‘or a demonstrable commitment to maintaining a transgender identity for a significant period of time,’.
This probing amendment is an attempt to interest my hon. Friend the Minister in the prospect of developing a broader definition of a transgendered person. Clause 10, which deals with groups, refers in subsection (2) to
“a group or class of persons who share a common attribute” in respect of any of the strands of discrimination that are listed. A transgendered person is defined as some who has
“proposed, commenced or completed reassignment of gender”.
My amendment would add that a transgendered person is someone who has shown
“a demonstrable commitment to maintaining a transgender identity for a significant period of time”.
The point is about inclusivity in the category. By maintaining a transgender lifestyle, people who have not undergone reassignment are, none the less, as likely to be identified as in the transgender class as a person who has gone through the process or is approaching it, as the definition is wide enough to include somebody who is commencing on it or proposing to commence on it. Persons who are not yet in that situation are capable of suffering the same kind of discrimination, as they will be perceived as members of that group. Consequently, their rights ought to be properly protected. The element of the original definition in subsection (2)(d), which is about a person who has “proposed ... reassignment of gender”, will cover part of this mischief, but there will be people who have not got that close to the process who are living a settled life in a transgendered way. As I say, they are likely to need the employment protection that we are keen to give to this sector.
I have thought of an analogy, although I do not know whether it works; I shall wait to be criticised deeply the minute I sit down. If I intend to live my life as a Christian, and I do, I expect to be protected in that status, whether or not I have been baptised or confirmed into the Church, because I live my life in that way. If that is anything like an analogy, we come quickly to the mischief at which I am aiming. By linking the definition totally to the physical process of gender reassignment, the subsection is perhaps too arbitrary and exclusive. I am inviting my hon. Friend the Minister to consider whether the definition could be widened.
Although I support entirely the intention behind clause 10, and particularly the paragraph that the hon. and learned Member for Redcar (Vera Baird) seeks to amend, I am extremely concerned that her amendment is too vague. She said that it was a probing amendment. Given that she is a learned lady, I am sure that she is also a good draftsman, and I shall therefore not criticise the exact words of her amendment. However, what is a “demonstrable commitment”? It is hard to understand what that is, if not a
“proposed, commenced or completed reassignment of gender”.
A “proposed ... reassignment of gender” is quite wide, because the person does not need to have taken any steps whatever, but needs merely to have stated, or proposed, an intention for reassignment of gender. However,
“a demonstrable commitment to maintaining a transgender identity for a significant period of time” is much too vague; “significant period of time” is much too vague. Surely if somebody is to complete reassignment of gender, it will not be for a “significant period of time”, but for ever. I therefore oppose the amendment No. 50 as too vague and imprecise.
Having said that, I am pleased that there is a specific duty under subsection (2) not only on age, disability, gender, race, religion or belief and sexual orientation, but—properly—to people who are undergoing or wish to undergo a reassignment of gender. Earlier this year in Blackpool, I met a group of people who represented the lesbian, gay and transgendered community. I was very impressed by their arguments in favour of the Bill. Before I met them, I had thought that the transgender provision was possibly a fringe issue for a tiny minority and not desperately important. However, I completely changed my mind. People who undergo a reassignment of gender take an enormously brave step in their lives, usually because something does not fit in their personality. There is usually a good biological reason—something that medical science did not recognise properly until recently. That means that generations of people have lived incomplete lives, or lived their lives in some way out of kilter with themselves. It is a terrible thing for society to put a person through that experience, by deciding that nothing can be done to change the description as either male or female that was given to them at birth. Many people have benefited from being able to change their gender, not out of some frivolous desire to do so, but out of real biological and psychological necessity.
It is excellent that the Bill contains specific provisions to protect those people. The Government still need to go some way—in pensions legislation, for example, and in relation to marriage and divorce rights—but I fear that the Bill does not provide the right forum for that discussion. I merely mention that the subject should be examined elsewhere and that the rights of transgendered people should be brought into line with those of everyone else. However, although I respect the fact that the hon. and learned Member for Redcar has the best of intentions, my hon. Friends and I cannot support her amendment, because it is too vague.
I thank my hon. and learned Friend the Member for Redcar for raising this important issue. I am sure that many Committee members will have received correspondence from constituents about this matter and related matters. I should say at the outset that I support the intention behind the amendment, but it is not necessary.
The new Commission for Equality and Human Rights has a duty to promote, very broadly, an understanding of the importance of equality and diversity. Clause 10 makes it clear that the commission should work towards the elimination of prejudice against certain groups, as well as enabling them to participate in society. The amendment would widen the definition listed in clause 10(2) to include all people who are transgendered. It would introduce a different definition from the one used elsewhere in the Bill and in other legislation—namely “transsexual”.
