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

HL Deb 14 January 2004 vol 657 cc63-134GC

(Second Day)

Wednesday, 14 January 2004.

The Committee met at half past three of the clock.

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

The Deputy Chairman of Committees (Lord Carter)

Before we start this afternoon's proceedings I shall say a word about the microphones. Hansards record of the Grand Committee's proceedings is produced from a tape recording. It is very important that when speaking Members should speak as near as possible to a microphone. It may be necessary for some Members of the Committee, particularly those sitting at the second row of tables, to move from their seats to the nearest microphone before beginning to speak. It would also help the engineers who are making the recording if, as far as possible, Members could avoid either touching or moving the microphones.

If there is a Division on the Motion before the House we shall immediately have to adjourn for 10 minutes.

Clause 8 [Appeals etc.]:

[Amendments Nos.47 and 48 not moved.]

Clause 8 agreed to.

Clause 9 [General]:

[Amendment No.49 not moved.]

Baroness O'Cathain moved Amendment No.50:

Page 5, line 13, after "purposes" insert "as if it were"

The noble Baroness said: Amendment No.50 is grouped with Amendments Nos.51 and 52. In essence, I am taking issue with the pretence that a man can become a woman for "all purposes". Yesterday we touched on the fact that Clause 9 states that a person who has a gender recognition certificate, becomes for all purposes the acquired gender (so that, 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)

The Minister reminded the Committee of the judgment in the Goodwin case which says that we must legislate to give transsexuals the right to change their birth certificates and to marry.

Even if that is the case—some of us say that Parliament is still sovereign and we do not have to legislate just because an overseas court says so—it does not mean that this Bill has to go to the extremes chosen by the Government; for example, to attempt to say in law that a man is for all purposes a woman is patently absurd. Yesterday my noble friend Lord Tebbit undertook the admirable job of exposing the madness at the heart of the Bill, such as the extraordinary mental acrobatics that people are required to go through to pretend that a man is a woman and a woman is a man, despite all the evidence to the contrary.

These amendments would at least have the virtue of allowing some leeway for people's consciences. Rather than being told by law that a man's sex becomes that of a woman, under these amendments the law would say that the man's sex becomes as if it were that of a woman. That recognises that there is a mental jump required from the factual reality to the legal reality. There must be room for many people who simply cannot, in all conscience, go along with that.

At the moment there is an example in the news of a BBC programme in which a transsexual man was referred to as a man. Press for Change, the transsexual rights group is campaigning for the BBC always to refer to transsexuals in their chosen gender. That is indicative of the Orwellian nightmare that the Bill encourages. Will people who refuse to call a transsexual man a woman routinely face that kind of hostility? Given what we established yesterday, which is that the Government believe that many people change their minds and revert to their real gender, or oscillate between the two, how are people to know which gender a person wants to be known as at any particular time? I say again that it is absurd to say that a man can become for all purposes a woman or vice versa.

Let us take the example of a woman who obtains a gender recognition certificate, but who does not undergo the surgery. She may be married and, under the Government's proposals, may convert her marriage to a civil partnership. After she receives a certificate declaring that she is for all purposes a man, she and her husband may decide to have a baby; she becomes pregnant; she is booked into a hospital as Mr Smith—the first man to have a baby—and the hospital in all its dealings with her must treat her as a man. Are there not privacy issues for other women in a maternity ward having to share with a man? What about her employers? Presumably, they are not obliged to give her maternity leave as she 1s, for all purposes, a man. Men do not get maternity leave.

This is really lurid tabloid headline stuff, I agree, but the Government are leaving themselves wide open to that because they are so much in thrall to transsexual rights advocacy groups. The Government are taking into account their views, and theirs alone, in proposing the Bill. I hope that we shall begin to see some willingness on the part of the Government to think again. I beg to move.

