Clause 1 - Applications

Gender Recognition Bill [Lords] – in a Public Bill Committee at 9:30 am on 9th March 2004.

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Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following:

Amendment No. 2, in

clause 1, page 1, line 11, leave out from 'living' to the end of line 14.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

The Committee will be aware that there was a trailer for the amendments in the programme motion debate. The amendments would preclude applications made on the basis of a gender change under the law of a country or territory outside the United Kingdom. As I have said before—this is certainly my view—the procedure is not in any way improper, but it is important that we understand how it is to be carried out.

I should group my comments. First, on the countries or groups of countries with which the Minister has in mind arrangements for mutual or, indeed, unilateral recognition of gender change arrangements, I realise that not every country has exactly the same gender change law. For example, some will require surgical intervention. We discussed that briefly on Second Reading. It is not my view that it would be right to introduce that requirement in the United Kingdom. Be that as it may, there will be different rules in different countries, just as, to consider a slightly wider but related issue, there will be for marriage. When it is not possible to produce an identical fit or equivalence, there will need to be some understanding. I will come to that in a moment.

We need from the Minister some appreciation of the types of state with which he will expect to offer recognition quickly. As I understand it, that is under an order procedure in clause 2. Who would not be included, and on what basis might it be necessary to include or exclude a country subsequently if the arrangements were not seen to be satisfactory? We want a sense of the geographical coverage and how quickly that can slot in.

I had an interesting telephone conversation the other day with a transgendered lady who originates from New Zealand, changed gender legally in that country, concluded a marriage and is now living in this country. That is a perfectly reasonable thing to do. She was somewhat thrown by clause 22. I did my best to explain it to her and reassure her. As I understand it, foreign marriages that follow a gender change will not be validated until the gender recognition certificate is issued in the UK. I understand that and it is perfectly sensible, but it is the kind of thing that plays into the complexity of the matter. Will the Minister say, territorially, where he has in mind that could be accepted and on what basis? For example, could attaches be invited to subscribe? The Minister knows that the majority of countries in Europe—not just the European Union and its applicant countries—have introduced legislation on the matter.

Secondly, are there any criteria that the Minister can share with the Committee on the basis for acceptance—perhaps case by case rather than on a territorial or collective basis? For example, will he be looking to enshrine certain safeguards in the legislation? As I have already hinted, might he in certain cases have to exclude a country in the light of experience?

The third and general point is about a slight concern, which I hope the Minister shares. People may look for a particular regime to effect a gender change and, armed with a certificate in law from that country, come to the UK either as settlers for the first time or simply as those who have gone to such a country for the purpose of obtaining a gender recognition certificate under its law, and then seek to return here and claim their rights under the clause in United Kingdom law. We are probably beginning to trespass on a very low likelihood, but the last thing that we want is somebody making accusations of gender recognition tourism—people finding an easy way to get matters nodded through without the safeguards in this legislation and returning with such certification. That would only discredit the Minister's careful process and be to the disadvantage of all concerned.

The amendments do not attempt to make life unduly difficult for people. There is a full understanding that in a world where there is great international movement—in the European Union, the former Commonwealth countries and more generally—people will live in such conditions and seek to settle in other countries. There is no crime in that; there is nothing wrong with it at all. The law should be facilitative of them, but there must be proper safeguards. That is the spirit in which the amendments are tabled.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 9:45 am, 9th March 2004

I have two points to add. I note the spirit in which the amendment has been tabled, which gives us the opportunity to raise points on the issue.

My first point relates to gender change tourism. It seems to me that the word ''tourism'' is far too often added pejoratively at the end of a phrase in the media—I am not accusing the hon. Member for Daventry of that—to describe things that are anything but tourism. While recognising that such activities may be only a remote possibility, we ought to take note that people go abroad for treatment either because it is not available in this country, or because a particular specialism or specialist is available in another country. In the changing world of EU service provision, the NHS may increasingly commission such treatment in countries where there is experience that does not exist in this country. Given the expertise and critical mass required, it may have to do so, at least in the short term. People may seek recognition in states where there is not adequate supervision, but that is different from going abroad for entirely legitimate surgery.

My second point relates to the recognition of marriages of transgendered people whose status has been acquired abroad. That is an issue that we shall discuss under clause 21. I hope to table an amendment that probes the Government on why marriages need to be dissolved, albeit very briefly, in order for a gender recognition certificate to be issued.

In relation to amendment No. 2, I note the question of the ''approved country or territory'' in clause 2(4). Perhaps the Minister will find it convenient to clarify

on what basis an approved country or territory is to be prescribed by order. Will there be a process for that? I am sure that it will not be arbitrary, but some detail should be provided to ensure that that is not the case. There may be implications for how we tackle the issue of marriage when we get to clause 21.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

I realise that these lines of the clause are designed to create a process whereby a transsexual person who has had their correct gender recognised in another country may apply for recognition here as smoothly and with as little difficulty as possible. I am pleased that the hon. Member for Daventry has raised the issue so early in the debate, and I support the hon. Member for Oxford, West and Abingdon (Dr. Harris) in the distinction that he draws concerning those who go abroad for treatment, because in the past treatment in other countries has been more advanced than that offered in this country. It is a legitimate idea that people might go to countries where the requirements for gender recognition are less complete than what the Government propose. However, I think that that is highly unlikely. Someone who has gone through the process of gender reassignment is likely to find the proposals in the Bill acceptable.

