Official Report of the Grand Committee on the Gender Recognition Bill [H.L.]

HL Deb 13 January 2004 vol 657 cc1-62GC

(First Day)

Tuesday, 13 January 2004.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]

The Deputy Chairman of Committees (Lord Ampthill)

Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

Title postponed.

Clause 1 [Applications]:

Lord Tebbit moved Amendment No. 1:

Page 1, line 3, leave out "gender" and insert "sex"

The noble Lord said: As I understand it, in this Grand Committee procedure, as in that of the House, we shall discuss all the other amendments in the grouping. I have no concerns about that except that I believe that Amendment No. 78 is very different from the others and I shall address myself to that amendment separately.

The great mass of the amendments are very similar in that they replace the word "gender" with the word "sex". That is because, apart from anything else, my concern is to smoke out in some way the Government's view of the distinction between those words or to ascertain whether they believe that there is a distinction between them.

I notice that, according to the Oxford English Dictionary, "sex" is defined as either of the two divisions of organic beings distinguished as male and female respectively or the distinction between male and female in general. It states that the sum of those differences is in the structure and function of the reproductive organs on the grounds of which beings are distinguished as male and female and the other physiological differences consequent on those.

Turning to the issue of gender, we find a slightly different story. "Gender" is defined as: In modern (esp. feminist) use a euphemism for the sex of a human being often intended to emphasise the social and cultural as opposed to the biological distinctions between the sexes". It seems to me that, even from reading those definitions, the issue arises of whether the Government believe that the Bill is about social matters or about the biological matter of the distinction between males and females. I believe that upon that rests, to a great extent, how the rest of the Bill will be dealt with. I shall say no more about those amendments because they are tabled merely for the sake of tidiness, listing many, as opposed to just one, of the places where the word would be replaced.

However, I then draw the attention of the Grand Committee to one or two other amendments and, in particular, to Amendment No. 5, which relates to page I, line 7 of the Bill. I believe that it is useful to take a look at that matter as we deal with it. In many ways, it lies at the heart of the Bill as it concerns the conditions under which a person of either sex or gender may make an application for a recognition certificate. I would place a third requirement upon that: not only that the person has been living in the other gender, as the Bill states, or, as my amendments would state, as a person of the other sex, but that the individual possesses the XX chromosome if the change desired is to the female sex or the XY chromosome if the change is to the male sex.

I am not sure how many people have been for certain issued with a birth certificate that wrongly categorises their sex at birth. I do not know whether the Government have any figures on that either. However, it is important that we have some sort of understanding of whether we believe and whether the House intends to legislate that a person with XX chromosomes can be a male or with XY chromosomes can be a female. That would seem to fly in the face of all biology. However, we should of course recognise that it is possible that a mistake could be made on a birth certificate. If a mistake has been made, of course it is reasonable to legislate to allow that mistake to be corrected. That is the third test that I would impose.

Amendments Nos. 15 and 16 are simply consequential to the earlier amendments. They would leave out the words, "in the acquired gender" and insert, as a person of the other sex". That makes it much clearer what the Bill is about and does not hide behind the euphemism of gender when it is really talking about sex.

Amendment No. 20 would require an addition to Clause 3. It deals with evidence that must be brought for an application to be successful, or indeed to be made at all. At present it requires that it must include, a report made by a registered medical practitioner practising in the field of gender dysphoria"— that is a fairly vague area in any case— and a report made by another registered medical practitioner…or a report made by a chartered psychologist practising in that field and a report made by a registered medical practitioner". I would propose that we should add a third condition, that there should be, evidence that the chromosomes of the applicant are appropriate for the intended sex". That is consistent with what I believe to be logical and factual.

Lastly, I turn to Amendment No. 78, which seems to be slightly oddly tucked in with these others, but none the less there is no reason why we should not deal with it now. It concerns the vital issue of marriage in Schedule 4. One of my doubts and misgivings about the Bill is the way in which it confuses the matter of whether marriage is an indissoluble union between a man and a woman or whether it is something else and whether the Bill is opening the door to same-sex marriages. I know that the noble Lord said on Second Reading that that was not so. However, I beg him to consider the implications, particularly brought out by Amendment No. 78, which relate to the effect on marriage and amendments to the marriage act. The Bill would allow marriage to a person whose gender has become the acquired gender under the Gender Recognition Act.

We need to be perfectly clear about this issue. We should have a statement that, notwithstanding any other provisions of the Bill, no two persons, each possessing XX chromosomes, or each possessing XY chromosomes, or each possessing genitalia appropriate to the same sex, may be married, one to the other.

Since the Bill as currently drafted does not require the issue of a gender recognition certificate—which states that the person concerned has suffered what I would call "surgical mutilation"—the person would have, for example, a female birth certificate but male genitalia. If married, such people would have their marriages annulled, as the noble Lord said, on the grounds that the law does not allow two people of the same sex to be married. It would be two people, each possessing, for example, a female birth certificate.

That would free someone who has had a gender change to marry a person, not only whose chromosomes were the same, but whose genitals were the same. The noble Lord said that that would not be a same-sex marriage. I conclude my remarks at this stage by saying that the noble Lord may not think that that is same-sex marriage, but if it took place in a nudist colony, I think that most of those present would believe that it was. I beg to move.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)

We return to issues that were spoken about powerfully on Second Reading by the noble Lord, Lord Tebbit, and others. I now have even less expectation that I shall convince the noble Lord, but it is nevertheless important that I set out the Government's position on these issues, which is my responsibility.

It is fundamental to the Bill that legal recognition is given to transsexual people on the basis of their gender regardless of their chromosomal sex. The Government have no intention of getting into an argument about the science of sex and chromosomes and the causes of transsexualism and gender dysphoria. The evidence around the issue is inconclusive and the argument continues.

The Bill will give legal recognition to transsexual people in their acquired gender. A person's gender will, subject to the issue of a full gender recognition certificate, become the acquired gender.

The Government's understanding of transsexualism is rightly founded on the Chief Medical Officer's recognition of gender dysphoria as a medical condition that may require treatment. Treatment has been available within the NHS for a considerable time.

The Government have discussed the aims, objectives and impact of the Bill with, among others, the British Medical Association, the General Medical Council, the Royal College of General Practitioners, the Royal College of Psychiatrists and the British Psychological Society.

The principle of legal recognition in the acquired gender is that a person's gender will, subsequent to the issue of a gender recognition certificate, become the acquired gender. That will ensure, on the whole, the continuing effect of gender-specific terms in legislative enactments. The Government have always intended that once a full gender recognition certificate is issued to an applicant, the person's gender becomes for all purposes the acquired gender. If the acquired gender is the male gender, the person's sex becomes that of a man, and, if it is the female gender, the person's sex becomes that of a woman.

Where under any legislation it is necessary to decide the sex of a person who has an acquired gender, or to say whether that person is man or woman, or male or female, the question must be answered in accordance with the person's acquired gender.

The Government, and the European Court of Human Rights, have always acknowledged that opinion is divided in some parts of the medical profession on the nature and cause of transsexualism. However, the Government support the position of the European Court of Human rights that the remaining controversy over the nature and aetiology of transsexualism must no longer stand in the way of transsexual people enjoying their basic human rights. That is the central and essential position that we take.

I should at this stage make a few more points on the Government's position. It is probably as well to read them into the record in a little more detail.

The Committee will also know that one reason, although not the sole reason, that this Bill is before us is that the European Court of Human Rights has found that UK law is currently non-compliant. I wish to quote a little from that judgment as it has direct relevance to the points that the noble Lord, Lord Tebbit, raises. The judgment states that, although there are no conclusive findings as to the cause of transsexualism, the Court considers it more significant … that [the condition] has wide international recognition … for which treatment is provided". It was not convinced that the inability of the transsexual to acquire all the biological characteristics took on decisive importance. The judgment continues that it was clear on uncontested evidence of a, continuing international trend in favour of not only increased social acceptance of transsexuals but also a belief in recognition of the new sexual identity". The court also said—again, I believe that this is relevant—when commenting on Article 12, which concerns the right to marry: The court had found under Article 8 of the Convention that a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual". The court found no justification for barring the transsexual from enjoying the right to marriage under any circumstances and it concluded, therefore, that there had been a breach of Article 12.I refer—I hope not at too great length—to what Lord Justice Thorpe said in this respect.

We believe that it is false to say that sexual gender is determined purely by chromosomes. Chromosomes are one of the primary sexual characteristics. There are also a range of secondary sexual characteristics. In addition, gender identity is determined by a range of psychological factors.

I turn to the judgment of Lord Justice Thorpe in the Court of Appeal decision on the Bellinger case. He said: Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche". While he recognised that that added to the complexity, he felt that that was a proper basis on which to form his judgment.

I refer to these issues with two purposes in mind. I am no expert on medicine and I do not pretend to be one. The Government do not base their argument that there is a simple or conclusive medical definition on whether a person is of one gender or one sex or another. However, an injustice is created for a very small number of people in our society who are absolutely convinced that their real life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a process of proper testing and validation, the state believes that it is right, fair and decent, as well as in accordance with European law, that we adjust that anomaly in the very limited number of circumstances in which it applies.

It is for those reasons that I do not wish, partly out of ignorance but partly because I do not think that it is central to our debate, to engage the great medical diversity on this matter. At heart, the Government's view is that this is a legal issue. Should the state give legal recognition to a person's birth identity when we believe that there are pressing and good reasons for recognising that it should be changed? That is the Government's position in this respect.

3.45 p.m.

Lord Carlile of Berriew

In opening this debate, the noble Lord, Lord Tebbit, made use of creative textual amendment. But if one looks at that textual amendment—and the game is given a way by Amendment No. 5—it is quite clear that what he is seeking to do is to re-open matters of principle that were discussed at Second Reading. His speech was effectively a Second Reading speech. He is of the "sincerely throwing up his arms in horror" school at the very idea that anyone should ever have their gender reassigned. I do not want to go further into the gender/sex distinction because it was made very clear by the Minister a few moments ago. One has only to look for simplicity at the very clear judgment of Lord Justice Thorpe in the Bellinger case.

Before the noble Lord, Lord Tebbit, throws up his arms in horror and takes further steps to try to wreck the Bill, I urge him to talk to some of his political colleagues in other countries which have already—well ahead of the United Kingdom—taken the European Court of Human Rights judgment and applied it within their domestic law. Perhaps from time to time the noble Lord, like me, enjoys holidays in Europe. If so, in recent times he will have been to a number of countries where the political establishment has not collapsed, where the economy is not in ruins and where the institution of marriage is extremely significantly stronger than it is in the United Kingdom, which is a matter of great regret to me. I speak as someone whose bride was, I am ashamed to admit, still in her teenage years. That was many years ago and, happily, I am still married to her.

The institution of marriage is not collapsing in any country because of gender reassignment legislation. International psychological, medical and scientific evidence supports these changes. The international evidence, particularly if one takes into account that of psychiatrists and psychologists, shows that there has been a very great improvement to the lives of a small number of people who, like everyone else, have rights. That improvement has taken place because of laws such as those that we are considering today.

I recognise and, of course, greatly respect the strongly held views of those who may, for example, have a theological opposition to this legislation. In the end, they, like all of us who have some principles, will have to consign those principles to the processes of Parliament and lose occasionally. If that is the view of some, I believe that in the final analysis they will lose on this legislation. I plead with noble Lords not to try to wreck this legislation by extending this Committee stage with many Second Reading-type speeches.

Baroness O'Cathain

I have one question for the Minister at this stage. In his opening comments he said that the evidence is inconclusive. He used the words "evidence is inconclusive". When have we legislated and put a Bill right through Parliament to ensure that it becomes an Act on the basis of inconclusive evidence? I thought that the whole basis of our work in this House was to ensure that we never put through legislation that we did not believe was watertight. Much legislation that has appeared has been proved not to be watertight, but we have not started a Committee stage of a Bill as important as this by saying that the evidence is inconclusive and therefore we expect to legislate on the basis of inconclusive evidence.

Lord Filkin

I said that there is not universal consensus on the medical evidence about the causes, the aetiology and the effective treatment for gender dysphoria, and I used the word "inconclusive" as a consequence. I stand by that. However, that does not go to the nub of the issue. While it is true that medical scientists do not show unanimity on this issue—not an unusual circumstance—we believe that the majority of them are of a view that this is a medical condition that can be treated.

Ultimately, that is a side issue. We do not seek a process that makes a medically perfect judgment about whether a person is male or female or how one treats people who believe that they have gender dysphoria. We are seeking to apply proper tests and principles to someone who believes strongly, and over a period of time, that his or her gender is wrong. We are providing a process, after proper inspection and inquiry, through which the state can recognise that it is necessary to change a birth certificate. That is the essence of what we are doing.

The consequence of that, and why it matters, is that it gives legal rights to people to live their lives in the way that they believe is important. Regardless of whether there is total unanimity or disunity on the medical issues, the central issue is that there is recognition by the state that it is right, proper and fair—and compliant with European law—to give legal recognition, after proper inquiries and tests, to the small number of people involved.

Baroness O'Cathain

I am grateful to the Minister, but I would like to know how the law can really give power to a panel of doctors and lawyers to decree that a man is a woman. We are back to the point about gender and sex. As I said on Second Reading, I was greatly encouraged by the Minister's opening speech, when he said that marriage is very important and that it is recognised as the union of members of the opposite sex, male and female. In the debate on Second Reading, we came to the conclusion that, if a man and woman had been married and the man decided that he wanted to be a woman or felt that he was a woman, that marriage would have to be annulled. The couple would have to divorce. How can the law now be given the power to say that people are actually male or female?

As we know, transsexuals have healthy bodies. They are not suffering from an intersex condition, in which there is a physical problem with their reproductive organs. Many transsexuals have married and have had children. A transsexual man is truly a man: he is male. He simply wishes to be female. Because of that, he is said to be suffering from gender dysphoria. We will be going through this Bill line by line. The reality is that if a person suffers from gender dysphoria and, just because they want to be a female, says, "I feel like a woman, I want to be a woman, I am a woman", then they will be allowed a gender change without any operation for gender adjustment, or whatever the terminology is—

Lord Tebbit

Sexual mutilation.

Baroness O'Cathain

No, not sexual mutilation; gender reassignment. It is not necessary. No medical intervention has to occur. The person can get a certificate saying he is now female and then go off and get married.

I accept that the medical evidence on the condition is inconclusive. However, there is a huge body of opinion that says that this is a psychological and not a medical condition. Many people are scared about the implications of the Bill. They want to feel that the legislation that comes out of this place is right and does not open the floodgates to some ghastly social and cultural situation.

The Lord Bishop of Chester

I rise briefly at this point with a specific question for the Minister about what he said. First, however, I should like to comment on the discussion taking place in the Churches on this matter. I very much appreciated the speech by my noble friend the Bishop of Winchester on Second Reading. In recent years, he and I have worked on a small subcommittee of Bishops of the Church of England on both the specific issue of transsexualism and the wider issue of homosexuality. The predominant view of the Church is as he set out on Second Reading.

I am among those open to the possibility of recognising the reassignment of gender while also recognising the very powerful reservations held by people who feel differently. I also recognise the legal obligation that the Government are under and which I understand is overwhelming. I wonder whether the Government are right to treat this as a legal matter and then close their mind to other arguments, such as the anxiety being expressed on the right.

At this stage I shall restrict myself to a simple question. In the quotation from the European Court judgment, the Minister referred to post-operative transsexuals. One feature of the Bill is to recognise gender reassignment without medical intervention—as the judgment said, and as the noble Lord, Lord, Lord Tebbit, said at the end of his speech. That seems to raise questions of whether—as hard as it might seem; if one is to issue a gender recognition certificate and give people the right to marry in the acquired gender—there should not be a requirement of surgical intervention. Was that implied in the fact that the extract from the court judgment which the Minister read out referred to "post-operative" transsexuals"?

4 p.m.

Lord Filkin

Perhaps—

Lord Moynihan

I should like—

Lord Filkin

I thank the noble Lord, Lord Moynihan. There is a slightly better chance—perhaps not much—that I will give proper answers if I take them two at a time rather than in a clutch. I thank also the noble Baroness, Lady O'Cathain, for her comments. I acknowledge that there is one—perhaps only one—issue on which we agree here: the importance of marriage, and the fact that it is a legal and moral relationship between a man and a woman, and that nothing else is possible.

The noble Baroness led us a little into the discussion that the right reverend Prelate also initiated—whether the physiological test ought to be a central issue. There is a half-implication that the noble Baroness's mind would be very slightly eased—though not much—if surgery had taken place, whereas the mind of the noble Lord, Lord Tebbit, would not be so eased. His grounds would then be the harder ones of chromosomal difference, rather than surgery.

