‘(i)the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000,
(j)the Employment Rights Act 1996, and
(k)the Maternity and Parental Leave Regulations 1999.’.
I can put this succinctly. Clause 33 defines equalities and human rights enactments for the purpose of part 1. Subsection (1) defines equality enactments. My amendment would add three extra sets of regulations to that definition. The Equal Opportunities Commission, on whose behalf I raise the issue, wants to probe why those enactments, which seem to be in the same family as those set out in the clause, are not included.
I thank my hon. and learned Friend for raising those important issues. I welcome the work of the Equal Opportunities Commission, which, through campaigns on part-time workers and pregnancy in employment, has brought much needed attention to and raised awareness of the number of employers who still fail to maximise the benefits of the work force, particularly women. I am sure that Committee members of all parties will recognise the valuable contribution of the Equal Opportunities Commission to the debates.
The amendment would extend the scope of the new commission’s remit, so that it would be able to exercise its duties and use its powers in areas far beyond the confines of discrimination law and human rights. It would add employment rights concerned with maternity leave, parental leave, flexible working, termination of employment, redundancy, protection from victimisation and part-time working to the list of equality enactments in clause 33. Those employment rights have played an important role in helping women to advance in the workplace and enabling parents and carers to balance work and family life, but there is a difficulty in adding the relevant employment enactments to clause 33.
The commission exercises its regulatory role through its powers to support cases, to issue codes of practice and to bring enforcement actions. The regulatory role is confined to discrimination law, as has been the case for the existing commissions. It would be inappropriate to extend the regulatory role to areas of legislation that go beyond discrimination, because it would create a risk that the new commission would lose focus on its core role, which is centred on equality and human rights.
There is plenty, however, that the new commission will be able to do. Several provisions in the Bill give it wider powers than those that are available to the existing commissions, enabling the new body to take forward the excellent work of the Equal Opportunities Commission. It may be helpful if I set the powers out in a little more detail.
Clause 8 sets out equality and diversity duties. The new commission will be able to promote equality for women and men in their roles as carers, parents and part-time workers, thus building on the good practice of the Equal Opportunities Commission and Disability Rights Commission. The new commission will be able to use its powers to provide general advice, to undertake promotional work and to encourage good practice to drive forward work with employers in the relevant sector. It will also be able to use its inquiry powers, and its ability to comment on the impact of any law or proposed change in the law, to recommend action to Government on such issues. It will have wide-ranging powers to promote equality for women in all areas of their lives, just as the Equal Opportunities Commission has. That is separate from its powers to enforce specific items of legislation, as covered by the clause. The commission will be able to promote equality for women and men as carers and in aspects of working life such as family-friendly arrangements and pensions. It will work on a very broad front and be able to cover such issues as domestic violence.
The new body will be able to provide legal assistance to individuals in cases that combine a discrimination law provision with a matter dealt with under other legislation, including those listed in the amendment. Committee members will want to be aware that, in the longer term, the Government are reviewing the entire framework of discrimination law, through the discrimination law review, which has already been mentioned several times. The review will consider the legal framework of discrimination law and the issues relating to those with family and caring responsibilities. I hope that the Committee will agree that that review is the correct way to consider such matters further. As I have explained, those employment rights are beyond the scope of what we wish the new commission’s regulatory powers to focus on. There is plenty of opportunity to consider the issues involved within other powers available under the Bill. I ask my hon. and learned Friend to withdraw her amendment.
With this it will be convenient to discuss the following amendments:
No. 74, in clause 35, page 22, line 6, at end insert—
‘“gender reassigment” means an individual’s gender representation when a person has proposed, commenced or completed reassignment of gender (within the meaning given in section 82 (1) of the Sex Discrimination Act 1975 (c.65)).’.
No. 84, in clause 80, page 45, line 40, at end insert ‘or transgender status’.
No. 71, in clause 82, page 50, line 2, at end insert
‘and those intending to undergo, undergoing or who have undergone gender reassignment.’.
No. 72, in clause 82, page 50, line 2, at end insert
‘(c)to eliminate the harassment of persons who are intending to undergo, are undergoing or have undergone gender reassignment, or who have a commitment to maintaining a transgender identity.’.