We seem to have a list of countries the regulations of which will be seen as acceptable here, which means that the provisions of clause 21 will be invoked by what is almost a rubber-stamping exercise.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

The hon. Lady has just referred to a rubber-stamping exercise. My understanding of clause 1 is that if there has been a change under the law it would be a rubber-stamping exercise to recognise that change.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

Yes, and I agree that if a person has recognition in a country where the standards are acceptable to us, the process should be as automatic as possible. Under clause 21, technically, if the person is married, their marriage is not recognised during the period when the rubber stamp is being applied. That is a problem, and I flag it up now because we need to return to it when we discuss clause 21.

I would like a list of countries to be drawn up so that a transsexual person who has obtained recognition in a country that has acceptable procedures is automatically accepted in this country and need not apply for a gender recognition certificate.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I begin by saying how pleased I am to bring forward this work on the Gender Recognition Bill. I am grateful for the way in which the hon. Member for Daventry tabled his amendments and the way in which I think we shall conduct this debate this morning. I know that there are some serious issues that concern the faith communities in particular, and I hope that we can give them appropriate consideration.

We had an incredibly well informed and sympathetic debate on the general principles of the Bill on Second Reading and there was a feeling throughout the House that we must act to provide rights for

transsexual people, who make up a small but vulnerable group. I am pleased that we shall approach the detail of the Bill in that spirit.

I should also express my thanks in advance to the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Liverpool, Garston (Maria Eagle) who will deal with the pensions issues as they arise later in the Bill. I am grateful for her expertise on that.

I pay due respect to members of the Joint Committee on Human Rights who considered the draft Gender Recognition Bill, which included three members of this Committee—my hon. Friends the Members for Birmingham, Selly Oak (Lynne Jones) and for St. Helens, South (Mr. Woodward) and the hon. Member for Oxford, West and Abingdon.

Turning to the amendments, I should explain why we have included provision for applicants who have already received recognition overseas. Many overseas citizens live and work in the UK, just as many UK citizens live and work overseas. We believe that there is no reason to deny non-UK citizens access to basic rights in their acquired gender in the UK if they already have recognition in the acquired gender overseas. It is reasonable to provide a simpler process for gaining recognition in the UK and I believe that there is broad agreement on that principle.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

The Minister has not said it, but I suspect that there may be an undertone that if he were not to accord those rights to citizens of, for example, another European state, there might be a return to the European Court on the matter of mutual recognition and the rights under articles 8 or 12 of the convention on human rights, which have already caused difficulty for the Government. It is necessary to be on our feet legally.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Gentleman is right. That may or may not be the case, and these are complex matters in both public and private international law and the different arrangements that countries come to. Similarly, UK citizens living and working abroad may have gained recognition in the acquired gender in the country in which they live, and they should have access to recognition in the UK because they have already satisfied the recognition criteria of another country. It is reasonable that they gain recognition in the UK by a simpler process.

At the same time, however, we must ensure that the criteria set out in the Bill for recognition in the UK are not compromised. If we were not alive to that danger we would create the potential for forum shopping, to which the hon. Member for Oxford, West and Abingdon alluded. A person who did not expect to receive recognition in the UK might go overseas to a country with much softer criteria, and if by that virtue they also gained recognition in the UK, others might follow and the integrity of the system might be undermined.

Gender recognition is not an area in which standard criteria are applied in the same way across the world; different countries apply different standards for recognition. Hence, we have sought to create a process

that takes account of those variations and allows the UK to deal differently with applicants from countries that apply criteria that are at least as rigorous as our own.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

We are largely in the hands of medical professionals when making decisions about whether an individual is suitable to receive gender realignment. What would be the position of somebody who had sought and been refused treatment by medical professionals in this country, gone to another country where it was easier to obtain treatment and then returned to this country? Would they be recognised as being in their newly acquired gender? If the country where the treatment was received did not apply the same standards as this country, would they still be recognised in law by their birth gender?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The panel would need to be sure that the transsexual person met the standards set out in the Bill. Where the person has gone overseas, the panel would need to be sure that there was permanence, that the state had been lived in for two years and beyond, and it would need the evidential basis required in the Bill. The panel would also be aware of the applicant's first application. We are keen to ensure the same standards across the board.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

The Minister has just said—I appreciate that this question may arise in a different context—that the panel will always be aware of the applicant's first application. Will that be a rule of general applicability? Will a gender recognition panel always have the application history of an individual available to it? If so, is it not arguable that that might influence the exercise of its discretion? I was not aware of that point, and I would be grateful if the Minister would clarify it.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 10:00 am, 9th March 2004