In answering as best I can some of the points raised, I should like to say a few words about the Chief Medical Officer's advice on process. It is necessary to do so to avoid giving any impression that the Government think that, by whatever mechanism, this should he an easy, quick or simple process of the state giving recognition to such a fundamental change to a person's status and recognition in the world. I shall therefore talk first about the medical processes that the Chief Medical Officer sees as current best practice; then about the panel and how that bears on this; and then about surgery.

From the medical perspective, the gender reassignment process is divided into three stages. The first is the social gender role change, when a patient changes his name and informs his family and friends of his plans to live full-time in his chosen gender role. The second is the hormonal gender reassignment, when, after psychiatric assessment for suitability, patients are offered cross-gender hormone prescriptions. The third stage—the stages are not necessarily completely sequential—is surgical reassignment, after completion usually of two years living in the role, when primary surgery is undertaken in some but not all cases.

Therefore, from the medical perspective, there is a process which seeks to ensure that there is not a rush to anything as drastic or irreversible as a surgical change. In a sense that is a part of the process of the medical intervention—to try to ensure that people are reflective about what they are asking to do, and to ensure that their belief that they have a fundamental incongruity in how they are living their lives is well founded and well seated.

The panel has three tests. If I recollect them correctly, the first is that the person has lived in the gender which they believe is their true gender for at least two years. Many cases—the early cases—will involve those who have done so for very substantially more than that. We believe that that is a good and necessary test and that two years should he the minimum. The second is that, as far as one can judge, they are as committed as possible to wanting to live in that state for ever.

We could have included the further test, which some European Union countries impose, of requiring surgery. We have not done so for a number of reasons. In some cases, there will be medical reasons why the person cannot or should not have surgery. It therefore did not seem to us right to deny them, if every other factor seemed to indicate that they are genuinely showing clear evidence of an intent to live in that gender for ever. As we know that most transsexuals do seek surgery, in cases where the person has not had surgery we would expect the panel not to treat that as prima facie evidence that there was doubt, but at least to question why surgery had not taken place. It might, just possibly might, have a bearing on the seriousness of the intent.

Lord Carlile of Berriew

I am grateful to the Minister for giving way; I promise not to make a habit of interrupting him. However, if I may, I gently remind him of the first test, which gives the complete answer to a point made by the noble Baroness, Lady O'Cathain, when she talked of someone who wished to change sex or wished to change gender. The first test is that they have to prove that they have or have had gender dysphoria. That is a very specific diagnosis, and in fact a very big hurdle to have to cross before one goes on to tests B, C and D.

Lord Filkin

I am grateful to the noble Lord. It is novel in such situations to receive assistance in Committee. I hope that it will become a habit. He is fundamentally right. 1 was wracking my brains trying to recall the third fundamental leg of this platform. I am grateful. Clearly, that is an issue where the panel will be looking for a diagnosis. If I recollect correctly, the diagnosis has to have two limbs; it is not simply a single opinion from one medical practitioner.

I shall take no more of the Committee's time on this. I think that those are the best answers that I can give to the points raised so far.

The Lord Bishop of Winchester

I would not normally begin by taking issue with a fellow noble Lord, but it seems that we need to be clear in the light of the earlier comments of the noble Lord, Lord Carlile. My sense—and I say this because it affects many of the rest of us—is that it is not fair to say that the noble Lord, Lord Tebbit, was making a Second Reading speech. He seemed to be doing what others in Committee are doing—moving from Second Reading to proposing amendments. In doing so, one has to give at least a little background on why one is proposing amendments. I did not think that that was accurate. I mention it now, with all respect. because it seems important that we are clear about the ground rules on which we are working.

Before turning to the specifics of the amendments I should like to deal with another point hat runs through the debate. I noted that the Minister quoted more than one of the Law Lords and their judgment in favour of the admission of what they called "psychological factors". When I read that material, it seemed to me that that was as much a philosophical judgment as a legal one. I find that those judgments of the Law Lords have no power on me at all. However, such statements seem to be particularly natural in the present age.

I confess that I am not moved by the semantic question of "gender" or "sex". Perhaps the noble Lord, Lord Tebbit, will explain it later. I recognise the slightly different ways in which the words have come to be used. It seems to me that this is to do with the recognition of an acquired sex or an acquired gender. Unless the Government have a specific intention of using "gender" rather than "sex" throughout much of the Bill—and if they have, they have got into some confusion in Clause 9—it seems not to be a matter of great interest.

Nor do I think that this is the moment—and here I agree with the Minister—for getting into questions of causation, whether physiological or psychological, because I think that they are now beside the point. They are indeed, as he said, matters that are still controversial within the medical profession—as the noble Lord, Lord Chan, made clear on Second Reading, and as many of us know from meeting a range of general surgeons and psychiatrists involved in these matters.

I wish to repeat my comments on Second Reading about my profound sympathy for those who suffer from this immensely serious condition. I meant my comments then and I mean them now: I want to be as helpful as possible to their needs and the needs that others recognise to be theirs. I am therefore sensitive to the question of wrecking amendments and would not he minded to support the noble Lord, Lord Tebbit, in his Amendments Nos. 5 and 20, because they could be described as "wrecking amendments" in terms of the Bill's philosophy. The exception is that the Bill contains in Clause 9 those critical words "for all purposes". If the Bill were less far-reaching or less serious in its consequences, then I would want, as I made clear on Second Reading, to go with its basic premises for the easing of the position of trans-gendered people. But I would be careful, as I tried to be then and shall be now, about necessary limitations on the word "possible".

Of course I recognise, too, as the noble Lord, Carlile, noted. that those of us making such points may in the end prove unsuccessful. But it is a duty for myself and others to make our case regarding Amendment No. 78, which, as the noble Lord, Lord Tebbit, said, is oddly yoked in this group of amendments, because it goes right to the heart of profoundly serious matters. It is perfectly in order for myself and others to argue that if one does not believe that gender or sex is changed in gender reassignments—and it is interesting that we are using words such as "assign" or "reacquire"—then it is clear that in the current wording of the Bill, if a person marries someone with an acquired gender, one will have a same-sex marriage, which the Government have consistently and admirably said they do not intend to make legal. It is for that reason that Amendment No. 78 is of a different order to the others and it is important that I support it.

Lord Chan

I have listened carefully to the comments of noble Lords and the Minister. I detect a slight change in his approach, which I accept. I also accept that only a small number of people are affected by the Bill and that we should therefore support their human rights—that I am very willing to do. My main concern is that in doing so we must be absolutely sure that those who are given the opportunity for gender reassignment, and to have a gender recognition certificate, are correctly diagnosed and fulfil all of the criteria that have been laid down.

Therefore, as a clinical/medical person I return to the issue of the diagnosis. I do not wish to go over the ground regarding causes, but, having had the opportunity to have a medical colleague ring up a number of medical organisations, it is clear that the majority of them take no view on the Bill. Their reason is that they feel that it is an area for the specialist—and we must accept that. My only worry, which has been signalled by other noble Lords, is that those who will agree with the diagnosis would be of one viewpoint and may not consider people who ask for gender reassignment and then change their minds. I am aware of two or three psychiatrists who have had such patients and that made them worried about criteria.

I ask the Minister about the grounds on which the Chief Medical Officer would agree with the diagnosis of gender dysphoria. Would that be on the grounds that the person, or should I say the patient, has been examined over a period of time? Because I see in the evidence under Clause 3, to which we shall come later, that there have been, so I understand, stricter criteria, that there has to be a definite diagnosis. It is not a simple matter where the person goes to a psychiatrist or psychologist, receives a report, and then applies for gender recognition. A certain period of time must elapse when that is done, and it would be important to emphasise that that was the case. Only then, after all options have been explored, would the diagnosis be assigned. We need to be absolutely clear that the right people, who are absolutely convinced of the way forward, would be those who applied and were screened carefully by the panel in order that they may be given the certificate.

Finally, we insist that people spend four or five years in a country before they can receive citizenship. Therefore, it would be rather surprising if we permitted people to change their birth certificates after two years.

4.15 p.m.

Lord Moynihan

I shall try to address two specific points that have been raised in the debate on my noble friend's amendments. First, and central to them, is the response by the Minister that the person's gender becomes "for all purposes" the acquired gender. Throughout the passage of the Bill I shall focus on the implications for sport because they are widespread and significant. In the context of the person's gender becoming for all purposes the acquired gender, it is necessarily the case that governing bodies of sport, both international and national, would have to recognise the effect of that primary legislation. They would have no other alternative. That is why we are here deliberating. It is particularly a problem where there is doubt as to whether all sports bodies are private bodies or perform some public functions as public bodies. That is the central point in the Government's argument that the Bill would not apply to sport.

I tell the Minister that there is major doubt over whet her it is possible to define sport governing bodies as private. I draw his attention to the words in another place of the then Home Secretary at the Committee stage of the Human Rights Bill, when he specifically drew attention to a sporting body as being of the type that he would expect to fall within the 6(3)(b) category, which is "a quasi-public body". He said: There will be occasions, it is the nature of British society, on which various institutions that are private in terms of their legal personality, carry out public functions. 1 would suggest that it includes the Jockey Club … The Jockey Club is a curious body. It is entirely private but exercises public functions in some respects. And to those extents, but to no other, it would he regarded as falling within"—[Official Report, Commons, 20/5/98; col. 1020.]— this classification. That is likely to be of significance, not only to the Jockey Club, but to a range of other sports governing bodies.

Judicial support for the assertion of the then Home Secretary, Jack Straw, that such bodies carry out public activities is particularly evident from the case law relating to the application for judicial review.

The Minister referred to Bellinger v. Bellinger in his response to my noble friend's amendments. In the context of gender reassignment, it is important to note that in that judgment the noble and learned Lord, Lord Nicholls of Birkenhead, stated: The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport". He went on to state: The criteria appropriate for recognising self-perceived gender in one context, such as marriage, may not be appropriate in another, such as competitive sport". If a governing body undertakes public functions, as many do, and is in receipt of public money, how can it defend its position against accepting a competitor with a gender recognition certificate without—and this is most important—any necessary operative surgical change to that individual? I fully accept the sensitivity about the reasons why the Minister put forward the case for not putting on the face of the Bill the distinction between post-surgical transsexuals and transsexuals who do not undertake any form of operation. One must be sensitive to those transsexuals for whom it is not medically possible to move from one group to the other categorisation.

However, in recognising that, it is important to identify its implications for competitive sport. It is a characteristic of gender dysphoria for the person moving from male to female to wish to be in the body of a female and thus to undergo the operations, as well as the treatments that would be of assistance when moving from one gender to another under the Bill. While one can be sensitive to that, I hope that the Minister will be conscious of the fact that that has widespread implications for competitive sport and for governing bodies. They will need to recognise that someone with a certificate who, for understandable reasons, under the proposed legislation does not have the surgical procedures will be able to present himself with the full weight of the law and—I repeat—becomes for all purposes the acquired gender of the person to compete in that classification.

I pick up on a comment made by the noble Lord, Lord Carlile. He asked why no one else has recognised the issue and made exemptions. I accept immediately that the noble Lord was not referring to sport at that point. Let us take one of the pre-eminent parts of the world in competitive sport. I refer to Sydney from where our rugby players have just returned. The New South Wales Parliament Act was passed in 1996. It specifically recognised the strength of some of the points that I have made on this set of amendments and will be making on subsequent ones, when it exempted sport. It made an exception to Part 3A and division 4 of that Act. It stated: Nothing in this part renders unlawful the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies". That subsection does not apply, first, to the coaching of persons engaged in any sporting activity, or, secondly, for the administration of any sporting activity, or, thirdly, to any sporting activity prescribed by the regulations for the purposes of the section.

Over 100 amendments have been tabled for this stage of the Bill and I believe that there are over 100 compelling arguments why competitive sports should be exempted. I have just made the first two of those arguments that I intend to develop under different sets of amendments, keeping closely in line with the advice given to us by the noble Lord, Lord Carlile.

However, I urge the Minister to reflect, first, on the public nature of many sports' governing bodies and I accept, if nothing else, that that is an open matter. It is a critical, important and unresolved issue that a range of cases has thrown up. Even if it is unresolved, we can address the matter on the face of the Bill.

Secondly, if a person's gender becomes the acquired gender for all purposes, including sport, recreation and competitive sport, there is very real concern that that would have to take pre-eminence over any rules and regulations of governing bodies in accepting classification, however sensitive we are to gender dysphoria; and I believe that we should be sensitive to the condition of gender dysphoria.

Lord Cobbold

I return to the amendments of the noble Lord, Lord Tebbit. Clearly, they rule out the possibility of same-sex marriage. Is the Minister confident that the Bill, as it stands, does not open the door to same-sex marriage?

Lord Goodhart

The points raised by the noble Lord, Lord Moynihan, are important, but by raising them at this stage he has turned the discussion into a Second Reading debate. His points bear no relevance to any amendment in this group. Indeed, the relevant amendment is one to be moved by the noble Lord himself, Amendment No. 94. I recognise that the points are serious and that they will require consideration.

Lord Moynihan

It is very important indeed that we do not consistently return to the argument about Second Reading debates. I specifically attempted to address two issues, one of which came from the noble Lord's Benches on the subject of international legislation in this context. There is also the vital importance of the Minister's response to an earlier intervention about someone's gender becoming for all purposes the acquired gender, which is right at the heart of this set of amendments to Clause 1 and which is sought to be changed by the noble Lord, Lord Tebbit.

I could not have been more careful in phrasing my comments. I focused not only on what his noble friend has said, but also on what the Minister has specifically said in his response to the noble Lord, Lord Tebbit. I intend to do that throughout our proceedings in Committee because that is the issue before us. We have to look at the impact on all aspects of society and I shall be looking at the matter through the eyes of sports' governing bodies.

Lord Goodhart

With all respect to the noble Lord. Lord Moynihan, he believes that the appropriate action on a Bill of this kind in Grand Committee is to speak only to the amendments relevant to the subject matter of the speech. At this stage no amendment to Clause 9 has been tabled that raises the issues raised by the noble Lord, Lord Moynihan. I shall move on.

I want to deal with the point raised by the right reverend Prelate the Bishop of Winchester. I welcome the fact that he does not go the full length of supporting the amendments tabled by the noble Lord, Lord Tebbit, recognising, as he does, that some of them, in particular Amendments Nos. 5 and 20, are genuinely wrecking amendments, because they would leave no possibility of recognising gender reassignment or gender change and would deal only with the situation, which I think can already be dealt with under existing law, where an actual mistake has been made as to a baby's gender at birth.

I also agree with the right reverend Prelate that Amendment No. 78 is not in itself a wrecking amendment. However, I believe that the ability to marry a person of the opposite sex is one of the most important features of gender. If someone is recognised by law as having acquired a new gender, but has no possibility of marrying a person of his or her previous gender, that person loses a central element of his or her acquired gender. Indeed, as I understand Amendment No. 78, a person in that situation could not marry anyone, because they would be prevented by Amendment No. 78 from marrying a person of their original sex, but the Bill would not permit them to marry somebody of their acquired sex.

4.30 p.m.

Lord Tebbit

That might be a very good argument if there were at this moment people who were in possession of one of these certificates saying that they had changed sex. If the Bill were amended as I have suggested in Amendment No. 78, people would take that into account before they decided whether they wished to possess one of those certificates.

Lord Goodhart

That would obviously be a very severe drawback to applying for a certificate. If one supports the principle behind the Bill, it is essential that a change of sex should be recognised for the purposes of entering a new marriage. Therefore, I am unable to join the right reverend Prelate or the noble Lord. Lord Tebbit, in supporting Amendment No. 78.

Earl Ferrers

This is a very sensitive subject, and I am hesitant about taking part in this debate for fear of making a Second Reading speech. I have no intention of doing so. The noble Lord, Lord Carlile, has accused my noble friend Lord Tebbit of making such a speech and the noble Lord, Lord Goodhart, seems to think that it is a bad idea, so I want to be careful not to do so.

A fundamental question covers the whole of the Bill. My noble friend Lord Tebbit virtually said, "What is a gender—what is male and what is female?" When a child is born, one looks at the genitals and one discovers what it is. However, there is a deeper method, which is the chromosome method. The Minister said in what I thought was a slightly brush-away line that he did not want to engage on some fundamental issues. However, these are fundamental issues.

If a person is a male and has an XY chromosome and says that he wants to be a female, that is absolutely understandable. If he does not go through any surgical methods but says that he wants to be a female, goes through the process and "becomes" a female and has a certificate to say that he is a female, is he really a female? The answer, says my noble friend Lord Tebbit, is that he is not, because his basic composition is that of a male.