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

On our second day, I regret that I need to qualify or clarify one or two of the remarks made by the noble Baroness, Lady O'Cathain, who has made a very powerful contribution. I certainly did not say that the Government's position was that many people change their minds or oscillate between the two; I was explicit in quoting the percentage as about 1 per cent. I do not see that as captured by the way in which the noble Baroness referred to my remarks.

I am sorry that I have to speak like this, but I would have hoped that it was reasonably apparent by now that, while it is right and proper for the Government to consult and involve groups with direct interests, we have gone out of our way in this Bill to consider its effects on wider society. The process of publishing a draft Bill was part of that effort, and this is a classic example of a Bill that has benefited from the draft Bill process. I would not use the term "bending over backwards", but we have been seriously keen to engage with a variety of interests who have concerns. Where we may differ is in the fact that, as we have made clear, we see a duty to respond and legislate in law and a duty in terms of a civilised society to protect the rights of minorities. I regret that the noble Baroness and I, who have been on the same side on previous Bills, are not on the same side on this one—but that is how it is.

On the specifics of what she said, I shall explain why it is neither appropriate nor necessary to agree with her amendments. I could spend a lot of time, but it would not help her or others in the Committee if I repeated the good discussions that we had yesterday—and I thought that yesterday we had a first-class Committee day. Noble Lords know why we believe that it is necessary to legislate, why we are doing so, and the manner in which we are doing so.

Essentially, the Bill recognises a change of gender and gives it legal effect in certain circumstances and after a proper process. A person in law cannot be more than one gender: they are either male or female, and that is a fact of law. Therefore, although I know what the noble Baroness is getting at, the use of the words, "as if it were", is a way of signalling her distaste for the Bill—and, perhaps, that of others. It adds nothing in the law, except perhaps to convey some gratuitous offence to other people. Therefore, I very much hope that she will not think it necessary to press for those words here and now, having well registered the areas in which she is out of harmony or sympathy with the Bill. They add nothing in law, but they do cause offence.

Baroness O'Cathain

Well, I thank the Minister. I did not say yesterday how grateful I was that he saw me last Monday and wrote to me. In view of the fact that I believe that we have a very good relationship, I am sorry that he would even consider that I would want to cause gratuitous offence to anyone. It is not in my nature, and I have never done it. It may be that I have offended people, but totally unwillingly—certainly not gratuitously.

The purpose of the amendments and all my contributions to this Bill, including those at Second Reading, is not to cause offence to anybody. I have absolutely no problem at all with transsexuals—that is their choice. What I do have a problem with is getting my mind round the idea that, when God created man and woman he created that man and woman, and that a man cannot be a woman and a woman cannot be a man. That is the whole essence of the Bill, of course. However, having said that, we go further. Without wishing to go over old ground, as I said yesterday, my reason for getting involved in this Bill is that I am concerned that the House of Lords should continue to carry out its rightful responsibilities in ensuring that any legislation proposed—whether Private Member's Bill, public Bill or government Bill—is gone over properly by those who feel deeply about issues based on experience and expertise. I have no expertise regarding transsexuals but I do have experience—as do we all—in social relations and experience of being an employer and employee. I am also a committed member of the Church. From that basis it is absolutely right that we should speak about these subjects.

Based on that experience, I have a horrible feeling that, if this Bill as it stands becomes law, the law of unintended consequences will come in in spades. The problem is that we do not know. Yesterday, we heard that the medical evidence was unproven—or, if not unproven, then unsubstantiated or not thoroughly accepted, although I cannot for the life of me remember the phrase. The fact that we have that view means that we are leaving ourselves wide open to create laws that have problems in their very nature and right from the very start. That is what I seek to point out. I do not seek to create gratuitous offence. I feel very deeply about this issue.

I will read what the Minister said. I know that I cannot press the amendment because we are in Grand Committee, but I want to place my feelings on record and I cannot promise that I will not return to the matter on Report. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.51 to 53 not moved.]

Clause 9 agreed to.

Clause 10 [Registration]:

[Amendments Nos.54 and 55 not moved.]

Clause 10 agreed to.