It is important that the panel is able to make an assessment on the evidence before it. The hon. Gentleman knows that six months would have to elapse before someone could make another application. As is the way when such matters are configured, panels would usually be selected randomly to ensure that the same members do not consider the same individual's subsequent applications. The body itself would be aware that the individual had made an application, and that must be right when it would be considering very important issues and requiring evidence from a clinical psychologist or a psychiatrist.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

On the point made by the hon. Member for Upminster (Angela Watkinson), will the Minister clarify whether any country approved for the purposes of the clause would be required to demonstrate that its procedures for accepting gender reassignment were at least as rigorous as ours?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I can state that absolutely and categorically. As I have said, gender recognition is not an area in which standard criteria are applied across the world; different countries apply different criteria.

Hence, we have sought to create a process that takes account of those variations and allows the UK to deal differently with applicants from countries that apply criteria that are at least as rigorous as our own.

I will provide some examples of what happens elsewhere. In Austria, Denmark and Germany there is a requirement for surgery; in Belgium there should be durable and irreversible possession of a new state; in France the standard is largely taken on appearance and social behaviour of the acquired gender; in Finland standards include hormonal treatment for a year and there is no need to end an existing marriage.

Looking at a selection of European countries—not even getting into different American states, Australia, New Zealand, Canada and areas of the world that have a tradition of tolerance and familiarity in this area, such as Thailand and India—we can see that there are different standards. That is why we are anxious to protect the integrity of what we set up.

The Bill provides for the Secretary of State to make an order setting out approved countries or territories. It will be made by affirmative resolution and therefore debated by both Houses of Parliament. Its purpose is to name countries or territories that have criteria equivalent to our own, and as countries join the approved list, it is right that the House has the opportunity to debate the matter and that informed Members, of which there are many in Committee, are able to take part in the discussion.

If an applicant has obtained recognition from a country on the list, a panel would need to be satisfied only that it has obtained recognition from that country. There has been some talk about a rubber stamp, but the process is meant to be simple and straightforward once the country is on the list. That is why one would expect the panel to be fairly rigorous in its assessment of countries that meet the standard. After the assessment, the exercise is supposed to become much simpler. I address that point to the hon. Member for Birmingham, Selly Oak, who I know is concerned to ensure that it should be a straightforward process.

If a country is on the list, its criteria are at least as rigorous as our own, and as those criteria have already been met there is no need for the UK panel to make a fresh decision that is based on all the available evidence. That is the important point: we should not put people through the process of gathering their evidence in the country in which they happen to be.

There is a view that a person who has recognition overseas from an approved country should not have to apply for recognition in the UK, but should have it simply by virtue of that overseas recognition. Before I set out why we require the person to make an application before recognition is given, I should emphasise again that the application is meant to be extremely straightforward. I should say also that there is nothing to prevent a person travelling to the UK, or who wants to come and live and work in the UK, applying for recognition in the UK before he or she arrives.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

Prompted by that line of argument, if a person were to come to the UK, perhaps for a short time as a tourist or for a business assignment, and had recognition under the law of their own state but had not applied in the UK, would the panoply of rights in law attaching to a person in the UK be available to that person? I am thinking of anti-discrimination law, particularly bearing in mind the interest of the European Court of Human Rights, in a case where that person were a national of another European country who had not formally obtained recognition in the UK, but had arrived here carrying implied rights from that other state.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

That is an extremely complex question and I shall endeavour to answer it simply. The hon. Gentleman will know that someone arriving in the UK on a visit for a weekend, or on business for a day, is subject to the law of this country across the board. For the purposes of the Bill, we clearly emphasise that a person ordinarily would need only to seek gender recognition under our processes if they were coming here to work or to live. It is hard to imagine a circumstance in which that case would arise if someone were coming here for a weekend visit or on business.

In the context of private and public international law, the hon. Gentleman will know that in these isles people come and go in their thousands every day of the week, and the rights that they arrive with from their home countries may well conflict with the rights that we have here. No problem arises until one comes into contact with the law in different ways, unless one makes an application, or there is some hurdle by which one comes into contact with the legal processes. That is a general answer to the hon. Gentleman's question.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

The hon. Member for Daventry mentioned discrimination. Transgendered people have in theory been protected from discrimination if they are from a country that is a member of the Council of Europe by the European convention on human rights, and if they are from a EU member state by the equal treatment directive. The judgment in the case of P v. S and Cornwall county council was made in favour of a transgendered person long before we had the Bill. There would be some things that one could rely on, but the full panoply present in the Bill would be difficult on a short trip. Whether it would be needed is more questionable.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful to the hon. Gentleman. He makes an important point. He will also know that discrimination issues for transsexual people are being more widely considered at the moment in the context of Europe. In due course, that may well have some proximity to these matters.