I find it difficult to say that by law, when a person's state has been changed, however much he may wish it to be changed, no one can refer to the fact that that was not what he was born with. In other words, we are making it a criminal offence to tell the truth. I find that terribly difficult, but perhaps the Minister can explain it. He said that there were not many cases in which people wanted to change sex. I have no doubt that we all know people who have, and one has great sympathy with the problems in which they find themselves. However, hard cases make had law and it is important to ensure that the law that we pass is right and is credible. We ought not, by changing the law, to make people criminals if they tell the truth about what a person was when they were first born.

Lord Filkin

There is a lot to respond to. First, I turn to the comments of the right reverend Prelate the Bishop of Winchester. I thank him for the way in which he addressed his remarks in the difficult discussions that we have had on the Bill between Second Reading and now. In passing, I believe that Lord Justice Thorpe was speaking ex cathedra, in giving his reasons why he had come to the conclusion that he had come to— but be that as it may. I agree, too, that the Bill does not fundamentally turn on the semantic distinction between gender and sex. However, I do not want to annoy the noble Lord, Lord Tebbit, by saying that.

I also note that the right reverend Prelate is genuine in what he said at Second Reading about having compassion for people in these conditions, and about seeing that it is possible to go with the basic premises for the easing of some of that suffering. I have a lot of respect for that.

The right reverend Prelate asked me a specific question about why Clause 9 refers to sex. The reference to sex in that clause is because sex "in law" is needed, as some legislation refers to sex rather than gender. There you have it. I do not believe that there is anything fundamental there; the clause certainly does not make any broader philosophical point in that respect.

The noble Lord, Lord Chan, is absolutely right in saying that it is important that the process ensures that there is a right diagnosis of gender dysphoria as one of the legs of the process to which we referred earlier, when the panel makes a decision whether to grant a gender change. One reason why I sought to read a little from the Chief Medical Officer's advice to the department was essentially to set out that it is not a sudden, one-consultation end decision. A careful and thorough medical process must be gone through before a doctor, or more than one doctor, comes to the conclusion that a person experiences gender dysphoria. That is absolutely right—it must not be a sudden process. A clear and definite diagnosis is needed, which is why that has been put into the Bill.

The noble Lord, Lord Chan, raised the question of whether two years was too short. In many cases, the time will be longer, but that seems to us a sufficient time for people to have experienced fully in their lives—in their work and social life—the effects of living with the gender that they believe to be truly theirs. No doubt, if the noble Lord wants to, he will come back to that.

The noble Lord, Lord Moynihan, raised the question of whether sporting bodies were private or public bodies. Without engaging on whether his speech was a Second Reading speech or not, I might call it a trailer for our discussion tomorrow, to which I look forward. I shall repeat what I said to him at Second Reading, as it may save time later. If the noble Lord has evidence from the sporting bodies that they are seriously engaged in this respect, I should be most pleased to receive it, as it would increase the likelihood that I could give a full answer when we come to that point in the Bill.

A layman's summary of the issue—

Lord Moynihan

I understood from the Minister's response in writing, for which I am very grateful—as I am for the time and trouble that he took with it—that he himself conducted research into governing body reaction and sent out 300 letters to governing bodies and international federations. No doubt, therefore, he has received a large amount of correspondence.

I shall refer to many of the governing bodies in the proceedings of the Committee. I can comprehensively inform him that a wide range of governing bodies, including the Badminton Association, Cycling Time Trials, the All England Netball Association, the Football Association, the British Judo Association and many more, have contacted me to seek an exemption for competitive sport. Indeed, not one governing body that I have contacted, while being sensitive to the issues, wishes to see anything but an exemption in the legislation.

Lord Filkin

I am grateful to the noble Lord for his comments. I did not personally lick all 300 stamps; they were licked in the Department for Culture, Media and Sport, as one might expect. Nevertheless, it would assist me if he would let me have some of the documentation to which he refers. I am advised that there was a careful process of consultation, so that would assist me and him and the Committee.

Turning to the noble Lord's question, clearly some sporting bodies are private bodies. However, he is right that there are circumstances in which some sporting bodies could be treated as public bodies and, therefore, could come within the ambit of the ECHR and a challenge under Article 8 that they are potentially infringing private life. However, that is not the end of the issue. Our firm position is that a sporting body would be able, in the interests of competitive parity, to discriminate against transsexuals in that situation. That will be a defence and rebuttal. However, we shall come to that in more detail tomorrow.

Lord Tebbit

How would anyone know that they were dealing with a transsexual, since it will be forbidden under pain of criminal sanctions for anyone to refer to the fact that that person has a false birth certificate?

Lord Filkin

This is really straying quite a long way away from the immediate issue. However, the argument would run that, because it is legitimate for sporting bodies to uphold competitive parity, it is legitimate for them to make such inquiries as are appropriate to ensure that a person is physiologically appropriate to undertake that competition. However, I urge the Committee that I have been more courteous than I should have been in going into this detail at this point. I do not wish to excite further debate on the matter.

The noble Lord, Lord Cobbold, asked a good question; he asked whether we were confident that the provisions would not open the door to same-sex marriage. We are confident because there is a process that seeks carefully to give judgment to whether it is legitimate for the state to recognise a change of gender. When that change of gender has taken place, it makes it possible for the person whose gender has been changed and has been recognised by the state to marry. That is why we are firm on that position.

The Lord Bishop of Winchester

I am grateful to the Minister for giving way. The question asked by the noble Lord, Lord Cobbold, was admirably brief, and I envy his ability to ask such brief questions. However, the Minister's response effectively means that, if the state says that dawn is dusk and blue is brown, something becomes whatever it then becomes. That is the logic of the Minister's answer to the noble Lord, Lord Cobbold.

Lord Filkin

No, not so. I said that the state was entitled, as the Bill proposes, to have a process that allows for there to be a recognition in law that it is possible for a person's gender to be assigned and changed. The process is not a flippant one without evidence; it is not saying that the sunset is green rather than red. It depends on the tests set out in the Bill being met and tested by the panel. We believe them to be the right tests, and the appropriate tests, for so doing. Therefore, we believe that the state is absolutely right to legislate in this respect.

Lord Cobbold

I am sorry to interrupt the Minister again, but it seems to me that there is a possibility of fraudulent application to go through the process in order to achieve a same-sex marriage.

Lord Filkin

The noble Lord must be right in this matter, but there is a possibility of fraud in most areas of public life. However, one would expect the process that the panel was going through would be designed to reduce the likelihood of that, because there has to be a diagnosis and evidence. Clearly, there is a possibility of fraud in other aspects of marriage law. It is perfectly possible for someone to marry someone in a registry office, for perverse reasons if they wish to, by claiming that they are X rather than Y. However, let us leave that to one side. The fundamental point is that there is a process, which is as strong as it can be, to reduce that risk.

The noble Earl, Lord Ferrers, referred to my remarks on medical unanimity. What I was saying in essence was that the fact that there is not total medical unanimity on the issue is not a reason for not legislating in this respect. I sought to give reasons for that, which were bolstered and buttressed by the view of the ECHR and the Court of Appeal in this country. It is essentially a process whereby the state recognises the change of gender.

The noble Earl raised the other point, which we shall no doubt come to later in the Committee, on why we have the privacy enforcement. Essentially, it is out of compassion for the person who wishes to live their life in future in the gender which they believe is fundamentally the truth for them. They do not want to have it constantly exposed by administrative processes that they were once seen as having a different gender. That does not relate to someone who knew the person before their gender change was recognised. If they as a matter of record and fact knew that person before the gender change took place, there is nothing in the Bill that means that they are acting illegally in saying so. The provision is there essentially to prevent inquiry into the records in a way that makes that person constantly have to redisclose their former gender.

I hope that I have covered all the points that were made in the rather long debate on the first grouping.

4.45 p.m.

Lord Tebbit

I shall briefly take up some of the points that have been made, including some of the points that the Minister made, most reasonably and courteously as ever, but at times somewhat defensively. When someone says that they have no intention of getting into an argument about a subject, it always implies that they feel that the ground beneath their feet is somewhat slippery, at the very least. The noble Lord said that he did not want to get into an argument about chromosomes, but it is our chromosomes that decide our sex. This Bill is about deciding people's sex, so how can one not get into an argument about chromosomes, unless one simply wants to slide away from it because the point is indefensible?

The noble Lord, Lord Carlile, observed that marriage is not collapsing elsewhere in Europe. Well, no, of course it is not—and I did not say that it was. I would not say that the Palace of Westminster was collapsing merely on the first evidence of dry rot in its foundations. However, a process goes on. We would not expect the Bill to cause the collapse of the institution of marriage within five or 10 or 20 years. These matters are slow in their effect, and we are very foolish indeed, when we are dealing with enduring institutions that have had a life of many thousands of years, to think that, merely because a Law Lord or some parliamentarians throw a bomb or introduce an infection into that institution, it will instantaneously collapse.

The noble Lords, Lord Goodhart and Lord Carlile, talked about my amendments being wrecking amendments, but they do so because of their view of the Bill, not because of the nature of the amendments. The noble Lord, Lord Goodhart, observed on Second Reading that, there is a group of people who while, biologically … are of one sex, are socially and in other respects … of a different sex". He congratulates the Government for taking the view that those people, should be treated in relation to the sex to which they socially belong".—[Official Report, 18/12/03; col. 1315.] This Bill is primarily a Bill that pits social concepts against biological facts. That is why it is such an objectionable Bill. If I may say so to the right reverend Prelate the Bishop of Winchester, I was not being merely semantic about sex and gender. This Bill is about the difference between sex and gender. Sex is a biological fact; gender is, to a very large extent, a wish, a social pose, or whatever. That is at the heart of the argument.

I should like the Minister to reply clearly and simply to a couple of clear and simple questions. The first relates to Amendment No. 78. Will he confirm that the Bill as it is now drafted would allow people with genitalia of the same sex to marry? I hope that I have read the Bill correctly. I believe that I am entitled to ask him if that is a proper construction to put on the Bill. If that is so, does he regard that as being same-sex marriage or only same-gender marriage? Perhaps that is the delicate difference that he would like to draw—that because the two parties think that they are of different sexes, it is not a same-sex marriage, although they are physically identically equipped.

Perhaps indelicately, I suggested that if such a marriage took place in a nudist colony, it would be seen as a same-sex marriage. Let me put another point to the Minister. Let us suppose that, tragically, that couple then had a motor car accident and were both killed. At the post-mortem, would doctors conducting the post-mortem conclude that one was a male and one a female, or would they conclude that they were both of the same sex? That is at the heart of the arguments of this Bill and these amendments.

Lord Filkin

I would feel more pleased to respond to the noble Lord, Lord Tebbit, if I felt that the implication of his question was that he would be in accord with the Bill if it was a matter of a man who wished to have his profound belief that he needed a gender change to a woman, and who would therefore have surgery as part of that process, as would usually be the case. That is the implication that I would wish to draw from his question, although I do not believe that it is the case. If it is not the case, I wonder what the thrust of the question is. I say this with great courtesy, because in Grand Committee one does not need to get too formal on these issues, that the thrust of his question has all the nature of a bait for a tabloid headline. It places the discussion of these issues almost at a schoolboy level.

The Lord Bishop of Chester

I shall just touch on a point that 1 made earlier. I am broadly in favour of the Bill and am among a minority, perhaps, of Christians and church people who are willing to go with the Bill and recognise that it is a way in which to deal with a genuine issue. However, this specific point is a matter not of tabloid headlines but of same-sex marriage, or something that is seen as same-sex marriage.

In the Minister's earlier remarks, the implication was that there was not a legal requirement on the Government not to insist on surgery. He said that other European countries did insist on surgery, so that is not part of the legal drive behind the Bill. I fully recognise and understand that—so why, given this debate, can the Government not at least give consideration to our arguments? They do not have to do so on the basis of the wrecking amendments or tabloid desires of the noble Lord, Lord Tebbit, on which I take no view. Instead, they might do so after listening to those who are sympathetic to the Bill but believe that, if someone is going to be able to marry in the acquired gender, having changed sex—to use the words of the noble Lord, Lord Goodhart—one should properly expect there to be surgery. That picks up on the point made by the noble Lord, Lord Cobbold. Given the legal possibility that has been admitted, are the Government at least open to that variation on their present position?

Lord Filkin

I shall seek to respond more straightforwardly to the question from the noble Lord, Lord Tebbit, and also to respond to the comments of the right reverend Prelate. It follows from my previous remarks that the circumstances described by the noble Lord, Lord Tebbit, are possible. That is what I said previously. Not everyone who goes through a gender change recognition process will have to have surgery. There could be circumstances in which it is inadvisable and inappropriate to force the issue. It therefore follows that the person, having had his gender change recognised, would have a full legal right to marry. The circumstances that the noble Lord describes could occur in that situation.

Lord Carlile of Berriew

Is not the right to marry a legal right—that is, the right of someone who is defined in law as a man to marry someone who is defined in law as a woman? Is not the Bill simply seeking to clarify what the law is to enable that legal contract to be entered into where one or both of the parties have suffered from gender dysphoria and obtained a certificate under Clause 2?

Lord Filkin

The noble Lord, Lord Carlile, is exactly right. It is a point that I have made on a number of occasions. It is a process whereby, after a proper inquiry, the state gives recognition to the fact that gender change can and should take place. The gender has changed and therefore that person is entitled to marry in his new legal gender. That is the long and the short of it.

As for the noble Lord's second question about what a doctor would decide, I do not know and I do not intend to speculate on it. Many people in this society—not thousands, but many—have a physiology that is more complex than the norm. However, I do not think speculation on the matter will take us anywhere. That is the best answer I can give to that inquiry.

I think that we will return to the issue raised by the right reverend Prelate. We will undoubtedly reflect on it.

Earl Ferrers

The noble Lord, Lord Carlile, said that marriage is the right for a man to marry a woman. The Minister is saying that if there has been a gender change, that person has changed from being a man to being a woman. However, that is not necessarily so if their sex is actually the same.

Lord Tebbit

We have had a most interesting debate. I think it has illuminated in admirable fashion both the Bill and the difficulties that arise from it—between those of us who think that sex is not a lifestyle choice that we make for ourselves, but a choice that is made above and beyond us and is inherent in our biological nature. Sex, some of us think, is not a psychological phenomenon. I suspect that gender may, at least in the mind of the Bill's supporters, be a psychological and mental and fashion phenomenon.

I do not have the impression that the Minister and his colleagues will accept any of my amendments—it is odd how these impressions sometimes come upon one gradually. Therefore, in order to stay within the limits of the understandings on how this Grand Committee should work, and to leave myself a little scope for Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 11 not moved.]

Clause 1 agreed to.

Schedule 1 [Gender Recognition Panels]:

5 p.m.

Baroness Buscombe moved Amendment No. 12:

Page 13, line 5, leave out "Lord Chancellor" and insert "Secretary of State for the Home Department"

The noble Baroness said: In speaking to Amendment No. 12, I wish to speak also to Amendment No. 13. These amendments are designed to probe the Government regarding to whom they intend the responsibilities set out in paragraphs 1 and 2 of Schedule 1 to go if the position of Lord Chancellor is abolished.

Let me make it absolutely clear that we are opposed to the abolition of the office of Lord Chancellor. We believe that it is extraordinary for the Government to continue to add to the list of the duties of the noble and learned Lord through legislation. Surely it would be sensible now to make it clear on the face of the Bill precisely who in the Government's view should be performing these duties. Have the Government made up their mind on that matter? I beg to move.

Lord Filkin

I am now enlightened about why the Home Secretary came into the Bill which exercised me briefly at lunchtime.

The short answer is that, as the noble Baroness, Lady Buscombe, knows, we have signalled our intention to legislate to remove the functions of the Lord Chancellor while also legislating to ensure that we uphold and promote judicial independence. The Bill refers to the Lord Chancellor at this stage through a process of parliamentary drafting purity as subsequently a Bill will be introduced in this House to make recommendations on how the role of the Lord Chancellor will be changed. That Bill will then adjust this Bill accordingly.

I refer to the probing amendment regarding the Home Secretary. Clearly the appointments to the gender recognition panels and of presidents and vice-presidents will be judicial appointments. Therefore, they will be made by the Lord Chancellor as part of his function and office for as long as it exists. We shall have to wait with bated breath until the constitutional Bill is introduced, which will set out the specifics of how those functions will be dealt with in the future. However, it will be no great shock if I refer to the judicial appointments commission as we have already signalled that in the consultation papers. But for the here and now the Lord Chancellor will make these appointments until such time as legislation changes that.

Baroness Buscombe

I thank the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Schedule 1 agreed to.

Clause 2 [Determination of applications]:

Baroness Buscombe moved Amendment No. 14:

Page 1, line 22, leave out paragraph (b).

