HC Deb 02 February 1996 vol 270 cc1282-90

Order for Second Reading read.

1.55 pm
Mr. Alex Carlile (Montgomery)

I beg to move, That the Bill be now read a Second time.

The Bill is about transsexuals—a significant group of people in our society who, in a phrase, are deprived of the ordinary protections of law that we take for granted. I am grateful for the support that I received in the preparation of the Bill from transsexuals and others all over the country who have effectively lobbied not only me but hon. Members in all parts of the House on this issue. I am also grateful for the support of right hon. and hon. Members in all parts of the House. I have yet to hear from a right hon. or hon. Member who does not support the principle of the Bill, and only one significant misgiving has been expressed about part of it.

I should like to express my gratitude to Mr. Terence Walton from the firm of Fallon, solicitors in London, for his assistance in the drafting of the Bill. Mr. Walton was the solicitor for April Ashley in the well-known and leading case of Corbett v. Corbett, in which judgment was given 26 years ago to this very day. The issue has been in the public domain for more than a quarter of a century. The problem remains unresolved and is becoming increasingly acute.

It gives me special pleasure to note that the Minister who is to respond to the debate is the Under-Secretary of State for Health, the hon. Member for Orpington (Mr. Horam). I can think of no one in the House better qualified to understand the issue. The hon. Gentleman started his active political life as a Labour Member, later going into limbo as an early member of the Social Democrat party, and has emerged as a Conservative Minister. No doubt he would say that his brain has always been Conservative really. An interesting analogy can be drawn between the Minister's political position and the rather more unfortunate situation faced by transsexuals. The Minister, from his august and influential position, is able to claim many rights for himself. I hope that when he replies to the debate he will not seek to deprive others of rights.

It used to be thought that transsexualism was a florid psychological state enjoyed—I use the word advisedly—by hysterical individuals who wished to draw attention to themselves, and who were the object of a good deal of laughter and risible printed comment. I am glad to say that the situation has changed. Since I have been involved in this issue, for some 10 years or so, press comment has moved away from the jokey, freak-of-the-week-type comment to a serious discussion in newspapers and journals about the issue of transsexualism, why it arises and what should be done about it.

Perhaps one of the main reasons why the flavour of the argument has changed is that science has at last begun to play a real part in our understanding of what transsexualism is and how it arises. In November last year, neurobiologist Dr. D. F. Swaab of the Netherlands and his international colleagues at the Netherlands Institute for Brain Research in Amsterdam announced and published their post mortem study of a tiny region of the brain known as the BSTc—the central subdivision of the bed nucleus of the stria terminalis.

The study showed that, on average, the stria terminalis was 44 per cent. larger in heterosexual men than in heterosexual women. More remarkably, the BSTcs of six male-to-female transsexuals, whose post mortem brains the researchers had painstakingly collected during the course of 11 years, were 52 per cent. smaller than those of the average man in the study and were in fact about the same size as those of the females-from-birth. The researchers had chosen to study the BSTc because previous research in rodents had shown that it plays a pivotal role in sexual behaviour. Remove the BSTc from a rat, and the animal will show no interest whatsoever in sex. The findings led very distinguished scientists to conclude that in humans, too, BSTc size is programmed during foetal and neonatal development—perhaps as a result of an interaction between sex hormones and the developing brain—and is probably not the result of parental, social or psychological pressures after birth.

Dr. Swaab and others concluded that transsexuals are right in their belief that their sex was wrongly judged at the moment of birth, and can understand why it was so judged. At the moment of birth, it is possible to look at the sex organs, but it is not possible to look at the BSTc in the brain. However, the research seems to demonstrate that in terms of their brain BSTc, transsexuals are in fact of the gender that they later come to acquire after gender reassignment therapy.

In a paper given to the Council of Europe's 23rd colloquy on European law, Professor Gooren suggested that there is now evidence that the sexual differentiation process of the brain in transsexuals has not followed the ordinary course. Although sex assignment at birth by the criterion of the external sex organs is statistically reliable, in people who experience transsexualism it is not. Those people are exceptions to the statistical rule, and perhaps therein lie the roots of their difficulty: we all know how easy it is to rely on statistics and to ignore reality.