The central issue, which was introduced by my hon. Friend the Member for Birmingham, Selly Oak, is why there is a need for an application in the first place. The solution that I emphasise provides a high level of certainty. It provides for the issue of a UK gender recognition certificate and, hence, a precise point at which the person has recognition in the UK. Although a certificate will not be used as an identity document by most transsexual people—by its nature it reveals a very

private fact—we understand that some people will choose to use it in that way, especially if the alternative will be to use a foreign birth certificate, which may be alien to any person to whom the person is showing the documents.

Photo of Richard Younger-Ross Richard Younger-Ross Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions

From a transgender point of view, I would imagine that the ideal situation is to be able to move from one country to another to work without the need to reapply. Does the Minister foresee a time when there will be mutual recognition between countries so that a person is not put through that additional process?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Gentleman makes a good point. In a sense, he anticipates where I hope to get to in wrapping up my remarks. I think that we are on a journey. Certainly in the context of Europe, we may well have to revisit the issues and some reciprocity may be the context in years to come, but I do not think that that is the case now.

If we recognised the acquired gender of those with recognition overseas without an additional application, we would be faced with the creation of a small category of same-sex marriages recognised in UK law, which does not at present recognise any same-sex marriages. I know that we will have a discussion about that later.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

That would not be the case provided that those countries that are on the approved list had the same criteria as we do on marriages.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

My hon. Friend makes an important point. To that extent we want to be sure that that is the case and, on application, to consider the individual circumstances of the applicant as regards the position of marriage. In a sense the issue is about the certainty that the community wants that the individual circumstances are as they appear. That can be assessed only from an evidential base on arrival.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak 10:15 am, 9th March 2004

Surely it would be for the authorities here to assess whether the criteria in the reciprocal country were as robust as the criteria here. Provided that they were, should there not be automatic recognition and reciprocal arrangements?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I understand my hon. Friend's point, but in balancing the issues, the assessment that the Government have made is that there should be an approved list of the standards required for gender recognition. However, there should be a simple, straightforward rubber stamp—others have used that term; it is not my own. There should be an assessment of the evidence relating to the country and the personal circumstances of the individual. We do not consider, on balance, that that is onerous. I understand where my hon. Friend would stop in that process, but the Government want to go that step further, at least at this stage, in making the assessment.

As I have said to the hon. Member for Daventry, this is a developing area. There are no universally applied international standards for gender recognition

at present. No doubt we will gradually move towards more shared standards, and at that point we will have to reconsider the provisions for people who have gender recognition overseas. It may be that we will be able to set up robust, reciprocal arrangements with, for example, other EU states. It may also be that we can fall down on the other side of the line indicated by my hon. Friend the Member for Birmingham, Selly Oak.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

I am grateful to the Minister for his response to this interesting debate. The debate indicates the issues that we will have to rehearse. It has exposed considerations that I had not fully developed in my own thinking before we had the discussion. To put the Minister out of his misery, he gave a full and sufficient reply, and I am perfectly happy with it.

I have adopted the approach of trying to remember the Bill, rather than having all the paperwork and trawling through it amendment by amendment. That meant that I referred to clause 21 as clause 22. Members will remember that another clause was inserted in another place, which has thoroughly put me out. Unfortunately, I over-compensated for that in my memory. I will try not to do it again. In any event, I think that it might be wiser if we had the discussion on clause 21 when we get to it. There are some interesting issues that have been exposed about the match and mismatch involved.

I was almost tempted to ask the Minister to give us a list of the people who he had in mind. I make the open offer to him. As is the nature of this Committee, we are not trying to trip him up. Sometimes—I am familiar with this dilemma myself—a Minister has the opportunity to give a quick answer in Committee. In another Committee, on which I am empanelled at the moment, ''S'' in a note from officials was misread as ''schedule'' when it meant ''section''—or perhaps it was the other way round. The Minister involved got it wrong and I corrected him. Sometimes it is better to say, ''I am not going to answer now, but I will write.'' I am perfectly happy with that, if other members of the Committee are, because these are difficult issues. The Minister paid me a slight implied and entirely undeserved compliment about understanding the nuances of private and public international law. I do not understand them. If he needs to explicate them in a letter, he is welcome to do so. Essentially, safeguards must be in place.

There are only two other points on which I wish to comment on. The first, which was implied in the remarks of the hon. Member for Birmingham, Selly Oak, is that, clearly, if we have this procedure, it needs to be as unobtrusive and straightforward as possible. I hope that the Minister can give the assurance that a gender recognition panel, or officials, could turn things round straightaway. I hope also that a person would send in their gender recognition certificate—say they were coming to the UK for a month, and wanted to safeguard their position and avoid any embarrassment—and would get an answer almost by return.