The noble Baroness said: The Bill states that an applicant to a gender recognition panel must have, lived in the acquired gender throughout the period of two years ending with the date on which the application is made". I should be grateful if the Minister would explain precisely what that will entail. How strictly will an individual have to abide by that requirement before they are issued with a full gender recognition certificate? For example, where there are small children involved who may not he old enough to understand the process which their father or mother is going through, would the applicant be allowed flexibility in the extent to which they live in their acquired gender for the sake of the child?

Would a pre-certificate applicant be expected to change in the changing rooms of their birth or acquired gender? What evidence would be sufficient to prove that an applicant had not fulfilled the criteria of living in the acquired gender for two years? How have the Government come up with this arbitrary period of two years? Is it based on advice from specialists? Are there any circumstances, apart from for the purpose of the fast-track scheme, in which an exception could be made?

I take this opportunity to thank the Minister for writing to me in response to the questions that I raised at Second Reading. In his letter of 5 January 2004 the Minister referred specifically to rights and freedoms of others. That is a point to which I also referred at Second Reading. At Second Reading I made the point: Whose human rights take precedence? How does one judge in individual circumstances what is balanced and proportionate".—[Official Report, 18/12/03; col. 1292.] There is no question that through the two-year period the individual will have to operate with a great deal of sensitivity but at the same time live to the extent required by the panel in order to meet the criteria required to obtain a gender recognition certificate. I wish to quote from the Minister's letter to me of 5 January. The letter stated: As I stated in my opening speech, however, this Bill does not bring transsexual people into existence, it just gives them legal recognition. This is particularly important to bear in mind in relation to the specific contexts that you mentioned, such as sports changing facilities. Transsexual people already use changing rooms as they go through the various stages of transition before fully assuming their acquired gender. Typically, rather than trying to attract attention to themselves, transsexual people are keen to live their lies in a discreet and ordinary way. Most transsexual people are aware of public sensitivities and take care to avoid causing alarm or offence". However, during the passage of this Bill we need to understand to what extent these individuals are able to carry out their daily lives in a discreet way but at the same time meet the criteria required in order to satisfy the panel that they have lived according to those criteria. Much impinges upon the word "lived" in the Bill. I beg to move.

Lord Filkin

I thank the noble Baroness, Lady Buscombe, for a thoughtful, probing amendment. The criteria for recognition of gender change, of which the two-year period is one, are not in a sense set by government as a set of hurdles to be leapt over. Their purpose is to try to ensure that before there is a process—which is essentially a judicial process—of recognition on the part of the state that a person's gender should be changed, it is right, proper and necessary that. we are as certain as we can be that that is not a whim, a short-term preference or something that could be regretted later. Clearly, a range of measures are involved including the diagnosis of gender dysphoria and evidence of the commitment to want to live in the relevant gender in the future.

However, I believe that it seems right to many—it certainly seems so to the Government—that one would certainly expect a person who was genuinely committed to wanting to live in that new gender for the rest of their life to demonstrate the reality of that by living that gender in the here and now. It is not like opting for a change of clothes; it is a matter of believing at heart that there is something incongruous in one's birth gender and wanting to bring into alignment as far as one can the totality of one's life. The matter should not be interpreted as the Government saying, "You must live this life". Transsexuals who believe passionately that they want to be fully recognised will already be in this position. They will be living their lives in the way that I have described. They will have acted in that way in the totality of their lives. All the panel is doing is checking to see that there is evidence of that. I cannot fully second-guess how exactly it will inspect that process. However, I would expect it to undertake that process seriously to check that the relevant criteria had been complied with. The test in the legislation exists for a purpose; it is not a minor issue.

That is the essence of the matter that we are discussing. It is a necessary part of ensuring that before a decision is taken by the panel, the person has demonstrated their fundamental commitment to the very major change that they want to undertake. We are talking about two changes. I refer to the change that the person has signalled they want to make socially, which they can do without the state doing anything at all. Many transsexuals do that and have done so for many years. They change their dress, how they are addressed and how they behave. However, we are not talking about that change but the change that occurs when the state recognises the justification for giving legal recognition to a change of gender. Therefore, I do not think that the two-year test is in any sense burdensome or unfortunate, if I may put it that way.

The Lord Bishop of Winchester

I hope that I may come to the help of the Minister for a change. There is one more point that he could have added. My understanding is that this is something to do with the Benjamin protocols or the Benjamin rules or whatever and that consultants working in this field are responsible and follow that kind of code and will themselves supervise the matter in a thoroughly responsible way.

I confess that I had not thought before about the point raised by the noble Baroness, Lady Buscombe, regarding whether the process can or cannot be carried out. Clearly, adjustments will have to be made in a range of directions. From meetings with those concerned my understanding is that these matters are pursued in a responsible manner, particularly on the part of those responsible for the medical supervision and the decisions that are being made.

Lord Carlile of Berriew

I make much the same point. My information, which I have acquired over a number of years from those involved in treating people suffering from gender dysphoria, is that precisely the criteria that are set out in Clause 2(1)(b) are applied in gender reassignment clinics as a prerequisite to surgical treatment. Therefore, for a change, the test in law will be similar to the medical test that is applied. Would that we had so many consistencies between the law and medicine, for example, in the law of provocation for diminished responsibility in relation to homicide. However, we do not have that consistency and the law and medicine frequently have to apply quite different criteria. In this case they will be the same and that is useful.

The noble Baroness, Lady Buscombe, raised the very important question of children and how people are to conduct themselves during the two-year period. My understanding of the way in which the medical profession that specialises in gender dysphoria—for example, at Charing Cross—works is that it does not apply a set of rules as such. For example, the party who is in fact the mother in the household does not give up all domestic duties because the children might think that they constitute a mother's role. It is a continuum but one in which there is an evolving element. The word "lived" is broad enough to satisfy the test regarding the interests of the children. If one takes into account the background medical evidence contained in the Bill, the measure is sensible, practical and consistent with what has been done for a long time.

Lord Moynihan

I should be grateful for the Minister's help on a matter concerning the world of sport that impacts directly on my noble friend's amendment. In the Minister's view what would be the reaction of a gender recognition panel to a sportsman competing in a sport who then recognised that he would have to stop competing as a male for two years in order to persuade the panel that under the condition of gender dysphoria he had been a woman for two years? However, during those two years he had not been able to compete as a woman because he had not been recognised as a woman and did not have the relevant certificate. Would he lose the opportunity during those two years to compete internationally as a sportsman?

Is it the Minister's understanding that, should this Bill be enacted, the gender recognition panel would look favourably on the specific circumstances of an individual sportsman who had genuine gender dysphoria who wished to continue to participate in competitive sport as a man throughout that two-year period until the point at which he receives the certificate and then competes as a woman? Or is it the Minister's interpretation that during that two-year period the sportsman could not compete internationally or at national level?

Lord Filkin

I have no idea what the gender recognition panel would decide in such a case. I believe that it would consider the totality of the situation rather than regard such a narrow or exceptional set of circumstances as the issues on which the whole matter turned.

Lord Moynihan

I was expecting the Minister on behalf of the Government to say a definite no in response to that question. I point out yet again that unless there is clarity on the matter the proposal to exempt competitive sport is stronger than it was before I rose to my feet to speak.

5.15 p.m.

Baroness Buscombe

I thank the Minister for his response to my questions. I also thank the right reverend Prelate the Bishop of Winchester and the noble Lord, Lord Carlile, for their helpful contributions. This has been an important and helpful debate to clarify the issues, but on behalf of my noble friend I remain concerned about sports issues. The Minister may have recognised that I shall leave those issues to be argued in large part by my noble friend. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 to 17 not moved.]

Baroness Buscombe moved Amendment No. 18:

Page 2, line 13, at end insert— (5) No order may be made under subsection (4) unless a draft thereof has been laid before and approved by both Houses of Parliament.

The noble Baroness said: In speaking to Amendment No. 18, I wish to refer also to Amendment No. 19. Clause 2(4) gives the Government power to draw up a list of countries that are "approved" for the purpose of changing gender. This route of obtaining a gender recognition certificate could be an extremely popular one for transsexuals who are nationals of other countries, or those who moved overseas in order to be recognised in their acquired gender, before such provisions are in place in the UK. Given the potential significance of this aspect of the Bill, this subsection should be strengthened.

Amendment No. 18 is tabled on the advice of the Delegated Powers and Regulatory Reform Committee's third report that the negative procedure in the Bill as it stands is an insufficient level of parliamentary scrutiny, and that the affirmative procedure would be more appropriate.

Alternatively, Amendment No. 19 requires the Secretary of State to publish a document and lay it before both Houses of Parliament detailing the criteria he will use to determine whether a country is "approved". Would, for example, the safety of any medical procedures or practices be a consideration? Can the Minister give examples of those countries that it is likely would be "approved" and those that would not be "approved", and the reasons for this? I beg to move.

Lord Goodhart

Amendments Nos. 108 and 110, in the names of my noble friend Lord Carlile of Berriew and myself, are grouped with Amendments Nos. 18 and 19. Amendments Nos. 108 and 110 reach exactly the same result as Amendment No. 18 ensuring that the affirmative resolution procedure, rather than the negative resolution procedure, is used for any order designating an approved country under Clause 2. We prefer that course to Amendment No. 19, which seems to us an unsatisfactory alternative.

The Delegated Powers and Regulatory Reform Committee pointed out in paragraph 5 of its report that, the power is not limited on the face of the bill to prescribing those countries, that have criteria equivalent to our own". The report goes on to state: Should the policy change in the future, the power might be used for prescribing also other countries, thus extending the cases in which an application could succeed without the need to satisfy the Panel about the specific matters in clause 2(1)(a) to (d))… In view of this, we conclude that the negative procedure does not provide an appropriate level of Parliamentary scrutiny for a power of such potential significance in the context of the bill. We recommend that the affirmative procedure should apply". Speaking for myself, it seems to me that the committee's recommendation on that subject is absolutely right.

Lord Evans of Temple Guiting

As we have heard, the Delegated Powers and Regulatory Reform Committee has made two recommendations in respect of this Bill. It recommended that the power to specify "approved countries" in terms of applications from individuals who already have recognition overseas be subject to the affirmative rather than the negative resolution procedure. It also recommended a change to the provision in Schedule 3, paragraph 11, which seeks to accommodate a regulatory reform order relating to the registration system for England and Wales, which is already in progress. The Government will accept both recommendations of the committee. Amendments will be tabled on Report and I hope that they will find favour with the House.

These amendments concern the same delegated power as the first of the recommendations. The Bill provides a straightforward mechanism by which those who already have recognition of their acquired gender overseas may apply for recognition in the UK. An applicant has to establish that he or she has recognition in an "approved country or territory".

The Secretary of State has the power to specify a list of approved countries or territories. The power will be exercised only after consultation with the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. I take this opportunity to remind the Committee that this is not a devolved matter in Wales.

Only those countries that have criteria for recognition equivalent to those in this Bill will be approved for these purposes. This is to ensure that all those who have recognition of their acquired gender in the UK have met the criteria set out in the Bill; that is, taken decisive steps to live fully and permanently in the acquired gender. Without this mechanism, individuals could go abroad to another country that may have less rigorous criteria for recognition and that recognition would be valid in the UK.

As I have said, the Government accept the recommendations of the Delegated Powers and Regulatory Reform Select Committee, that just as Parliament is now exercising proper scrutiny over the criteria in the Bill, it should in the future be able to exercise proper scrutiny over the criteria by which the list of approved countries or territories is drawn up.

As I said, the Government will bring forward an amendment on Report to ensure that this power is subject to the affirmative resolution procedure.

Baroness Buscombe

I thank the Minister for his response. I am only sorry that he feels unable to accept our amendments as they stand. I hope that we shall find that the amendment tabled on Report will be complementary to what we have tried to achieve today. For now with pleasure I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Clause 2 agreed to.

Clause 3 [Evidence]:

[Amendment No. 20 not moved.]

Lord Goodhart moved Amendment No. 21:

Page 2, line 42, after "required" insert "by order made"

The noble Lord said: Clause 3 specifies the evidence and information that must be provided in support of an application for a certificate under the Bill.

Clause 3(6)(b) empowers the Secretary of State to require further information or evidence. As the Bill now stands, those powers can be exercised without a statutory instrument or, indeed, any parliamentary procedure although the Secretary of State has to consult the Scottish Ministers and the Northern Ireland Department of Finance and Personnel. Quite why the Northern Ireland Department of Finance and Personnel is the relevant department I am not altogether clear.

This was a matter of some concern to the Delegated Powers and Regulatory Reform Select Committee. Although it did not make a definite recommendation that parliamentary procedure should be adopted, it was rather critical of the matter. Paragraphs 7 and 8 of the committee's report state: The prescription by central government of the particulars or evidence to accompany applications as part of a formal procedure is often made the subject of rules or regulations, whether or not subject to a Parliamentary procedure. This accords with the view that the prescription of general rules about these matters has the characteristics of a legislative, rather than a purely administrative, act. For this reason we considered whether, in this instance, the particulars and evidence should be specified in a statutory instrument, to which the usual publication requirements will apply. The reason given by the Government for wishing the matter to be left to "administrative" action only is that the details are likely to change. We recognise that this is a good reason why the details should be left to regulations, but, given the flexibility of the delegated legislative procedure, it does not provide an explanation why there should be no formal procedure of any sort. However, we recognise that the number of applications is likely to be small. We suggest, therefore, that the House may wish to invite the Government to explain more fully why, in this case, the general requirements about information and evidence to accompany applications should not be set out in regulations, whether or not subject to a Parliamentary procedure". I naturally agree with the comments of the Delegated Powers and Regulatory Reform Committee, and indeed I would go somewhat beyond them. The fact that few people are likely to be involved is not in itself a sufficient answer or a relevant factor. The new requirement on evidence may have a serious effect on the ability of transsexual people to exercise their rights under the Bill. I would suggest that Clause 3(6)(b) should indeed require a parliamentary procedure and should require the negative resolution procedure. I am not suggesting that the matter is important enough to require the affirmative procedure, but it does seem that the negative procedure would be appropriate. Having said that, I shall wait with interest to see how the Minister responds to the challenge laid down by the Delegated Powers and Regulatory Reform Committee to explain why the Government think that no form of statutory instrument is required in this case. I beg to move.

Baroness Buscombe

I wish to speak to Amendment No. 22, which is grouped with these amendments. This amendment also refers to the suggestion from the Delegated Powers and Regulatory Reform Committee in that it requires that the Secretary of State must write and publish regulations outlining his expectations of an individual applying for a gender recognition certificate. That would involve details of what other information or evidence he may require as part of the application procedure. We believe that these measures would greatly enhance the transparency of the panel's decision-making process and allow an applicant to know what they may be letting themselves in for. In this way they could make a fully informed decision and there could be no unpleasant surprises as to the nature of the information they will be called on to disclose.

It is likely that the type of information required by the Secretary of State will change over time. For that reason, we think that it would be inappropriate to have it laid out on the face of the Bill. There is nothing, however, to prevent the publication of regulations that could be updated as often as necessary by the Secretary of State. Similarly, it is not as if the details of each case will be so wildly different as to make any attempt at generalisation, as would be required in regulations, impossible. I can see no reason, therefore, why this amendment should not be accepted.

Lord Evans of Temple Guiting

I shall try to rise to the challenge that has been laid down. It might help if I clarified what the power will be used for. It will be used to set the questions that are asked on the application form. Its purpose, therefore, is very narrow. That is why we do not believe that any parliamentary scrutiny is necessary. The application form will ask questions that will enable the panel to determine an application. Contact details, for example, will have to be requested. At the same time, the application form will contain questions relating to the criteria in the Bill. The application form may, for example, ask an applicant to specify what evidence is being supplied to satisfy the panel that the applicant has lived in the acquired gender for at least two years.

The power is therefore already constrained by the criteria in the Bill. If the application form is used to ask for information that does not pertain to the criteria in the Bill, the applicant will be able to challenge that request and, ultimately, if he or she remains unhappy with the request, to apply for judicial review.

It is not typical for legislation to be used to specify the content of an application form. There are many advantages to taking an open approach and to allow ongoing refinements. This will, we believe, be to the benefit of transsexual people and will facilitate the process. For example, 10 years ago, no application form would have asked for an e-mail address, but email is now a very important form of contact. If the amendments were accepted, a change in the application form to ask for an e-mail address would have to be scrutinised by Parliament. In effect, subsection (6)(b) allows the information requested on the form to be altered to suit the panel's or the applicant's needs. The criteria for recognition cannot be changed by the subsection so the use of the subsection is clearly limited. We therefore believe that the amendments proposed are unnecessary.

5.30 p.m.

