successful applications]:

[Amendment No. 27 not moved.]

Photo of Lord Geddes Lord Geddes Conservative

My Lords, I remind the House that if Amendment No. 28 is agreed to I cannot call Amendment No. 29 due to pre-emption.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

moved Amendment No. 28:

Page 3, line 9, leave out subsections (2) and (3).

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, Amendment No. 28 stands in the name of my noble friend Lord Carlile of Berriew and myself, and in the name of the right reverend Prelate the Bishop of Winchester. We and the right reverend Prelate come at the amendment from different directions, but we reach the same objective.

A number of transsexual people have entered into marriage before gender change with a person of the opposite sex. If a transsexual person wishes to obtain a gender recognition certificate in their required gender and the marriage in the birth gender still subsists, the panel under the terms of the Bill as it now stands can grant only what is called an interim certificate. Such a certificate has no effect at all in itself; it will, however, be converted into a full certificate if, and only if, the marriage is annulled or dissolved in proceedings commenced within six months of the interim certificate being granted.

In many cases, gender dysphoria of one of the parties to a marriage and the consequences of that dysphoria will lead to a breakdown of the marriage. However, there is a small number of marriages, thought to be in the order of 50, in which one party to the marriage is a transsexual person who wishes to obtain the same right as other transsexual people to legal recognition in their required gender, while both parties wish to keep the marriage in existence. The fact that the marriage has to be terminated for the transsexual partner to obtain a gender recognition certificate is a cause of great distress.

The Joint Committee on Human Rights took evidence on a draft of the Gender Recognition Bill. Thirty individuals or couples submitted written evidence, and 11 of those 30 were letters from one or both parties in a subsisting marriage protesting at the need to terminate the marriage before a full gender recognition certificate could be granted. That is a very high proportion of those affected by the Bill to have responded to that issue.

We believe that allowing a subsisting marriage to continue will alleviate distress and cause no harm. We have therefore tabled a long series of amendments. Most of them, in fact, are minor consequential amendments and do not need to be referred to in any detail. The purpose is, first, to eliminate the existence of interim certificates so that anyone, whether married or not, will be able to obtain a gender recognition certificate if he or she satisfies the conditions for obtaining such a certificate. The grant of the certificate will continue to be a ground for the termination of the marriage if either party wishes to terminate it. Secondly, the amendments provide that the marriage shall be treated as dissolved for the purpose of state benefits and pensions, as the Government have managed to persuade us that leaving the marriage in existence for those purposes would cause undue confusion.

Why do the Government not accept our amendment? There appear to be three reasons. The first is a philosophical reason: namely, that it will recognise same-sex marriages. However, we are talking about marriages that were all legitimate when they were entered into. We see no need to extend the principle that marriages must be between people of the opposite sex to say that the marriage cannot continue if one party changes gender in law.

Secondly, the Government say that the changes would cause serious administrative difficulties. I am unpersuaded of that, despite the best efforts of the noble Baroness, Lady Hollis, to persuade me otherwise. She has sent a long letter to me on the issue. As the letter is not a confidential one, I shall read your Lordships a couple of paragraphs from it. The Minister said:

"Schedule 5 makes provisions for the treatment of social security benefits and contracted-out private pension arrangements when a person registers in their acquired gender. If an existing marriage is allowed to subsist for all purposes other than Schedule 5"— which would of course be the effect of our amendment—

"a married couple would have to claim some state benefits as individuals. However, as not all state benefits are covered by Schedule 5—for example, income-related benefits—they would still be able to claim some state benefits as a married couple. This would cause considerable administrative difficulties and confusion for the couples involved. It would be difficult to explain to such a couple why they have to make individual claims for some benefits, while being able to claim other benefits as a married couple, and why they would not be able to claim survivor benefits when it would be appropriate for other married couples to do so. The current proposal to end the marriage for all purposes ensures that all transsexual people are treated in the same way and that generally they acquire the same benefits and pensions as others".

I do not dispute the truth of what is said there, but if people sufficiently strongly wish to retain their marriages, then they are likely to be perfectly happy to put up with a degree of difficulty and confusion. I see the Minister shaking her head, but that seems to me to be the case. In a very small number of cases, I believe that couples will say that that is a price worth paying for the retention of the marriage. In view of the small number of cases involved, it is easy to have any claims that arise handled by a single officer at the Benefits Agency, rather than at local offices. Other problems, in addition to the one that I have read out, are raised in the letter, for example, certain problems relating to pension schemes. I do not regard these as likely to make the retention of an existing marriage unworkable.

The third argument put forward by the Government is that parties can wait until the civil partnerships Bill is enacted. They could then get a divorce and a full certificate one day, and enter into a new civil partnership the next day. There are two objections to that. First, we cannot yet tell when, or if, a civil partnerships Bill will be enacted. Although I understand that it is the Government's intention to bring one in fairly shortly, there is no guarantee that that will be done. I believe that the Government, understandably and rightly, do not intend to delay the coming into force of this Bill until it is clear that there will be an effective civil partnerships Bill that can be brought into effect at the same time. There is at least a risk that transsexual people who want both a certificate and to maintain a legal relationship with their former spouse will find themselves in a limbo that might last for years or, if something goes wrong with the civil partnerships Bill, if it gets squeezed out by the pressure of other legislation or for some other reason, perhaps indefinitely.

Secondly, and perhaps more importantly, what this very small number of parties clearly wants, if one has read the often very moving letters, is a continuation of the marriage. These people do not want to give up their marriages and enter into a new and quite different legal relationship. These amendments will substantially improve the very difficult situations of, admittedly, a very small number of people and will do so without doing any harm to either the administration of the benefits system or to anyone else. I beg to move.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop 4:15 pm, 29th January 2004

My Lords, I identify myself with everything that the noble Lord, Lord Goodhart, has just said. I thank him and the noble Lord, Lord Carlile, for their graciousness in agreeing to me adding my name to their amendment.

The noble Lord has excellently expressed the needs of this small number of people—I have been made aware of some seven or eight couples, as I think he has. I noted the letter that he quoted from the Minister, but this situation cannot possibly be beyond her well-known skill and ingenuity and that of her officials if they set their minds, as I am sure that it is their nature to do, to seeking to assist this tiny group of people whose situation, if the Bill goes through in this form, is simply deplorable; indeed, the proper word is cruel.

If people have committed themselves to a marriage, whether or not out of a religious understanding, of any faith, it is part of the Government's responsibility to sustain that marriage if they wish to sustain it; I have made this point in other circumstances in this House. To force them to be broken apart and then to suggest that they be placed in some other legal relationship which—quite apart from the fact that it does not yet exist—if it were to exist, they do not want, is not a sustainable way of behaving on the part of the Government. I think the Minister knows my reasons for disagreeing with him—I shall not repeat them—that what we are discussing necessarily constitutes a same sex marriage.

I want also to underline the point that the noble Lord, Lord Goodhart, made that there is an extraordinary retrospectiveness in this element of the Bill. We are talking about couples, many of whom have been married for years and a significant number of whom have begotten children and brought them up, in which case children are involved too. I refer to the earlier comments of the noble Baroness, Lady Buscombe, in that regard.

I applaud the fact that the Government are making clear that they do not support same sex marriages. The Minister will know that for me the illogicalities of the Bill in principle are revealed if it says that a marriage which has not been a same sex marriage for many years suddenly at a certain point becomes one. However, that is not the main point at issue here—that concerns a quite unnecessary piece of cruelty. Noble Lords opposite and I are to a great extent in agreement on the matter for similar reasons. I hope we shall hear that the Government have had further thoughts on the matter and that they will not be thrown off course in that regard by looking to the kind and gracious nature of the noble Baroness, Lady Hollis of Heigham, to find a way through the detailed problems.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

My Lords, in Grand Committee I spoke in support of this measure. I should like to thank the Minister for the letter that he sent in response to my intervention. I am very grateful to the Minister for what he said in that letter but it still does not cover the concerns that I sought to express, which have been put before the House very forcefully this afternoon by both the noble Lord, Lord Goodhart, and the right reverend Prelate.

I think of the couple who have been happily married as man and wife and one of whom has, as a consequence of the change that we are discussing, become of the same gender as the other. However, both are anxious to continue the marriage with all that goes with it, not merely in terms of a social relationship but also in terms of the legal rights that go with it. What the Government propose is that the courts have to interpolate themselves into this relationship by way either of a decree of nullity in England or a decree of divorce in Scotland. Noble Lords will be well aware that a divorce involves the question of division of property. Indeed, one of the issues involved in property is that the property that is to be divided is not necessarily the whole of what each party has. There is something in Scotland called matrimonial property. The consequence of that is there has to be a division of that which the parties do not want to divide in order that they then may, as it were, resume the relationship but call it a civil partnership. It seems to me that that is a very odd way of going about dealing with a problem which exists even now. The Bill will, of course, have consequences for all those who in future undergo the whole process of gender reassignment.

I feel very strongly that issues such as those which have been mentioned by the noble Baroness, Lady Hollis, are matters that we shall have to look at again anyway in another context. Today I received the transcript of a judgment of the European Court of Justice in the case of KB v National Health Service Pensions Agency. The facts are different because in that case they were two persons. One was transsexual in an established partnership. KB was entitled to an occupational pension under the National Health Service, which gave rights to a widower. But the partner, not being married or being capable of marriage, was not so entitled. That is precisely the kind of thing which arises on a decree of divorce. The person cannot be a spouse at the time of death in that relationship. These are the kinds of much deeper factors which we shall have to look at in another context and no doubt will have to make changes to the various schemes and the like which attach to these new relationships brought about by gender reassignment. But for the moment it is enough to say that I strongly support the amendment.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I disassociate myself from this amendment because I cannot support it for all sorts of reasons. It is one of the trickiest issues in the Bill. One can say on the one hand that we have a Bill which will force divorce and, on the other, that we have a Bill which creates same-sex marriages. Many noble Lords will have received a letter from Janet and Sarah Wood. Clearly, Janet has chosen to reconcile herself to her husband's wish to be a woman. He would like to change his sex in law, but he also wants to remain married to Janet.

Surely, he must choose between being a woman in law and being married to Janet. Many will feel huge sympathy for him, but that is the situation which pertains at the moment before the Gender Recognition Bill becomes an Act. Some have said that they must simply make the choice and some argue that the Bill is already bending over backwards. It might be said that transsexuals in this position want to have their cake and eat it.

Legalising same-sex marriage in law is obviously a step too far even for the Government. That ignores the fact that they are already creating same-sex marriage if this Bill becomes an Act, where a person who was born a man will be a woman and will be able to marry a man who was born a man. That is same-sex marriage.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am saddened because I thought that I was going to have the opportunity of saying that I agree with everything that the noble Baroness has said. She has spoilt my fun.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I do not believe that it is fun. We are dealing with it in a slightly light-hearted way, but it is a very serious issue. The Bill allows a biological man to marry another biological man. That is my contention. I know that is not agreed by other noble Lords. Returning to the amendments tabled by my noble friend Lord Tebbit, just because a woman wants to be a man, whatever gender recognition certificate the person has they were born either as a man or woman and they will always be so.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the Bill allows two persons to marry, both of whom have borne children and are still capable of bearing children, and who might do so in future. If that is not same-sex marriage then I am deeply puzzled to know what is.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank my noble friend for his intervention. Perhaps I should not have caught his eye at the beginning of what I had to say. The matter is becoming more and more complicated.