Transgender implies a wider range of identities, including transvestites, those who express an alternative gender role only occasionally, intersex people—those born with an ambiguous biological sex—and those who express themselves as neither male nor female. Transsexuals—people with an overwhelming need to undergo transition and to live permanently in the resulting role—are protected against discrimination under the Sex Discrimination Act 1975. It is that definition that is used in the Bill.
The amendment would cause confusion, and we want to avoid any reduction in clarity and certainty in the application of the law. However, I am sympathetic to the claim that so precise a definition as that in clause 10, based on the Sex Discrimination Act 1975, could be over-restrictive for the purpose of the Commission’s work in promoting good relations, eliminating prejudice and encouraging participation in society.
For clarity, although clause 10 singles out groups based on the categories of people who are entitled to protection against discrimination, consistently with the general law on discrimination, it does not limit the commission’s wider duties under part 1, which include the duty generally to promote understanding of the importance of equality, diversity and human rights between all people and groups of people.
Clause 8, which sets out the commission’s equality and diversity duties, would provide the right statutory locus to enable the commission to work with and provide equality for the group in question and other groups that are not defined by discrimination law. In that sense, transgendered people are within the new commission’s remit, including its work to encourage good practice and promote understanding of the importance of equality and diversity. Under its wide equality and diversity duties, the commission could also promote good relations between transgendered people in other groups and between transgendered people and wider society and work towards eliminating prejudice, hatred and hostility towards them. The commission could also encourage transgendered people to participate in society as part of its duty to encourage good practice in relation to equality and diversity. I hope that I have made the position clear and that my hon. and learned Friend will consider withdrawing her amendment.
“a demonstrable commitment to maintaining the transgender identity” to mean that every time that someone is seen over a measurable period, they are behaving in that way and are clearly embarked upon a lifestyle of a transgendered nature. I did not think that it needed to be more strictly defined than that. The point is for it to be inclusive, rather than exclusive.
Someone who has not yet taken a decision to undergo reassignment of gender—there is a quite long lead-in time while the person simply lives that way to ensure that they want to go through with gender reassignment—is likely to be discriminated against because they will be identified as part of that group in any event. However, I found what my hon. Friend said very reassuring. It is clear that the clause is intended to be as inclusive as possible. I beg to ask leave to withdraw the amendment.
‘(4)In determining what action to take in pursuance of this section, the Commission shall have due regard to the importance of exercising the powers conferred by this Part in relation to all the groups defined in subsection (2).’.
This will be a brief, condensed contribution. I want to probe again the issue in subsection (4) by seeking to replace it with an amended subsection that gives different priorities. That is because the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Stirling (Mrs. McGuire), who responded to the debate on Second Reading, did not have an opportunity to make a fuller response to the points that I am about to make again briefly now.
The purpose of clause 10 is to promote understanding of the importance of good relations among groups and to encourage good practice about relations among groups. Those groups are defined as sharing the common attribute as to any of the strands—that is groups defined by age, race, religion and so on. That is excellent, but subsection (4) provides that in determining what action to take in pursuance of that power to promote understanding among all the groups, the commission has to have particular regard to the importance of exercising its power in relation to groups defined by reference to race and religion or beliefs. That clearly, in this part of the Bill at any rate, gives pre-eminence to the need to address the interests of groups defined by race, religion or belief above all the others.
The first thing that happens when confronted with that is that the duty to give pre-eminence or priority is inevitably reflected in the resources that are allocated to the various sectors. This morning the hon. Member for Romsey talked about the poorer pay of people at the Equal Opportunities Commission. It has always functioned on about half of the budget of the CRE, which I never found entirely explicable. It does not seem to be a good idea to set up a new united commission in which people from every strand are expected to have faith and confidence and at the same time to set a priority that will inevitably knock on to the resources applied to that sector to the exclusion of age, disability, gender and all the others.
If my hon. Friend can give me some reassurance that the priority in subsection (4) will not resonate in resource allocation within the commission, I shall be very pleased. I do not know, however, how she can provide that reassurance.
Before I turn to the main thrust of my argument about subsection (4), I acknowledge that the Women’s National Commission, which represents more than 400 grass-roots women’s groups, and the Fawcett Society drew to my attention the clause’s potential impact.
I accept that race and religion or belief are hugely important sectors as a result of the potential that exists for interracial and inter-religious conflict. At present, there is perhaps a particular political priority in those two areas. People are made very unhappy, are harassed or are killed because of racial and religious difficulties.
Similarly, however, people are killed because of their gender. More than 120 women a year are killed by men. One in two women has been stalked, has been raped or has suffered violence at home. Some 23 per cent. of people with learning disabilities have suffered physical abuse and 48 per cent. of gays in the east end of London have suffered from homophobic crime. Groups other than vulnerable racial and religious groups face threat, danger, injury and harassment.