New clause 10—Discrimination on grounds of gender reassignment—
‘(1)The Secretary of State may by regulations make provision about discrimination or harassment on grounds of gender reassignment.
(2)In subsection (1) “gender reassignment” has the meaning given by section 35.
(3)The regulations may, in particular—
(a)make provision of a kind similar to Part 2 of this Act;
(d)make provision for enforcement (which may, in particular, include provision—
(i)creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by an enactment relating to discrimination or equality,
(ii)about validity and revision of contracts,
(iii)about discriminatory advertisements, and
(iv)about instructing or causing discrimination or harassment;
(e)provide for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality);
(f)make provisions which applies generally or only in specified cases or circumstances;
(g)make different provision for different cases or circumstances;
(h)include incidental or consequential provision (which may include provision for amending an enactment);
(i)include transitional provision.
(a)shall be made by statutory instrument, and
(b)may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(5)In subsection (3)(h) “enactment” includes an enactment in or under an Act of the Scottish Parliament.’.
We tabled this group of amendments to query why there appears to be no goods and services protection for transgender people in the Bill. That is particularly disappointing, because in its 19th report, which was on the Gender Recognition Bill, the Joint Committee on Human Rights stated in recommendation 103:
“We therefore recommend that the legislation should include provisions amending the sex discrimination legislation to make it unlawful to discriminate against people in the fields of education, housing and the provision of goods, facilities and services on the ground that they have undergone, are undergoing or plan to undergo sex reassignment.”
During the passage of that Bill, the issue was discussed at some length and I shall not repeat much of the dialogue. However, in his summing-up, the Minister said:
“We want to ensure that the issues raised by the Joint Committee and others are properly considered and that there is consultation not only with the transsexual community but with businesses and other parts of the community, such as religious groups and the voluntary sector.”—[Official Report, Standing Committee A, 16 March 2004; c. 186.]
That was more than a year ago. One would have thought that there has been sufficient time for provisions to be brought forward in this Bill. Although I concede that this Bill was originally conceived to establish a commission for equality and human rights rather than to tidy up anti-discrimination legislation, when it was published it included substantive anti-discrimination provisions—most notably, a public sector duty to promote gender equality and protection against discrimination in the supply of goods and services on grounds of religion or belief.
One change has already been made. Why not make another? To some extent, transgender people are protected against discrimination in employment and vocational training through the Sex Discrimination (Gender Reassignment) Regulations 1999. However, because those were introduced under the European directive, it was decided not to extend the scope of the 1972 equal treatment directive by extending protection to goods and services. Now that appropriate primary legislation is being considered, that omission could easily be remedied.
Ministers have indicated a willingness to consider a change under the proposed single equality Bill, but there is some doubt about whether that would be enacted in time to comply with the EU directive on gender discrimination outside the workplace, which requires protection to be in place by December 2007. If the Minister elaborated on the time scales, that would be helpful.
The omission from the Equality Bill of goods and services protection for transgender people has excluded them from full coverage under the public sector duty on gender. The gender duty will therefore have to be implemented with guidance that transgender people are not currently fully within its scope. Unless the Government intend permanently to exclude transgender people from the public sector duty on gender, the statutory code of practice and the EOC guidance will have to be rewritten within months of the Bill’s entry into force. That will create confusion and impose an entirely unnecessary administrative burden on the 44,000 public authorities that have already implemented the gender duty and will subsequently have to revise their plans.
I shall run through what the amendments would achieve. Amendment No. 73 would add to the list of equality and human rights enactments the two major pieces of legislation covering the rights of transgendered people. It could be argued that the Sex Discrimination (Gender Reassignment) Regulations 1999 amend the Sex Discrimination Act and that the matter is covered by the reference to the SDA. However, explicit inclusion would provide clarity and send a strong message. The Gender Recognition Act 2004 is primarily a human rights enactment and implements in UK law the 2002 ruling of the European Court of Human Rights in Goodwin v. UK and I v. UK. It is to a small degree an equality enactment, but the purpose of the amendment is to clarify the Government’s intentions when dealing with transgendered people.