There is real concern that if we create same-sex marriages, every other group of whatever kind will say that they want same-sex marriages. The option is simply for people to stay the way that they are and, if they want to go that far, they do not apply for a gender recognition certificate. People may be in a close, harmonious relationship which has existed for 20 or 30 years and they may have two, three or four children and even grandchildren. If they cannot bear the thought of breaking up and divorcing, with the assets being split and the family being torn apart, is it not better that they do not go through the process in the first place? I really cannot support the amendment.

Photo of Lord Monson Lord Monson Crossbench 4:30 pm, 29th January 2004

My Lords, in rising briefly to support the noble Baroness, perhaps I may urge your Lordships to bear in mind the well known maxim "Hard cases make bad law".

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I recollect that on this issue in Grand Committee, I started by quoting the old adage that our mothers taught us:

"O what a tangled web we weave,

When first we practise to deceive!". I then went on to get myself into a thoroughly big tangle over the difference between dodos and doornails.

I find this an extraordinarily difficult issue. I take on board entirely what my noble friend Lady O'Cathain said, as I do what I am sure the noble Lord, Lord Filkin, is going to say. But then I think to myself that, in my view, the certificate and the amended birth registration are both lies. They are simply untrue. The individual concerned has not changed sex. I might go so far as to please some other Members of the House by wondering whether he or she has changed gender. But I am sure that the person has not changed sex.

If the individual has not changed sex but, through the process of a perverse piece of legislation, he or she has been issued with a false certificate stating what is demonstrably a lie—that is, not only that that person is not of the sex that he or she is but that he or she never was—where does that take me? It might easily take me to the position where I would say, "There is no ground for annulment because nothing has happened. This man and this woman are still a man and a woman. In that case, why should the marriage be annulled?" That would get me off an awkward hook because I have the greatest sympathy with people who are in that position. I believe that if this matter were to go to a Division, I might plead for extra time so that I could sit here and finally make up my mind as to which Lobby to enter. I hate to say that because it is not a problem that I normally have. Perhaps I am suffering from voting dysphoria.

Photo of Lord Skelmersdale Lord Skelmersdale Conservative

My Lords, the names of Janet and Sarah Wood have already been mentioned in this debate. I was very surprised to see a copy of a letter to them from an official in the Gender Recognition Division of the Department for Constitutional Affairs. That letter, in part, said:

"The issue of what to do with existing marriages is a complex one"— well, that is what the whole debate is about; of course it is complex—

"and the decision to require that existing marriages should be annulled was not an easy one to make. The Government is not about undermining strong and stable relationships that have survived the upheaval of one of the parties going through the transition to a different gender. It is the marriage that cannot continue, not the relationship".

We are not talking about same-sex marriages here; we are talking about same-sex divorces, which are an entirely different thing. This sparked my interest for a totally different reason. Many of us—most of us, probably—who are present in this Chamber are, or have been, married and we went through the marriage service, part of which, I seem to remember, said:

"Those that God has joined together let no man put asunder".

That is extremely important to me. It is clear that such people and many like them are strong and committed Christians. Why should the law make them divorce? That is the issue.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, I agree with the comments of my noble friend Lord Skelmersdale, particularly his last quotation. That is what is happening. I am also sympathetic to my noble friend Lord Tebbit, who said that the longer he listens to the debate the longer he wants it to continue, so that he can make up his mind. I may not be able to help him with that, but the issue is a deceit whichever way it is looked at. We all know the reasons for it and we have sympathy for them, but it is a deceit. If a person is born a girl and has a birth certificate to say so, but later decides to become a man, the registrar has to say that the certificate was wrong and "You are now a man and you always have been". That is wrong and is a lie. The registrars are being forced by law to make a lie.

What happens if a person who was born a man, decides to change sex and become a woman, but has been living with his partner as her husband? What happens if that man, who is still biologically a man, contracts and subsequently dies from, for example, cancer of the testicles? What does the doctor put on the certificate—that the woman has died of cancer of the testicles? That is curious and one of the sort of absurd cases that will emerge. It comes back to the basic point of my noble friend Lord Tebbit—it is a deceit whichever way one looks at it.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I support the amendments, yet I find myself supporting my noble friend Lord Tebbit at the same time. I agree entirely with my noble friend Lord Skelmersdale. The key is the sanctity of marriage and the vows that are taken and supported by the state at the time of marriage—although I am still annoyed that I was not allowed to use the Anglican vows of marriage in my civil marriage service, which was an affront that I may attack on another occasion. People are married on the basis of "'til death us do part", or many of us are, and that is the basis on which marriage holds its privileges and should be respected. There are other circumstances where marriage has caused problems. There was another such problem of gender recognition when the Church of England agreed to have women priests, which led to some male priests moving to the Roman Catholic faith. They were accepted as priests with their wives, despite the rule that Roman Catholic priests are forbidden to marry. However, the sanctity of marriage was respected. It was the right decision although it created a class of married Catholic priests who could not have first become Catholic priests and then been married.

Marriage involves an important set of vows. It is an important relationship and should not be broken in such a way—even if it involves surgery. So what? A person who has his testicles shot off is not then compelled to become unmarried. It is a matter of tiny importance compared with the importance of the vows that have been taken. As my noble friend Lord Tebbit says, the reality is that they are still a man and woman married to each other, whatever they may call themselves or whatever lie may have been put on the statute book and the birth certificate. To separate and destroy that, when both parties wish to continue with the commitment that they have given, is entirely wrong.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I did not take part in the debate during Grand Committee. I want to make it clear that, bearing in mind that members of the Conservative Party have a free vote on all aspects of the Bill, I am offering my personal view of the matter.

At Second Reading, I said that to legislate for divorce goes very much against the grain. I suspect that I speak for all noble Lords on that and all will have great sympathy with the view of the right reverend Prelate the Bishop of Winchester in that regard. However, these amendments, if accepted, would mean in law same-sex marriage. That is clear and I cannot accept or support it.

I am sure that all noble Lords have sympathy for everyone who has written in. Several have referred to Janet and Sarah Wood, who wrote to a number of noble Lords. In their letter, they say:

"To allow such marriages to continue will not undermine the principle against same-sex marriage any more than the main thrust of the Bill for allowing transsexual marriages".

That simply is not true. There is a point which I am sure the Minister will make clear in response. It is that if people like Janet and Sarah really do not want to divorce, they have a choice: they do not have to undertake this process; they do not have to seek legal gender recognition. I accept that it compromises what they had sought to succeed in through the process of this legislation, but there is that strong element choice. As my noble friend Lady O'Cathain commented, they can continue just as they are. I support everything my noble friend said.

In any event, I am more persuaded by the Minister, the noble Baroness, Lady Hollis, than by the noble Lord, Lord Goodhart, with regard to the enormous difficulty of creating a whole system of welfare and benefits for what in fact will be a small number of people.

I return to relying on our obligations under the ECHR. Perhaps it is because I am a lawyer and because of those obligations that I am just able to justify what we are doing in passing this legislation.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, perhaps I may speak from these Benches with just a touch of Episcopal dysphoria. I do not quite agree with my noble friend the right reverend Prelate the Bishop of Winchester. He was sorry to have to leave for a diocesan appointment this evening. It is such a difficult issue.

I believe that it comes down to which decision would best uphold the dignity and institution of marriage in our country. We are caught between our absolute sympathy for the individuals concerned, which the noble Lord, Lord Goodhart, and my noble friend expressed, and an unholy alliance. They come at the issue from totally opposite points of view, which reminds one of some of the alliances we hear about in the other place between those on the more Right-wing Conservative Party and those on the more Left-wing of the Labour Party.

What will uphold the dignity of marriage by making every concession, which our emotions draw us to do, to the small number of individuals who are affected? Will we simply put one more nail in the coffin of the institution of marriage and the way it is perceived in society at a time when the institution of marriage is under huge pressure? That ultimately leads me to the position expressed by the noble Baronesses, Lady Buscombe and Lady O'Cathain.

I have an anxiety that to agree to these amendments now might subtly pre-judge some of the debates that need to happen under the civil partnerships Bill. The Government's consultation papers have gone too close to the notion of same-sex marriage in the way that has been set out. That representation has been made by the Churches—it is not just me saying it now. When that Bill comes before us, there is a real discussion to be had as to how civil partnerships are to be construed.

I speak as someone who is very much in favour of having a system of civil partnerships in our country to remedy injustice and bring better order into our social relationships. But the devil is in the detail in that Bill as to how those partnerships are construed. If we agree to this amendment, we could be seen to be pre-judging some of those discussions.

Photo of Lord Tebbit Lord Tebbit Conservative 4:45 pm, 29th January 2004

My Lords, I am grateful to the right reverend Prelate. I think that he has just about brought me back on side.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, this is one of the really difficult issues. I find it even more difficult because part of the privilege of being a Minister for such a Bill is that at times it is important to meet people who feel passionately about these dilemmas. Therefore, in a number of meetings people have explained to me their passionate feelings about wishing to have the gender change and, at the same time, the status of marriage. I have had the unpleasant duty—I believe this is right as well as being our policy—to look them in the eye and say, as I said at Second Reading, "We are not going to do that".

The reasons why we are not going to do that have already been stated, eloquently and clearly, by the noble Baronesses, Lady O'Cathain and Lady Buscombe, and by the right reverend Prelate the Bishop of Chester. Fundamentally, marriage means something to everyone in our society—a legal union between a man and a woman. It is a sophistry to play games and to pretend that because one does not think that the Bill is a good Bill, in some sense the two people are not married and so we can pretend that it is not a same-sex marriage. In law the position is absolutely clear: if the state, through the processes that the Bill sets out, gives legal recognition to a change of gender, then that will be, in law, the gender of that person. If we allow a marriage to continue we shall allow a same-sex marriage to continue.

One could argue that this concerns only 50 people, but I am sorry, that will not do. We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position. However, we shall do our utmost to make the process of change, for those who wish to continue a close relationship into the future, clear and possible. They will have to have a divorce; and they will receive an interim gender recognition certificate which will be turned into a final gender recognition certificate only after they have been through the divorce courts and received a divorce.

We also signalled at earlier stages of the Bill that we intend to bring in the civil partnership Bill. When that is enacted, if people so wish, they can have a legal relationship, sustaining their emotional relationship, but it will not be marriage. On the timing of that, we intend to bring that Bill into the House as a substantive Bill before Easter and, if it passes, it will become legislation and implementable by about October 2005. This Bill, if and when it passes, will become legislation by April 2005. Therefore, there will be a short gap of some six months between our best forecast of when the two Bills will be in place. Those who do not want to go into a legal limbo, awaiting civil partnership, after their divorce as a result of gender change recognition, will not need to do so; they can wait until the civil partnership process is in place. They will still be able to have the fast-track process of gender recognition, of which we have spoken. As noble Lords will know, in later amendments we shall allow the fast-track process to run for two years.

Therefore, we come back to the point that we are not forcing people to get divorced. We are giving them a choice, which is what the state should do in such a situation. It should say to people who believe fundamentally that they have a discontinuity in their gender, "We are giving you the option of legal recognition of your change of gender; you can take that if you want to; we are not forcing it on you, but you cannot pick-and-mix; you cannot have both at the same time; if you want to stay married you can"—God bless them; long may they do so—"but you cannot have gender change". If they want gender change that is their choice. There will be a facility for doing so. But they cannot stay married at the same time. That is the Government's position which we shall stay with. For those reasons—with concern for humanity, respect for the people who move the amendments and understanding of the pain of people in that situation—I believe that that is a right and principled position.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, it has been an interesting debate to which many noble Lords have made contributions about which they feel strongly. I respect the views of everyone who has spoken.