What are the consequences in human terms? Transsexuals in this country have told me and other hon. Members of those consequences. I pay tribute, in particular, to the work done in this sphere by the hon. Member for Birmingham, Selly Oak (Dr. Jones), who has established the Forum on Transsexualism. We worked as a partnership to try to improve the situation of transsexuals, and I suspect that I am presenting the Bill rather than she only because I was successful in the ballot and she was not.

Dr. Lynne Jones (Birmingham, Selly Oak)

I thank my hon. and learned Friend—I will call him that at least for the purposes of today's debate. Tribute should also be paid to those individuals who have been brave enough to allow hon. Members and the public to know about their personal experiences. That has contributed a great deal to the changed atmosphere and the way in which society at large regards those people. We should pay tribute to their bravery because they risk discrimination and suffering as a result of their willingness to reveal their experiences.

Mr. Carlile

I agree with my hon. Friend, and I recommend that hon. Members and others read some of the recent serious and useful short autobiographies produced by transsexuals. The most recent is that by Mark Rees. Having written the forewords to, I believe, two of the most recent three, I have been able to enjoy reading them before they were published and understand what a clear picture they give of the condition.

I wish to say a little more about the human consequences and the discrimination that transsexuals face. In employment terms, it is apparently possible—at present, at least—for transsexuals to be dismissed solely because they are transsexuals. They also face discrimination in educational institutions, and in Department of Social Security offices where, although the staff may be extremely polite and helpful, the computer does not tell the real truth about the person before it. There are many other examples, but I do not have time to cite them as we have only half an hour or so available.

What type of people face discrimination? I received perhaps 200 letters from transsexuals during the preparation of the Bill. That is a remarkable number because, as my colleague implied a moment ago, it is more convenient for transsexuals to remain in the closet, keep themselves to themselves and function quietly in their acquired gender. Nevertheless, some very brave people have come forward.

Hon. Members should not get the idea that transsexuals are not playing their full part in society. I have had letters from at least two dons at Oxford university who are transsexuals and involved in distinguished scientific and other work. Other transsexuals are lawyers, doctors, company owners and executives, civil servants, teachers and nurses. In one case, a nurse is obtaining support from other members of the medical staff at the hospital where they work. Transsexuals are to be found across the spectrum of society and represent a cross-section of the population.

I shall say a word about a group of people who are not covered by the Bill but of whom I hope that the Government will take account. Very occasionally, genuine physical hermaphroditism arises at birth. I have received two moving letters from midwives who have been involved professionally in such cases. It is extremely difficult to judge what should appear on the birth certificate at that stage, and a wrong judgment has been made in one or two cases when viewed in light of the feelings, activities and behaviour of the people involved, but there is no mechanism to correct misrecording at birth. I raise that point simply so that it is not overlooked. Such cases have produced moving submissions.

Let us compare the situation in this country with that in other countries. In Germany, perhaps as one would expect, there is an efficient tribunal system to deal with transsexuals. Once they have gone through the system, they can live with full rights in their acquired gender. In the United States, it is permissible in certain states for a transsexual to marry after treatment. In Australia, there is a limited right to marry, although problems have arisen in connection with female-to-male transsexuals.

If a person who is a transsexual marries in their acquired role in one of those countries and comes to live with their spouse in the United Kingdom, they face an extraordinary situation. They would not have been allowed to marry here and yet, as I understand private international law, they are entitled to have their marriage recognised as lawful. It is a confusing international legal situation which needs to be sorted out. Transsexuals can also marry in this country, but only in the most bizarre circumstances: one transsexual can marry another transsexual provided that, in law, the bride is the groom and the groom is the bride. We surely do not want our law to support such an asinine situation.