Schedule 3 [Registration]:

Baroness O'Cathain moved Amendment No.55A:

Page 17, line 18, leave out "not"

The noble Baroness said: I was asked at the last minute to speak to the amendments of the noble Lord, Lord Tebbit. On many issues—not all, but certainly in some of the descriptive prose that he used yesterday—I have disassociated myself right from the start. However, these amendments require birth certificates to disclose sex change. The amendments focus our attention again on the question of third parties, to which I briefly referred just now.

The Minister says quite openly that this Bill is primarily about the rights of transsexuals. That came out loud and clear yesterday. Yesterday, it was indicated that even the children and spouses of such people are to be regarded as having no rights under this gender recognition legislation. I hope that the Minister will reconsider what he said about that and will think much more deeply about the other people who are affected by this.

The amendments would make sure that other people would be entitled to know about a person's sex change. They reverse the approach taken by the Bill. Rather than compelling the General Register Office to keep a person's sex change secret, they require that all birth certificates should be marked to indicate a sex change has taken place and to allow the gender recognition register to be open to public inspection. I share the view of the noble Lord, Lord Tebbit. There is a public interest in people being allowed to discover if a gender recognition certification has taken place. There are circumstances in which it is important to know for a whole variety of personal reasons and reasons of moral or religious conviction. I will have more to say about that later.

I know that the Minister is not going to accept these amendments. My noble friend Lord Tebbit yesterday referred to his mind-reading skills and I think his premonition that the Minister would not accept his amendments applies to all of them. But I should like the Minister to answer this question: does the Goodwin judgment specifically require the United Kingdom to make it impossible for third parties to discover whether a person has changed his gender in law? I beg to move.

3.45 p.m.

Lord Filkin

I shall speak generally and then return to the specific question at the end of my speech. At the heart of the Bill is the Government's clear view that, irrespective of what the courts say, it is right to allow people, who—there is clear evidence—profoundly believe that they are of another gender to that of their birth gender, to live their lives in peace and quiet. Therefore, we spoke yesterday about the process by which that is validated.

The second part of the situation is also relevant; that is, trying to ensure that the person who has made a gender change, and has had that recognised by the state, is then able to live in privacy and quiet without harassment. That seems to me and to the Government to be an important objective of the Bill. If one wants a clear example of why that is so, I refer to the article in the Guardian on Monday. It reported on the tragic case of a young woman who committed suicide after experiencing about 15 years of harassment by others in her community because she had changed her gender. It is an unfortunate fact that some people behave in that way and cause misery to people who through no fault of their own are living their lives as they believe it to be true and right.

That is a good enough reason why we think that the provision is necessary. It is absolutely crucial that we allow people the freedom to live their lives in private when it is right to do so. There is no general advantage for such issues to be publicised which allows those who might cause mischief and misery the freedom to do so.

However, there must be exceptions to that position. We talked about one at Second Reading; we talked about another yesterday. The first limit is that clearly the detection and the prevention of crime make it essential that the criminal investigation agencies are able to find out whether there has been a change of name. I hope I spoke clearly enough on that issue at Second Reading; such that the original birth record will be accessible to the police and the Criminal Records Bureau, so that there is no possibility of people being able to avoid crime or being brought to justice as a second consequence.

The second exception we talked about was how we believed that it was perfectly possible for children and grandchildren, knowing the name and birth date of the parent or grandparent who had undergone a sex change, to be able to obtain a copy of the birth certificate. Therefore, we could not see a need to put anything on the face of the Bill, as that seemed perfectly possible. We agreed with the spokesman for the Opposition when he signalled why he believed that there were circumstances when a child or grandchild might want to do so.

To put the provision in such a way would make the information accessible at large to anyone who wished to cause mischief and misery. We believe that that is wrong.