I welcome the fact that the amendment received support from the Bench of Bishops, the Cross Benches and the Conservatives Back Benches. I regret that the right reverend Prelate the Bishop of Winchester—for reasons he explained to me—has had to leave in order to attend a function in his diocese.

I found the objection of the noble Baroness, Lady O'Cathain, somewhat difficult to understand. She plainly regards a gender change as not having taken place. Therefore, there should surely be no obstacle to people remaining married who were married in the birth gender of both of them.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the noble Lord for giving way. That is not the point. I certainly did not want to force divorce. But individuals do not have to go down the gender recognition route. They can stay married with their own family surroundings and behave exactly as they do now. Were it not for this Bill, this future as regards divorce would not face them.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, perhaps I may respond to the speech of the right reverend Prelate the Bishop of Chester. He clearly regards it as a difficult issue, as I do. He thought that the sanctity of marriage was best preserved by the defeat of the amendment.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, I do not think that I used the term "sanctity of marriage" but referred to the social standing of marriage. That is a slightly different concept regarding the place of marriage in our society. However, I shall not delay the noble Lord unnecessarily.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, if the right reverend Prelate is right, the couples who are now married but where one of them wishes to change gender will divide into three classes. The first will be people who decide to retain their marriage and forgo a gender recognition certificate. They would have retained their marriage anyway. The second group will be those who divorce and enter into a civil partnership. That means giving up a marriage which is recognised by Christians as a sanctified relationship and entering into an unsanctified relationship. The third group will divorce and enter into no form of new relationship. None of those solutions advances or protects the role of marriage in any way. In this case I would much prefer to see the marriage continuing.

I have made the arguments for the issue. It is one on which I feel strongly and on which Members of my party, as well as others, have views, which they are—of course for reasons of conscience—free to express. But on this issue, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 28) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 120.

Division number 1 Private Parking: Ports and Trading Estates — Gender Recognition Bill [HL]

Aye: 31 Members of the House of Lords

No: 118 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 29 to 32 not moved.]

Schedule 2 [Interim certificates: marriage]:

[Amendments Nos. 33 to 41 not moved.]

Clause 5 [Subsequent issue of full certificates]:

[Amendment No. 42 not moved.]

Clause 6 [Errors in certificates]:

[Amendment No. 43 not moved.]

Photo of Lord Tebbit Lord Tebbit Conservative

moved Amendment No. 44:

Page 4, line 7, leave out from first "person," to "for" in line 8 and insert "an application may be made"

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I hope I shall be excused for my slight lateness; it is a hangover from finding it so difficult to know which way to vote on the previous amendment.

Turning to the amendment, it seems to me that it would be right for persons other than the Secretary of State to make such an application. We debated that in Grand Committee and, afterwards, I tried to find another way to write an amendment that would allow someone other than the Secretary of State who had reason to believe that a certificate had been issued on a false premise to seek to have it amended.

The noble Lord, Lord Filkin, suggested that the clause was not the right place for the provision, because it was concerned with amending minor—what I described as bureaucratic—details. I see the force of that argument, but hope that he will see the force of the argument that there should be some way by which persons other than the Secretary of State who have cause to believe that the certificate was issued on a false basis could apply to have it amended or overturned. I beg to move.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I shall not repeat all our discussion in Grand Committee. The noble Lord, Lord Tebbit, has helpfully focused on the thrust of his concern. As I probably said in Grand Committee—I am racking my brains to recollect it—I have not yet seen the force of the problem. I agree with the noble Lord that it is right and proper that there should be a process for inspecting, addressing and, if substantiated, redressing a fraud that someone discovers. However, such a process will exist because Clause 8 contains provision for quashing fraudulently obtained certificates.

I therefore genuinely believe that if evidence is brought to the Secretary of State that a fraud has been committed, he would be obliged to inspect the case and decide whether to exercise his powers under the clause. I should like to reflect further on that. It may be efficient for us also to have a few words to see if he would tell me what he thinks is wrong with that process or whether there are things that I can say to emphasise how that process would operate. I am with him on principle, but am struggling to see how the current legislative framework does not achieve the objective that he and I want. Can I leave that invitation to him?

Photo of Lord Swinfen Lord Swinfen Conservative

My Lords, before the Minister sits down, if such an application was necessary, to whom would that application be made? I am not clear on that.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am most grateful to the noble Lord. It seems to me that the nub of it is whether the application should go direct to the panel or to the Secretary of State who, if he thought there was a case to be made, obviously after discussion with the panel, would seek to quash the certificate under the powers in, I think, Clause 8(5). On the basis that he said that he would turn his mind to it, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Applications: supplementary]:

[Amendment No. 45 not moved.]

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 46.

Page 4, line 25, leave out from "amount" to "for" in line 27 and insert "prescribed by order made by the Secretary of State unless the application is made in circumstances in which, in accordance with provision made by the order, no fee is payable; and fees of different amounts may be prescribed"

On Question, amendment agreed to.

Clause 8 [Appeals etc.]:

[Amendments Nos. 47 to 48 not moved.]

Clause 9 [General]:

[Amendment No. 49 not moved.]

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 50.

Page 5, line 13, leave out "all purposes" and insert "the purposes of this Act"

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I return to this issue of Clause 9 and its blanket assertion that a person who gets a gender recognition certificate changes sex in law "for all purposes". It is notable that the Government chose to call this the Gender Recognition Bill, "gender" being a political term favoured by sociologists who like to think of one's sex as a fluid concept and something which can be changed. "Gender" is the word used to write most of this Bill.

However, in Clause 9 where it really counts, the word used is "sex". In law it is a person's sex that is said to change. In Committee we have had all the arguments about how ludicrous it is to suggest a person can change sex, but the Government are determined to legislate for it. However, it is not yet clear why it is that a person's sex must be changed in law for all purposes. I fear that if we leave this clause in, the law of unintended consequences will occur in spades. Who knows what speculative litigation could be launched by a person with a gender recognition certificate on the basis that he should, for all purposes, be recognised as a woman? Sadly, some transsexuals seem to be extremely litigious, and very anxious to use the law to try to force other people to accept them in their chosen sex. It may be that they have felt excluded for many years and then, having got what they think they want, wish to parade it. I think it is probably a human failing, but that seems to be the way it happens.

The reason we are here with this Bill is that Christine Goodwin insisted on pressing his case all the way to the European Court of Human Rights. Before him we had Rees, Cossey, Sheffield and Horsham all of whom sued all the way up to Strasbourg. The Government believe that they have to conform to the ruling in Strasbourg. Do they need to go so far that, in UK law, for all purposes, a person's sex is changed? Is that the case in all 14 other European Community states, or are we, once more, gold-plating? I need not explain to your Lordships what "gold-plating" means. We seem to have been doing it for ever. I base that statement on all the experience that I had in the agriculture sector many years ago.

Once the Bill becomes an Act, a man really will become a woman in law. On the second day in Grand Committee, I gave the example of the BBC programme:

"At the moment there is an example in the news of a BBC programme in which a transsexual man was referred to as a man. Press for Change, the transsexual rights group is campaigning for the BBC always to refer to transsexuals in their chosen gender".

That is even before we have the Gender Recognition Act. I also said:

"That is indicative of the Orwellian nightmare that the Bill encourages. Will people who refuse to call a transsexual man a woman routinely face that kind of hostility? Given what we established yesterday"— the first day of Grand Committee—

"which is that the Government believe that many people change their minds and revert to their real gender, or oscillate between the two"—

I must qualify that once more by saying that the Minister did not say "many"; it was the joint working party to which I referred earlier today—

"how are people to know which gender a person wants to be known as at any particular time? I say again that it is absurd to say that a man can become for all purposes a woman or vice versa".—[Official Report, 14/1/04; col. GC 64.]

There are recorded instances in the United Kingdom of individual transsexuals using legal threats to intimidate people into accepting their change of sex. Only last week, Elizabeth Bellinger, who took his case for recognition as a woman all the way to your Lordships' House threatened legal action against the Christian Institute. The institute published a briefing describing Mr Bellinger as a man, and Mr Bellinger says that that is libellous.

The Government seem to think that all transsexuals are delightful, kind and tolerant. Most people are delightful, kind and tolerant, but we cannot accept that transsexuals are different from any other sector of the population and that there are not some who are nasty, unkind and intolerant. The Bill potentially hands the more aggressive transsexuals a legal stick with which to beat those who disagree with them. We must do more to limit the scope for vexatious litigation. We must do more to prevent the courts running amok with the legislation, forcing it to new extremes of which, no doubt, the Minister would disapprove.

Later at this stage, I shall come back to crucial issues of religious liberty in respect of which clear, unambiguous protections must be put in the Bill. In the mean time, I move the amendment to find out from the Minister the purposes for which a person's sex changes. Why must the provision be so broad? Why must it make an assertion that not only conflicts with common sense but could be used in whole areas of law to force acceptance of a person's sex change on unwilling conscientious objectors? Why cannot Clause 9 say simply that the legal change is only for the purposes specifically enumerated in the Bill, which is, after all, pretty comprehensive? I beg to move.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs 5:15 pm, 29th January 2004

My Lords, in making the argument for her amendment, the noble Baroness chose, one assumes, to describe several people known to me as nasty, litigious people.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs

My Lords, she used the word "nasty". I remind the noble Baroness, if she will bear with me, of the grotesque unfairness of what she said. Some of the people she cited went to law to obtain precisely that right which, it is to be hoped, this Bill will give them. Some of those people went to law and actually won in the end, but not in their own individual cases. We are talking about only a handful of cases, which resulted in one crucial victory in the European Court of Human Rights.

I invite the noble Baroness, when she responds to the debate, to withdraw what I am afraid is the slur that she has cast upon people such as Goodwin, and Mr Rees, who is very well known to me. I invite her to reflect upon the fact that it is she—and she has used her pronouns in a way that demonstrates it—who cannot accept the legislative purpose of the Bill and that it is colouring her view of those honest people who disagree with her and have fought for their rights.

This is a House, above all, that should support people who are prepared to go through difficult litigation in support of their rights. I have never advised in such a case and I have never appeared in such a case, but I have seen some of the papers in such cases. In every one of those cases, advice has been given by some of the most eminent international lawyers in this country that there was a reasonable prospect of success. The funding of the cases depended upon such advice, and the cases were brought on that basis.

I reject the argument that the noble Baroness makes in favour of her amendment.

Photo of Lord Elton Lord Elton Conservative

My Lords, I think the noble Lord is slightly mistaken about what my noble friend said. It was not that these individuals or that the whole of this class were nasty or whatever other adjectives she used, but that they did not differ from the rest of society in the proportion who were either good or bad, in those terms. Therefore, it was not quite the black-tarred brush to which the noble Lord refers.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Shadow Minister, Welsh Affairs

My Lords, I am certainly prepared to accept that it may not have been quite the tarred brush to which I referred. Of course I will read the noble Baroness's words with great care. I will be the first to apologise if I have misunderstood either the words or the import of those words, but at the moment, I am afraid, I will take some persuading.

The noble Baroness is missing the whole basis of legislation. Legislation does not change our consciences at all—it merely confers legal status. When it says in the Bill "for all purposes", it means for all legislative purposes. We cannot change the cast of the noble Baroness's mind, if that is the cast she chooses to adopt on this issue. It can be cast in bronze, indestructible. I would not pretend that I could destroy the indestructible cast in her mind on this issue.