Amendment No. 74 would add to the interpretation clause a definition of “gender reassignment”. The phrase is used in the Bill but is otherwise undefined. Instead of seeking a new definition, we propose to use the definition in the Sex Discrimination Act as amended by the 1999 regulations. If there is not a clear definition in the Bill, there may be a risk that the courts will be asked to consider alternative interpretations. Similar cases were taken to the European Court of Human Rights and, consequently, legislation had to be amended.
New clause 10 simply mirrors the clause on discrimination on grounds of sexual orientation to cover gender reassignment and transgendered people. Not all of our proposals may be necessary but there is great concern in the community that the Bill does not go far enough to cover some of the many loopholes that people experience.
Amendment No. 71 is an attempt to address the omission of transgendered people from the public sector duty to promote gender equality and to raise the importance of such issues in the mind of public authorities. It is particularly important for transgendered people who have experienced significant institutional discrimination in both employment and the provision of goods and services. Amendment No. 72 would add a provision covering harassment.
It would be helpful if the Minister explained why the Government seem to be lagging behind in the Bill, confirmed whether there will be a firm promise in the single equality Bill when it is introduced and whether that will be in time to avoid some of the timing problems that I outlined.
Amendment No. 84 is mine. I support what the hon. Member for Romsey (Sandra Gidley) said on the other amendments in this group. She made a strong argument and it is important that the issue of transgendered people is dealt with properly in this part of the Bill.
Amendment No. 84 relates to clause 80 in part 3, which is entirely concerned with discrimination on grounds of sexual orientation. Is the proper definition of sexual orientation inclusive of whether a person is transgendered? If transgendered people are included under the wider definition of sexual orientation, the matter will be properly dealt with, but if not, it is essential that the amendment be made. It is simply not fair that, although people are protected and given rights in respect of their sexual orientation, they are not if they are transgendered.
I would argue that being transgendered is a question of sexual orientation, but perhaps it is not, under the legal definition. Perhaps, in law, a transgendered person has changed their gender, not their sexual orientation. I fear that I may not have put that very clearly, although I meant it to be succinct and clear, but this is sometimes a confusing area of law. It is important that we get the matter right in the Bill. Otherwise, transgendered people will not have their rights protected in the same way as everyone else.
Before I address the amendments and new clause 10, I shall make a few general comments. As I said earlier, we are committed to providing full rights for transsexual people, and we have demonstrated that by outlawing discrimination on the grounds of gender reassignment in employment and vocational training, and by passing the Gender Recognition Act 2004.
Which UK statute outlawed such discrimination in respect of employment, or was it a European statute, with case law to back it up?
I shall give the hon. Gentleman that answer shortly.
For transsexual people, the general duty in clause 82 will oblige all public authorities, when carrying out their functions, to have regard to the need to eliminate discrimination on the grounds of gender reassignment in employment and vocational training. We believe that transsexual people, here and across Europe, should be treated fairly and with dignity. That is why the Government have ensured that the new law at European level will cover equal treatment for transsexual people in terms of the provision of goods and services. I fully understand why the amendments were tabled. I will go on to explain how the Government intend to provide further rights for transsexual people, and why the Government cannot accept the amendments, but I do not want hon. Members to doubt that I support the principle behind them.
Amendment No. 73 would add legislation on gender reassignment to the list of equality enactments set out in clause 33. First, the amendment seeks to add a reference to the Sex Discrimination (Gender Reassignment) Regulations 1999. The problem is that the 1999 regulations simply amended the Sex Discrimination Act 1975; the regulations are not free-standing and so cannot be included in the list of equality enactments in clause 33. Not that there is any need to include the regulations in the list—the Sex Discrimination Act is, of course, already listed as an equality enactment under clause 33. The new commission, like the existing Equal Opportunities Commission, can exercise the full range of its duties and powers in respect of all provisions of the Sex Discrimination Act. That includes the provisions that were added by the 1999 regulations, which outlaw discrimination against transsexual people on the grounds of gender reassignment. I am told that the 1999 regulations were a response to European case law.