Lord Goodhart

I am grateful to the Minister for that reply. I will study what he said and consider whether this is a matter that can be left as it is or it should be returned to on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

Baroness Buscombe moved Amendment No. 23:

Page 3, line 2, at end insert— ( ) In the case of an application under section 1(1) from a person who is married, a Gender Recognition Panel must take evidence from the spouse and children of the applicant before making any determination under section 1. ( ) Evidence from the spouse or children may include a report from a chartered psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant. ( ) The spouse or children of an applicant shall have the right to offer oral and written evidence to a Gender Recognition Panel and, before issuing a certificate, the Panel shall have due regard to the effect of issuing such a certificate on the spouse or children of an applicant. ( ) In the case of an application under section 1(1) from any unmarried person a Gender Recognition Panel may take evidence from the partner or children of the applicant before making any determination under section 1. ( ) In the case of minor children evidence may be given by a representative appointed on their behalf.

The noble Baroness said: In moving this amendment, I shall also speak to Amendments Nos. 61, 69 and 74. This set of amendments are designed to further address the problem to which I drew attention on Second Reading—that of balancing the rights of transsexual persons with the rights of third parties affected by the actions of the transsexual. In particular, the rights of the spouses and children of the transsexual need additional protection. There is barely a nod in their direction throughout the Bill as it currently stands. Worse than that, the spouse is put in the extremely awkward position once an interim gender recognition certificate is granted of having to obtain a divorce and therefore break up the family.

Given the impact that granting a gender recognition certificate will have on family life, we believe that the family should at least be given the opportunity to express their opinion. Amendment No. 23 would give the panel a statutory obligation to hear evidence from the spouse and children of an applicant to give them a chance to have their say in this process that would bring about such a fundamental change to their lives. The evidence may include a report by a psychologist or a doctor. The provision recognises the trauma that such a process could initiate and allows weight to be given to the health and psychological well-being of the family members involved. To that end, the panel must have due regard to the effect on family members of issuing a certificate before it does so. The amendment would also be beneficial by providing the panel with added material on the history and psychological background of a transsexual person, enabling the panel to gain a more complete picture of the circumstances surrounding a particular application.

Amendments Nos. 61, 69 and 74 would make provisions in England, Wales, Scotland and Northern Ireland so that, with the consent of the individual holding a gender recognition certificate or following their death, a child or grandchild could be provided with a copy of the original birth certificate. That would save children or grandchildren considerable embarrassment and prevent them having to go into detailed personal explanations to account for having two female or two male parents or grandparents. That is particularly important in cases in which documents must be produced to show evidence of the place of birth of parents or grandparents—when seeking nationality or taking up residence overseas for employment purposes, for example.

The amendments include a condition that the holder of a gender repetition certificate must have given consent if they are alive, because a person who has gone to great lengths to obtain such a certificate will understandably be reluctant to have original copies of their birth certificate in use. The amendments would go further to protect the rights of the intimate family of a transsexual and, alongside the amendment to give spouses and children the opportunity to give evidence to the panel, the Bill would move closer to a position that protected the rights of all individuals affected rather than just those of the transsexual person. I look forward to hearing the Minister's response and I beg to move.

Lord Carlile of Berriew

I am strongly sympathetic to Amendments Nos. 61, 69 and 74.I have a grown-up daughter who lives in the United States of America. My wife and I spend quite a lot of time going to offices in this country to obtain transcripts of various kinds to prove that she is who she is and we are who we are and that our grandchildren are as they purport to be, despite their very young age. That would seem to be an entirely appropriate target of the legislation, even if the words of those later amendments are not correct. However, with the greatest respect to the noble Baroness, I disagree with Amendment No. 23 for the following reasons. I would understand her amendment better had she inserted some kind of additional public interest test into Clause 2. She has not done so and nobody else has sought to do so. There is no public interest test there.

Clause 2 contains a set of subjective tests that relate to the social and medical condition of the applicant for the certificate. The effect of the items set out in Amendment No. 23 on the tests in Clause 2 is difficult to understand. There is no logical connection between them. What is the tribunal supposed to do with the evidence obtained under those tests? The answer is self-evident. There is really nothing that it can do with them. Therefore, they are otiose requirement because they do not relate to the medical condition of the applicant.

This House is full of people with extraordinary ranges of experience. Part of my experience, which I am delighted to have put behind me donkey's years ago now, is appearing for one side or the other in defended divorce cases in the courts. There was nothing less attractive than appearing in such cases because, having earned one's money appearing before a judge who was understandably irascible at having to hear in a public forum—almost literally—who washed the dirty linen, one was left mitigating nothing and simply adding to the heat of the occasion and the disagreement between the parties. Amendment No. 23 would introduce an unwelcome element of a contested hearing into a situation that may already be utterly fraught with difficulty. A contested refusal would not mitigate an already difficult situation. In sheer practical as well as logical terms therefore, with respect to the noble Baroness whose aims are laudable and totally understandable, I fear that the situation would be made worse rather than better.

The Lord Bishop of Winchester

I am grateful, both for the amendments tabled by the noble Baroness and the response by the noble Lord, Lord Carlile. I am very interested in that response. My sense was to be warmly supportive of the other three amendments in the group and of Amendment No. 23, but with the suggestion that the word "must" in the first paragraph of Amendment No. 23 is too strong. I notice that the noble Baroness, Lady Buscombe, mentioned offering opportunity or something of that kind, because such people may not wish to give evidence. I would argue that they should be offered the opportunity.

I can see the strength of the points made by the noble Lord, Lord Carlile, especially if the end product were contested refusal. The noble Lord and others who are lawyers will know better than I, but I have a sense that "due regard" has some legal meaning. It would be perfectly in order, supposing that the Bill becomes law, for a recognition panel to give due regard and so judge that, in the circumstances, it would be proper for the person to go forward in such a way.

From personal experience I am aware of the results of more than one case—although I have particular awareness of one—in which a person went through the process and lived entirely as a transgender person. Although the marriage was sustained, it led to an absolute breakdown with children, grandchildren and siblings. I have no doubt that there are others involving similar pain.

I imagine that if the process were defined in law, the panel might find itself engaged in encouraging various types of mediation, second thoughts, questions about whether this was the right ultimate step to take or whether there were steps to shorten the process that might meet that person's needs—if I can put it that way—and save their relationships. The marriage relationship is one thing, but children and grandchildren are also a serious matter. I do not know that the process is as cut and dried as the noble Lord suggested, although I recognise the force of his point.

Lord Tebbit

I hope that this does not unduly unnerve the noble Lord, Lord Carlile, but I think that he is right about Amendment No. 23 and about Amendments Nos. 61 and 69. Since this Bill is about recklessly creating rights for a particular category of people, regardless of reality and of the effect upon other people and institutions, the logic of Amendment No. 23 is that considerations about the family and children of such persons have no place in this Bill at all. This Bill is not about them; it is about granting this particular group of people rights regardless of the effect on other institutions or people. The noble Lord, Lord Carlile, is right.

On Amendments Nos. 61 and 69, the noble Lord and my noble friend are also absolutely right. Surely, it is manifestly absurd that, if a child or grandchild sees that their mother or grandmother is engaged in proceedings that will lead to them being recategorised as a man and that a new birth certificate will be issued to say that the child's mother is now a man, the child would be very foolish indeed—if he were old enough and wide-awake enough—not to go at once and procure copies of the true birth certificate, setting out the true facts. Otherwise, as has been said, he would be in the awkward position of having to explain why he had a birth certificate stating that his mother was born a man and always had been a man.

Since the child can do that—if he is wide enough awake and thinks about it—it would be entirely unfair on other children and grandchildren who are perhaps not old enough to see the implications of what is happening to say, "You missed the date. Now you can't have a copy of the birth certificate. Your elder brother and sister have already got a copy, but you can't have one". Quite clearly, that is manifestly absurd, as I am sure the Minister will accept.

Lord Chan

I rise to support the three amendments moved by the noble Baroness because I believe that they are all very important, especially because the condition involves psychological and even psychiatric issues. When the family is given the opportunity to come forward and give their views, there would be an opportunity for the people concerned to reconsider their positions. A small number of transsexuals change their minds after further probing and discussion. The proposal may well be a way of stimulating that, especially if the professionals consider only the patient's condition without having due regard to his or her family.

5.45 p.m.

Lord Filkin

The amendments would protect the rights of third parties, especially those of the children and partner or spouse of a transsexual person. I respect the motivation behind the amendments, but the Bill is focused primarily on providing transsexual people with rights guaranteed by European human rights law. That primary purpose must be what guides us. However, central to all human rights legislation is the balance between rights and responsibilities. That is why, wherever possible, we have sought to address those and it is why the Bill ensures, in Clause 12, that a person who is a mother or father retains those responsibilities subsequent to a change of gender.

Similarly, the Bill envisages the end of existing marriages. When the court deals with the dissolution of the marriage, it will be able to deal with issues surrounding financial provision for a spouse and the arrangements to secure provision. As I have already said, the Government are also concerned to ensure that a smooth transition into the formation of a civil partnership is available for couples who wish to remain together. If the legislation is enacted as we intend, a transsexual person and his or her spouse will be able to gain legal recognition of their relationship and their mutual rights and responsibilities as part of the process offered by that Bill.

The noble Lord, Lord Carlile, is right, as is the noble Lord, Lord Tebbit: the proposed amendment threatens to change the nature of an application for gender recognition. If the application were accepted, the panel would have to make a penetrating and intrusive determination of the applicant's personal circumstances. The purpose of the Bill—in accordance with the UK's obligations under European law—is to ensure that transsexual people gain the right to seek recognition in their acquired gender. The direct answer is that the panel must consider that. What would they do with evidence which showed that the partner or children did or did not like what was happening? I am afraid that it would be "apples and pears", as the noble Lord, Lord Tebbit, pointed out.

The Lord Bishop of Winchester

I recognise the logic of the Government's position as, in their different ways, and because this is a debate, the noble Lords, Lord Carlile and Lord Tebbit, enunciated it. However, in the observations of the noble Lord, Lord Carlile, was a hint that makes clear what underlies something that the Minister has just said. It is clear that, just as there are possibilities of contesting a divorce petition, so here, only more so, somewhere in what the Minister just said is a clear statement that the process should be given the green light, whatever the cost to spouses and children, even if the marriage is coming to an end. That is the clear implication of the Minister's statement.

That brings us to the major question of the one-sidedness of the whole operation. As I made clear on Second Reading, the Goodwin judgment is significantly lacking in a series of respects. Paragraph 90 begins: Nonetheless, the very essence of the Convention is respect for human dignity and human freedom". The judgment goes on to speak of, the protection … given to the personal sphere of each individual". The Minister makes crystal clear that the Bill is intended to give respect to certain things. I have said that there are elements of the Bill, short of some particular points, which I should like to encourage and to give a fair wind. At this point it seems crystal clear that the Government are, without remainder, giving rights to one set of people and taking no notice of the rights of another. The amendment of the noble Baroness merely lays down that the panel should give "due regard". That is an entirely proper request to make of the panel, granted that, if the proposition were to he agreed, a number of parties and institutions have rights alongside that of the transgender person.

Lord Goodhart

Once again, I am afraid that I disagree with the right reverend Prelate. The procedure proposed by Amendment No. 23 comes far too late and is likely to aggravate pressures within the family. It is plainly desirable that, when one parent contemplates having a gender reassignment, psychotherapy should be available to the children of the marriage, especially if they are not yet adult. They will face quite exceptional difficulties and strains during such a period. However, if it is to be of any use, such treatment should clearly he provided well before the stage of applying for the certificate. An attempt to block the granting of a certificate after an application has been made would be highly confrontational and would almost certainly cause more harm than good. Any treatment or attempt to deal with the internal strains within the family must come at a much earlier stage than the application.

Baroness Buscombe

What is the view of the noble Lord, Lord Goodhart, of the second part of Amendment No. 23, in which we suggest that: Evidence from the spouse or children may include a report from a chartered psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant"? Does the noble Lord not think that that is a good idea?

The Lord Bishop of Winchester

I would like to add one postscript: suppose either the spouse or children judged that they had evidence to offer concerning the effect on either the physical or mental health of the person concerned which they themselves had not judged right to bring forward or of which their medical practitioner was unaware? Would that not he of interest?

Baroness O'Cathain

Perhaps I may seek clarification. I have listened with acute concern to the comments of the noble Lord, Lord Goodhart. He mentioned the quite exceptional difficulties and strains that the transgender issue places on children and immediate family of the transsexual involved. If we are to return to a situation in which it must be shown that the transsexual has been living the life of a transsexual for two years, would it not be better if the transsexual should make his or her view known and then there should be a period of two years during which the children, siblings, grandparents and immediate family circle—cousins and all the rest of it—should all have psychiatric treatment?

Lord Goodhart

What the noble Baroness, Lady O'Cathain, suggests makes a good deal of sense. It is clear that all members of the family should be aware of someone contemplating gender reassignment at an early stage. The result of discussion at an early stage may be that the person wishing to change gender decides not go ahead with the plan for family reasons or to defer gender change until a later stage. However, once we have reached the application stage, firm decisions have clearly already been taken. It is most unlikely that any matters would be improved by denying the great efforts and difficulties that the applicant has gone through and by insisting that the status quo be preserved. It is too late. Once we have reached the application stage, the status quo cannot be preserved.

The Lord Bishop of Chester

Is the Minister saying that, in the case of a single parent with young dependent children who wishes to investigate the possibility of a gender recognition certificate, the rights and needs of the children would not be taken into account in the process?

Lord Filkin

Let me start from where the noble Lord, Lord Goodhart took us, because, in essence, that is the reality of the issue—all members of the Committee who have spoken recognise the strength of the human issues surrounding circumstances of this type. We are talking about a person who applies to the panel for recognition of a change of gender. As part of that process they will have had to have demonstrated that they have had gender dysphoria for at least two years. It is not a new or sudden issue, but one that the family will have faced and grappled with in all its complexity for many years.

Lord Tebbit

That is not necessarily true. In the case of a broken family, the children may have been with the parent who was not seeking a gender reassignment and may have had no contact for some time with the other parent or contact in a form in which one parent has arranged that the children will not be aware of the process through which the other is going. It is not quite as simple as the Minister believes.

Lord Filkin

I grant that what the noble Lord, Lord Tebbit says, is conceptually possible. However, I would be surprised if that happened in practice, because one would expect it to be part of normal social behaviour for one partner to refer to the fact that the father or mother was seeking to go through such a process. One would expect it to be a duty of parenthood in such situations to bring those issues into the open before the children. Therefore, I seek to illustrate not that there is a simple, perfect or happy answer to these human difficulties—there are not—but that they are issues with which the family would have been struggling for years before we reach the process of deciding whether the legal gender should be recognised by the state. They are not sudden.

The Lord Bishop of Winchester

I am grateful to the Minister for giving way. I intervene in case I can save him from going on further. I wonder whether part of the point would be met by my proposal to alter the word "must" in the first paragraph of the amendment. If one took out the word "must" and inserted instead something such as "should offer opportunity", which was part of the original form of words introduced by the noble Baroness, Lady Buscombe, then I believe it is most likely that in almost every case all those concerned would react as the Minister describes. This is something that we know about and of which we have been part. Whatever its cost to the person concerned and to ourselves, we know where we are.

I believe that for some people it is basic justice that they should have opportunity. They may responsibly take that opportunity and I suggest that they do so. I say that while recognising that the noble Lord, Lord Goodhart, pointed out that the various expressions have been explored previously. I believe that those issues would have been explored in any responsible medical practice.

However, there is still a possibility of a residue that needs to be considered not only regarding the effects on the spouse and children but, as I said a little while ago, also on the person concerned. Therefore, I wonder whether one might have to labour less if one was considering the words "should give opportunity" rather than the word "must" in the first paragraph of the noble Baroness's amendment.

6 p.m.

Lord Filkin

I wish that I could make the right reverend Prelate happy and my life easier by saying "yes" in response to that, but perhaps I may explain why I cannot do so. The tough answer is that the right which the panel will decide whether or not there is evidence in the application to grant is not a right that can be balanced. The state can seek to mitigate it but it cannot say, "Well, because the wife does or does not feel strongly, this is an issue that we can take into account". I believe that that is the nub of the matter.

Secondly, perhaps I may give an illustration of the issue in practice. One can speculate on what a child would feel in some of these situations. He would feel confusion, concern and no doubt embarrassment at some stages but, above all, an anxiety, a hope and a wish that his father, for example, would continue to love and care for him. What evidence could he give that a panel would expect? If he was of tender years, the child could not be put in the position of being asked, "Do you agree or not that your father could change?" That would be completely invidious. On the other hand, if the child was of mature years, in a sense, I believe that it would be otiose.

As for the wife, one can imagine the complexity and distress in the marital relationship. It is impressive how, despite that distress and pressure, many transsexual couples still retain a close bond between each other and an affection and compassion. In many cases, although not all, they retain an interest in retaining the relationship. That will sometimes be the case but sometimes it will not. Often, the situation will be far more confused and somewhere in the middle. But what is the panel meant to do about that? The wife may say, "I think it is true and right and he should have his gender changed", in which case it is otiose, or she may say, "I am ever so upset about this. This has put my life into complete turmoil". The panel would say, "We understand that but it does not have a direct bearing on the issue". That is the sadness of the matter but it is the reality.