Please may we at least have some intellectually sustainable argument on these points? It is my belief—and I regret having to say this, but I feel extremely strongly about the way in which the argument is put—that we have not had intellectual robustness on this point; we have had an amendment presented on an entirely untenable basis.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I support my noble friend. I do not pretend to know much about sex changes; I really came here to support Amendments Nos. 99 to 101 and to support the exception of religious bodies. However, I have listened to the argument and knowing, as I say, not very much about sex changes, it seems to me that we cannot be concerned with whether people are nasty or litigious or whether they receive advice from distinguished international lawyers. I was rather upset at the way in which my noble friend Lord Carlile put his objections, but that is beside the point. What matters is not the way in which objections are put or exactly the way in which the case is put for the amendment, but what the legislation actually entails. That is what I find difficult to understand.

I have never seen a statute quite in this form before. The Bill says "becomes for all purposes", and it is not limited to the purposes of the Act. I do not understand what all the purposes are if they are other than the purposes of the Act. If they are other than the purposes of the Act, why are they dealt with in the statute? I hope that I am not being tiresome, but I feel that this is a curious way in which to legislate. I listened to my noble friend's argument, and it seemed to me to make total sense. If one casts aside irrelevant considerations about the quality of the persons that we are talking about, which is really nothing to do with the Bill, I suggest with respect that the amendment should be accepted.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I sought to set out in Committee that the Bill's basic principle is that the issue of a gender recognition certificate by the judicial panel would mean that a person's gender becomes for all purposes in law the acquired gender. That is in truth the absolute heart of the Bill; in essence, after the process of inquiry and testing, which we have discussed at length today, when or if the panel comes to that conclusion that the tests set out in the Bill have been met, the person's gender in law becomes for all purposes the gender as granted by the Act. That is the central thrust of the Bill.

Clause 9 allows for relative simplicity in the Bill itself. It contains a general proposition about the effects of the issue 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. Why does that matter? It matters because, pretty obviously, we have been legislating for hundreds of years with reference to gender. There are literally thousands and thousands of references to gender in legislation.

There is nothing malign here. In a sense, this is the reverse of our previous debate about marriage. The intent of the Bill is that if gender has been changed and a person is recognised in law as a woman as a result of the process, they are a woman for all legal purposes relevant in other legislation.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, does the Minister mean for all purposes recognised by law?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I do exactly, yes. That may be of some slight comfort. For example, because there is reference to pensions and benefits within the Bill, it is clear and transparent that the Bill would apply to pensions and benefits. However, if we passed the amendment, it would mean that the Bill would not apply to all the other thousands of situations in which gender was recognised and which had a relevance in law. That would mean legal chaos, which I do not believe was the intent of the noble Baroness, Lady O'Cathain, with this amendment. Her amendment at heart goes into issues that we shall discuss later relating to the social or religious situations in which it is or is not legitimate to discriminate. Without prejudging those issues, we shall come to them; it is important that we test them.

Photo of Lord Monson Lord Monson Crossbench

My Lords, the Minister said that if the Bill became law a man who changed his sex would become a woman for all legal purposes. Is it not the case that the Bill provides that he will not be entitled, if he becomes a woman, to start drawing his pension at the age of 60? So it is not really for all legal purposes.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

No, my Lords, not so. He would become entitled to draw his pension at the age at which a woman can, so it is an exact parity. We have sought to make that clear because it seems to us that there should be an absolutely clear, black and white position. It works both for and against people, but it follows the gender.

I turn to the question of the noble Baroness, Lady O'Cathain, about what other countries do. All the other members of the Council of Europe, not the European Union, with the exception of Ireland and Albania—we found one more—already have a recognition system in place. Not all countries have passed legalisation to enable gender recognition to occur. Some rely on the courts or on administrative processes. Our laws and constitutional arrangements quite properly require us to legislate to require recognition of the acquired gender.

We touched on the question of whether we are gold-plating. The European Court of Human Rights made it quite clear that the recognition of a change of gender meant recognition of a new gender in law. The court specifically mentioned the areas of birth registration, access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. We can ensure compliance with international obligations only by ensuring that a person has recognition for all purposes. To avoid doubt, even if we did not have that obligation, we would want, as a position of policy, to be consistent on this. I shall say no more on that.

The noble Baroness also asked whether people who refuse to call a gender-changed man by the changed gender would be open to action. No, they would not, unless they had information about the person's gender history in an official capacity and they disclosed it otherwise than is allowed for by Clause 21.

We shall come to some of the other issues later on in our discussions and I hope that the noble Baroness will withdraw at this point.

Photo of The Earl of Erroll The Earl of Erroll Crossbench 5:30 pm, 29th January 2004

My Lords, before the Minister sits down will he say whether, if a man changed his gender at 60, to claim a pension early, and then changed it back at 65, it would be regarded as fraud?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, if a man changed his gender to a woman at 60 he would not be able to change it back to a man at 65, unless the tests set in law by the gender recognition panel were met. As we have signalled in previous discussions on this very small proportion of cases, the panel would look very closely at whether the tests were met: that there was gender dysphoria and a permanent intention and that they had lived in the changed gender for two years. It would be fraud if, as a result of that process, it came to light that evidence that he had given to the panel as part of the first application had been dishonest. In theory, the fact that he had applied to change back would not automatically mean that there was fraud. It would depend upon whether he had given fraudulent information to the panel.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, would the Minister have been able to accept my noble friend's amendment if she had used the words of my noble friend Lord Campbell; that is, "all purposes in law"? Would he have found that satisfactory?

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I would like to thank practically everyone who took part in this debate. I shall start by referring to what the noble Lord, Lord Carlile, said. Frankly, he wholly misrepresented what I said. I did quote the names because I said they were litigious. I also said that one should not think that some people are litigious for the right reasons at times. I never said anything about the people who had litigated. I said that, like in the rest of the population, there are some nasty, vexatious, and all the rest of it, people. I definitely said that. Then I was accused of having a mind cast of bronze. He said that I would never be moved. I think that that is most unfair. I hope that the noble Lord, Lord Carlile, will reflect on what he said. If he knows anything at all about me, he knows that I am very ready to listen to arguments and that I do change my mind—it is, they say, a woman's privilege, although I do not back that. The reality is that I do listen to the strength of the arguments. The opinion of Lord Carlile, as expressed in your Lordships' House tonight, is that I am absolutely immovable—that I get hold of one set of ideas and am not prepared to budge. That is quite wrong.

I say to the noble Lord, Lord Carlile, that third party interests are involved. I refer to litigation that has been instituted against religious bodies, which I shall discuss on later amendments. The Christian Institute is being sued. There seems to be no compassion in the noble Lord's mind regarding those who have been sued by transsexuals. It occurs to me that perhaps the only people we are worried about are transsexuals. We want to be sympathetic towards transsexuals and we want them to be embraced by the whole of society. We want them to be content as they have obviously undergone a huge amount of trauma. I do not want to say that transsexuals experience mental problems as I shall be taken to task on that, but I appreciate that they experience unease and lack calmness. We want to try to avoid that situation. I am the first to say that we accept that these people are genuinely worried about their situation and that we must do what we can for them.

I return to the amendment. I thank my noble friend Lord Campbell of Alloway and particularly my noble friend Lord Elton for standing up for me. I also thank my noble friend Lord Marlesford. I should also like to thank the Minister very much. We had a bit of a canter round this course yesterday afternoon. I gave him notice of the points that I intended to make with regard to the practice in various countries. It is interesting to know that there are only two countries in the Council of Europe, Ireland and Albania, that do not have a system in place vis-a-vis gender recognition and that they would approach the matter on a case-by-case basis. I have a lot to do with one of those countries but nothing to do with the other. I can see the merit in that approach.

I am still very concerned. I shall read everything that was said. I was slightly knocked off course by the first contribution to the debate after I sat down. Therefore, I am not perhaps doing justice to what the Minister said. However, I shall read what he said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 51 and 52 not moved.]

Clause 10 [Registration]:

[Amendments Nos. 53 and 54 not moved.]

Schedule 3 [Registration]:

Photo of Lord Tebbit Lord Tebbit Conservative

moved Amendment No. 55:

Page 17, line 18, leave out "not"

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, Amendments Nos. 55 to 67 relate to Schedule 3. They are all designed to reverse the duty of secrecy placed on the Registrar General.

It seems to me that in logic the amendment to the birth certificate of an individual who is judged to have changed gender should be dated on the date on which that event occurs. It seems to me fundamentally wrong that it should be dated at the date of birth of the individual. This Bill, of course, legislates otherwise. That persuades me all the more strongly that there should be on grounds of public interest a general right to know that the register of births has been amended. The register of births is itself a public document. It is a document of record, of fact. It seems to me that it should not be allowed, or required, that an amendment to it should be secret.

Amendment No. 114 would amend Clause 21 and would provide a public interest defence for a person who discloses information in addition to that listed in subsection (4). Again, it seems to me that there is a public interest issue here. We should not penalise a person who comes across information in the way described in Amendment No. 114 and who then realises that in his view it is in the public interest that it should be disclosed. We should provide a defence for him to do that and he should not be penalised for it. It should be for a court to decide whether it was a genuine belief that it was in the public interest which caused him to disclose. We went around this matter very briefly in Grand Committee when I was unable to be present. I believe that the Minister did not go very deeply into the arguments against these amendments at that stage. I beg to move.

Photo of Lord Elton Lord Elton Conservative

My Lords, I support the point that my noble friend made. A certificate which does not in any way reveal the fact that it is different from the one issued at birth is mendacious. It is making a false statement in law. It is extraordinary that we should be asked to do that. If I am wrong I apologise, but if I am right I am adamant.

Photo of Lord Chan Lord Chan Crossbench

My Lords, the information is important particularly if there has been a change in gender from the medical viewpoint. 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. It is an interesting fact which has come to the notice of blood transfusion services and of clinical haematologists.

Therefore, as regards health the original birth certificate should be produced because it will determine whether we are dealing with a man or a woman. There is a transfusion reaction which arises particularly when a woman has had one or two children. I accept that this reaction to female blood is exceedingly rare. But 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.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, despite the fact that the noble Lord, Lord Tebbit, almost supported my recent amendment, I am unable to support his. In this case it is important that people who are transsexuals should be entitled to privacy. It is a condition which attracts a good deal of hostility. In many cases there will be a fairly large circle of the transsexual's friends and family who will know anyway. No doubt it will be a matter of general knowledge. But it is not desirable that the ability to find out facts of this kind should be increased.

I am particularly concerned about Amendment No. 114, which adds another defence to prosecution for disclosure under Clause 21. It seems to me that it is plainly right that people who come by information about transsexuals in the course of their official business should not be allowed to make disclosures of it except in clearly controlled circumstances. I do not consider that a subjective belief that disclosure is in the public interest would be a satisfactory ground for exemption from the criminal penalties.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 5:45 pm, 29th January 2004

My Lords, I am not happy with the amendment, and was about to say so, for the reasons given by the noble Lord, Lord Goodhart, concerning the protection of privacy. He put it so much better than I could have done. However, I am particularly worried about a gender recognition register being open to certain sections of the press, which could well, apart from the medical considerations, use it for wholly improper purposes with total impunity as a public document. I am worried about the amendment.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, we legislate against many things that we dislike, such as racial discrimination and discrimination of many other kinds, but we have not tried to rewrite the fact of what people are—that is, we have not tried to redefine people as being something else. It concerns me that we are trying to turn matters of fact into something else. One cannot legislate to change history, but that is the effect of what we are doing. Once we start down that path, what else shall we redefine retrospectively?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, these amendments were spoken to in Committee by the noble Baroness, Lady O'Cathain. Essentially, they state that other people should be entitled to know about a person's change of gender, that all new birth certificates should be marked to indicate that a change in gender has taken place, and that the gender recognition register should be open to public inspection. In addition, Amendment No. 114 states that that information can be disclosed if the person disclosing it believes it to be in the public interest to do so.

