OLYMPIC ATHLETES (Hansard, 25 May 2004)

§ Mr. Boswell
I beg to move, That the clause be read a Second time.

§ Mr. Speaker
With this it will be convenient to discuss new clause 6—Changing and washing facilities— 'Nothing in this Act shall prejudice the rights of the management of facilities where there are gender specific changing and washing areas, such as open showers and open sports changing areas, to regulate their procedures as they see fit, providing reasonable provision is made for transsexuals.'.

§ Mr. Boswell
It will indeed be convenient to consider new clause 3, which I tabled, with new clause 6, tabled by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous), who was a member of the Committee. I hope that all the issues on the selection list will be discussed before the deadline, but the bracketing of these two new clauses under the heading "Sport" is a little bizarre, because they are very different. Given that new clause 3 relates to Olympic competition, I wondered whether we might call the new clauses the coxless pairs. I shall allow my hon. Friend to row his side of the boat in a minute, but I wish to concentrate on the Olympic issue.
We did not discuss the issue in Committee, but it has concerned my noble friend Lord Moynihan, who is active in debates on sport in the other place and in Olympic affairs. The Minister may know that as part of our all-singing, all-dancing home affairs team I am also a member of our culture, media and sport team, and take a certain vicarious interest in Olympic activities. We all want our activities to be successful and conducted to the highest possible standards.
New clause 3 would impose an immediate duty on British athletes who have received gender reassignation to advise the British Olympic Association of that. That is entirely consistent with clause 19, which concentrates on the need for fair competition and, in certain cases, safety. It would give sports administrators the chance to withdraw their sports from the provisions of the Bill.

§ Mr. Oaten
I come fresh to the issue. and I wonder whether the hon. Gentleman could explain why he has limited the clause to the Olympic committees. If the arguments are valid, surely they apply also to a range of other sports.

§ Mr. Boswell
Clause 19 provides that national sports administrators have responsibility for their own sports, which is how it has worked in the past. I imagine that the situation will be different for different sports—for example, the shot-put and boxing. We are happy with those general provisions, but the difficulty occurs when the various sports administrators seek to integrate in a national effort to produce a team for the Olympic games—as we shall do shortly. In that sense, the new clause sets out a clearance procedure that would require any transgendered person in receipt of a certificate to advise the British Olympic Association of that. The requirement is an important safeguard to secure consistency and good order.
The hon. Gentleman may have spotted that the implied suggestion in the new clause is that the International Olympic Committee should get on with the job of defining a satisfactory international policy. If time permits, we shall debate the Minister's welcome change of heart on European gender recognition certificates and the immediate rights that would attach under British law if the Government's amendments are 1497 adopted. I would like to see the integration of national policy on the issue, but it would be even better if it were overtaken by a proper decision by the IOC. We all understand that it is difficult to formulate policy—it is what we have been discussing all afternoon—but I hope that the IOC will get on with it so that we all know where we stand. I also hope that the IOC's policy will have a common basis with ours.

§ Mr. Oaten
I understand a little better now, but if the IOC produces a set of standards, would they then cover the Commonwealth games, the European championships and athletics at all levels in this country?

§ Mr. Boswell
I cannot give the, hon. Gentleman a definitive answer. My immediate reaction is that it would be for the competent authorities in each case—the Commonwealth games commit tee, for example. Just as we want international standards on anti-doping, so, too, we want standards that are internationally agreed and applicable to all competitions, whether at Commonwealth, European or Olympic level. That is the aim of the new clause and I shall be interested in the Minister's response. I was not intending to press the matter to a vote but it is important that the Government focus on it.
I turn briefly to new clause 6, tabled by my hon. Friend the Member for South-West Bedfordshire. The Minister will be aware that we had to hurry our consideration of my hon. Friend's proposals in Committee, so the matter was not adequately dispatched. We all understand what good practice would be; we do not want people purposely to create embarrassing situations and I seek the Minister's assurance that that will not happen in practice. My hon. Friend's observations, at greater leisure than he was permitted in Committee, will help us to come to a conclusion.

§ Andrew Selous
I rise to speak briefly to new clause 6, which, as my hon. Friend the Member for Daventry (Mr. Boswell) said, had about three minutes' debate at the very end of the Standing Committee proceedings.
First, let me say what the new clause is not about. It is right and proper that transsexual people should use changing and washing facilities appropriate to their acquired gender. That is what should happen and I am confident that in a vast and overriding number of cases it will happen without difficulty. However, as the measure will give legal recognition, in all cases, to the acquired gender, I want the House to consider, and the Minister to explain, what would happen if someone had a gender recognition certificate but had not undergone sex reassignment surgery and wanted to cause difficulties to the management of the facilities.

§ Mr. Lammy
The hon. Gentleman will know that under the Bill a person would have to be diagnosed with gender dysphoria, to have lived with the condition for two years, to demonstrate that there was some permanence in the condition and to convince the panel that they merited a gender recognition certificate. He is right to suggest that that may not always mean that they 1498 had undergone an operation—there could be medical reasons for that—but those are substantial hurdles to overcome and that is the purpose of the Bill.