My second point is that, fired if only by the fact that I happen to be reading an interesting book on St. Helena by a former governor of the island, who is a

constituent of mine, I hope that we will spread good practice in the British colonies—we still have a few—and other territories where the Government, if not directly in control, are in a position to influence what happens. We have not always done so in respect of other matters of law such as, for example, the death penalty. However, we could make it as easy and unobtrusive as possible for people to travel. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Selous Andrew Selous Conservative, South West Bedfordshire

I beg to move amendment No. 46, in

clause 1, page 1, line 7, at end insert—

'(c) having previously changed gender and subsequently changed his or her mind, or decided a mistake has been made, and wishes to resume his or her original birth gender.'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss amendment No. 19, in

schedule 3, page 20, line 22, at end insert—

'(4) A gender recognition certificate may also be revoked at the request of the person to whom it has been issued.'.

Photo of Andrew Selous Andrew Selous Conservative, South West Bedfordshire

I, too, look forward to serving under your chairmanship, Mrs. Roe.

It is worth putting on the record that some people who change from their original gender to the other gender may later wish to change back to their original gender. Amendment No. 46 would provide in clause 1 a recognition that gender reversal may need to take place from time to time. I do not believe that there is any dispute with the Government on the point, as in the other place Lord Filkin stated in Committee that the Bill incorporates the right of gender reversal. He also said on Report that that right would be clear in the Bill, but I am not convinced that it is. As such, it would be helpful to add the proposed paragraph (c) to subsection (1), to make it clear beyond doubt that people who wish to change back to their original gender can do so.

A gender dysphoria awareness association comprising of post-operative transsexual patients who have reverted to their original biological sex was recently set up in Australia. The amendment would ensure that such people were fully and properly catered for and that their case was recognised explicitly in the Bill. I hope that the Minister will respond sympathetically to the amendment.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

The Committee will have noticed that amendment No. 19, which I tabled, probes the same issues but is, perhaps, more succinct. I must admit that I am somewhat of a sceptic on the matter, and I know that Press for Change is not necessarily pressing for this change. The Committee must seriously consider what it wants to achieve in the Bill.

I may have misinterpreted the exchanges in another place, but I understand that the Bill provides for the recognition of more than one change of gender, which would be effected through an initial issue of a gender recognition certificate, a reapplication to the panel for

a change back and the issue of a further gender recognition certificate, in effect signalling two changes of gender in the individual. I await the Minister's response on that. My amendment, and that of my hon. Friend the Member for South-West Bedfordshire (Andrew Selous), would provide the individual with the power to seek revocation of the initial certificate as if it had never been issued.

There are interesting points about that approach and also about general public policy. As everyone agrees, gender change is an intimate procedure. In effect, it changes an individual's status and the essence of their being. If they felt that that was not sustainable, I ponder aloud whether they should be offered the right simply to say that they were wrong and to go back to how they were because they now feel that they should be as they always were. That may not be precise language, but I think that the Minister will understand what I am trying to convey. My amendment was motivated by that consideration.

On the other hand, realistically, when we come to the public policy side of the matter, the Minister will be driven by two factors. We do not want to continue creating additional procedures if they are not necessary or appropriate. There is a procedure for gender change and if someone wanted to change gender again, they would be able to do so but could not expect any particular favour or otherwise. It would have to be a considered decision in accordance with the established criteria.

That is understandable and behind it, I suspect, is Ministers' fear that there may be people, because of genuine confusion or a wish to indulge themselves through the system or whatever—I do not want to speculate on that—who might engage in a series of changes. Ministers and Press for Change may feel that it is not helpful to public policy if people are moving frequently in and out of the system or to send a signal that they can do that. My mind is torn.

The Minister may want to talk about the serious issue concerning the number of people who might be involved. There is a genuine difference of approach, but I am sure that we all agree that some people have sought gender change and have subsequently had second thoughts. My understanding and information is that that is a small proportion. The hon. Member for Birmingham, Selly Oak is nodding. It is likely to be of the order of 10 per cent. of the group we are considering, although, given the numbers involved in transgender issues, it would be difficult to produce a statistically sound analysis.

A number of other people, including the Evangelical Alliance, take a different view of the transgender issue and believe that the proportion is higher. Some have argued that up to a quarter of the total number of people who offer themselves for gender reassignment do not go through with it. I cannot realistically differentiate or decide, although my impression, particularly with the safeguards that the Minister has built into the Bill, is that they would be small in number. The Minister needs to clarify what is sought and what will be provided by the Bill, and whether it will simply allow a gender change to take place and

then to be reversed by a further gender change, or whether it will be possible to reverse an existing gender change at the option of the person who initiated the process. That is a genuine dilemma on which other Committee members may want to comment and I look forward to the Minister's response before I decide what to do about it.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I invite the Minister to reject both amendments—that can be done without questioning the motive behind them—for two reasons. First, if one accepts, as I do, that changing gender is a difficult and complex process, one can support the amendments without disputing that. I am keen not to cast aspersions on the motivation of the hon. Members for South-West Bedfordshire or for Daventry, but if the process is significant, it is not appropriate to put into legislation expressions such as ''change one's mind'' or

''decided a mistake had been made'', or even to rely, as in amendment No. 19, on a request without knowing how long-standing and how considered that decision might be or whether it was subject to coercion or pressure—there will be pressure from some parts of the community and family. If one accepts that it is a big step for someone to take—the processes in the Bill rightly suggest that it is and that there should be careful scrutiny—such terminology should not be used and should not imply a more reduced, minimalised, less clear and rigorous process for any reversal. I am also not keen on describing the steps that we are taking in the legislation as capable of reversal—as if they have not happened, which is what revocation or voiding means.