Perhaps I may quickly respond to the precise point raised by the noble Lord, Lord Chan. Guidance will explain to transsexual people the medical risk that he mentioned—I am pleased that he did so—and it will state that they must make the risk known when presenting to hospital. The same protection applies to a person who is, say, allergic to penicillin. However, if the noble Lord feels that that is not a sufficiently full answer, we shall be happy to engage in correspondence with him on how to provide the medical protection that we all agree is necessary in those situations.

Photo of Lord Swinfen Lord Swinfen Conservative

My Lords, perhaps the noble Baroness will be kind enough to give way. She is saying that the person who has changed gender should advise the hospital. But what is the position if people are taken into hospital unconscious and are unable to advise those who are looking after them or if they have a mental problem which, again, means that they are not in a position to give such advice?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, the situation may be no different from that of someone who is at risk of being allergic to penicillin but is not able to disclose that information. However, as I said, because this is a very precise point and because I very much respect the concerns raised by the noble Lord, Lord Chan, on this matter, we shall try to give a general assurance through guidance. I am happy to follow up this matter to make it more robust as obviously no one wants the type of situation anticipated by the noble Lord, Lord Swinfen, to arise. However, it is not unknown, in a whole range of circumstances, for medical practitioners not to know about a problem that a patient may have if he is unconscious or has a severe mental health difficulty. Established protocols exist to deal with that situation.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I do not believe that that was the point raised by the noble Lord, Lord Chan. It is not the people who have changed gender who will be at risk; the point is that they will pose a risk by giving blood to a third party. They may give blood and wish to conceal their gender change, thereby putting a third party, who knows nothing about it, at risk. If it were the other way round, I would not have a problem.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, I was trying to cover both contingencies. The noble Lord, Lord Chan, raised the question of the risk to another person—a matter which I hope would be covered by the guidance to that transsexual person. The point that the noble Lord, Lord Swinfen, made concerned the equivalent of someone being unconscious and therefore being at risk. There, I was trying to make the analogy with a person who is allergic to penicillin. However, perhaps I may follow that up in writing and, if the noble Lord, Lord Chan, or other noble Lords feel that we have not addressed the issue satisfactorily, we can obviously pursue it because we would not wish that risk to be realised.

Perhaps I may return to the core of the amendments of the noble Lord, Lord Tebbit, and the argument put forward in Committee by the noble Baroness, Lady O'Cathain. The argument was that there can be a public interest, if a person so believes it, in being able to find out, disclose, and claim a public interest defence as regards someone having changed their gender. If we do that I do not know where we stop on the line between privacy and outing. It could end up like the pursuit of witchcraft. I have thought about the amendment and I believe that it cannot hold.

It would allow any person to disclose that protected information on his or her own understanding of the public interest. Any parent might think that it was in the public interest for other parents to know about a teacher in a school; any landlord or neighbour might think that it was in the public interest for other neighbours, tenants or residents to know; any employer who knew that an employee was transsexual might think it was in the public interest for other employees to know that; the secretary of any voluntary society might believe that it was in the public interest for any member of that society to know. I am sure that any tabloid newspaper would believe that it was, if not in the public interest, of public interest for everyone to know.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I am sorry to interrupt the noble Baroness, but she gave an example that a parent might wish to tell other parents at a school that one of the teachers was a transsexual. It is regrettable, but I do not believe that that would be an offence under Clause 21, because it might apply only if the parent had acquired that information in an official capacity. If they simply happened to know, that would not be an offence.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, that is not correct. It refers to a person in a public capacity; but the point is that if one opens up records in such a way, then there is no protection against people having access to that knowledge and claiming a public interest defence, should they need to, after spreading the knowledge about. The amendment means that anyone who is a transsexual could not expect or hope to live a life of privacy. If anyone could check any birth certificate and then spread that information, whether they are in a public or private position, because they have access to that relatively freely available information, I do not see how the line between that and fully outing any transsexual can be drawn, because someone will always argue that it is in the public interest of other people to know. I find that impossible to defend, because everyone would have a different version of the public interest, according to their subjective, personal belief—however genuine that may be.

I do not believe that Amendment No. 113 has been spoken to and the right reverend prelate the Bishop of Winchester has not spoken to his amendment either, because he is absent. Having made that argument, I hope that the noble Lord, Lord Tebbit, will not pursue the amendment further, because if he does, the right to privacy, which is currently protected by the restrictions around information on birth certificates and others, would be blown apart by anyone who wished to find out. That would leave no transsexual person comfortable in their right to privacy.

Photo of Baroness James of Holland Park Baroness James of Holland Park Conservative

My Lords, before the Minister sits down, I would like to ask a question. I apologise to the House that I did not attend the Grand Committee. We know that certain illnesses—including those that are dangerous and horrible—are passed down through one sex only. The noble Lord, Lord Chan, could confirm that haemophilia is one such condition. Would descendants of a woman with haemophilia, who had changed her sex, have the right to ascertain that fact?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, certainly the immediate children would know, because they would be the offspring of that person. The question is relevant to an amendment to be moved later by the noble Baroness, Lady Buscombe, which says that if someone has the date of birth and the original name of the person they can check that record, thereby obtaining the information on a "need to know" basis for the descendants of that family.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, this has been an interesting short debate. I am enormously grateful to the noble Lord, Lord Chan, who lit a candle of light in a dark room. He said that whatever the certificate states, whatever the legal status of a person's sex, he or she is still of the sex into which they were born. If someone was born a woman, she is carrying a woman's blood and that is it—end of message, complete and absolute. That so conflicts with everything in the Bill, it undercuts the basis of the Bill and all the arguments that have been put about it. He was saying that one's sex is immutable. From my inadequate understanding of these matters, I had always believed that and it is greatly comforting to me to have that assurance from the noble Lord, Lord Chan.

I turn to the arguments that have been made and the talk of "outing" people. The first thing we must understand is that a very strong case indeed must be made that the kind of information that is held by the state should be maintained secret. That conflicts with the very idea of a Freedom of Information Act. It absolutely and completely conflicts with that. I believe that there should be a right to know.

My noble friend Lord Campbell of Alloway is right in saying that it is most inconvenient that we have in our press some people who would want to use the information in an unpleasant and unfortunate manner. But that is true of all information that can be extracted about anyone. One might equally well say that divorce should be kept secret; that no one should know that a person has been divorced; that no one should know that his or her parents were not married; and that no one should know—one can go on and on.

I do not believe therefore that transsexualism is so different from all the others that we must totally reverse our normal ideas on the right to know. In any case, as the noble Lord, Lord Goodhart, said, a large circle of people would know. It will not be made a punishable offence for those who know already to tell others who do not, so the information will spread. In any case, it cannot be kept secret. We are saying that as regards the state the normal ideas and attitudes that are embodied in a Freedom of Information Act should be stood on their head. I do not believe that that is right.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I am obliged to the noble Lord for giving way. In relation to what he is saying about freedom of information, I am wondering whether we have joined-up government. I understand that the Government are to make it possible for sperm-donor fathers to be named. It seems that we have in the Bill an attempt at concealment while on the other hand there is an attempt to "out" the sperm-donor fathers of children. Does the noble Lord agree that we do not have joined up government?

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the noble Lord, Lord Stoddart, is right; the Government are facing in two directions at once. They have got themselves into a totally illogical position.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, perhaps the noble Lord will allow me to intervene. The reason the Government face in two directions at once is because, as everyone in your Lordships House will accept, there are two pieces of legislation. One is the Freedom of Information Act, which is the right to know, and the other is the Data Protection Act, which protects sensitive, personal information. Under freedom of information and the right to know, for example, the noble Lord, Lord Tebbit, has no right to the knowledge of any of our private medical records. That is protected by the Data Protection Act.

I accept that it is a matter of balance. In any walk of life there would be a balance between the right to know and the protection of personal, private information. Given all that we know about people seeking to live with an acquired gender—let alone other people, whether alleged paedophiles or whoever—I believe that people have a right to the protection of their personal information unless and until the need to know falls within very defined categories; I refer, for example, to the investigation and prevention of crime and the matters that were discussed in Committee. That is where the Government have drawn the line.

Photo of Lord Tebbit Lord Tebbit Conservative 6:00 pm, 29th January 2004

My Lords, the noble Baroness has every right to inspect my birth certificate and she has every right, when she inspects it, to believe that what it says is true and correct. In the case of a transsexual she said that if anyone inspects his or her birth certificate, that person would not have the right to know that it falsely represents that the person was born male when the person was born female or vice versa. It seems to me that there is a case for saying that such information should be freely available.

The Minister was very dismissive at one stage about the circle of people who had some right to know and who would know. In that she included the offspring. Of course she is completely wrong. What about the case of a marriage that has broken up, where the father has left and, as usual, the mother is left with the children? The father goes away completely, becomes a transsexual and his birth certificate is amended; the children and the mother make no contact with the father; but eventually the offspring track down their parentage—most people want to know about their parentage; they find that they were born to a father, Mr Joe Bloggs; and they find his birth certificate, but it says that he is a woman. Do they have the right to know how that has come about?

Photo of Lord Elton Lord Elton Conservative

My Lords, would my noble friend enlighten me as to what the birth register, of which the birth certificate is a copy, would say? Would the register be amended as well as the certificate?

Photo of Lord Swinfen Lord Swinfen Conservative

My Lords, before my noble friend answers my other noble friend, surely if the offspring are unable to find a birth certificate showing that their father was male, they may believe that they were born out of wedlock and therefore bastards.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, as I understand it, that particular description of being born out of wedlock is no longer one that we use. It certainly is not true that the offspring will necessarily know of those matters, but it is certainly true that they ought to know of them. Of course, if they go to the registrar and seek a certificate, they will receive a copy that is a false copy. That is the heart of the matter. As I understand it, the registrar would commit an offence if he told an inquirer that it was a false copy. I believe that that makes a very strong case that there should be an obligation on the registrar to disclose. There should be an obligation on the registry not merely to be true, but to be true and open to everyone who inquires about the matter. There should not be two classes of persons: those who have discovered the truth, perhaps through gossip, and those who seek to discover the truth by applying to the registrar, who should be the custodian of the truth.

Photo of The Bishop of Chester The Bishop of Chester Bishop

Does the noble Lord consider that the distinction in this case, and in all the other cases to which we have referred, is that a genuine medical condition is being addressed by this process and that the presumption of secrecy applies in the case of all medical processes? I recognise that the noble Lord does not acknowledge the validity, authenticity and truthfulness of that medical condition. The plain fact is that the strong, predominant—although not unanimous—balance of opinion is that there is a genuine medical condition. For that reason, the presumption of secrecy should apply unless there are recognised reasons—we shall discuss these matters on later amendments—that a balancing of right needs to take place. Generally speaking, I believe that the presumption of privacy goes alongside the recognition that there is a genuine medical condition. That is at the heart of why the Government are so proceeding.

It is one of the areas where a practical matter touches upon the deep division of opinion as to whether the process of gender reassignment is to be recognised. As so often is the case, it is practical matters which bring out those divisions rather than theoretical discussions.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, before my noble friend sits down perhaps I may ask one question of him on a point that he raised. A person asks the registrar, "Can I see my father's or mother's certificate?" It is a changed certificate. If that person were to ask the registrar, "Is this an original or is it changed?", is the registrar not bound to say, "No, it is an original", in which case is not the registrar obliged to lie?