§ Andrew Selous
I am grateful to the Minister for that clarification but, to return briefly to a point raised in our debate on new clause 1, I do not know whether he is aware that in the Diane Parry case in south Wales, Diane Parry's physical appearance was very much that of a man. I am concerned about circumstances where someone is legally a man but physically a woman or vice versa, and where there are open changing areas. For example, in football or other sports, teams might change together and there are no cubicles, and in the armed services it is common to find open showers with no cubicle division.
I accept that the possibilities are remote but I want to know what would happen in such circumstances. It is relevant because, as the Minister may be aware, several pub landlords have experienced difficulties in this matter, although they relate to an issue that is separate from my new clause. I simply want to understand what will happen where there are open changing and showering facilities.

§ Mr. Lammy
I do not want to prejudice what I may have to say shortly, but surely the hon. Gentleman is not suggesting that we should legislate to allow a form of prejudice because it may exist in pubs throughout the country.

§ Andrew Selous
New clause 6 does not deal with pubs. It clearly deals with the specific circumstance of complete nudity in open changing areas. The Minister has a slight habit of setting up men-of-straw arguments that differ from the arguments made by those with whom he is debating. I ask him to restrict himself to the circumstances of new clause 6. I used the pub analogy only because that is happening now, so the scenario that I envisage is not wholly far fetched.
There is always a very small litigious minority. I accept that the vast majority of transsexual people will want to behave in a discreet and private manner; but, given the Diane Parry case in south Wales, if we are to pass a law of this nature, the Minister needs to explain clearly what will happen to a sports club if parents say, "Right. My children aren't going there anymore." The club could go out of business. He also needs to explain what could happen in the situation that I describe in respect of good order in the armed services, in which I served for 12 years, so I know a little about that. Those are the type of issues that the new clause raises.

§ Richard Younger-Ross
We debated this issue briefly in Committee. Is the hon. Gentleman aware that most female changing rooms are already divided into cubicles? My background is in architecture, and I cannot think of an instance in all my time in architecture where we have ever built open changing rooms.

§ Andrew Selous
The hon. Gentleman is quite right. The public swimming pools that most of us use and where I go to with my family almost entirely have changing rooms with cubicles. That is not a problem. If 1499 he reads new clause 6 carefully, he will see the word "open" before the words "showers" and "sports changing areas." He will be aware that hotel sports areas often have open changing areas; football clubs and many other sports clubs have open changing areas; and open showers are very common in the armed services.
The difficulty arises purely in a case where someone is legally a man but has the body of a woman, or vice versa. It may be a small and far-fetched case, but we are entitled to know what would happen for the sake of good order and for another reason as well: the purpose of the Bill is to give transsexual people some rights that are overdue and should rightly be given to them. If the Minister does not deal with the issue that I am raising, there will be resentment and a public backlash that will undo the very work that he is trying to do. He has said time and again that we cannot legislate for other people's concerns on these matters. I am not entirely sure that that is right. It is the function of a Parliament that is considering such matters in the round to ensure that there are reserve powers—I emphasise the word "reserve"—so that public resentment does not build up and undermine the support for the very group that the Bill seeks to help.

§ Lynne Jones
Does the hon. Gentleman seriously think that a trans-man who has not undergone phalloplasty would go into a male changing room, for example, with a football team and expose himself? That is highly unlikely. I can confirm that there are open women's changing rooms. I went into one just over the road this morning. Quite frankly, the idea that a male-to-female trans-person would be granted a recognition certificate if they did not undergo a penectomy is, again, unthinkable.

§ Andrew Selous
If the hon. Lady is fair, she will acknowledge that I said that, hopefully, the circumstances to which my new clause relates would never arise. However, we would be negligent in our duty as legislators if we did not get some guidance from the Minister on what would happen if they did. Perhaps the hon. Lady is not aware that, in the south Wales case, Diane Parry had a full beard at the time when he wanted to join in the ladies' activities. Thus the scenario that I am describing is not wholly far-fetched.

§ Lynne Jones
To be candid, if the hon. Gentleman is suggesting that someone who sports a full beard would have their application for a gender recognition certificate granted, I wonder what world he is living in.

§ Andrew Selous
The hon. Lady attacks me for raising the issue, but on several occasions over the years the House has not foreseen potential developments. I fully accept that the vast majority of transsexual people will not want to go down that route, but there is always the litigious minority to deal with. I am keen to avoid public resentment and concern.

§ Mr. Lammy
The hon. Gentleman keeps talking about a litigious minority. I remind him that there are more than 60 million people in this country and only about 5,000 transsexuals, and the Bill contains a number 1500 of hurdles. For example, the person concerned must have had gender dysphoria, and as my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) explained, persons with that condition do not want to be exposed in public in that way. Surely, therefore, the hon. Gentleman's preoccupation with the minority becomes redundant. Has he not argued himself out of the position from which he started?