If one takes the view—I do not—that many people might take up the opportunity to change their gender without the due thought and commitment that is currently required by the medical profession to obtain treatment and by the Bill to gain recognition, it would be logical in order to discourage that view to ensure that the procedure were not seen as something that could be easily reversed.

Whatever position one takes, both the amendments fail for slightly different reasons to provide the protection that is needed for the people concerned. For those reasons, I hope that the Minister will be minded to reject them.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 10:30 am, 9th March 2004

To some extent, the hon. Member for Oxford, West and Abingdon has stolen my thunder. It is important to state on the record that transsexual people do not choose their gender identity. It is a long, difficult and painful experience for them to acquire a new gender, and one which may result in the loss of friends, family and even employment. In the past few weeks, I have sought to meet transsexual people in my constituency and representative groups, and to read the medical evidence. Clearly, it is not a choice according to the way in which we understand the word; it is a driven conviction because of a medical state.

On the criteria set out in the Bill, a change of gender is not a trifling matter. A person must have lived in the gender that he or she is seeking to acquire for at least two years and they must convince the panel that they

intend to live in that gender permanently. Individuals will not be able to skip from one gender to another, if people do that at all.

We do not expect an individual to want to change back having met the medical criteria, lived in their acquired gender for a minimum of two years and satisfied the panel that he or she intends permanently to live in the acquired gender and gain legal recognition on that basis.

Photo of Andrew Selous Andrew Selous Conservative, South West Bedfordshire

Is the Minister saying that he will make no provision for people who want to change back? I accept that the process should be equally rigorous for those who wish to do so, but I hope that I have misunderstood him and that he is not saying that people are unable to change back to their original gender even if they go through a suitably rigorous process on which we would both no doubt agree.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am coming to that point. The Bill is purposefully drafted to ensure that only those individuals with a diagnosis of gender dysphoria who have already taken decisive steps to live fully and permanently in their acquired gender gain recognition. There has been some discussion about the isolated cases in which individuals have reverted, and it is important to review those cases in context. There are no exact figures, but the most authoritative studies suggest that between 1 and 2 per cent. of people revert. That is of a community of about 5,000 people. We must put that in context.

If an individual sought to resume his or her birth gender, the provisions in the Bill would not prevent that individual making an application to regain legal recognition in their birth gender. An individual in that position would have to meet all the criteria in the Bill and satisfy the evidence requirements. I emphasise that as much careful thought would need to be given to going back as was given to making the transition in the first place. In most cases the applicant will have had hormone treatment and surgery to support them in the acquired gender. Reverting to the birth gender after that will need to be done under close medical supervision. Therefore, the criteria in the Bill for changing gender should apply equally to a person who seeks recognition in the acquired gender and to a person who wishes to return to being recognised in the birth gender.

Photo of Richard Younger-Ross Richard Younger-Ross Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions

If I understand the Minister correctly, he is saying that the person would have to spend two years in their original gender before they could be recognised as having changed back. I can understand that that might be appropriate in certain circumstances. I think of a case where Dr. Money changed a child, who went for 18 years before eventually deciding against the gender that they had been assigned as a young child and wanting to revert back to the birth gender. That is obviously after a long time and there is logic in that. I cannot see the logic in a two-year period. Is there no flexibility for someone who has, perhaps, been in their new gender for three, four or five years?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Gender recognition is a fundamental change of legal status. In that sense, it is not a light matter and should not be capable of being revoked a day later on the whim of an applicant. Having said that, that is not going to happen. That is certainly not my experience of transsexual people. I think one would be hard pressed to find any Members who found that as their experience. It just does not happen. In a sense, what we are preoccupied with is that 1 to 2 per cent. Although I am not a medical expert, I would proffer on the basis of case studies that the real experience is that it is some time before people come to a realisation that they wish to revert. In practice, the problem does not happen, but we should require the panel to be sure—indeed, very sure—that the decision is one for life, with permanence, and that the person has begun to make that social change back to their birth gender.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

May I draw the Minister's attention to a potential inequity that I have only just spotted, and which I do not believe to be material, between married and unmarried persons who receive a gender recognition certificate? Married persons, who may have many difficulties to be explored at a later stage in our consideration of the Bill, would receive an interim certificate. Their dilemma would be resolved simply by allowing the interim certificate to run out, whereas someone who received a full certificate on day one would have to go through the full rigmarole of reversing the process.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The hon. Gentleman makes a fair point, but I must emphasise that the panel will be concerned to ensure that the decision is permanent. He may appreciate that the standards in the Bill to some extent mirror the Harry Benjamin standards, which are the standards of acquired practice among the medical professionals who practise in this area. Those standards require three planks: the person has begun the process of social change, of acquiring a new gender, and of dressing accordingly; they have hormone treatment and other treatments; ultimately, they have surgical treatment if it is viable. That provides a degree of permanence, as much would be required to revert. It is therefore important that members of the panel have clear standards by which to guide them when they make assessments for the few people in that position.