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, yes, the registrar is obliged to lie. I say this to the right reverend Prelate. Yes, there is a controversy in the world of medicine as to whether it is a medical or psychological condition. We also know that the world of medicine changes its mind quite frequently, sometimes in a spectacular fashion as we have seen recently in the press in relation to cases of infant cot deaths, and matters of that kind.

We have to go back and say that the birth certificate should record what is true. If a birth certificate states, as the Bill provides that it should, that where a person was born as a female, has borne children and subsequently has suffered from transsexual dysphoria, the birth certificate which would be shown on any inquiry would say that that person was born a male. That is manifestly untrue. There should be a very high threshold for us to legislate that something which is manifestly untrue should not only be certified as true but that all mention of it being untrue should be concealed. That is the point.

I place a considerable regard upon truth. If there is a conflict between truth and untruth I think that the House should come down on the side of truth even if it is uncomfortable.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, clearly we need to hear the Minister's response. There has to be demonstrated a contemporary relevance for the information to be made available pertaining to the birth gender—or whatever one wishes to call it. I do not think that there is a case for the general availability and openness of the register.

Photo of Lord Tebbit Lord Tebbit Conservative

No, my Lords. A case has to be made not for the release of the information but for maintaining secrecy about the information. I think that is a different balance, but I do not wish to detain the House longer. I can see that the noble Baroness is slightly uneasy. Was she intending to rise?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, I wish to intervene because the debate has gone in a direction that I had not expected. In a way it trespasses on a subsequent amendment. I thought that a lot of these matters would come up then.

Basically, there will be two birth certificates. The original birth certificate will not be destroyed. If someone goes to the registrar he could be provided with a copy of the certificate requested. The original birth certificate remains. Anyone knowing the original name, date and place of birth—as one would expect a child or grandchild with access to relatives in the family to know—would be able to obtain it.

The certificate consists of either the original birth entry or the entry on the gender recognition register, which is the alternative. Both will be genuine. There can be no question of the registrar having to lie. So the original records are there. Those who are privy to such information—usually because they are the son, daughter or a grandchild, and it may have some concern for them if there is a medical history and so on—would be able with that information, as now, to get to the original records. But if we do not have that—so to speak—firebreak, there is no protection to privacy.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, there is no protection to privacy about one's birth anyway. I do not see why one group of people should have it and not others. But I am concerned that we have had an exhaustive discussion about this issue and I would not wish to carry it further.

However, I might leave one thought with the noble Baroness; that is, if we are not careful this will play merry hell at some stage with those who go in for genealogical research, unless we can be sure about it. Perhaps there should be a sunset clause somewhere which states that after 100 years or so the information is freely available.

That is not related to my original point but it had occurred to me. With that thought in mind, and in the interests of getting on this evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Buscombe Baroness Buscombe Conservative

moved Amendment No. 56:

Page 17, line 19, at end insert "during the lifetime of a registered person"

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, this group of amendments deals with the rights of third parties. Indeed, some of the debate that has just taken place may see some light when we discuss these amendments.

Basically, these amendments are in two parts. The first group relates to determining the timing when details in the register can be made public; that is, to the general public. The other amendments relate to the family.

First, I deal with the amendments which relate to the public. Amendments Nos. 56, 62, 72, 74, 77 and 79 determine the timing when details in the register can be made public. In Grand Committee we suggested in our amendments that details should be made public and generally available after 75 years. Our amendments have changed to suggest that the information should become generally available, but not within the lifetime of the applicant.

Indeed, the noble Lord, Lord Carlile, first made the proposal during our debate in Grand Committee. In response to that suggestion the Minister stated that the proposition "during the lifetime" and not during the lifetime of the applicant may be useful.

My purpose in tabling these amendments on Report is because I am looking to the Government for reassurance that this proposal really will be seriously considered.

In Grand Committee, the Minister explained that a consultation period on civil registration records, as such, finished at the end of October 2003, a major part of which sought views on the ways in which records of births, deaths and marriages should be held and accessed. I accept that and indeed welcome that that review has taken place. I seek reassurance from the Government that this matter is being taken seriously with regard to the Bill. It is unfortunate that the Minister has so far felt it preferable to await the outcome of that consultation process rather than to include something specific on the face of the Bill.

I turn to Amendments Nos. 68, 76 and 82. These amendments relate to the rights of families. They would make provisions in England, Wales, Scotland and Northern Ireland so that with the consent of individuals holding gender recognition certificates, or following their deaths, a child or grandchild could be provided with a copy of the original birth certificate. I stress again—my noble friend Lord Tebbit may be interested to hear this; it is an issue on which he asked questions in the previous debate—that we are looking to the question of whether, and if so when and by what means, members of the family can have access to the original birth certificate.

In Grand Committee, the Minister responded that the family is able to access information about the name and date of birth. The Minister said that if a member of the family knew the name and date of birth, they would be able to obtain a copy of the birth certificate. In a sense, that is a good answer. However, where does it say that in the Bill? It is clear from paragraph 3(4) of Schedule 3 that information kept by the Registrar General for the purposes of sub-paragraph (1)(c)—that is, information to make traceable the connection between the entry in the gender recognition register and the UK birth register entry—is not open to public inspection or search.

However, some of the difficulties that we are debating arise from the fact that so little of that is clear on the face of the Bill. I have spent some considerable time trying to understand the process with regard to what happens to the original birth certificate and where it is kept. The Minister has been very forthcoming and helpful in confirming in writing to me and other noble Lords that, for example, the original birth certificate is not altered or destroyed. However, it is regrettable that the process with regard to what happens to the original birth certificate is not clear on the face of the Bill. I therefore urge the Government to think again about making clear on the face of the Bill who can access what information and by what means. I beg to move.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs) 6:15 pm, 29th January 2004

My Lords, I rise to say that although I think the amendment is defective because it refers to the register as a whole, I have sympathy with the ideas behind it. Since the concealment of information is due to the wish to maintain the privacy of and prevent embarrassment to an individual during his or her lifetime, in due course that information should be made available for the purposes of the historical record. The question of what is the right time to make it available may be open to debate. It certainly would not be appropriate during the lifetime of the person concerned, but it may be after death or at least after a certain interval after death.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, there are two separate issues. The first concerns access to information, which may or may not be medical, for the immediate descendants of that family. The second issue concerns the point at which the information becomes a matter of public record, so that genealogists and historians can track family histories. In a way, those are separate issues.

In Committee, we gave reassurances on the first issue and spoke to the question of the noble Lord, Lord Tebbit. The original birth records will not be destroyed. As now, the original birth record will remain in existence and be available for inspection to anyone who has the relevant birth details: name, date of birth and, usually, place of birth. It is difficult to conceive of a situation in which that information would not be known to the spouse or members of the family and therefore available to children. I think that the noble Lord wants to intervene.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the noble Baroness recognises the mischievous look in my eye. Why should the record be maintained? If a certificate has been issued to say that it was wrong and that the person was actually born in the old sex, why not alter it and throw away the old record? Or is the noble Baroness a bit unsure of her case?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, my grandmother had a house in Plymouth that was bombed during the war. Opposite was some land that was also bombed and was cleared. Subsequently, new housing was built on it. As a result, her address went from No. 76 to No. 82. Both were true statements: No. 76 applied until the bombing; No. 82 applied after the rebuilding. Both were true statements; as a result, no lie or deception was involved.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the noble Baroness gives a very good answer, except that no one says that the date on which the number of the house was changed was the date on which it was originally built. The number changed after the house was bombed.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, we could continue to discuss the state of my grandmother's house opposite the Marine barracks, which would be fun. My point is that information can be changed in that way and still remain authentic.

As for the wider issue of when the information would become more widely available—to people other than children and grandchildren with the detailed knowledge that one would expect family members and only family members to have—whether after 75 years or in the person's lifetime—

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I am grateful to the Minister for giving way. Perhaps I may foreshorten her response by asking whether, if, for whatever reason, we cannot have the information in the Bill, we can have it in the guidance.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, I am not sure whether Pepper v Hart will do this for us, but I should have thought that our helpful exchanges in Committee and on Report should serve that purpose. If not, I shall take further advice, but I understand that when judgments are made on such issues, the context of parliamentary debate and the parliamentary record to that effect are taken into account. My understanding is that that should serve the noble Baroness's purpose; it certainly has done for previous Bills with which I have been involved. If not, we will return to the matter.

I sympathise with the point about genealogy. As someone who has been involved in historical reconstruction, and so on, I, too, would like access to such records. We mentioned in Committee that consultation is under way on civil registration reform, a major part of which seeks views on how records of deaths, births and marriages should be held, assessed and released. Some people are concerned about ethnicity as a source of information in records. We may or may not need information at that level of detail.

In Committee, we asked the noble Baroness and now ask the noble Lord to let us take the issue on board as part of that general review, rather than seek to prejudge it. I am entirely sympathetic, but any rule—whether for after 75 years or even after a person's death—could produce distress to others such as descendants. We could argue about how we weigh that against the need and right to know when the individual is no longer alive, but, given that the review is under way, we prefer, and think it reasonable to ask, to submerge the issue within the general review of civil registration reform.

No doubt when and if a Bill is introduced, the noble Baroness and the noble Lord can move amendments if they feel that their concerns have not been met. Given that the review is current, it is unhelpful to try to subtract that issue in advance.

Finally, I refer the noble Baroness to paragraph 32 of the Explanatory Notes.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I thought Pepper v Hart only applied if there was ambiguity on the face of the Bill or a conflict with European law? Otherwise, what is in the Bill applies and you cannot look at Pepper v Hart.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, as far as concerns Pepper v Hart, if there is any ambiguity or division of opinion as to what may be the situation, then, as I understand it, you may refer to the columns of Hansard in so far as they clarify the policy intent of Parliament.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, before the Minister sits down, could she also clarify one point for me? It relates to what my noble friend Lord Tebbit said. He said that when you go down to inspect the register, if the birth certificate has been changed, why keep the original? The Minister says there are reasons for that, but does that not mean that there are then two birth certificates—the original one and the amended one? If so, what is the point of saying that nobody must refer to the original if it is still there?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, this is all about privacy and the right to privacy circumscribed by certain considerations—national security, crime, public health—that may impinge on that. There are indeed two birth certificates. People would have access to the acquired gender birth certificate. It would not be distinctive in any way. But the original one would exist in the same way as when studying the maps of Nottingham, I found that streets that later got called Corporation Street were originally known as Asylum Lane. I did not, as a result, suggest to my students that they got rid of the original maps. They kept both sets.

Photo of Lord Swinfen Lord Swinfen Conservative

My Lords, surely the birth certificate is a certified copy of the entry in the register of births. Is the Minister saying that that original entry is to be changed?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, no. If someone goes there they do not inspect the full register; they get a certificate. They will normally get the certificate of their new acquired gender. I suspect that the transsexual person will get half a dozen copies of these birth certificates for passport purposes or whatever. The original records remain. People who have exceedingly detailed information—the name, date of birth, place of birth—would also have access to the original records. These are likely to be members of the immediate family. Both of those birth certificates are legitimate. But nobody has access to the full register until it is generally released.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I thank the Minister for her response and also all noble Lords who have taken part in this debate. It is clear that there is a genuine lack of clarity with regard to what happens to the original birth certificate and the whole process of accessing the information either on the part of the family or for the public record. With regard to the public record I accept what the Minister has said. I agree that we should wait for the results of the general review of civil registration and approach this issue when we discuss civil registration reform.