Baroness O'Cathain

I thank the Minister. M y noble friend Lord Tebbit was quite right about mind-reading skills. I know that he will probably be disappointed by the noble Lord's reply. I can see the point of the two exceptions; first, the Criminal Records Bureau and the police; and, secondly, the one regarding children and grandchildren. We spoke about that yesterday. Will either of those exceptions be on the face of the Bill?

Lord Filkin

No, because there is no need. One does not put again into legislation what is already in legislation.

Baroness O'Cathain

I shall check on that. It is not that for one moment do I think that the Minister is trying to pull the wool over my eyes, but it is something on which I need to be clear. I am sure that my noble friend Lord Tebbit will also wish to be clear on that. He apologises for being unable to be here today. I should have mentioned that at the beginning. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No.56:

Page 17, line 19, at end insert "for 75 years after the initial date of an entry"

The noble Baroness said: In moving Amendment No.56, I wish to speak also to Amendments Nos.58, 66, 68, 70 and 72, all of which cover the same point. Amendments Nos.56, 58, 66, 68, 70 and 72 concern information held in the gender recognition register in England, Wales, Scotland and Northern Ireland. As the Bill stands, there is no time limit on when details held in the register can be made public. As such, presumably the register would remain secret indefinitely. Even historians searching birth registers in hundreds of years' time or families attempting to trace their ancestors would encounter problems as the details pertaining to an entry in the gender recognition register would be inaccessible to them. That is not the case for other records such as Cabinet records, war records and census returns which all become available after a designated length of time. We have suggested a period of 75 years after the initial date of entry. Surely the same logic applies to the gender recognition register. I beg to move

Lord Carlile of Berriew

If this amendment is accepted in principle, a period of 75 years is not enough. I do not know how many 100 year-olds there are in this country now but I am fairly confident that the noble Baroness, Lady Hollis, will be able to tell me the current number. It will run into four figures. In 75 years' time that may include people who receive their certificate and are still alive. There are two self-evident ways of dealing with that. One is to have a longer period of years and the other is to exclude people who are still living.

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

The noble Lord, Lord Carlile, made a helpful contribution that anticipated what I was going to say.

A consultation period on civil registration records as such finished at the end of October 2003, a major part of which sought views on the ways in which records of births, deaths and marriages should be held and accessed.

Under the current system records are held in separate registers which hold "snapshots" of life events, but nothing more. The gender recognition register is being set up within this framework. It is proposed to move to a system where records are updated to provide a thorough life record for each individual.

Currently, no civil registration registers are open for public inspection or search once they are filed and access to information in the records is available only by identifying the record you want and buying a certificate. It is proposed that records will be computerised and open access will be provided to historic records—wearing my historian's hat I am obviously rather pleased about that—while more modern records will be available, but that access to certain fields, such as addresses, will be restricted to the individual to whom the record relates or to their family, for example.

Many of the responses to the consultation have been about the proposed provisions for access to records and when and to whom they should be made available.

We need to provide a consistent framework for records so that those relating to minority groups—they may concern ethnicity or other such matters—do not stand out from others and raise questions about why some records are treated differently. We need to make sure, therefore, that the provisions for access contained in this Bill are considered alongside those for other registration issues. I invite the noble Baroness to consider that.

These issues require further consideration. It may be that rather than seeking to amend this Bill, and in order to ensure that records in the gender recognition register are treated in the same way as records relating to other minority groups, changes should be made at the same time as the wider review and in the same manner as changes to those records. That would be done by an order under the Regulatory Reform Act which will be considered by parliamentary committees later this year. I hope that the noble Baroness will accept that.