In mitigation, I shall make one or two points. First, if the applicant wishes to submit evidence from his or her spouse or child, he may do so. However, for the reasons that I have given, I believe that it is unlikely to be relevant.

Secondly—a point touched on by other noble Lords earlier in the debate on this group of amendments—as the Committee knows, the gender recognition panel merely gives an interim gender recognition certificate to an applicant who is married. For reasons that we shall come to shortly, before that is turned into a full gender recognition certificate, the applicant must go before a divorce court and obtain a divorce consequent on that. Therefore, procedurally, if the couple have doubts or concerns, they have an opportunity to consider further before they finally trigger the divorce.

As I indicated, we are optimistic of bringing before Parliament imminently a Bill on civil partnerships. While, for reasons that are clear, that will not offer a marriage, it will still offer the opportunity for a couple, if they so wish, to have a legal status put round their relationship through a civil partnership.

Lord Moynihan

Will the Minister kindly give way? Does he accept that many transsexuals find it odious that the interim certification process is proposed in the Bill? If he is aware of that, what is his response to those people?

Lord Filkin

I suggest that we discuss that issue when we come to the amendment on marriage, which, if we travel hopefully, we shall reach later this evening.

I turn to the proposed amendments to Schedule 3. I should make clear that the original birth records—

The Lord Bishop of Chester

Perhaps I may return to the point that I made about a single parent. I accept the points made by the Minister concerning a husband or a wife but, in relation to Amendment No. 23, I specifically raised the question of a single parent with children. As things stand, there is no reference in the Bill to consideration being given to the rights and needs of children. I should like to know whether under Clause 3(6)(c) the panel, which can ask for other information or evidence, would have the right to inquire about the effects upon children? It seems to me that there is an obligation to ensure that the rights and needs of children are given some clear standing, notwithstanding that the Bill primarily concerns the rights of the adult where a single parent has dependent children.

I fully accept that, without doubt, the situation will be difficult and tense in all kinds of ways throughout the process. But surely that is no reason to leave open the possibility that the rights of children will simply be ignored. One could imagine a single parent going through the process without the children knowing what was happening. That is rather difficult to envisage but it seems to be allowed here. Does not the Bill need a provision whereby the rights of dependent children this is especially apt where there is only one parent—are taken into account by those who adjudicate on the matter?

Lord Carlile of Berriew

I beg forgiveness for intervening so soon after an earlier intervention. However, does the Minister agree that some noble Lords in this Committee are overlooking the reality of what happens during the two-year plus period before an application goes before the gender recognition panel? The reality is that, in the clinics that deal with these cases, an exhaustive inquiry is made, including family inquiries. In some cases, family therapy, although, heaven forfend, not compulsory psychiatric treatment, is given so that by the time the case reaches the tribunal, every possible inquiry will have been made. Does the Minister agree that, in some families—perhaps not in the majority but in some—the process will have lifted the burden from the family rather than imposed a new one?

Lord Filkin

Not for the first time, I am grateful for the expertise and clarity of the noble Lord, Lord Carlile, on these issues. He describes the situation exactly. As I sought to indicate earlier in my response, this is not a sudden occurrence; it is the climax of a long process of change, development and testing in exactly the way that the noble Lord, Lord Carlile, signalled. As part of that process, one would expect that the rights of the children would be inquired into.

Clearly, in the situation that we are describing, as part of that process, the doctors and the psychiatrists are evaluating whether the individual—say, a single parent—is genuinely committed to the change of gender. They ask, "Have you really thought it through? Are you aware of the implications? Is this something that you wish to live with permanently for the rest of your life?" Therefore, as part of those inquiries, it is perfectly right and proper to ask, "And what about the effect on your child? How are you going to care for your child? How does your child see all of this? Have you thought it all through? Have you lived it all through in practice?"

Baroness O'Cathain

Perhaps the noble Lord will give way on that point. If that does not happen during the two-year period, in effect the children and close family members of the transsexual will have absolutely no rights under the Bill. I believe that we need clarity on that point. The Bill concerns only the rights of transsexuals.

Lord Filkin

As I indicated earlier, essentially the focus of the Bill concerns how we fulfil what we think of as our legal and moral obligations to implement a process that recognises a reality for a limited number of people. Children have rights and protections under other legislation—for example, the social services child protection Acts—and, clearly, if the issue of children's care and welfare arises in these circumstances, then there is a right and a duty to intervene.

I turn to the amendment proposed to Schedule 3. The original birth records will not be destroyed. The Bill does not rewrite history. The original birth records will remain in existence and will be available to any person who has the relevant birth details. Therefore, a child or grandchild will be able to search for, and obtain a copy of, the original birth record entry. The Bill requires no amendment to ensure that result and I am glad to be able to confirm that.

Baroness Buscombe

I thank the Minister for his response to these amendments. In relation to Amendment No. 23, the Minister made clear—of course, he was absolutely right—that, in bringing forward this legislation, the Government are seeking to respond to the UK's obligations under European law. But that does not mean that we cannot improve upon the law and ensure that we have a better law in this country than our European Union partners.

I am grateful, in particular, to the right reverend Prelate the Bishop of Winchester for immediately pointing out that the amendment is defective in the sense that we are wrong to use the word "must". As I made clear in my opening remarks, we are talking about an opportunity for the family to be a part of this very difficult process.

I hear what the Minister said about this situation not necessarily happening overnight; in most circumstances, it will take place over a long period. However, I cannot accept that that means that the family should be denied the opportunity to take part in what is a very difficult process at this stage.

I thought that the Government were interested in a holistic approach to supporting families, and that is what I seek in these amendments. The Government have often talked about supporting victims of crime and wanting to give victims the opportunity to have their say about an issue that has affected them. While I do not even begin to say that this matter can be related to the criminal law, I do say that no issue such as this should affect the family so intrinsically that some may feel that they are victims. That may be the case if the legislation allows them to have no opportunity to state their case. Indeed, as we suggested in the second paragraph of our amendment: Evidence from the spouse or children may include a report from a … psychologist or a registered medical practitioner on the effect of issuing a certificate on the spouse or children of the applicant". I am very grateful for the contributions from the noble Lords, Lord Carlile and Lord Goodhart, who made it clear that there is no public interest test in Clause 2. The Bill does not seek to include the feelings, if I may express it that way, of the family, but I believe that it should do so. The right reverend Prelate used the word "mediation". I believe there is a strong possibility that giving the family the opportunity to take part in the process, even at this stage, could help the process rather than hinder it.

I tried to put myself in the position of a person who is going through this process. Perhaps one reason that so many of the few who are involved in this issue are able to bring with them the support and love of their spouse, notwithstanding that they want to go through a gender reassignment, is that there has been good ongoing communication, however tough, between those couples. I honestly feel that our amendment is saying, "Let's see that strength of communication through to the final process of the change". I also believe that, as a member of the gender recognition panel, I would want to know what was going on in the minds and hearts of the families involved.

Therefore, I hear the Minister's response and the helpful contributions from other noble Lords but I want to think very carefully about this amendment. I would certainly seek to amend the wording to give the spouse and the family a choice rather than use the word "must". I believe that the use of that word is a mistake.

The noble Lord, Lord Chan, also raised the reality of some people going through the process to some extent and then changing their minds. Surely there cannot be too much discussion or communication between families before the final certificate is received. I shall leave it at that with regard to Amendment No. 23. However, I want to give the matter further consideration, perhaps with a view to returning to it on Report.

With regard to Amendments Nos. 61, 69 and 74, I want to ask the Minister a question. I apologise for extending the debate in this way. The Minister reassured me to the extent that he said that the spouses and families of such individuals would be able to obtain a copy of the original birth certificate. Would they be able to do that while the person was still living?

Lord Filkin

Yes. If they knew the name and the date of birth, they would be able to obtain a copy of the original birth certificate.

Baroness Buscombe

I thank the Minister. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord Goodhart moved Amendment No. 24:

Page 3, line 5, at end insert— ( ) The Panel shall give reasons for requesting information or evidence under subsection (6)(c).

The noble Lord said: This amendment concerns a fairly short point raised by Liberty. Clause 3(6)(c) enables the panel to require further information or evidence. In these cases, information can, of course, sometimes be intrusive and distressing. It is therefore desirable that the panel should require further information or evidence only where there is a justifiable reason for doing so.

A decision to require information or evidence will potentially be subject to judicial review. But judicial review is far more effective if the panel is required to give reasons which can be reviewed by the High Court. The purpose of the amendment is to require that when a panel needs further information or evidence, which obviously must be specific to the case, it must give reasons for doing so. I beg to move.

Lord Evans of Temple Guiting

It is not uncommon for judicial panels to request further information when they are considering a case on the papers. The gender recognition panel may, from time to time, need to ask the applicant for further evidence in support of his or her application. It is good practice for a panel to give reasons for such requests—not only to assist the individual in providing the correct information but also to reassure the individual that it is necessary.

It has always been the intention that members of the panel will give their reasons if they need to request further information. An amendment to the Bill will enshrine that requirement in law and will strengthen trust in the panel.

I thank the noble Lord for his consideration of this issue and I undertake to table a government amendment on Report to achieve the change that he has suggested.

Lord Goodhart

I am most grateful to the Minister. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Successful applications]:

[Amendment No. 25 not moved.]

Lord Goodhart moved Amendment No. 26:

Page 3, line 9, leave out subsections (2) and (3).

The noble Lord said: This is the first amendment in a very long group which takes up two lines on the groupings list. In moving Amendment No. 26, I shall speak also to all the amendments in the group, apart from Amendment No. 53 in the name of the noble Baroness, Lady Buscombe.

The question of the effect of a gender recognition certificate on an existing marriage has been a matter of great concern, not least, of course, to transsexual people. Where an applicant is married at the date of the hearing, under the Bill as it now stands the panel can grant only an interim certificate. That will be converted into a full certificate only if the marriage is dissolved or annulled in proceedings commenced within six months of the grant of the interim certificate. Meanwhile, the interim certificate has no effect, except to give an additional ground for annulling the marriage.

It is known that in some cases—it will certainly be a minority but there will be some—both parties to the original marriage will wish to remain married to each other in spite of one of them having acquired a new gender. The question is: why should they not be allowed to do that? The Government say that the law must not recognise a marriage between a couple who are seen in law as being of the same sex. It may well be justifiable to say that marriage can be entered into only between a couple of the opposite sex, but it does not follow logically that a marriage validly entered into must be annulled before the gender change can he recognised by law. If the couple were legally married originally and wished to continue their marriage, I believe that it would be wrong to present them with the dilemma either of having to terminate the marriage, which both wish to keep, or of depriving one of them of the right to legal recognition of gender change.

After the Second Reading debate, the noble Baroness, Lady Hollis, explained that the Government had problems with the effect of a continuing marriage on the right to benefits and pensions. I accept that those problems exist. That is why we included in this group Amendment No. 82, which treats a marriage as having come to an end for benefit and pension purposes on the date of the issue of the certificate. For other purposes—for example, for relief from inheritance tax on the property passing from one of the original spouses to the other—the marriage would continue.

The Government say that the problem will be solved when the civil partnerships Bill is enacted and comes into force. The parties can annul their marriage one day and enter into a civil partnership the next. I believe that that is not an adequate answer. First, at this stage, the civil partnerships Bill is simply a hope for the future. We have been told that it will be introduced this Session but we cannot be certain that that forecast will be satisfied; nor can we be satisfied as to when the civil partnerships Bill will be enacted.

Secondly, I suspect that couples in that situation would also greatly prefer the continued recognition of their existing marriage to entry into a new and different legal relationship.

There are a large number of amendments in this group, but I do not propose to go through them in any detail because most of them are merely consequential. This group of amendments proposes to abolish the entire concept of interim certificates and to enable the panel to proceed directly to the grant of a full certificate where there is a subsisting marriage. That will leave the grant of the certificate as grounds for annulment of the marriage under Schedule 2, if either party wishes that course to be taken. It is obvious that if either party wishes to terminate a marriage in those circumstances, they should be allowed to do so.

The Government require the termination of the existing marriage as a precondition to legal recognition of the gender change. That is not logical, necessary or compassionate, and I ask the Government to reconsider the matter. I beg to move.

Baroness Buscombe

I shall speak to Amendment No. 53, which is grouped with the other amendments. I did not take part in the debate on the first group of amendments in relation to marriage and same-sex marriage because I wanted to reserve what I have to say for this grouping of amendments.

As I understand it, the amendment proposed by the noble Lords, Lord Goodhart and Lord Carlile of Berriew, would result in two individuals, who are recognised in the law as being of the same sex, marrying each other. We on these Benches have a free vote on this Bill, but I cannot envisage a time when we would support legislation for same-sex marriage. I made that point at Second Reading— that we have never supported any form of legislation that would allow for same-sex marriage. That is my personal point of view as well. Therefore, we do not support the amendment.

My amendment is a probing amendment. I am trying to get around the difficulty that the Bill is asking people to divorce. As I said at Second Reading, that so much goes against the grain; and at the same time we want to help transsexual people through this process. The amendment seeks to find a way around what is one of the most unfortunate consequences of the Bill—that is, when a happily married transsexual person is forced to get a divorce before being entitled to any of the rights and obligations that are bestowed on the holder of a full gender recognition certificate. In a society that believes that marriage is a sacred union between a man and a woman, there seems to be little alternative but to require the marriage to end before there can be legal recognition of the gender change.

The amendment is trying to find an alternative. If the Government believed that the amendment would lead to same-sex marriage, I hope that they would make it clear in their response, because it is very important that we avoid that consequence. We hope that the amendment would give the holder of an interim gender recognition certificate full recognition of their acquired gender, apart from when it comes to their status in marriage. In that instance, they remain in the law as their gender at birth. I do not deny that that leaves the transsexual in a rather ambiguous category—and it is far from ideal. However, the question is whether the untidiness that the amendment would add to the Bill is worth accepting for the sake of keeping a loving family together, which is what the amendment seeks to do.

I know that noble Lords will not need convincing of the critical importance of keeping a family together where at all possible. That the families who will be affected by the Bill will in most cases have gone through years of uncertainty, confusion and pain and have still managed to stay together is a testament to their commitment and love for one another, and their own belief that a marriage is for life. For the Government to put that relationship through yet further trauma would be extremely unfortunate.

As the Bill stands, gaining an interim certificate does not affect the status of a transsexual beyond its simply being a passport to getting their marriage annulled. If our amendment, or a version of it, were accepted, it would bring the rights and obligations of the holder of an interim certificate into line with those of a holder of a full certificate, except that they would not be allowed to have an amended birth certificate. I am looking at the Minister and I believe that that will fall before it has hardly come up for air.

This is Grand Committee stage and we have been racking our brains to try to find a way around the problem. Perhaps we are failing, but we are trying. The interim gender recognition certificate would continue for as long as the marriage, hence the term "interim" may have to be altered. The amendment is intended to explore possibilities and I look forward to hearing the Minister's response.

6.30 p.m.

The Lord Bishop of Winchester

There appear to be two different questions before us at the moment. I confess that I am at a loss, just as I believe the noble Lord, Lord Goodhart was, as to why Amendment No. 53 is in this group. I shall return to it in a mint. the. As for the rest of the group, I am delighted, as I was at Second Reading, to find that on this matter the noble Lords, Lord Goodhart and Lord Carlile, and I and A number of other noble Lords seek to say the same thing. I welcome the speeches made and this line of amendments, with at their heart the fact that Clause 5 should not stand part of the Bill.

I shall not repeat what I said at Second Reading, except to remind the Minister that he knows my reasons, which I continue to believe to be cogent, for disbelieving what he may tell us, that only if Clause 5 stands part and divorce is mandatory in those circumstances, can the Government avoid backing same-sex marriage. He knows that he and I disagree with that, but I note that that was a point that I made.

Since speaking on 18 December, I have been made aware of three, possibly four, other instances of people who are deeply anxious about the proposal that they will have to choose between one party in the marriage seeking a gender recognition certificate and the continuation of the marriage. They regard their marriages as commitments that they made to each other, in some cases before God—in other cases not before God or not explicitly so—and they find it a matter of sheer cruelty that they should be made to break up their marriage. As the noble Lord, Lord Goodhart, made clear too—I was delighted to hear him say so—marriage and civil partnership are not the same thing. I do not believe that the Government will propose that they are; if they do it will make life still more difficult for themselves. It seems to me that for those reasons this is an extremely important set of amendments.