I would urge the Minister to consider my suggestion for having in the guidance a clear set of instructions or explanations as to this whole process. One of the reasons why this issue has been put down again on Report is that I have personally been asked by a number of noble Lords what actually happens with this situation. When the Bill was first published there was enormous concern as to whether this meant that the original birth certificate would be in some way destroyed or altered. I have to say that if that were the case I would certainly have great difficulty in supporting it. It really would be rewriting history.

I accept what the Minister has said. I do not want to delay the House, but I urge the Minister to consider making it as simple as possible for all of us, particularly applicants for gender recognition, to understand the process that they are entering into. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 to 65 not moved.]

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 66:

Page 18, line 28, at end insert "without the consent of the person to whom the entry relates"

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, this group of amendments is split into five separate groups. I had every intention of speaking to the whole lot together, but, by leave of the House and after consultation with both Front Benches, I will try to get through as many as I can. In moving Amendment No. 66, I shall speak also to Amendments Nos. 75 and 81. All the amendments deal with religious issues in the Bill.

The Bill takes away rights from religious people. By giving transsexual people an officially altered birth certificate, it creates an official way of concealing their true sex from religious groups that they might try to join. That is an issue of great religious importance. As Christian teaching is that sex is determined by God from conception, Christians believe that to reject one's God-given sex is to reject God's will for one's life. They also believe that the male and female sexes reflect the image of God and that to attempt to switch the two is a desecration of the image of God in oneself.

If one is in a Church that teaches that, it matters very much whether a person really is the sex that they claim to be. If someone considering an application for membership, which means being an integral part of the Church's fellowship, has any doubts, they need a way of getting to the truth. At present, a person who attempts to conceal his true sex from a Church does not have the assistance of the state. A Church can, like anyone else, obtain from the Registrar General a copy of the person's birth certificate, which will state their true biological sex. If somebody presents under a false name and sex, there will be no birth certificate for that person. That will set alarm bells ringing. If the person is asked to produce a copy of his certificate, he must either decline, in which case the Church can draw its own conclusions, or present the real thing, which tells the truth. When the Bill becomes an Act, such a person will be able to give the Church a birth certificate that conceals his birth sex. Even if the Church approaches the Registrar General directly, it will only get a certificate that states the opposite of the truth.

A Church that relies on official information could be duped into accepting into membership a person who fundamentally rejects some of the basic teachings of the Church. It could even inadvertently marry such a person to a member of the congregation or employ them on the church staff. In Grand Committee, the noble Baroness, Lady Hollis of Heigham, expressed incredulity that a person who professed faith could perpetrate such deception on their place of worship. I do not say that all transsexuals would do so, but some might. Sadly, not all people who claim allegiance to a faith are honest and straightforward—I am not talking about transsexuals now. Transsexuals tend to rewrite their own history. That is undeniable. Almost by definition, some will have a strong desire to keep their true sex secret. They may even effectively blank out the truth from their own mind. So somebody could try to deceive a Church with assistance from the state. There is a real need to have clear and water-tight protections on the face of the Bill to protect religious bodies from this possibility.

The noble Lord, Lord Filkin, and the noble Baroness, Lady Hollis, said that the state should not get involved in this relationship between a Church and an individual worshipper. In fact, the noble Baroness stated in Grand Committee that,

"the state should have as minimal a role as possible".—[Official Report, 14/1/04; col. GC78.]

But the state is already getting involved in this relationship by giving the transsexual the official paperwork he needs to dupe the Church.

The Bill already represents a major intervention in the relationship between a transsexual and his place of worship. I suggest that the Government cannot create this totally new legal situation and then step back and wash their hands of the consequences.

Amendments Nos. 66, 75 and 81 are part of a group which specifically address marriage, membership and employment with a religious group, as well as use of a church for services. I will say more about the rest of these amendments as we come to them. But the purpose of this amendment is to make it clear on the face of the Bill that, with consent, the Registrar General can disclose the fact that a person has an entry on the gender recognition register.

We have heard from Ministers that Churches which are concerned to protect their beliefs about sex can simply ask the person concerned. I have taken this to heart, and these three amendments enshrine that. A request always has to be made with the person's consent. It makes it explicit that a person's consent can be obtained in order to establish categorically whether he has changed his sex under the Bill.

I suggest that there is no invasion of privacy here. The Registrar General can provide a third party with official notification of a change of sex only with the consent of the person concerned. If there is no consent, there is no disclosure.

The Government clearly believe that the people who would have gender recognition certificates as a result of the Bill would be open and transparent with Churches. But in the Bellinger case, it is quite clear that the registrar was duped because in the certificate that was presented for the marriage of Bellinger, it specifically said, according to the judgment of the noble and learned Lord, Lord Lloyd, that Mrs Bellinger was a spinster. Surely the Government must realise that if the registrar can be duped, Churches can also be duped.

The noble Baroness, Lady Hollis, said in Grand Committee:

"In any case, if a religious minister or organisation needs to know whether a person is or is not a transsexual person, the solution would be to ask the person, particularly if their co-religionist is within a specific faith. There is nothing in the Bill to prevent the question being asked. I do not understand why we should assume that a person who is asked this question—a person who is a member of the same religious community—will refuse to answer or will lie, particularly to his priest. Essentially, I cannot believe that a member of a faith group will base his faith on bad faith. That is what the amendment impugns".—[Official Report, 14/1/04; GC.79.]

Sadly, I disagree. I beg to move.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, I hope that I can be fairly brief. I was slightly baffled because on some occasions the noble Baroness seemed to be arguing amendments which were benign—that" could not be done unless the transsexual consented to it. Yet on other occasions she felt that it was necessary because the transsexual might dupe some organisation, possibly a religious one. As these are diametrically opposed positions, I was not sure which one she was arguing.

I shall take Amendments Nos. 66, 75 and 81, as I understand them. The amendments would allow a certified copy of an entry on the gender recognition register to reveal that it comes from that register and so to reveal the gender history of that person if that person, he or she, consented. I have two points. First, I am advised that it would be unworkable in practice as the registrar would have to keep a record of the consent of the person concerned. Secondly, in practice, I wonder whether it is at all necessary. If the transsexual person agrees that the registrar may reveal it, why should the transsexual not agree that he or she would reveal it to whoever directly asked them for that information or identity? I do not understand why, in the case of any transsexual person who is willing and has given consent to have that information revealed, the information needs to be looped through the registrar. Perhaps I have misunderstood the import of the noble Baroness's amendments.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, it seems to me that that question answers itself. If a minister of a Church were to ask a person whether they were a transsexual, they might quite easily say no. The minister now has nowhere to go. But if the minister says, "Do you give your permission for an inspection of the register" and the person says, "No, I don't", the minister would be well advised to conclude that they were concealing something.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, indeed, and it is the withholding of consent that would be the very answer that the minister wanted, would it not?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, as a later amendment seeks to establish, in that case the minister could draw from it what conclusion that minister saw fit, and therefore refuse to solemnise the marriage, for example. That position is covered.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I shall consider the matter. I was probably confused by the way in which I delivered the amendments. I thank the Minister. I shall read the Official Report and talk to her afterwards. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 to 70 not moved.]

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 71:

Page 20, line 9, leave out paragraph 11 and insert—

"11 The Chancellor of the Exchequer may by order amend this Part in consequence of any order under section 1 of the Regulatory Reform Act 2001 (c. 6) which includes provision relating to the system of registration of births and adoptions in England and Wales."

On Question, amendment agreed to.

[Amendments Nos. 72 to 84 not moved.]

Schedule 3, as amended, agreed to.

Schedule 4 [Effect on marriage]:

Photo of Viscount Allenby of Megiddo Viscount Allenby of Megiddo Crossbench

My Lords, I remind the House that if Amendment No. 85 is agreed, I shall not under the rules of pre-emption be able to call Amendments Nos. 87 to 91.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 85:

Page 26, line 3, leave out paragraph 3 and insert—

"After section 4 insert—

"4A MARRIAGES INVOLVING PERSON OF ACQUIRED GENDER

(1) No person shall be under any duty whether by contract or by any statutory or other legal requirement to solemnise the marriage of a person—

(a) whose gender has become the acquired gender under the Gender Recognition Act 2004, or

(b) who will not consent to the disclosure of any entry relating to him contained in the Gender Recognition Register.

(2) No clerk in Holy Orders of the Church in Wales shall be under any duty whether by contract or by any statutory or other legal requirement to permit the marriage of such a person to be solemnised in the church or chapel of which the clerk is the minister.""

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, the Government concede that there is a problem for Churches over marriage. The Bill as introduced contains a limited conscience clause for Anglican clergy in England and Wales, in recognition of their statutory duty to marry people from their parish. It allows them to refuse to marry a person who has a gender recognition certificate. However, the conscience clause immediately ran into difficulties when it was pointed out that the Bill gives clergymen no right to know a person's true sex. It allows them only to refuse if they knew that the person had a gender recognition certificate.

The Government have now tabled Amendments Nos. 87 and 90, which would allow an Anglican clergyman to decline to conduct a marriage if he reasonably believed that one of the parties had changed sex. While that doubtless moves in the right direction, it still falls a long way short. For a start, it still places an onus on the clergyman to prove the reasonableness of his belief. It still leaves him at risk of litigation over whether his belief is reasonable. Courts may spend days deliberating on the question of reasonableness. Is that fair to the clergyman?

It is also too narrow in scope. In Committee, I mentioned that the wedding ceremonies of some non-conformist denominations are carried out by laymen. The amendment still deals only with Anglican clergymen, so how will the Government amendment help them? The Minister will say that only Anglicans are under a statutory duty to perform weddings, so only they need a conscience clause. Why could a similar action to that in the case of Parry v The Maesteg Christian Centre—part of the Vine Christian Centre, to which I have referred on previous occasions—not be launched over marriage? In that case, a man wanted a court order forcing a church to recognise him as a woman and allow him access to the ladies' prayer meeting and the ladies' toilet. Why should Churches be laid open to the possibility?

After the Bill becomes an Act, the legal landscape in relation to transsexuals will fundamentally be changed. The Minister cannot say with certainty how far the courts will go with this. He cannot assure us that our judges will not seek to impose new obligations on bodies that perform wedding ceremonies. This is especially so when one takes into account Section 6 of the Human Rights Act 1998 which states that public authorities must act in compliance with the convention on human rights. It gives a wide definition of public authorities, which includes any body that carries out functions of a public nature. The Minister will probably say that Churches are not public authorities. However, when they are conducting wedding ceremonies they are standing in the place of the state. They have the duty, given to them by the state, to conduct weddings. Baptisms and other religious ceremonies are not public functions, but weddings are.

The former Home Secretary, Mr Jack Straw, MP, made this clear during debates in the other place on the Human Rights Act. He said:

"On the occasions when Churches stand in the place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools . . . We think it right in principle . . . that people should be able to raise convention points in respect of the actions of Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities".—[Official Report, Commons, 20/5/98; col. 1017.]

So Churches could be sued under the Human Rights Act over the way they carry out weddings.

There is another crucial new factor that greatly increases the risks that courts might take issue with Churches that will not conduct transsexual weddings: the Goodwin and I case. Since the Strasbourg court handed down its judgment in that case in July 2003, it has been a human right, under the European Convention on Human Rights, for a transsexual to wed. Mr Straw said that when Churches carry out weddings, convention rights are relevant to what they do. The convention gives a right to transsexuals to marry. This means that a transsexual who wants to sue is being handed several enormously powerful new legal arguments. There is ample scope for litigation against the Churches over marriage. Even if it is ultimately unsuccessful, why should Churches have to put up with this? The Government have not thought this through. This is an issue of fundamental importance. Do the Government believe that religious rights come such a distant second to the rights of transsexuals?