Is the transsexual community simply sitting back and waiting for the Government to take half a century to reach a conclusion, on the basis that the matter has taken a quarter of a century already, so it may as well take another quarter of a century? Not a bit of it—if the Government do not take some action, it will cost them a great deal of money because they will lose case after case in the international and possibly also the domestic courts.

In a case going through the European Court of Justice, P v. Cornwall county council, Advocate-General Tesauro has given an unfavourable opinion, which I suspect is likely to be upheld. If that is so, it will be held that the United Kingdom should have anti-discrimination legislation relating to the employment of transsexuals. The European Court of Human Rights in Strasbourg—the difference between the two courts is not often well understood, but they are very different—has before it, with leave to proceed to full judgment, the cases of Kristina Sheffield and Rachel Horsham, which relate to birth certificates and their consequences. Reading the preliminary documents from the court, it seems very likely that the Government will lose.

Leave to move for judicial review was given by Mr. Justice Brooke—the recently retired chairman of the Law Commission who has now returned full time to the Bench—in a case heard on 29 January. Other cases are before the Queen's Bench division of the High Court in relation to transsexuals, and there are many more to come. We should not be looking for piecemeal reform of the law through reaction to the Government's loss of case after case. We know that there is a problem and a solution must be found. My Bill seeks to provide that solution by a procedure which does not command universal support, but which seems to be as good a mechanism as can be found without offending certain assumptions.

One of the assumptions that I have accepted for the purposes of the Bill, although I am not sure that I accept it fully intellectually, is that a birth certificate can never be amended. It ought to be possible to amend a public document that is proved to have been scientifically wrong when it was prepared. For present purposes, however, let us say that that is not appropriate.

We seek to allow transsexuals who have completed appropriate treatment in each case to go to the High Court family division and obtain a recognition certificate. From that, it is my intention and that of the other sponsors of the Bill that the Registrar-General would issue a new certificate from a new register—not involving alteration to the birth certificate, but resulting in a birth certificate that is physically indistinguishable from the original. Following the issue of that certificate, the rights to which I have referred would follow. Transsexuals would be able to live in their acquired role, particularly as their achievement of gender reassignment would have been proved by applying to the High Court and producing medical evidence. That being so, why should they not have employment protection? Why should they not be entitled to marry? Why should they not be entitled to adopt children if the court is satisfied that it is an appropriate case for adoption? I know of stable families in which one person has undergone gender reassignment therapy. There are several examples and there would be many more if transsexuals were not forced to hide what has happened to them and to pretend, in the face of bureaucracy, that they are what the law says that they are not.

I look forward to hearing the Minister's response and I hope that it will be a positive one. I hope that the Government will say that in view of the plethora of Government Departments involved in the issue—that is a pretty lame excuse for taking no action—someone will co-ordinate the Government's views on the issue. I would like the matter to go immediately to the Law Commission for a quick report. I would like the commission to produce legislation which would be an ideal vehicle for a further private Member's Bill.

2.15 pm
Mr. Roger Sims (Chislehurst)

In 21 years as a Member of Parliament, I had not encountered the issues raised in the Bill. Last year, however, I had two constituency cases of people in this condition whom I tried to help. When I went to the Conservative party conference this year, I noticed that one of the fringe meetings, arranged by an organisation called Press for Change, was about the medical and legal implications of transsexuality.

I admit that I went to the meeting with a mixture of curiosity and scepticism. My views on homosexuality, for example, might be described as conventional and I find the expression "gay priests" a contradiction in terms. However, I soon learned that transsexuality was something very different. We are talking about people where nature did not get it quite right—where nature made a mistake.

A transsexual is defined as a person having the physical characteristics of one sex and the psychological characteristics of the other. One of the doctors at the meeting said that we were talking about a man in a woman's body, or vice versa. It is a condition that is capable of medical treatment, although not in every case. I was impressed by the extent and the detail of the treatment that can be given. Transsexuality is a recognised medical condition which can be treated successfully through gender reassignment, enabling the individual to lead a full and normal life.