As the noble Lord, Lord Carlile, said, regarding the other matter that was mentioned, more difficult issues arise in relation to the link between a person's original birth record and the record made in the gender recognition register. I accept that the 75-year rule would mean that disclosure would normally occur at about the age of 93 onwards. I accept that there may not be so many people from the transsexual community who would fall into that group. None the less all the research carried out in recent months on increasing longevity suggests that more may fall into that group. more to the point, someone in their 60s in good health will not know whether they will live beyond the age of 93 or 94. The proposition of the noble Lord, Lord Carlile, may be a useful way forward. We shall reflect on that. However, in the light of my comments, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Buscombe

I thank the Minister very much for her full and helpful reply. I am also grateful for the contribution of the noble Lord, Lord Carlile. I very much take on board his optimistic approach. Of course, it is true that people are living longer and, in a sense, I believe that his suggestion is very helpful. However, given what the Minister said concerning this whole issue, I agree that consistency is vital. I hear what she says and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.57 to 59A not moved.]

4 p.m.

Baroness O'Cathain moved Amendment No.60:

Page 18, line 28, at end insert "unless the certified copy is for the purposes of—

1. (a)section 5B (marriages involving person of acquired gender) of The Marriage Act 1949 (c.76);
2. (b)determining an application for membership of a religious organisation or association; or
3. section 19 (ministers of religion etc) of the Sex Discrimination Act 1975 (c.65),

in which case the certified copy must disclose that fact. "

The noble Baroness said: Amendment No.60 is grouped with Amendments Nos.97 and 101 and Amendment No.100 in the name of the right reverend Prelate. They all deal with the right to know and to disclose a person's true sex for the purposes of marriage or of membership or employment within a religious group. They relate to Schedule 3 and Clause 21.

The Bill takes away the ability of a Church to know whether a person who presents himself for marriage, membership or even employment in the Church is of the sex that he claims to be. The same is obviously true for mosques, synagogues and temples. My Amendment No.60 seeks to amend paragraph 5 of Schedule 3 in order to deal with that. I should say that, for now, my amendments deal only with England and Wales. If I return to this matter on Report, I shall remedy that omission.

In the Bill, the privacy of a transsexual is paramount. The amendment of my noble friend Lord Tebbit in the previous group addressed the fact that the general position of the Bill is that the privacy of the person obtaining a gender recognition certificate is paramount. Hence, paragraph 3 of Schedule 3 prevents the gender recognition register being open to public inspection. In particular, as we discussed in the previous grouping, paragraphs 5 and 6 prevent birth certificates drawn up from the gender recognition register having any feature which would make them look different from real birth certificates. They cannot be marked or annotated in any way. The new birth certificates cannot allow such a marking because, of course, that would reveal that they do not reflect the true birth sex.

Transsexuals who obtain a gender recognition certificate are assumed to want to keep their birth sex secret, and these provisions help them to do just that. Perhaps it is true that, for most purposes, that will not matter. But for some people and some purposes it is crucial that the real sex is known. Marriage is the first heading. For example, the Government already acknowledge that there is a specific issue of conscience for Anglican clergy in relation to marriage. Church teaching requires them only to marry opposite-sex couples. Therefore, paragraph 3 of Schedule 4 creates a conscience clause for clergy of the Church of England and the Church in Wales by inserting a new Section 5B in the Marriage Act 1949. Anglican clergy are under a legal obligation to marry people in their parish who meet the statutory criteria for marriage. Section 5B relieves them of that obligation where a candidate for marriage has a gender recognition certificate.

It is contrary to the doctrines of the Church to marry people who are biologically of the same sex. For 2, 000 years, the Church has understood marriage to be the union of a man and a woman. It is therefore profoundly wrong to require a Church minister, whose job it is to uphold that teaching, to officiate at a same-sex marriage; hence, the conscience clause.

However, the clause has serious limitations. Leaving aside for now the fact that it caters only for Anglican clergy—I shall come to that later in my Amendment No.80—it has another, rather fatal weakness: it assumes that a clergyman knows that he is being asked to marry a transsexual. The reality is that, unless he knows the couple's history or unless the couple declare it, the minister has no way of knowing whether a woman who comes to be married, in fact, used to be a man, and vice versa. It is therefore possible that he could unwittingly marry two people of the same biological sex. This leads to all kinds of possible scenarios that put the minister in a difficult position.