The amendment would add a reference to the Gender Recognition Act 2004. Let me explain why that is unnecessary. The equality enactments listed in clause 33 are concerned with discrimination law. They impose legal duties on people not to discriminate, and confer rights on individuals to seek redress if they are victims of harassment or discrimination. The provisions that outlaw discrimination against transsexual people on the grounds of their gender reassignment are those I mentioned in the Sex Discrimination Act. The Gender Recognition Act is a completely different matter. It significantly advances the rights of transsexual people, but it is not a discrimination law; it is concerned with the legal recognition of a transsexual person’s acquired gender.
I gather that a small part of the Gender Recognition Act amends the 1999 regulations, so the Act appears to contain an element of discrimination. It is not completely about human rights.
My understanding is that there is no need for the legislation to include those regulations because they are referred to elsewhere. If there is still a lack of clarity in respect of how that works, it might be helpful if I write to the hon. Lady to make it clear which regulations are covered by which Acts. I want all Members to know exactly what is currently covered.
The Gender Recognition Act is not discrimination law. It is concerned with the legal recognition of a transsexual person’s acquired gender. A person who meets the criteria set out in the Act can obtain a full gender recognition certificate, and the Act then ensures that they are legally recognised as a person of the new gender. That is a matter of law that applies automatically and for all purposes, except where specific provision is made in the Act. In particular, it confers the right to a pension at the age that is appropriate for the new gender, and the right to get married to a person of the opposite gender. Therefore, the 2004 Act is not concerned with discrimination in the same way as are the equality enactments set out in clause 33.
To deal now with a point that was made by the hon. Member for Epping Forest would be out of sequence, but it might be helpful to do so. Sexual orientation is defined in clause 35, so transgender is not included as part of the definition.
I trust that I have clearly explained why the amendment is neither necessary nor appropriate. However, it has been useful to put on the record the way in which the discrimination law rights of transsexual people will already be fully within the commission’s remit. On that basis, I hope that the hon. Member for Romsey will withdraw the amendment.
I seek clarification on the question of discrimination in goods and services. I am unclear whether the Minister was referring to new clause 10, tabled by my hon. Friend the Member for Romsey and me, which addresses the matter in the same way as for sexual orientation. Was the Minister responding to new clause 10?
The hon. Gentleman has indeed jumped the gun. I was about to come to new clause 10. The Government are committed to extending protection from discrimination for transsexual people but believe it best to do so in the context of the discrimination law review, taking into account the requirements of the EU gender directive on goods and services. We will take forward the work of identifying the issues within the context of the review.
As the hon. Member for Romsey recognised, the Bill was never intended to deal with all issues, and we know that many gender and equality issues are not addressed. We want to do so within the discrimination law review. That is not simply a delaying tactic or reluctance to do things, and I have clearly stated the Government’s commitment to act. However, we want enough time to consult people and ensure that there is proper legislation that does exactly what we want it to do, and we want to achieve greater consistency of protection for individuals against discrimination, which will be clearer and simpler for those who have responsibilities under the law, whether as employers or public authorities. We also want individuals themselves to be much clearer about how they are protected. We are mindful that the EU gender directive is expected to be implemented in all EU member states by December 2007.
The Minister will understand that there is a great deal of frustration about this in the transcommunity and its friends, including friends on both sides of the House and in all parties. The Joint Committee on Human Rights states in paragraph 100 of its report on the draft Gender Recognition Bill in 2002-03:
“The Government replied that ... It did not consider that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields.”
In a response to me on 16 March 2004, the Under-Secretary of State for Culture, Media and Sport, the hon. Member for Tottenham (Mr. Lammy) said that the Government wanted to ensure that the issues were dealt with in due course. That was over a year ago. There is frustration that it is taking so long to give the sort of equality to this group that the Government are about to give to religious communities and to people on the basis of sexual orientation.
One of the joys of my post is in discovering that issues of equality and human rights have a great deal of support across the House and in all parties in a way that I understand has not always been the case. One of the frustrations for Members on both sides, and indeed for Ministers, is that it takes time to resolve many of these issues and to bring forward legislation. I understand the hon. Gentleman’s frustration that things are not moving as fast as he would like, but a process is in place, and the discrimination law review is under way. A Green Paper next year will enable everyone who has concerns in these areas to respond.