The meeting was organised by a lady who was attending the Conservative party conference as a representative. She represented her constituency, where she is active in the party. She is a branch secretary, chairman of her supper club and typical of the ladies whom many of my hon. Friends know in their constituencies. Yet her birth certificate shows her as a man and she cannot legally marry. If she applies for a job, her birth certificate will have to be produced and the House will appreciate what might follow from that.

I well understand the difficulties that surround the proposition that a legal document should be changed, but I believe that the Bill contains an ingenious solution which would make life better for the people whom I have described. I hope that my hon. Friend the Minister will feel that he can give the Bill sympathetic consideration.

2.19 pm
Mr. Kevin Barron (Rother Valley)

I congratulate the hon. and learned Member for Montgomery (Mr. Carlile) on his good fortune in the ballot for private Members' Bills. Unfortunately, speaking from experience—I am sure that the hon. and learned Gentleman knows this better than most—without Government support the likelihood of such Bills being enacted is nil.

There is much debate within parts of the medical and legal communities about the status of transsexuals, and the issue should be addressed. I have been in the House longer than the hon. Member for Chislehurst (Mr. Sims), and over the past few years, I have often had dealings with a transsexual in my constituency.

Medical knowledge about the condition, which is known as gender identity dysphoria, has changed dramatically over the years. Much more is known today about both the syndrome and the methods of diagnosis and treatment, which are far in advance of those available when it was first identified in the 1950s.

Biological evidence and indicators can be examined to assist in determining cases of gender dysphoria, and hormonal treatments and surgical techniques, together with therapy and counselling, can help an individual to cope with the physical and psychological effects of having an incongruent body. Studies of the effects of adopting that approach suggest that success rates for individuals who have undergone appropriate treatment are better than 90 per cent.

Although medical advances have helped individuals to come to terms with the syndrome, the law has not kept up with those developments. British law is now out of step with that of many of our European neighbours, and in law those who have undergone reassignment treatment are still identified as their previous sex, not their present sex. The law takes no account of their lives in permanently changed gender roles.

Clearly, that leads to problems. The case has been made in the debate that the law on the status of transsexuals is too inflexible. In Europe, recognition has already been given. The European Court of Justice said: The law cannot cut itself off from society as it actually is". Legislators, too, must recognise that.

The European Court has also ruled that discrimination against transsexuals in employment is contrary to European law, so the United Kingdom Government may soon have to introduce legislation to correct that failure. That being the case, the hon. and learned Member for Montgomery has suggested that other parts of the law should be brought into line too. Such a change would put this country on a par with many of our European counterparts. Even if that change is not brought about through the Bill, it will still have to be made some time, if we are to return to a coherent law on discrimination.

I echo the hon. and learned Gentleman's final words. If we need a Law Commission report on the subject, that should be arranged quickly. It is wrong that such discrimination should exist in our midst, and we should take action now, instead of taking the piecemeal path that the hon. and learned Gentleman described, whereby we deal with issues only when a confrontation arises because we are outside European law. I hope that the Minister will look sympathetically at the idea of doing something further, because it is obvious that the Bill will not have time to progress in this Session of Parliament.

2.23 pm
The Parliamentary Under-Secretary of State for Health (Mr. John Horam)

In introducing the Bill, the hon. and learned Member for Montgomery (Mr. Carlile) drew an analogy between my political progress and the situation of transsexuals. I am flattered by being associated with what he clearly regards as a noble cause, but it is a little dangerous for him to make such comparisons, because those of us who are firmly on one side of the House or another have always regarded the Liberal Democrats as thoroughly confused, unable to make up their minds whether they are on the left or the right. If one is in a glass house, it is a little dangerous to throw stones.

None the less, I congratulate the hon. and learned Gentleman on his success in the ballot, and on bringing forward for debate a Bill that attempts to tackle such fundamental and important issues. I am sorry that it is now 2.23 pm on a Friday; perhaps it would have been better to have debated the measure earlier in the day—but such was not his luck.