Perhaps the Chairman or other noble Lords will think that we should wait until we get to Clause 9 to work on Amendment No. 53 in the name of the noble Baroness, Lady Buscombe. It is an amendment to Clause 9 and that clause contains what the Government describe in the Explanatory Notes as the fundamental proposition of the Bill. I had imagined that, at this point where I disagree fundamentally with the basic proposition of the Bill, I could not see how it could be amended. The noble Lord, Lord Tebbit, has managed to produce Amendment No. 78, which I take to be such an amendment. I believe that we shall have to discuss those at another time if we are not to cause each other confusion.

Lord Tebbit

As I was listening to other noble Lords I was reminded of a little rhyme that we probably all learned from our mothers at some stage in our childhood: Oh, what a tangled web we weave, when first we practise to deceive". The problem is that the Bill is based on a deceit, on a lie. We constantly come up against the most difficult questions, which are caused by the fact that the Bill is based on a lie. We try to twist and to turn it around and say that people who are of opposite sexes are both of the same sex. That creates a complication because if they are married, that will look like a same-sex marriage. So now we must say that we cannot have that, so we must provide that the marriage is annulled, that it never really existed because the certificate will be due to say, when it is a full certificate, that one partner to the marriage was born a different sex from that which they were. We compound, one upon the other, these extraordinary statements. It all goes back—I do not want to make a Second Reading speech—to the fact that the Bill is based on an entirely false premise. That is why we are in such trouble.

Having said that, we need to think our way through the problem and try to ameliorate the nastier consequences of this legislation. As we all know, many marriages continue through love and companionship which has grown up over many years and they are no longer related to what one may describe as sexual activity. That is probably true in a number of the kind of cases with which the Bill seeks to deal. That is why the partners may wish to continue living together in some kind of ordered and legalistic structure, although the marriage is quite clearly as dead as a doornail in conventional terms. We have to deal with that problem. We cannot brush it aside in the way that we have had to brush aside the interests of the children by saying that the children do not matter, which is what the Bill says.

I do not know the appropriate way to deal with the matter. I am inclined to take the view which I suspect the Minister will take, that it is clear that such a marriage must be annulled, and not solely on grounds—I see the noble Baroness, Lady Hollis, nodding quietly—of social security or benefits or anything like that. She is responsible for such matters. I am overjoyed to see a Minister showing some signs of parsimony. We are not used to that, except in relation to defence or some such subject. I have the greatest sympathy with those who are trying to make sense of the Bill and who are seeing how they can limit the damage that the Bill, by its very nature, will do.

Baroness O'Cathain

This is probably one of the most difficult issues. It comes back to the effects on the family. Someone who wants to acquire a gender recognition certificate may live as a companion with a spouse, having brought up children together. They may have a social structure of friends and family and suddenly in one fell swoop because one of them feels that he or she has to have gender reassignment, that all falls apart.

That means that Clauses 4 and 5 emphasise how ridiculous are the practical implications of the Bill. Granting a gender recognition certificate forces the end of a legitimate marriage; that is one where the two parties are of opposite sex, exactly the definition given by the Minister. The Government claim that it does not want to create same-sex marriages in law, which is what would happen if such marriages were allowed to continue after the legal change of sex. However, a gender recognition certificate will allow the holder to marry someone of the same biological sex. That will create same-sex marriages in fact. It seems to me that the choice in the Government's eyes is to have same-sex marriages in fact or same-sex marriages in law and in fact. Those who believe in the sanctity of heterosexual marriage want neither.

In the wonderful speech of my noble friend Lord Tebbit he said that such people could live in a marriage that is as dead as a dodo for many years. In fact, many marriages are as dead as a dodo, not because of want of gender recognition, but because of paralysis, strokes and illnesses of all kinds but they are very strong marriages.

Lord Tebbit

My noble friend is absolutely right. Indeed I should have said of marriages that may remain in being despite one partner suffering a mental illness—the partner may simply be a different person—that the bonds are so strong that such marriages last. I believe that that is the kind of situation that we face with this legislation.

Baroness Buscombe

Am I right in thinking that my noble friend believes that marriage is just about sex and that it is as dead as a dodo if there is no sex?

Baroness O'Cathain

Perhaps I can correct my noble friend. I can reassure her that I said that it was certainly not only about sex. It is not just sex that keeps alive a marriage. People who marry before God, or elsewhere, can remain committed over a long period of time despite illness—my noble friend mentioned mental illness—and they are some of the strongest marriages that I know.

Lord Cameron of Lochbroom

I take the point made by the noble Lord, Lord Goodhart, about the illogicality of the situation that arises when an applicant is married. I observe that earlier today noble Lords pointed out that it was not necessary for the panel to be satisfied other than in relation to the particular criteria set out in Clause 2 of the Bill, which include proof of intention to continue to live in the acquired gender until death. On the other hand, notwithstanding the acquisition of a new gender, Clause 12 provides that that will not affect the status—observe the word "status" —of the person as father or mother of a child. The consequence of the issue of a certificate is that the person is still married and is therefore a spouse. The other party, who has had no rights in the context of an application, remains a spouse and is entitled, whether he or she wishes or not, to raise an action for decree of nullity, or in Scotland a decree of divorce, on the ground that a certificate has been issued.

Going through the fiction in law, as regards the children of a marriage, the person who has acquired the new gender remains the parent who was normally called "father" or "mother" beforehand. There seems little difficulty in having a fiction that someone who has been the spouse of a person who has changed gender by acquisition should remain a spouse until the parties determine one way or the other whether they wish that relationship, and all the consequent rights that go with it, to remain. I am bound to say that I find myself entirely sympathetic with the view that there should be no distinction made between a person who is married or one who is unmarried as to the issue of a gender recognition certificate and the consequence on legal rights.

6.45 p.m.

Lord Phillips of Sudbury

Following the remarks made by the noble Baroness, Lady O'Cathain, one should go a little further. I pay tribute to the noble Lord, Lord Tebbit, for provoking consideration of issues, in his inimitable way, that otherwise may have gone unnoted. He said that a marriage would be as dead as a doornail—I think that was the expression—in conventional terms when one party to the marriage received a certificate.

Lord Tebbit

I actually said "as dead as a dodo".

Noble Lords

The noble Lord said "as dead as a doornail".

Lord Tebbit

I meant to say "as dead as a dodo". Let us all agree on "dodo". I believe I said "in conventional terms", but I should have said "in sexual terms". That is the point that I wanted to make.

Lord Phillips of Sudbury

The noble Lord has rather spoilt my intervention. This is important. Everyone is grappling with a hugely difficult set of issues. It is important to remember and the noble Lord quoted a famous saying which talks of deceiving everyone. I do not believe that anyone is trying to deceive anyone about anything. In a way, the noble Lord may be arguing against himself. Surely the endeavour here is to be honest about a relationship.

The marriage relationship is an extraordinarily complex and many splendoured thing. The truth of the matter is that those—I am tempted to say, who are in an unfortunate predicament—who still love each other and who still have children, would, as the right reverend Prelate said, destroy a marriage or have a marriage destroyed, with all kinds of consequences that I suggest that the noble Lord, Lord Tebbit, would not want to see come about. I put it to him and to the Grand Committee that whatever the outcome, one must recognise that social reality evolves. In the kind of minority marriage that we are talking about, it does not do justice to honesty or to reality to pretend that the core of the relationship does not still exist and is not vital.

Lord Tebbit

The noble Lord is quite right. The deceit to which I referred was the deceit that is at the base of the Bill; the deceit that we can change a person's sex. Law Lords may believe that they are very powerful and that the law can change people's sex, but that quite clearly is arrant nonsense. I stand by what I said about deceit in the Bill.

Lord Carlile of Berriew

I am tempted to say, "Oh, what a deceiving web we weave, when first we tangle". I believe we are getting into a tangle over legal provisions, while probably sharing a set of laudable intentions to make family life as easy as possible after a gender recognition certificate has been issued to those who have gone through the traumatic process, which it is for everyone.

I am one of those associated with amendments moved by my noble friend Lord Goodhart and I do not resile from that for one moment. However, I ask the Government to consider postponing any final decision upon this part of the Bill to see whether we can find a way of seamlessly translating relationships, whether from one legal relationship to another, or so that there remains a definition that permits the existing legal relationship of marriage. I entirely see the logic of what the Government are trying to do. It is far and away the simplest and least tangled approach available, although it may not be the best for families.

At the very least I invite the Government to consider the possibility of trying to make the translation, if there is to be one, from marriage to civil partnership—I thank the noble Baroness, Lady Hollis, for that phrase—completely seamless and automatic. If the civil partnerships Bill had been considered by Parliament before this Bill, the matter could have been made completely seamless. Please may I beg the Minister to consider whether somehow we could find a legislative means so that this part of the legislation can be hitched into the civil partnerships Bill? Can we have an undertaking that it will be, so that there can be automatic translation without any need for any proceedings, rather than the cumbersome tangle we find ourselves in today? I do not resile for one moment from supporting the views of those who wish to remain married, but I recognise the difficulty and ask, as a back stop, for that possibility to be considered as a practical answer.

Baroness Buscombe

I entirely agree with everything that the noble Lord, Lord Carlile, has just said. That is the reason why I have brought forward an amendment to say that Clause 25 stand part as that is all about the commencement of the Bill. The reason why I tabled that—we shall probably debate it tomorrow—is that if only the civil partnerships Bill had been debated and come into force before this Bill, we would all be in a better position.

The Lord Bishop of Winchester

Perhaps I may offer the Minister a word of advice. It is intriguing to hear the noble Lord, Lord Carlile, and the noble Baroness, Lady Buscombe, inviting him down what is so far from a primrose path as to be a path of thorns and thistles of all kinds. It cannot be the case that there is an equivalence between marriage on the one hand and civil partnership on the other. The notion that there can be a seamless join means that we are into dusk and dawn again. There cannot be a seamless join between two significantly different relationships.

To suggest to people who are married, whether their convictions are based in the practice of a faith or not, that notwithstanding the enormous crisis of transgendering, which may be quite analogous to the crisis of a chronic illness of whatever kind or a whole range of other things, that the matter can be resolved by walking down the road of a seamless transition to civil partnership, seems to me to be utterly unacceptable.

Lord Filkin

I am grateful for the chance to join this important debate. I am glad that someone has taken Auden's advice and stopped the clock, so we are in good time. According to the clock we have another hour and 10 minutes!

As will be apparent, the aim of the Bill is to give transsexual people the right to live legally in their acquired gender. It is not to make special allowances for transsexual people which do not apply to other groups in society. If the existing marriage of a transsexual person were to be allowed to continue after a change of gender, it would be a same-sex marriage. I was explicitly clear on the Government's position on this point—not to universal acclaim—at Second Reading. Same-sex marriages are not permitted under UK law. The Government believe that that should remain the case.

Acquiring a new gender brings with it—it is tough but true—all the rights, responsibilities and restrictions that currently exist in UK law. We believe that it is not possible, nor is it right to have a mix-and-match situation. In deciding whether to seek legal recognition in the acquired gender a person has to take all of the implications of that change into account, including the effect on an existing marriage. My noble friend Lady Hollis, when responding to Amendment No. 82, will also signal that and it applies to all the financial and relationship implications.

The right to marry under Article 12 of the convention applies only to men and women of marriageable age. There is no ECHR issue here. The Strasbourg courts have not required that a state have an institution of same-sex marriage. We would have heard about it had they done so. The fact that recognition of a transsexual person might require a previous marriage to come to an end was recognised by the Strasbourg court in Goodwin v UK when it noted, it is for the Contracting State to determine inter alia the conditions… under which past marriages cease to be valid". What the Bill provides, however, is a simple mechanism whereby an individual who has decided to seek recognition can dissolve his or her existing marriage. In designing this mechanism we have had two aims: to leave the individual in control of the process and to tackle the practical difficulties that ending an existing marriage may create.

If a married individual applies and is successful, he or she will receive an interim gender recognition certificate. That certificate will provide the basis for a new ground for dissolution of the marriage provided in Schedule 2. On dissolving the marriage, the court will substitute a full gender recognition certificate for the interim certificate.

In this way, the Bill proposes to avoid the situation where a married applicant must first end his or her marriage and only then learn whether his or her application meets the criteria for a gender change. The process provided in the Bill prevents the applicant falling into the vulnerable position of learning that his or her application has been unsuccessful after having already ended his or her marriage. The applicant is therefore in control of the process and able to plan his or her affairs.

When the court deals with the ending of a marriage, it can also deal with ancillary, practical issues. It will, for example, be able to consider orders for financial provision, a pension-sharing order or provisions regarding the children of the family.

In taking the stance of requiring existing marriages to end, we nevertheless recognise that the relationships in question might be very strong. In acknowledgement Of that partnership bond, we want to enable couples who have stayed together through the most difficult gender transition of one partner to regain a legal status for their relationship.

As Members of the Committee will know, the Government are also planning to legislate so that same-sex couples can gain legal recognition of their relationships. When the civil partnerships Bill is enacted, the institution of civil partnership and the rights and responsibilities that go with it will be available to a couple who were previously married after one partner receives recognition in the acquired gender. That couple will then be a same-sex couple and will be able to form a civil partnership just like any other same-sex couple.

Forming a civil partnership will address the issue of legal recognition of the relationship. It will bring rights and responsibilities. Clearly it is important that the process of transition from marriage to civil partnership is as smooth as possible. I commend the clarity of the noble Lord, Lord Carlile of Berriew, on this point. He recognises the logic of the Government's position and that we are not intending to change it. It is absolutely important that we make that process of change as painless as possible.

In developing the civil partnership proposals, the Government have been considering ways of making the movement from one status to another. The right reverend Prelate the Bishop of Winchester is right. These are different statuses. No one is pretending that they are not. The status of marriage is very different from that of civil partnership. Nevertheless, the proposed civil partnerships will seek to give legal clarity to the relationship between two people who wish to live together and will seek to resolve some of the current uncertainties.

Therefore, in developing the proposals, we have considered ways in which the gap between the ending of a marriage and the formation of a civil partnership can be minimised. Exceptionally, I should like to mark the efforts that officials have put into this. It is difficult stuff and they have been working very hard on it.

The intention of the Government's civil partnerships proposals is to permit a couple who have ended their marriage—in order to allow one party to change gender—to give notice and enter into a civil partnership with each other on the same day as their marriage is annulled. Therefore, while there will be separate processes, we think that it is possible to bring the two as close as possible so that there will be no gap if the couple do not wish there to be a gap as a consequence. Clearly, they are in control of that process. The process is not forced on them.

Should the Gender Recognition Bill be enacted as we intend and be implemented prior to the civil partnership legislation, it will—as we have already touched on—be for a married transsexual person to decide whether to wait for the implementation of civil partnership proposals or to seek gender recognition as soon as the gender recognition panels are in place. Again, those individuals are in control of the process. If they did not wish to move into a legal void in which they could not move into a civil partnership, they would be able to wait and not pursue the gender recognition process until the other legislation had come into force.

I shall leave Amendment No. 82 to my noble friend Lady Hollis.

I turn to Amendment No. 53, tabled by the noble Baroness, Lady Buscombe. As we know, marriage is connected to many other legal rights and responsibilities. It is not possible to say that a person is of one gender for marriage and another gender for everything else. Marriage will include much of what is in the other category; for example, parenthood, inheritance, pensions and benefits.

Ultimately, to say that a person is of one gender for marriage and another gender for everything else is to attempt to subvert the principle of opposite-sex marriage, in a way that we cannot support. I am sorry about that because I recognise the earnestness of the endeavour of the noble Baroness in that respect. The Government recognise that when a marriage has survived the often difficult process of one partner's transition to another gender, there exists a strong and important partnership bond. That is why we believe it is important that the state does what it can to make that continue at least in a legal framework.

UK law has clearly defined marriage as an institution for opposite-sex couples. That is the history of the institution and its distinct nature. Same-sex partnerships will provide an alternative form of recognition which will not be marriage but which will have the benefits on which I have touched.

On Clause 25 and the argument that we should defer the Bill until we have the civil partnerships Bill, there are powerful arguments for allowing married couples to move smoothly into forming a civil partnership when one partner has changed gender. I do not believe that anything is gained by preventing transsexual people from applying for gender recognition until the civil partnerships Bill is enacted. In other words, the vast majority of this group, who are not married, therefore should have the right to exercise their right to change their gender, while the others, who cannot as yet avail themselves of civil partnerships, can exercise the option I indicated of waiting until the civil partnerships Bill is enacted. That is a better remedy than saying nothing must happen at all until there are civil partnerships. I hope before long to be able to add reinforcement to my indications that we are committed to the early introduction of the civil partnerships Bill, so that the Committee will see that these are not mere loose words.

I shall now leave my noble friend Lady Hollis to deal with Amendment No. 82.