Photo of Richard Younger-Ross Richard Younger-Ross Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions

I accept that the number is small. I reject both amendments because they are fundamentally flawed, but I am concerned that someone in their 40s or 50s who has lived their life in one gender may change gender because the pressures and conflicts are too great, but cannot settle in their new gender because of all the turmoil in their life. They will experience a great deal of psychological trouble and disturbance if they cannot cope with the changes in their life and they need to revert, and it seems cruel to have a very set two-year rule on reversal. Will the Minister say whether some flexibility could be introduced, so that two years may be the general rule, but that with medical advice the panel could be more flexible than the Minister is implying?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I know why the hon. Gentleman makes that point, but it is important to emphasise that one hopes that the panel will get the assessment right the first time.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Perfection does not exist. As I said, the gender recognition certificate represents one of the most fundamental changes in the world. We must therefore be sure that members of the panel, who are taking extremely difficult decisions, are rigorous in weighing the evidence that is before them. On balance, our criteria are right, given the legal weight of what they have to assess.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

The process is traumatic, whichever way it takes someone. There can be no flexibility in this matter. People have to take a decision and go through a complex process. Reversal will be extremely rare, and the Government are right to require the process to be considered in exactly the same way as any initial application.

Mr. Boswell rose—

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs) 10:45 am, 9th March 2004

I am grateful to the Minister for giving way. In a sense, the point is of general application and not specifically confined to the reverse issue that we are discussing. However, there could be circumstances in which the two-year requirement in clause 2 might at least be worth consideration by the panel—for example, if someone were terminally ill and unable to complete the whole period. I ask the Minister to take that away and to think about it, rather than coming to a decision now.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful to the hon. Gentleman for that comment.

Amendment No. 19 would have the effect, perhaps unintended, of devaluing the difficult transition that we have been discussing. Furthermore, if a person can apply for a certificate to be revoked without controlled supervision or testing, the robust and credible gender recognition process that we are setting up would be undermined.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

It may help the Minister if I say without prejudice to my hon. Friend that, having heard what the Minister and the hon. Member for Oxford, West and Abingdon said, I have come down in favour of not pressing my amendment. It is right to rehearse such issues but entirely wrong to seek to subvert the Bill by pursuing them.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful to the hon. Gentleman. It is on that basis that the Government oppose the amendment.

Photo of Andrew Selous Andrew Selous Conservative, South West Bedfordshire

It is not right for us to get into an argument about the proportion of people who are involved; we all accept that some people are in such a situation. Indeed, a case was prominent in the national

press not two weeks ago. I refer again to a gender dysphoria awareness association that was recently set up in Australia. It is an action group for people who find themselves in exactly that position.

I agree with the Minister that the process for changing back should be rigorous. However, someone who wants to revert to their biological gender should not necessarily have to go through exactly the same process as someone changing from their biological gender. I hope that the Minister will reflect on the need for flexibility, which has been urged on him.

I also agree that the matter is serious. I am concerned when the Minister says that he hopes that the gender recognition panel got it right in the first instance, because he seems to be saying that he is giving more weight to a tribunal of three people than the wishes of an individual to resume their original sex, which seems extraordinary.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I do not agree with what the hon. Gentleman has just said, but that is not the purpose of my intervention. I wish to deal with a point that he and my hon. Friend the Member for Teignbridge (Richard Younger-Ross) raised. Someone who wants to change back does not have two years of not being able to live in their preferred gender, because they can still adopt the social identity of their birth gender. It is simply that they have a certificate. Clearly, that is a problem, but it is not necessarily the same as the two years of misery that might be felt by someone who is trapped in the wrong body, as is said colloquially, and who is unable to live the lifestyle of what they feel is their gender. It is important to make that point.

Photo of Andrew Selous Andrew Selous Conservative, South West Bedfordshire

The hon. Gentleman makes a fair point, with which I agree. However, we must recognise the real need and distress of someone who wants a certificate that recognises their preferred gender. They may want their birth certificate and other documents to be restored to the state they were in at the time they were born.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

I am concerned that in pursuing the issue the hon. Gentleman is trivialising the whole process. It is not simply a matter of someone changing their mind. I must remind him that the person to whom he referred has not gone through the process of legal recognition. They have received some treatment, the extent of which we do not know, and it is part of a complaint against an individual medical practitioner that has brought the issue into the news. I do not think that the hon. Gentleman can use that case as an example of someone who has gone through a legal process and then decided that they wish to revert to their birth gender through another legal process. The type of case that he cites is very rare. It is a serious matter, whether we are talking about the change in the first instance or someone wishing to revert to their birth gender. I hardly think that such cases are likely, although I could never say never, but in those rare cases in which that does happen, the matter should be treated as seriously as the first process.