While I understand why hon. Members want to press the Government to do more and to do it more quickly, I believe we can get something better that responds more appropriately to all the concerns of the different groups. Transsexual or transgendered people are just one group who are pressing me to go faster and further. We will get much better legislation if we do that in a planned and effective way through the discrimination law review.
I have the advantage of being able to sit down with officials to see how much progress is being made, and I appreciate that I am asking hon. Members to be patient until early next year or late spring. It may seem that no progress is being made, but I assure them that progress is being made and that we will move as fast as we can to get a single equality Bill into a session in Parliament so that we can fulfil our firm manifesto commitment to have one within the life time of this Parliament.
In that spirit, we recently started the work necessary to ensure that there will be legal protection for transsexual people in the field of goods and services. The discrimination law review will also look at further extending public duties to promote equality of opportunity for transsexual people. The output of that review will be the single, simplified framework for equality legislation. As we extend the law into new areas, we have to consider carefully how to frame it.
A number of issues that transsexual people face need to be carefully considered, including complex questions about insurance and pension services. Privacy issues may need to be addressed both in relation to access to facilities and disclosure of previous gender identity. Many interested parties are involved and we need to explore how the law will work in practice. That will take time.
Amendment No. 74 would insert a definition of gender reassignment as
“an individual’s gender representation when a person has proposed, commenced or completed reassignment of gender (within the meaning given section 82(1) of the Sex Discrimination Act 1975 (c. 65)).”
The amendment is consequential to new clause 10, which would insert a new part 4, equivalent to part 3 on sexual orientation, giving the Secretary of State powers to make regulations outlawing discrimination against transsexual people in the provision of goods and services. The amendment is problematic because it introduces a definition of gender reassignment that is inconsistent with that in the Sex Discrimination Act, which defines discrimination on grounds of gender reassignment as discrimination on the ground that a person intends to undergo or is undergoing gender reassignment or has at some time in the past undergone gender reassignment. The difference in wording, particularly the addition of the words “an individual’s gender representation” could cause confusion, not least for the courts and legal practitioners.
Amendment No. 84 would extend the Secretary of State’s order-making powers in part 3 in relation to discrimination or harassment on the ground of sexual orientation to include the ground of “transgender status”. While the discrimination faced by transsexual people in the provision of goods and services has some similarities to those faced by people who are discriminated against because of their sexual orientation, there are a number of issues unique to transsexual people which we need to consider properly. The term “transgender status” is problematic because there is no established legal definition. Without a clear definition, the courts would struggle to uphold the law that would result from the amendment, as was illustrated by the hon. Member for Epping Forest a short time ago.
I understand the intention behind amendments Nos. 71 and 72. Transsexual people are protected from discrimination in employment and vocational training by the Sex Discrimination Act. They will not be covered explicitly in the requirement on public authorities, with the gender duty, to promote equality of opportunity between men and women. However, transsexual people will benefit as men or women from the general obligation to promote equality of opportunity between the sexes.
The effect of amendment No. 71 would be to extend the gender duty to include the promotion of equality of opportunity between transsexual people and others. We believe that it is better to consider that issue under the discrimination law review. There is, of course, nothing to prevent public authorities from ensuring that their public functions or goods and services are provided to transsexuals or transgender people on the basis of equality of opportunity. Indeed, we encourage them to do so.
One can understand that there might be complex cases for exceptions that require consideration, but we do not believe that the matter requires a further review, and nor does the Minister in relation to sexual orientation. The positive duty on public authorities is a general duty, so it does not necessarily need detailed consideration, because the issue of exceptions does not arise with general duties and because it is separate from new clause 10. What are the Minister’s arguments against doing that to provide protection for people as transsexuals rather than just as men and women, which, as she says, the Sex Discrimination Act and the positive duty already cover?
The hon. Gentleman brings me back to my earlier point that this is not the only area in which people are pressing for general duties to go further. One benefit of the discrimination law review is that it provides an opportunity to examine both existing duties and those that are to come into force shortly on race and disability and on the gender duty in the Bill. We want to learn from them. We want to consider how those duties work best and how to take them forward.