The purpose of the Bill is to grant recognition of change of sex for all purposes to anyone who, under the terms of the Bill, has undergone gender reassignment treatment and has obtained a recognition certificate from the High Court, provision for which the hon. and learned Gentleman makes in the Bill. The Bill makes provision for medical, judicial and administrative procedures to facilitate the change, culminating in the issue by the Registrar-General of a birth certificate in the new sexual identity.

People who undergo gender reassignment treatment are commonly referred to as transsexuals, although I am aware that many prefer the term gender dysphoria. They are biologically of one sex, but feel themselves to be of the other. Transsexuals may undergo hormone treatment and, in many cases, gender reassignment surgery.

The Government are sympathetic to the distress felt by transsexuals, and we have tried to smooth the transition from one gender identity to the other. Gender reassignment operations are permitted without any kind of legal formalities. The surgery and treatment may be carried out under the NHS—[Interruption.] That is the case.

The law entitles any person to adopt such first names and surnames as he or she wishes without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities. The new names are valid for the purposes of legal identification, and Government Departments and the agencies concerned will issue documents such as passports, driving licences, car registration books, national insurance cards and medical cards in the new name.

That has helped the progress of transsexuals and mitigates the obvious problems and distress associated with their position. The Bill would move the recognition process a further step on to relate it to the change of sex, rather than to the personal and legal identification that has been the focus of the present position.

The hon. and learned Gentleman is aware from our discussions that his Bill, sadly, is defective in a number of respects. None the less, I can assure him that the Government recognise the importance of the issues that he has raised. We take them seriously, and we shall carefully consider the issues raised by the Bill. To that extent, I believe that, even though the Bill has had a relatively short time to be debated today, it has fulfilled a useful purpose in taking the argument on to a further stage.

Mrs. Edwina Currie (South Derbyshire)

Does my hon. Friend realise that, despite his litany of permitted changes in documentation, he has not yet set out a good argument as to why that should not include birth certificates?

Mr. Horam

That is one of the points that I want to come to. The changing of a birth certificate is one of the problems that the hon. and learned Member for Montgomery recognised during our discussions. I am sorry to say that, while the Bill makes a credible effort, it does not overcome something that the Registrar-General sees as a real problem.

Dr. Lynne Jones

I do not understand why there is a difficulty. In a letter to me, the Office of Population Censuses and Surveys said that, on average over the past 10 years, there have been 30 applications for corrections to the sex recorded at birth, and added that most have been granted. Furthermore, before the Corbett v. Corbett case, it was normal for birth certificates to be changed.

Mr. Horam

A number of changes have been made, but only after it has been recognised that a mistake was made at birth. Indeed, it is normal to wait until after the sex is clear before a birth certificate is issued as a safeguard. Occasionally, errors have occurred despite those precautions and a subsequent correction has been made. There has never been a case where a correction has been made because someone's sex has changed during his or her life—a point to which my hon. Friend the Member for South Derbyshire (Mrs. Currie) referred. There are real problems in making the change perhaps 20 or 30 years after the birth, but there have been instances when it has happened very shortly after the birth. I shall skip some of the points that I intended to make to deal with this particular point, which is obviously a matter of concern to hon. Members. Apart from the complex policy and legal implications, which are manifold, there is also the problem of how to provide tangible public recognition of the new civil status of a transsexual.

To date, the campaign by transsexuals has focused heavily on birth certification. Many transsexuals appear to believe, in my view wrongly, that if the Registrar-General would only agree to amend their birth certificates, that would suffice to change their legal sex. I acknowledge that the Bill does not entirely take that line. The hon. And learned Gentleman attempts to go further. He proposes to change birth registrations as one means of giving effect to a wider objective. However, sadly, his method of doing so would undermine the basis of birth registration in Britain. I shall explain that.

The entry in the birth register is a record of the facts as they were at the time of birth. It may be changed by annotation of the original record if the facts—

It being half-past Two o'clock, the debate stood adjourned.

Debate to be resumed on Friday 9 February.