Does giving effect to the Goodwin judgment really mean that we have to expose Churches to this kind of litigation? What about registrars? I accept that they are civil servants who do the bidding of the state but when they signed up for the job transsexual weddings were illegal. Under this Bill they will be compelled to perform such weddings. Registrars, after all, have consciences too. Because of their religion or for other reasons they may well feel unable to solemnise a marriage between two people who are biologically of the same sex.

In Grand Committee the noble Baroness, Lady Hollis, compared registrars conducting weddings to Benefit Agency employees handing out payments. She asked in effect that, as the Benefits Agency employee could not allow his conscience to override his employment duties, why should a registrar? But a wedding is of far greater significance than a benefits payment. Surely the Government believe that there is something special about solemnising a marriage that distinguishes it from the other much more mundane duties of civil servants. Surely they accept that one's conscience about something as important as matrimony—the building block of society, after all—is worth protecting.

In Holland the human rights courts believe that civil registrars should not be compelled to conduct transsexual weddings if they have a conscientious objection. Will the Government allow our registrars the same right? I have brought up my next point before. There is a comparison to be made with the Abortion Act 1967. There Parliament legalised something that was highly controversial. In recognition of the controversy, and the fact that people held strong conscientious views about abortion, Parliament included a conscience clause. That allows medical personnel, including public sector employees—that is, National Health Service employees—to decline to participate in abortions.

With all that in mind I have tabled several amendments that take different approaches to solving the problem and I have offered different ways to let the Minister off the hook. However, having had an opportunity to consider the different approaches I am convinced that Amendments Nos. 85, 92 and 93 provide by far the best solution. These amendments would replace the existing government conscience clause altogether and, if supported, would pre-empt government Amendments Nos. 87 and 90.

Amendments Nos. 85, 92 and 93 operate on a UK-wide basis and would allow any person to refuse to conduct a marriage, whether they are a registrar, a layman conducting a Church wedding or a clergyman. The grounds for refusal are that the relevant person has a gender recognition certificate or that he will not allow disclosure of his gender recognition status. These amendments would make clear that not only can a person decline to marry someone they know to have a gender recognition certificate, they can also refuse to marry someone who will not consent to disclosure of their gender recognition status.

The amendments would also make explicit that no new duties to conduct a marriage may be imposed by litigation, nor could anyone be pressured by employers. That is important as it is government policy to make all those who solemnise civil marriages employees of the local authority. A registrar who would not carry out transsexual weddings could find himself out of a job. A local authority could make it a requirement of the job that all registrars must be prepared to carry out such weddings. Certainly there are some local authorities we know that impose these kinds of politically correct litmus tests. As I prefer the solution provided by my Amendments Nos. 85, 92 and 93, if the group of amendments beginning with Amendment No. 56 were to be supported, I would not move Amendments Nos. 88, 89 and 91.

I know that there are technical problems, but they could be ironed out. Nothing is insurmountable. All it needs is the will to do it. I beg to move.

Photo of The Earl of Erroll The Earl of Erroll Crossbench 6:45 pm, 29th January 2004

My Lords, in our society, which is multi-cultural and multi-faith, we should be careful not to foist what one might classify as liberal western concepts on those of other faiths. Therefore, it is important to include in these provisions those of other faiths who might be asked to conduct marriages.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, I assume that we are talking to Amendments Nos. 85, 88, 89, 91, 92 and 93, which I believe was the agreement. We have de-grouped the two sections. I emphasise yet again that when a person is recognised in the acquired gender that person becomes in law of that gender. The person is then entitled in law to marry a person of the opposite gender.

I do not want to go back to the arguments which we have explored as to whether that really happened whether in the eyes of God, man or law. The Bill seeks to state a legal proposition that is in accordance with European human rights law and which has been accepted in all the countries of Europe with the exception, as the noble Baroness, Lady O'Cathain, ruefully noted, of Ireland and Albania. Therefore, should this Bill be enacted a person who gains recognition in the acquired gender will have changed gender in law. Marriage in no small part is an institution defined by law.

Marriages contracted by transsexual people once the change of gender has been legally recognised, will therefore be valid marriages between a male and a female. In such a circumstance, registration officers would have no legal grounds on which to refuse to provide the service, and it would be expected that the service be provided to the same high standard as other services.

We see no reason why a registrar who did not agree in conscience should have the liberty to inquire into it and refuse to exercise his function. I do not doubt that some public officials may very well have private views about the appropriateness of some of the laws they are to discharge. But that is the commitment they have made and the territory they occupy. I suggest that there is and must be no scope for private discretion in the public discharge of the legal requirements of a public post by a public official. Otherwise we would be horrified, for example, if someone began to pick and choose who they would or would not marry or provide with benefits. We would be horrified if a schoolteacher were, because of her beliefs, to treat differently children whose parents are not married. We would be horrified if a lone parent—or a homosexual or transsexual—were refused housing benefit because the housing officer disapproved of their lifestyle on religious grounds.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, nurses have the right not to participate in abortions if they do not wish to do so.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, my understanding is that nurses are not public officials. I am talking about somebody who is a public official. People discharge the law and it comes with the territory.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, perhaps I should have stopped the noble Baroness a little earlier because she was enunciating the defence which has been put up by every junior officer concerned with a war crime that he was only acting on orders. Does not the noble Baroness recognise that she is giving that same defence?

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, anyone who feels that their conscience is at odds with the requirements of the job in a civilian and democratic society has the right to resign from that job. That is the point. If one does not accept the full discharge of one's duties as laid down by law, democratically arrived at, and if one begins to exercise discretion, the law becomes a lottery. Where one lives and which official one deals with determines what the outcome must be. That is for Parliament to decide subject to the rule of law. In exactly the same way civil servants may not entirely agree with what Ministers propose. They do the job or they leave it. Local authority employees do the job or leave it and the same applies to registrars.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the noble Baroness not only says that there is no defence on the part of a civil servant who leaked information in a particular case a few years ago, which I recollect well. The court upheld that she was acting on her conscience and it was right for her to leak that information although it was clearly contrary to her contract. She is also enunciating the defence which was made by policemen in South Africa under the apartheid regime. She is enunciating the defence which was made by officials and soldiers in the Balkans War. Any public official who feels strongly that it is an issue of conscience has a right to stand up for that.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions) 7:00 pm, 29th January 2004

My Lords, particularly in the light of the events of the past few days, I do not believe that we should introduce the issue of whistle-blowers here. I am referring to a public official who occupies a post which is to be legally discharged within the framework of Parliament. Frankly, the noble Lord is inviting any junior civil servant in a benefit office or any school assistant in a school to take odds with Parliament over the fact that a child or benefit book recipient should be treated in the same way as any other child or benefit book recipient. He is inviting such a person to say, "I put my judgment, which I shall call 'belief', which may or not be religiously inspired, community-inspired or ethnically inspired, ahead of the will of Parliament".

I say to people that they have the right to make that choice but, if they do so, they should not do that job. It is their choice. If they feel that they cannot, in good faith, undertake the responsibilities of a public post and discharge public responsibilities within the framework of a law laid down by Parliament, they have the choice that we all have—to walk away from that job. Anything else becomes a lottery concerning where you live, whether you receive your housing benefit or whether the person dispensing it approves of your lifestyle. I know that the noble Lord, Lord Tebbit, would not wish us to follow that route.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, I understand that the noble Baroness is saying that other people have to do the jobs that they are given, whether they are civil servants or whatever. But, in this case, people are being invited to tell lies. Surely if one has a conscience about that, one should be permitted to say, "I can't fill that in because I shall be telling a lie and I don't want to do that".

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Parliamentary Under-Secretary, Department for Work and Pensions, Parliamentary Under-Secretary (Department for Work and Pensions)

My Lords, at the heart of this debate is the fact that these will be valid marriages in the eyes of the law. Therefore, no one who was asked to solemnise such a marriage, being a public official, could in any way say that, in terms of the law, that was a lie. I believe that many people would find such a view offensive.

If that person, through religious beliefs, considers that he should not authorise such a marriage, he need not hold that job. That is his choice. But these are not lies; they will be marriages validly contracted within the framework of the law, should your Lordships and the other House so agree. If that is not the case, then, frankly, we might all just as well go home. That is the nature of law. One may disagree but, if Parliament has so determined, one then has the choice of either doing the job or walking away. No one is putting a gun to one's head. A person does not have to do the job. But no parliamentarian could accept that a decision of Parliament should be subverted by the private view of any public official. We cannot organise ourselves in such a way. On reflection, I am sure that your Lordships would not wish to go down that route.

In Committee, I also said that I was sure that a registrar could find a way around the issue if it was so troublesome to him. Of course, any couple could go to any registrar's office in the country if it was felt that the strong views held by an official in one particular office would cast a shadow over the marriage. We explored that point in Committee and I believe that it is still valid.

The amendment also seeks to go beyond providing an exception for registrars. It seeks to provide an exception for any person who is under a legal duty to solemnise a marriage. As was made clear in Grand Committee, no other religious minister is obliged to solemnise a marriage. He or she may be an authorised celebrant—that is, if he or she solemnises the marriage, no separate civil ceremony is necessary. Nevertheless, there is no obligation on that registrar to solemnise a marriage and he or she is therefore free to conduct or to refuse to conduct the marriage of a person who has changed gender. That is why the existing provision in Schedule 4 extends only to ministers of the Church of England and the Church in Wales. All others already have that right.

It has been argued that ministers of other religions may be "public authorities" within the meaning of the Human Rights Act. They may therefore be vulnerable to a claim on the basis of human rights law. "Public authorities" within the meaning of the Human Rights Act include any person,

"certain of whose functions are functions of a public nature".

It has been argued that that could apply to ministers of the Church of England.

On that basis, we suggest that nothing would make a religious body a public authority for the purposes of the Human Rights Act. The receipt of occasional grants from English Heritage or the lottery fund—the example that I was given in Committee—would not convert a private body into a public authority. The cross-reference that I have is to the Appellate Committee of the House of Lords, recognised in Aston Carlow PCC v Wallbank. So there appear to be perfectly secure grounds on the matter.

In addition, people should not be allowed indiscriminately to reveal information about a person's gender history in the form of malicious gossip or damaging rumours, which is why the prohibition on disclosure is required. We have to be careful to understand the scope of that prohibition. Disclosure is prohibited when the information has been acquired in an official capacity. For example, if an employer acquires information about a person's gender history, he or she is not permitted to disclose it, unless the disclosure falls within one of the exceptions in Clause 21; for example, criminal activity and so forth. Clause 21 does not involve the criminalisation of activity that is purely in the private sphere. That would not be appropriate. The Government are, therefore, firmly of the view that Clause 21 is necessary, that it is drawn up in the right terms and I hope that your Lordships will continue to support it.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I have always had the greatest admiration for the noble Baroness, Lady Hollis, and that has grown tonight. She has much greater staying power than I have. I thank her for dealing with those amendments and for giving me some comfort, although not much, regarding the last point about religions, other than the Anglican clergy, not being regarded as public bodies in the solemnisation of marriages. That is fair. I am sorry that the noble Lord, Lord Carlile, is not in his place, but I also realise that if the Bill is enacted and a registrar has a conscientious objection to marrying people who he or she suspects are transsexual, the registrar should not really be in the job or should make the people go to another registrar. There are ways and means of achieving that. I thank the Minister very much for her comprehensive reply to the amendments, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, I beg to move that further consideration of the Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at seven minutes past seven o'clock.