All that brings us back to the point that the Bill was never meant to do everything. Hon. Members are right to press Government, but the Government are committed to addressing these matters and are considering them in the discrimination law review. We want to do that in a full and complete way. If we continue to do things piecemeal, we will inevitably leave out certain groupings, and they will have to wait. I ask the hon. Gentleman to be patient and to wait for the discrimination law review to move on to its consultation phase. As I said, there is nothing to prevent public authorities from ensuring that they provide public functions or goods and services to transsexual or transgendered people on the basis of equality of opportunity, and we would encourage them to do so.
Amendment No. 72 goes wider than the current protection against harassment in respect of employment and vocational training. As I said on Tuesday on amendment No. 50, there is also a problem with the use of the word “transgender”. It all comes down to definitions and clarity of purpose, which are vital if the courts are to uphold the law. Public authorities must be clear as to their obligations, and accurate guidance must be available to assist them in carrying out their functions and delivering goods and services.
The word “transgender” implies a wide range of identities, including transvestites, who express an alternative gender role only occasionally, intersex people, who are born with an ambiguous biological sex, and those who express themselves as neither male nor female—a point that we discussed on Tuesday. Transsexuals, who have an overwhelming need to transition and to live permanently in that role, are protected against discrimination under the Sex Discrimination Act. That is the definition used in the Bill.
Although the amendment is well intentioned, it would cause confusion, and we should avoid that because it would reduce clarity and certainty about how the law should apply. That is why I strongly believe that the discrimination law review is the best vehicle to consider and make recommendations on these issues. I therefore hope that hon. Members will not press the amendments.
Will the Minister consider one more point in relation to the positive duty? If the discrimination law review said that the positive duty on gender should refer specifically to transsexual people, rather than just to men and women, that would presumably be legislated for. No sooner would public authorities have sorted out their approaches and policies, therefore, than they would have do everything all over again. There must be some merit in dealing at least with the positive duties and the burden of regulation on public authorities all in one go, so that everything will not have to be repeated when the discrimination law review deals with issues such as AIDS. If we are going to deal with gender, we might as well deal with everything in one go.
The hon. Gentleman is persistent; I will give him that. The discrimination law review will not suddenly drop lots of information from on high in one go; the whole purpose of the review is to engage a wide range of bodies, including public authorities. I cannot pre-empt what will come out of it, because that would be nonsensical, but there may be a better way of looking at the promotion of equality and duties that we cannot foresee at this point. Although I commend the hon. Gentleman on his persistence, he will not change my mind on the issue.
I appreciate what the Minister has said and I accept her explanation. As has been the case with so many parts of the Bill, we have suggested improving the provisions to make them more universal and therefore more consistent across various strands, but the discrimination law review is, of course, still under way. In many ways, it would have been better if the Government had waited until the equalities review and the discrimination law review were completed. They could then have introduced one Bill, and we would not have had such anomalies. However, I appreciate that they want to set up the new commission with its new powers as soon as possible. We all want it to work well, so I shall not press the point. In particular, I agree with the Minister that for transgendered people, in the widest of definitions, issues of pensions, employment and divorce are serious and very complicated. Such matters should not be rushed in any legislation, and therefore I welcome the deliberations of the discrimination law review.
It is disappointing that despite yet another attempt to address one of the inequalities in the Equality Bill receiving an allegedly sympathetic ear, we will see no change. It is particularly disappointing for we Liberal Democrats because the hard work of Lord Lester in the other place meant that the Equality Bill of 2003 was well thought out and would have addressed some of the problems. It is disappointing that the discrimination law review took some time to be announced. I am pleased that it is taking place, but why the time lag? Why has it taken so long?
The more we discuss the Bill, the more it appears to be more inappropriately named. It would be better named, “It’s equality, Jim, but not as we know it.” It does not provide equality for all people but its very title has raised expectations. It is with some reluctance that I will withdraw the amendment; we may revisit the subject in the future. I beg to ask leave to withdraw the amendment.