All the examples that I have given of injuries to certain groups are inflicted by other groups. Violence against women is inflicted largely by men and violence against gays is inflicted largely by heterosexual people. It seems odd that those groups will be given a lower priority than those who suffer from similar conduct because of their race or religion. I do not understand why, because there is currently a political imperative to deal with race and religion—which I accept and respect entirely—those things will be prioritised in the Bill, which is, in a way, the constitution for the commission, for ever. If we fix these priorities today, they remain fixed for the commission’s lifetime.
Elsewhere in the Bill, the commission is required to set its priorities in consultation with the community. In subsection (4), that duty is being undermined by priorities being immovably fixed.
I agree with everything that the hon. and learned Lady has said. I just want to endorse what she has said about the immutability of the hierarchy that is being established. Enough distress and disappointment has already been created by introducing protections against discrimination that included only religion. Protections against sexual orientation were not included initially. I hope, and firmly believe, that a single equality Bill and the outcome of the equality review and the discrimination law review will sort out the problem.
I strongly support the hon. and learned Lady when she says that clause 10, as it stands, in what is effectively the commission’s constitution, retains those hierarchies long after everyone has as equal rights in law as possible.
I thank the hon. Gentleman for that point. On Second Reading, my hon. Friend the Member for Wallasey (Angela Eagle) said that the Bill was a taster of equality. She said that the main course, which would rectify all hierarchical positions in the equality strands, would be the single equality Act. Generally speaking, that is correct. Unfortunately, here we see that the starter is entrenching hierarchies in equality at the outset.
I do not have to rehearse any factual situations to make this point, but there is sometimes conflict between equality strands. Unfortunately, to prefer race and religion or belief over gender or the rights of the gay community could undermine the confidence that other sectors might have in the Bill.
I ask my hon. Friend the Minister to look again at the purpose of the clause. My amendment simply proposes that, in determining what action the commission should take under its duty to promote good relations among groups, it should have equal regard to all the communities that it will protect.
The amendment tabled in my name and that of my hon. Friend the Member for Oxford, West and Abingdon is almost identical to that tabled by the hon. and learned Member for Redcar. She has already made many of the comments that I was going to make, so I do not intend to rehearse them.
The crux of the matter seems to be the independence of the commission. Clause 4 provides that the commission should set its own priorities, and there is a particular flaw in appearing to make a special exception for race, religion or belief. We are effectively tying the hands of the commission before it starts, and that is not the way in which we should want to proceed.
I fully understand the political motives behind the provision, because with some of the tensions in societies it may be felt to be a laudable way to proceed. Having said that, I think that the commission would probably come to the same conclusion as us. The decision should be left to the commission, because it needs to be seen to be independent.
The problem is that there are conflicts, as well as synergies, between strands. To create a hierarchy in which one strand appears to be given greater attention is a dangerous road to go down. In a populist example, on a Saturday I occasionally get to watch “Casualty”. A current storyline involves a racist group of young men who initially target a particular community. In another episode, the same group is involved in a homophobic crime. The group is clearly operating within the same community.
If the clause were really concerned with tackling problems within communities and groups, it would accept that a community consists not only of a group of people of a certain race. I should like to think of a community as a mixture of people with all inequalities interspersed. It seems odd that any action should consider one side of the problem but not the other.
Some communities have a large gay population, and there are an increasing number of communities for the over-65s. If we stick to the provision in the Bill, those groups could be further disfranchised. We cannot ignore the fact that within some communities, there could be problems related to sexual orientation.
“Women from all backgrounds, and indeed other groups, cannot have confidence in this new body if its legal base is biased against them. The gap between resources allocated to women and other groups is already extensive and women do not expect this to be institutionalised nor written into statute.”
It is disappointing that in a well meant Bill, a well intentioned clause falls at the first hurdle because it already disadvantages a large number of those people whom, if it were worded differently, it would seek to help.
I entirely agree with what the hon. and learned Member for Redcar and the hon. Member for Romsey have said, so I shall not repeat the arguments. If either amendment were put to the vote, we would support it. It is hard to understand why there should be pre-eminence in this respect for race, religion or belief, but not for the other five strands that we are discussing in the Bill.
I thank my hon. and learned Friend the Member for Redcar for her thoughtful remarks about her concerns. I am also grateful for the contributions from Opposition Members. The amendment is designed to change clause 10(4), which requires the commission to have particular regard to the importance of exercising its clause 10 duties in relation to groups defined by race, religion or belief. Those duties include promoting good relations and the understanding of the importance of good relations between groups in society, working towards eliminating prejudice and hate, and encouraging participation in society.