For example, a minister is approached by a couple who have recently moved into the area. They ask him to perform the wedding ceremony; he carries out his usual formalities, including checking birth certificates, before performing the ceremony. Several years later he meets them again. He inquires if they have had any children. They explain quietly that this is physically impossible because one of them used to be a man. The minister is appalled to discover that he has been duped in this way and that he has taken part in what he believes to be a sacrilegious wedding ceremony.

In a second example, a minister is asked to marry a middle-aged couple. He is suspicious about the true sex of the female, because of her masculine appearance. He asks to see the birth certificate, which confirms that she is female. He makes the arrangements, but he is still unsure and plucks up the courage to ask the woman if she is really a man. The woman is furious, as is her fiancé, and they storm out of the church vowing never to come back. A month later the minister receives a writ in the post, suing for damages for the emotional trauma of the cancellation of the ceremony, and making particular reference to the outrageous claims that she was a man.

In a third example, a minister of a rural parish is asked by a couple to perform their wedding ceremony. They greatly admire the location of the church—which is a wonderful site of scenic beauty—and they have long planned to marry there. He asks for birth certificates and explains that as a matter of course, because of the Gender Recognition Act, he always asks couples to declare whether either of them has changed sex. They both laugh and confirm that the birth certificates reflect their true sex. The minister carries out the wedding. At the end of the ceremony, the bride whispers in his ear that she used to be a man, but she did not want to tell him in case it prevented them from getting married in their favourite church.

It is all very well worrying about the rights of transsexuals, but what will the Bill do to protect the rights of ministers like these? My amendment seeks to address this problem head on by creating a specific exception to the rule that birth certificates should not disclose where there has been a gender recognition certificate. Where a minister specifically seeks to obtain a copy of a birth certificate—I say "specifically" for the purpose of exercising his freedom of conscience under Section 5B of the Marriage Act 1949—my amendment would require that the certificate of a person who changed sex must be marked. It must indicate that it does not reflect the person's birth sex, it does not require the registrar to disclose their birth name or anything else about them. They must ensure that the certificate contains some indicator of the fact that it relates to an entry in the gender recognition registry. The person entitled to the certificate knows that this person is therefore not biologically of the sex indicated on the certificate. The second point of this amendment is church membership and employment.

My amendment would create the same right to know for two further purposes: first, determining an application for membership of a religious organisation; and, secondly, employment in a religious organisation. In both cases the same issues of profound religious conviction arise. As I said earlier, Christianity, or God, teaches that a person's sex is determined by God at conception. Undergoing a sex change represents a desecration of the image of God in that individual and a rejection of God's providence. Many Churches believe that a person who chooses to live this way is committing a serious sin. They cannot simply smile and accept it.

Clearly, Churches have a well-earned reputation for welcoming all corners as visitors to their services. Christians are to follow the example of Christ, who came to call sinners to repentance. You can hardly do that if you close your doors to all except those who already believe. Actual membership of the Church is different. That is reserved for those who share the Church's beliefs, for those who are baptised or are intending to be baptised as Christians. At the moment, if the Church has doubts about whether an applicant is telling the truth about his sex, they can request a birth certificate. If he is telling the truth, the birth certificate will confirm it. Where a person is a transsexual, this forces the issue. Either he admits it, or no birth certificate is produced, in which case the Church must assume the worst. Under this Bill, the person who wants to deceive the Church about his sex has the assistance of the Registrar General. He can produce the birth certificate, which shows his chosen sex. There will be no right for a Church to know whether a person who comes forward for membership has had a sex change operation.

The same is true for employment. The Bill will deprive Churches of their ability to exercise their right to refuse to employ transsexuals under Section 19 of the Sex Discrimination Act 1975. Section 19 protects the ability of religious bodies to preserve their integrity by employing only staff who personally uphold the teachings of the faith in relation to transsexualism.