Photo of Andrew Selous Andrew Selous Conservative, South West Bedfordshire

I accept that the matter should be taken seriously. I am concerned that the hon. Lady accuses me of trivialising it; I assure her that I do not intend to do so. I am choosing not to name the case to which I think we are both referring, because I do not particularly want to give it further publicity, but I assure her that I have been in contact with people and am aware of a number of other cases in which people have found themselves in the situation described. That is also the situation internationally. My request is wholly reasonable. I am simply saying that there should be explicit recognition that such people's concerns should be treated sympathetically. The Minister has assured us that that will be the case, but I am concerned that, in some instances, it will be an unduly lengthy process for someone to return to their original gender, and perhaps that warrants the matter being considered slightly differently. That said, I am content to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

I shall make a general point first and then raise a particular concern. The tone of the debate so far has made it clear that a change of gender, or an application for a change of gender, and recognition of that is a serious process. Usually, it will not be a painless process and will not be embarked on without due and careful thought. Equally, the panel will consider the matter in a serious manner. We shall discuss the panel's operation shortly, but no one should view what we are discussing as a light matter of whim whereby someone wakes up one morning, decides to change gender and goes through some simple process. That is the stuff of tabloid newspapers. We have not had that type of debate so far, and I am sure that we will not in future. Instead, there is serious engagement on a proper issue.

As I said, the process will not be painless. For reasons that will be deployed later in the Bill, it will not be without consequences either, possibly in financial terms as well in terms of personal relationships with other members of the family. That is in addition to the change in legal status. Indeed, certain people, whether or not they are married or in existing relationships, may feel unable to take the steps that are prescribed and operated under the first part of the Bill, particularly clauses 1 and 2. Some people may feel that they just cannot do that. In certain cases, to which I have referred, they may have a medical condition that suggests that they may not be able to complete the process within the time scales.

For a number of years, because we all realise that there are grave difficulties for transgendered people in meeting the requirements of modern life in the absence of legal status, a series of legal accommodations has been possible for them in relation to matters such as driving licences. I confess that only very late in the day was it drawn to my attention that there is no statement in the Bill—perhaps there cannot be—of a continuation of that option. However, if people feel

that they cannot go through the process of making an application, or they wish to withdraw from it because it has become so painful, they should, in my view, be entitled to do that before the certificate is granted. There is no suggestion in the Bill, and nor should there be, that there should be a compulsory reassignment of gender on such criteria. That would be intolerable. However, it would be unfortunate if the existing privileges—civilised accommodation might be a better way of putting it—for transgendered people were withdrawn.

I have seen no suggestion of that. It would be helpful if the Minister would assure the Committee that if people wish to continue legally in their birth gender but have assumed the style of an acquired gender and do not wish to avail themselves of the right to apply for a certificate to change their birth gender, they would still be entitled to reasonable accommodation by officialdom in a way that made their lives tolerable. That is all I seek, and I hope that the Minister will give that assurance.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Clause 1 provides the building blocks for the gender recognition process and it sets out who may apply for recognition in the acquired gender and, quite properly, who will determine the applications. Those building blocks reflect the general principles of the Bill. The Government are committed to allowing transsexual people who have taken decisive steps to live fully and permanently in an acquired gender to gain legal recognition of that gender.

The hon. Member for Daventry asked me about those who may consider the option set out by the Bill. They may well be examining tomorrow the Hansard record of the debate. What if they decide, ''No, thank you. Actually, I do not want to go through the process''? When I met Press for Change last week to discuss the Bill, it brought to my attention the situation of transsexual people who have lived in an acquired gender for some 40 to 45 years. Couples who are now well over pensionable age may not want to go through the process. We are not requiring people to do that, but it is right that we make that process available to people.

I hope that the ways in which authorities and institutions such as the Passport Agency and the Driver and Vehicle and Licensing Agency—it is not the Driver and Vehicle Licensing Centre any more—have sought to accommodate people continues. There are other areas of life in which I hope that the Bill gives those institutions a lead, and makes it clear to people that transsexual people have rights. It is an important condition that they have to bear in mind.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs) 11:00 am, 9th March 2004

I rise simply to record that I regard that as an entirely satisfactory set of assurances, which is what I sought.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am very grateful for that. It is also important that applications should not be restricted to UK citizens. We have discussed that this morning.

Citizens from other countries live, work and marry in this country and they should be free to do so in their acquired gender if they meet the criteria that will be applied by the gender recognition panel. To that end, a robust and credible process must be established to determine applications for recognition. Clause 1 provides that applications will be dealt with by gender recognition panels, which will be composed of medical and legal members appointed to the list by the Lord Chancellor. On that basis, I hope that we have dealt with clause 1 in some detail.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.