§ Andrew Selous
No, I do not think that I have. Who would have thought that the Churches would be dragged through the courts by people from a very small minority of 5,000 people in a country of 60 million? Yet that has already happened, and other legal cases are in the system. I want the Minister to take the matter seriously. What will happen to a sports club in the scenario that I have described? Is there any protection in the Bill?

§ Mr. Lammy
Let me begin with the remark made by the hon. Member for Daventry (Mr. Boswell). The International Olympic Committee announced on Monday last week its policy on the participation of transsexual sportspeople. The policy will apply in the forthcoming Olympic games in Athens. In brief, it allows transsexual sportspeople to compete in their acquired gender, but only if they have legal recognition in the acquired gender and have undergone surgical and hormonal treatment such as to minimise any gender-related advantage. The hon. Gentleman said that we have been waiting a little while for that announcement, but he will understand that, as a consequence of it, new clause 3 is not necessary—although I am grateful for the manner in which he proposed it, as if to move things along. Indeed, the new clause acknowledges that any policy announced by the IOC should supersede any suggestion that it contains.
The Government agree that it is for the IOC to decide the terms on which transsexual sportspeople may compete in the Olympic games. Clause 19 provides UK sporting bodies, including the British Olympic Association, with the scope to restrict the participation of transsexual sports people where that is necessary to maintain competitive parity or for the safety of other competitors. The IOC has been guided by similar considerations, and we believe that the clause provides UK sporting bodies with sufficient scope to use the IOC guidelines.

§ Mr. Boswell
I am grateful to the Minister for updating me. I cannot claim responsibility for single-handedly getting the IOC to get its act together, but could he or the Under-Secretary confirm whether there is any possibility, given that transgender people, in addition to the remedial medication to which he referred, typically have to continue with other medication indefinitely, will fall foul of anti-doping codes? Will medication that they are required to take, whether medically or legally, lead to such problems?

§ Mr. Lammy
The IOC prescribes a two-year period for hormonal treatment and so on. The hon. Gentleman has asked an important question to which I do not have an answer off the top of my head, but I shall be happy to deal with it later.
1501 Although the IOC acknowledges that hormonal and other treatments used by transsexual people typically eliminate any competitive advantage that male-to-female transsexual people may have over other women, there may be cases where competitive parity or the safety of other competitors are valid concerns, and the IOC recognises that, as does clause 19. We shall issue guidance to sporting bodies in advance of the implementation of the Bill setting out the legal position and the scope that remains, quite properly, for sporting bodies to make decisions that reflect the needs of their particular sport.

§ Lynne Jones
I am interested that my hon. Friend said that safety grounds might prevent a trans-competitor from competing. Sports bodies already have the power to exclude someone if safety is a factor, and in Committee I queried the need for clause 19. I am pleased to learn that the IOC has made it clear in its ruling that claims, pursued in the House of Lords, that the Bill "has put the entire future of competitive sport in jeopardy" are entirely bogus. The IOC's sensible proposal negates the need for clause 19.

§ Mr. Lammy
I am grateful to my hon. Friend for putting her views on the record. There were arguments circulating in another place that were deeply unhelpful, but clause 19 makes the position clear. My hon. Friend will accept that there are many sports in which these issues simply do not arise, but there are other contact sports such as rugby and basketball where safety considerations might be pertinent. By definition, the individuals playing those sports come into contact with others, so although the parity test remains, the safety requirement needs to be taken into consideration as well.
In an intervention, I made clear the Government's position on new clause 6, which raises an issue that, even though we had only three minutes to deal with it in Committee, was, I believe, dealt with satisfactorily. Its implication is, unfortunately, that transsexual people are more likely to expose themselves or seek to cause offence than other people who use communal changing or washing facilities.

§ Richard Younger-Ross
Is not the logic of the new clause on changing facilities that there should be separate changing cubicles in shops, not communal changing areas? Equally, changing rooms at swimming pools would have to have a door saying "Transgender person".

§ Mr. Lammy
I am grateful for that intervention from the hon. Gentleman, who has drawn the natural conclusion from the debate. Frankly, new clause 6 would warrant the exclusion of transsexual people from changing and washing facilities, and the creation of separate facilities for their use.

§ Andrew Selous
If the Minister is fair, he will acknowledge that at the start of my remarks about new clause 6, I said that I hope, expect and believe that the vast majority of transsexual people—if not all of them—will use the facilities appropriate to their acquired 1502 gender. I am discussing a reserve power to cover serious difficulties, and we all accept that such circumstances are a remote possibility.

§ Mr. Lammy
The hon. Gentleman may well approach the issue on the basis of separate-but-equal treatment, but the Government entirely reject the implication of the new clause that transsexuals might set out to cause offence to others. That is not the Government's experience, and we therefore reject the new clause.
The Government also believe that separate facilities for minority groups are objectionable, and we urge the House to reject the proposal. For obvious reasons, many hon. Members fought to ensure that separate signs for minorities became a thing of the past in South Africa, and we did not engage in that fight in order to set up such prejudice over here.

§ Mr. Boswell
In view of the Minister's assurances, particularly in relation to new clause 3, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.