7 p.m.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)

I shall not seek to repeat the comments of my noble friend. At the end of the day the issue is about an informed choice. Someone might live their life in their preferred gender, go for surgery, but if they do not seek a gender reassignment certificate, the legal basis of their marriage remains. They can do that until or if or when they wish, perhaps to move on to a civil partnership. The problem is that we are not just dealing with legal rights in a vacuum, but legal rights that carry a whole frame of financial responsibilities, as the noble Lords, Lord Carlile and Lord Goodhart, accepted in previous discussions after the Bill's Second Reading.

I tried to suggest that we could not run a social security system where the rules of social security are based to some degree, particularly pensions, both on gender and on marital status. One has to think only of basic state pension. One cannot work a social security system which allows some individuals to be married for some purposes and not to be married for others. It must be universal.

Our talk was perhaps the genesis of Amendment No. 82. It seeks to exclude social security, so that one ends up with people who have undergone gender reassignment being able to remain married in other parts of their lives but being separate individuals for the purposes of social security. That also presumes that the words "social security" are sufficiently ring-fenced that one can make that clean distinction. One cannot do so. I am sure the noble Lord, Lord Goodhart, who has very real experience in this matter, will recognise that, certainly—for example—regarding the impact on occupational pension schemes. I shall be very happy to write to the noble Lord in greater detail on the issue. Non-contracting out schemes are not covered by Schedule 5, so the payment of such pensions and survivors' benefits would operate as though the marriage had continued, despite the effect of the amendment.

That could result in different treatment for a surviving partner of a member of a contracted-out scheme and the surviving partner of a member of a scheme that is not contracted out. Equally, contracted-out pension schemes could also he affected because the calculation of the Guaranteed Minimum Pension (GMP), which assures that one is no worse off than if one had stayed within the state system, would have to be altered. Contracted-out schemes, which provide benefits beyond GMP rights would suffer administrative difficulties.

Due to the fact that Schedule 5 does not apply to pension rights above GMP rights, if Amendment No. 82 were to he accepted, there would be acute difficulties in that the marriage would be void for the purposes of contracted-out rights, but not for the benefits over and above these rights. Linked to that is the issue of the survivor's GMP. If the marriage were to be considered ended for the purpose of social security benefits, the surviving partner would not be entitled to a survivor's GMP. Some decision would have to be taken by the occupational scheme about the rights of survivors' benefits exceeding the GMP rights and so on. I could continue. It is extremely technical stuff.

I recognise the spirit behind the intent, which is to extract social security. But one cannot say that for some purposes one is married and that for other purposes one is not and have a social security system run by 130,000 staff across the country and make it discretionary. One cannot do that.

Therefore, I recognise the pressure behind it to try and exclude social security, but that again assumes that a clean line can be drawn. It cannot, because given our occupational pensions, the guaranteed minimum pension, which is what people who contract out receive, ensures that the provision offered by contracting out is no less favourable than would have been paid out under the old SERPS national insurance scheme. All of those are intimately linked. One cannot draw such a clean line, and therefore I repeat, along the lines of my noble friend, that one cannot pick and mix which gender one can have for different purposes. It is regrettable, but if a marriage is so valued by both parties, at the end of the day an informed choice can be made to live one's life in a new gender, even to have the surgery, but not necessarily go for gender reassignment, because that is the legal framework upon which the benefits have to rest.

Lord Goodhart

We have had substantial debate on the issue and I am grateful to all noble Lords who have taken part—in particular to those who have supported the amendments, notably the right reverend prelate the Bishop of Winchester, the noble and learned Lord, Lord Cameron of Lochbroom and my noble friend Lord Phillips of Sudbury.

I shall not repeat the arguments—they have gone backwards and forwards. The only matter which was not raised and needs briefly to be discussed is that of the benefit and pension issues, of which no other Member than the noble Baroness, Lady Hollis, has spoken. Schedule 5 is relatively simple on the face of it, but I suspect that there are anomalies that will arise, even if the Bill is enacted as it now stands, in relation to matters that are not under state benefits, but really matters of contract such as occupational pensions, insurance policies, and so on. They may have to be worked out. I am also not convinced that it is beyond the wit of the Department for Work and Pensions to come up with answers to the problems relating, for instance, to GMPs and the difference between contracted-out and non contracted-out pensions. I would certainly welcome a letter from the Minister on that issue.

The issue is important and thus deserves a hearing in the Chamber, so I shall bring it back for debate on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 27 to 30 not moved.]

Clause 4 agreed to.

Schedule 2 [Interim certificates: marriage]:

[Amendments Nos. 31 to 39 not moved.]

Schedule 2 agreed to.

Clause 5 agreed to.

Clause 6 [Errors in certificates]:

[Amendment No. 40 not moved.]

Lord Tebbit moved Amendment No. 41:

Page 4, line 7, leave out from first "person," to "for" in line 8 and insert "an application may be made"

The noble Lord said: I sometimes wish that the Committee would not proceed quite so quickly. I have some sympathy with the Minister when things move on suddenly and unexpectedly and he is desperately scrambling for his notes, which is an experience that many of us have.

Amendment No. 41 concerns errors in certificates. Essentially, it should not only be the person or the Secretary of State who make the application, but any other person who has good reason so to do. Clause 6(2) would then read: Where a sex recognition certificate has been issued to a person, an application may be made for a corrected certificate on the ground that the certificate which has been issued contains an error".

That seems to be a fairly common-sense provision. I do not see why the application should be restricted only to the Secretary of State and the applicant. I beg to move.

Lord Filkin

As a Minister, one wonders sometimes whether one sees problems where there are none. Nevertheless, let me explain why we are minded to resist the amendment.

The purpose of Clause 6 is to make it possible for a person or for the Secretary of State to apply for a correction to a gender recognition certificate.

A correction will be made in the gender recognition register if an error is subsequently discovered in the original birth record, an error has been made in the gender recognition certificate supplied by the gender recognition panel or if an error has been made in copying details into the register.

The types of corrections envisaged are in relation to the spelling of a person's name or the date on which a certificate was issued. Given the nature of the corrections that will be made, it is appropriate that only the applicant or the Secretary of State have the power to apply for a correction. So, for example, if the spelling of a name is wrong, the applicant will apply. If the certificate has been issued with the wrong date, the Secretary of State may apply.

If the scope of those who may apply is changed so that it is unlimited, the prospect of inappropriate applications is raised. Someone may seek to challenge the reasons on which the certificate was issued in the first place. The Bill makes no provision for such a challenge—and rightly so. The purpose of the Bill is to allow transsexual people access to basic human rights. Although rights must be balanced with responsibilities, we do not believe that in this case it is for others to restrict access to those rights.

Having said that, I shall be interested to hear from the noble Lord, Lord Tebbit, if he wishes to advance further arguments for changing the documentation that could not be adequately addressed by either a third party speaking to the applicant or the Secretary of State and drawing it to their attention. If the noble Lord would, I should be pleased to make sure my ears were open to reflect on that issue.

Lord Tebbit

I am most grateful to the noble Lord. It is quite clear from what he says that this is essentially a bureaucratic provision—perhaps I may put it in that sense. There is a detail that is wrong and can be corrected. I had in mind that there are persons perhaps outside—the other interested parties such as the children, for example, of a person who has had a certificate made. It may have been falsely made for some reason—perhaps, for example, to enable two persons of the same sex to enter into a marriage. One may have falsely argued his or her way through the process and been issued with a certificate in order to conduct a same-sex marriage. I recognise that in the lawyer's view it would not legally be a same-sex marriage.

That was the kind of thing that I had in mind. Clearly, that is not the sort of issue for which the provision was intended. Therefore, it would be best for me to withdraw the amendment at this stage and to give further thought about whether I might devise something which may answer the problem or possibility that I saw, as opposed to the purpose of this provision, which the noble Lord has so clearly explained. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

7.15 p.m.

Baroness O'Cathain moved Amendment No. 42:

After Clause 6, insert the following new clause—

"REVERSAL OF APPLICATION PROCESS

(1)Where a successful applicant subsequently changes his or her mind, or decides a mistake has been made, and wishes to resume his or her original birth gender, a further application must he made to the Gender Recognition Panel for the issue of a further gender recognition certificate in the resumed gender.

(2)The Panel may grant the application on the same basis as the provisions set out in sections 1 to 5.

(3)Only one reversal of an original decision made by the Panel may be permitted."

The noble Baroness said: The amendment would insert a new clause that deals with the reversal procedure. The problem is well documented of the many people who have gone through the process of gender recognition and who have come to the decision that they want to reverse the situation. They may do that for all sorts of reasons —because they have been badly advised; because they have come to their senses, as they would say themselves; or because they recognise that a very big mistake has been made. After all our discussions today, I suspect that the full import of what they had decided to do hit them afterwards, when they realised the implications for their extended family and all their social circle. The net result is that there are people who have wished to reverse the procedure.

Some medical advisers say that it is not possible to reverse the procedure—and I am looking straight at the noble Lord, Lord Chan, and wondering what he feels about it. However, in actual fact it does arise and has arisen. There are two cases in Australia at the moment in which people who have had gender recognition or gender change are actually suing the state for wrongful advice.

Surely the Government must acknowledge that that represents a hole in the Bill. If they do not acknowledge it, I am sure that we could give supporting evidence to the fact that it is a very difficult situation. If they do acknowledge that there is a hole in the Bill that can be covered by an additional clause, surely they must agree that it needs to be dealt with. If they agree that it needs to be dealt with, I wonder what the Minister's view would be on the process of how to deal with it.

The other part of the amendment is based on the sure case for saying that, if a gender recognition certificate has been issued and the person is no longer of the gender into which he or she was born, there must be some block on their being able to change their minds again and again, so they do not go chopping and changing at whim. I suggest that, under the amendment, we should agree that they can change, but change only once.

In the United States, apparently, there is recognition that this reverse process is necessary, and there is a limit to the number of times that the gender can be changed—and that limit is three. I suspect that that is really not acceptable, and certainly it is not acceptable to me. I beg to move.

Lord Filkin

I shall seek to be brief. Acquiring a new gender is a long, difficult and painful process. It involves a lot of medical advice and a lot of trauma with family relationships. We do not expect individuals to want to change back, having met the medical criteria and been through the minimum of two years' waiting. Having said that, the noble Baroness is right in saying that a very small proportion of people—perhaps 1 per cent—have asked to go back.

The position is in essence exactly as I hinted to her yesterday. The procedure as set out in the Bill allows an applicant who wants to reverse to apply. All that I would say about that—and I would emphasise this even more strongly in the case of her even more hypothetical situation of a person who wanted to change three times—is that one duty of the panel is to be convinced that the person is committed to a permanent change of gender.

Therefore, the panel will be looking at that intent, no doubt with even more care when a person seeks to change gender and—how shall I put this—with very great attention indeed if someone came before it three times. The panel requires to be satisfied on that issue. It has a complete discretion in law, which the Bill will grant, to say "No" if it is not convinced of that commitment for good reason. That apart, the Bill allows that which the noble Baroness wishes to happen.

The Lord Bishop of Winchester

I must say that it was not apparent to me that the Bill allowed that. That is why I asked the question, among others, on Second Reading. Does the Minister remember the statement on page 25 of the report of the Interdepartmental Working Group? This is a statement of its own rather than a part of the material that it reported others making. The left-hand column on page 25 states: Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change". I was interested to read that at the time. It seems to me that this is simply a prudential element that the Government would be wise to include. I confess that I am not persuaded by the Minister's response. It seems to me to be a rather straightforward enactment. I can understand his anxieties about new subsection (3). That may be thought to restrict the activities of the panel. Otherwise, it seems a proper suggestion, particularly in the light of the work of the interdepartmental group.

Lord Filkin

I do not seek to be contentious. I gave the only answer that I could give in honesty to the noble Baroness, Lady O'Cathain—that the Bill allows exactly what she wants. It is a matter of fact.

Lord Tebbit

Can the Minister say where the Bill allows for the revocation of a certificate on the ground that it was falsely obtained?

Lord Filkin

To my recollection the Bill does not. I have had a further thought. The panel can be informed of any fraud. Under Clause 8(5), the Secretary of State may refer the case to the … Court and seek the quashing of the certificate. It is marvellous what a little reflection will provide.

Lord Tebbit

I have often had that experience myself, when I have been in the position of the noble Lord.

Lord Chan

The Minister said that the provision is in the Bill. Could it be made more explicit so that there is a statement of that nature for anyone who wants to revert after having had a gender recognition certificate?

Lord Filkin

I do not believe that we should confuse parliamentary draftsmanship by stating facts that are clear to lawyers. I am happy to state the position on Report and to write confirming it. I do not intend to change the Bill.

Baroness O'Cathain

I am very grateful to the Minister, and I am particularly grateful to the other participants in this brief discussion on a matter that I consider very serious. I shall read the debate in Hansard. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Applications: supplementary]:

[Amendment No. 43 not moved.]

Lord Goodhart moved Amendment No. 44:

Page 4, line 21, after "specified" insert "by order made"

The noble Lord said: In moving Amendment No. 44, I wish to speak also to Amendment No. 45. These amendments too are derived from the report of the Delegated Powers and Regulatory Reform Committee. They raise the same issues as are raised by our Amendment No. 21, and could perhaps have been included in the same group.

Our amendments provide for orders prescribing forms and fees made under Clause 7 of the Bill to be made by statutory instrument. In fact, neither our amendments nor those in the same group in the name of the noble Baroness, Lady Buscombe, involve a parliamentary process. That is plainly unnecessary for an order that does no more than specify the form and manner of the application. It is not usual —although perhaps it should be—for orders that specify the fees However, we believe that they should at least be made by statutory instrument which, of course, makes them more easily accessible. Nowadays statutory instruments appear on the Internet and are far more easily available than orders made without any parliamentary process. I beg to move.

Baroness Buscombe

I shall not detain the Grand Committee. I support the amendments in the names of the noble Lords, Lord Goodhart and Lord Carlile. My amendments are designed to achieve similar ends. My Amendment No. 46 and the consequential Amendment No. 106 can serve only to enhance transparency within the system by requiring a Secretary of State to publish regulations that develop and expand on the details of Clause 7. Applicants can then turn to the regulations as a guideline on what form and manner they can be expected to use to make their application and how large a fee they will have to pay.

In this instance as well as in Amendment No. 22, where I called for regulations on the additional information or evidence that the Secretary of State could require from an applicant, the details may vary over time and hence should not be written into the Bill. But the case by case variation would not be so great as to prohibit the Secretary of State from publishing regulations on both the form and manner of application and the fees payable.

Lord Filkin

Clause 7 allows the Secretary of State, after consultation with Scottish Ministers and the Department of Finance and Personnel in Northern Ireland, to specify the form and manner in which an application is to be made. It also enables the Secretary of State to determine the level of fees that should be charged for making applications to the gender recognition panel.

It will, of course, be necessary to change the format of application forms from time to time to reflect changing needs. Those are administrative alterations to addresses, telephone numbers and the like, and it would be wasting parliamentary time to bring such issues before it. We envisage that the application form itself will be readily available, for example, on the Internet, and hence that transparency is already achieved.

The application form does not stipulate the criteria for recognition. Those are outlined on the face of the Bill and the application form is merely the vehicle for communicating evidence to the panel. To change the criteria for recognition would, of course, require the legislation to come before Parliament again.

The amendments, in so much as they suggest that the format of the application form should be a matter for Parliament, take parliamentary scrutiny too far. If it is to be efficient, it is vital that the panel has the flexibility to do its job and to determine how best to receive the information in accordance with the Act.

Subsection (2) allows the Secretary of State to set the fee or fees. The Bill confers that power on the Secretary of State to enable a degree of flexibility. However, since the Bill was drafted I have considered the matter in detail in the context of fees for other judicial matters and have come to the conclusion that, given the arguments advanced, this situation should be changed. Of course, such fees are routinely changed. They are increased annually with inflation. Furthermore, given that Parliament has oversight of court fees and the like, it seems to me that it is right to extend the power to fees for applying to the panel. Therefore, I accept the spirit of the amendment and shall introduce a government amendment on Report to give effect to that.

The suggested amendment to Clause 23 is unnecessary as any fee or fees would he set by order, not by regulation.

Lord Goodhart

I am most grateful to the Minister for what he said on the subject of fees. The provision that he mentioned is appropriate and I look forward to seeing the Government's amendment on it. In view of that, we shall not bring forward any further amendment on the order regarding the application forms. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45 and 46 not moved.]

Clause 7 agreed to.

Lord Evans of Temple Guiting

This may be a convenient moment for the Committee to adjourn until tomorrow at 3.30 p.m.

The Deputy Chairman of Committees (Viscount Simon)

The Committee stands adjourned until Wednesday 14 January at 3.30 p.m.

The Committee adjourned at half past seven o'clock.