Once again, under this Bill a religious organisation has no way of knowing the true sex of a job applicant if he chooses to lie. It is possible that an organisation could appoint a man as a minister, only to discover a month later that he used to be a woman. This would be profoundly distressing for the congregation; it would be just as distressing, if not more so, than discovering that the minister is a practising adulterer. In the case of adultery, the guilty minister gets no assistance from the state for concealing his sin; he cannot get a certificate declaring him not to be an adulterer. However, the transsexual who wants to hide his past, knowing that if his past were known there would be a difficulty, would get every assistance from this legislation. Hence my amendment would allow Church officers to approach the general register office and obtain a certificate that reveals that there has been a sex change. My Amendment No.97 deals with what he can do with that information, but we will come to that in a moment.

What about the right to privacy? The Minister will object that mandatory disclosure of a person's true sex affects the transsexual's right to privacy under Article 8 of the European Convention on Human Rights. It does qualify the right of privacy as it is now understood in relation to transsexuals, but Article 8 is qualified in many ways that are necessary for the good functioning of society. For example, a church is entitled to apply to the Criminal Records Bureau for access to criminal record information to help root out volunteers and employees who might be unsuitable.

Article 8 states that limitations on the right are allowed where necessary, for the protection of the rights and freedoms of others". Surely it is permissible to allow limited disclosure of a person's true sex to protect the rights and freedoms of Churches and other religious bodies? Surely we can protect their Article 9 right to exercise their religious conscience? The Government also clearly believe that ministers should have the freedom to refuse to marry transsexuals—hence Section 5B of the Marriage Act 1949. Surely we can protect that freedom too? Allowing a minister who performs marriages to know if one of the parties has changed sex is essential for protecting his rights and his freedoms. Otherwise, the state is colluding with transsexuals to deceive Church ministers into acting against their beliefs.

A second objection to my amendment may be the fear that once a Church has a copy of a marked certificate, they can go around showing it to all and sundry, further breaching the privacy of the transsexual. This brings me neatly on to my Amendment No.97. Under Clause 21, a person who, while acting in an official capacity, acquires knowledge of a person's gender history is forbidden from disclosing it to anyone. If he does so, he is committing a criminal offence liable to a fine of up to £5, 000.

Amendment No.97 does not seek to wreck this clause, even though in principle it is outrageous to criminalise voluntary agencies and private employers who dare to talk about a person's sex change. Amendment No.97 merely provides limited exceptions to this criminal offence—exceptions which mirror exactly Amendment No.60, which is why it is grouped with it. It would allow very limited disclosure for the same three defined purposes, that is exercising a right of conscience under Section 5B of the Marriage Act 1949, determining an application for membership of a religious group, or exercising a right of religious conscience under Section 19 of the Sex Discrimination Act not to employ a transsexual.

Amendment No.97 is necessary to make Amendment No.60 workable. If a minister is entitled to a marked birth certificate for the purpose of his right of conscience about marrying transsexuals, he should also be entitled to disclose that certificate if it is necessary to do so. If his superiors in the Church threaten him with disciplinary action for refusing to marry someone in the parish, he can tell them about the certificate. However, he and his superiors would be breaking the law if they disclosed that information for any other reason. If the minister published the information in the parish newsletter, that would not be protected, since there is no necessity to do so for the purposes of his right of conscience, and that, of course, everyone would accept.

Clause 21 creates the prospect of one particularly bizarre scenario. Let us say that a minister is counselling a troubled young man who tells him that he wants a sex change. The minister advises him against it, but the young man goes ahead, and gets a gender recognition certificate. Several years later, he turns up on the minister's doorstep, looking every inch like a woman, with his fiancé. The two want the minister to marry them. It becomes apparent that the groom has no idea that his bride-to-be is really a man, yet the minister would presumably be committing a criminal offence if he told him. Under Clause 21(3)(a), he could be deemed to have acquired the information about the person's true sex, in connection with the functions of a … voluntary organisation".

He is therefore banned from telling anyone. That cannot be right. There must be an exception for marriage.