I would like to reassure my hon. and learned Friend that the intended effect of clause 10(4) is not to set out a statutory hierarchy of the various equality groups. The ethos of the new commission is that it will work for the benefit of all in society. By bringing together all the equality groups and issues in one body, we are equipping the commission with the power to deal with issues relating to individuals who belong to more than one group or who experience discrimination on more than one front.
There is also much to be learned by sharing experiences, strategies and approaches that have until now been confined to separate commissions working on specific areas of discrimination. We do not want to undermine the benefits of that approach.
It might help the Committee if I explain a little of the rationale for clause 10(4). The Government made it clear at the outset of the process that there would be no going back on the powers available to the existing commissions. In many ways, the success of the new commission will depend on its ability to build on the very important work carried out by its predecessor bodies. That will be enormously important in establishing its credibility.
The Commission for Racial Equality is alone among the existing equality commissions in having a duty to promote good relations among people of different racial groups. In addition, the amendment to the Race Relations Act in 2000 required public authorities to have regard to the need to promote good relations between different racial groups. On both counts, there is no question but that the new commission will need to carry forward the legacy of the CRE and work with public authorities to help them to meet their obligations under the race equality duty.
The CRE has, since its inception, supported a strong network of locally based racial equality councils and other organisations delivering on local race equality work. They have performed a crucial role in raising awareness of the rights and remedies available to individuals who experience discrimination, especially among racial and ethnic minority faith communities. In building on the existing work as we move to the new commission, we have guaranteed support for local race equality work for the foreseeable future; indeed, we did so as far back as the White Paper in 2004. Clause 10(4) goes some way towards giving effect to that commitment.
Given that the CRE will not come fully on board in the new commission until a couple of years after it is established, is there not a case for continuing that good work but for giving the commission an opportunity to replicate the useful work done in the race field by other bodies and even allowing the commission to decide which strands of equality it might wish to do extra work on?
I refer the hon. Lady to the clause, which sets out the responsibility in relation to all the different groups. I am emphasising that, as regards the work of the new body and its credibility, it must take forward the range of responsibilities, powers and duties that apply to the existing commissions. The duty that we are currently discussing is a particular one and is of enormous import in the work that the CRE has done. The Government believe that work to be of enormous import, and it will therefore be carried forward into the new commission.
Although it is correct that the CRE will not join the new commission until around 18 months after it starts if all goes to plan, we are setting up a body that needs to be inclusive from the outset. I caution against putting race issues to one side. We are creating a commission that will take account of all issues that are raised in relation to the six areas and, as the hon. Member for Romsey said, is underpinned by human rights. Some close, joint working will be needed to ensure that race issues are in at the start of the commission and are not neglected.
I was about to say that I caution against interpreting that as a statutory guarantee that the commission’s work on faith and race issues will always be prioritised over anything else. That is simply not so. The commission’s good relations work will, of course, benefit many groups. It will have new powers that are not available to the existing commissions to take action to prevent or reduce crime, prejudice or hatred directed at specific groups. For example, it would be well positioned to address issues of violence against women in black or minority ethnic communities.
A further safeguard is that the commission has a duty to consult all stakeholders when drawing up its strategic plan and to involve a wide range of interests when setting its priorities. The recently published Women’s National Commission analysis of the Government’s initiatives concerning violence against women, to which my hon. and learned Friend referred, is an important contribution to the wider debate and sets out some of the evidence base that I am sure the commission will work from. Clearly, much more needs to be done to tackle this important issue effectively, and we anticipate that the new commission will play a major role.
Why is the provision not restricted to race and why is it necessary to expand it to religion or belief, which would cover Christians, Muslims, atheists, agnostics and people who have no religious belief? I understand that there is a particular problem with racism, but I do not believe that beyond Islamophobia, which is racist, there is a particular reason to link all those other groups as communities or groups with ethnic minorities, who certainly face significant challenges.
I disagree. There is certainly a clear belief that there are concerns about issues in relation to people’s religions.
I believe that we have found the right balance between acknowledging the historical legacy of the commission’s good relations work and the need to ensure that the concerns of all its interest groups are heard and addressed. I hope that I have been able to reassure my hon. and learned Friend and that she will withdraw her amendment.
I am grateful to my hon. Friend. I understand as well as any Member with some ethnic minority constituents the problems facing people from racial minorities and ethnic minorities with a faith component, which is obviously what the provision is directed at, although I heard what the hon. Member for Oxford, West and Abingdon said. I pay tribute to the Commission for Racial Equality and emphasise the importance of its legacy being carried forward powerfully. It is clear that neither my amendment nor the two organisations that back up the proposal intend to put race or religion on one side—quite the reverse. It is a hugely important sector, but it is difficult to understand why it is the most important sector and will be for ever in the Bill. The matter is slightly shrouded in incomprehension but I trust my hon. Friend, and I beg to ask leave to withdraw the amendment.