There must also be an exception for the Church membership or employment situation. Otherwise, the Church official who discovers that a person has changed sex would be committing a criminal offence if he told another Church official. So if he obtained a marked certificate under my Amendment No.60, he would be committing an offence to mention it when taking part in discussions about whether to employ the person in question or allow them into membership of the Church. The applicant could even tell the Church official himself about his sex change, but then remind him he would be committing an offence if he told any of the other people involved in the decision-making process.

Amendment No.101 to Clause 21 protects the Church from discrimination claims where an applicant for ordination will not give permission to disclose his change of sex. The amendment draws attention to a particular problem faced by Churches as a result of the Bill and Clause 21 in particular. It focuses specifically on ordination. It stems from Clause 21(4)(b), which allows disclosure of information about a person's true sex if the person concerned gives permission. The amendment aims to protect Churches from legal action for discrimination if the applicant refuses such permission.

As I said, it is a matter of profound religious conviction that Churches continue to have the freedom to ordain as ministers of their Churches people who personally uphold the Church's basic teachings. It would be outrageous if Clause 21 prevented discussion of a person's sex change if he was applying for ordination in that Church.

In many Baptist churches, for example, the whole membership is involved in discussions about ordination. The membership as a whole must agree to put a person forward. Would it not be totally outrageous if one of the church leaders was criminalised for disclosing the fact that the man who is seeking ordination is really a woman? Would it not be appalling if the transsexual were able to say to the church leader, "I have admitted to you that I've had a sex change. But if you dare tell anyone else, I will call the police"?

The Minister will say that transsexuals will not put themselves and others through the embarrassment of forcing such an issue. However, I am afraid that he does not recognise that not everyone is as honest and magnanimous as he is. Is it not often part of "gender dysphoria" to want to do just that? And the right to conceal is a thread which runs throughout the whole of the Bill. The combination of the Bill, the Goodwin judgment, the Sex Discrimination Act and the Human Rights Act is going to create a legal minefield for the Churches. There are already transsexuals pursuing legal action against the Churches. Only today I have seen a letter from solicitors acting for a transsexual man who are threatening the Church with legal action for no longer allowing him to be a preacher in the Church. That is happening and—guess what—the letter mentions the Gender Recognition Bill.

The Minister needs to realise that he is putting Churches in the firing line with this Bill. This amendment would not give the Church an unconditional right to disclose the person's true sex—it would still require the applicant's permission—but it would at least protect the Church from legal action for discrimination if the candidate refused that permission. I beg to move.

4.15 p.m.

The Lord Bishop of Winchester

I support the thrust of the three amendments to which the noble Baroness has spoken if not some of the details of her argumentation. I should also like to broaden the question, as she did in some of her comments, from the Churches to the faiths more widely. Members of the Committee who were present on 18 December will remember a number of references to a letter received by a number of us from a representative of the Islamic Medical Association of the United Kingdom expressing a number of similar kinds of anxieties.

I am speaking specifically to Amendment No.100. The drafting of the amendment, although linked to my Amendment No.84 to Schedule 6, in fact deals with a separate matter—the question of permitting disclosure of information about a person's change of gender where they are seeking acceptance for training, recognition as a minister or appointment to a post within a Church or other faith community. I share the Government's sense that in almost every case a person in that condition would often wish to be frank and open with the religious body in question.

[The Sitting was suspended for a Division in the House. from 4.15 to 4.25 p.m.]

The Lord Bishop of Winchester

My instructions are to take up precisely where I left off. I cannot remember whether I was in mid-sentence, but I shall do my best to take that advice.

Under the Bill as it stands, one cannot guarantee that a person would be as frank and open as I am sure they would be in general. We seem to be without the Minister.

The Deputy Chairman of Committees

The 10 minutes are up.

The Lord Bishop of Winchester

Thank you.

I appreciate why the Government have included provisions to protect a transgendered person's privacy. However, this seems to be another of those moments when, as in so many other matters of human rights, there is a balance to be struck between different rights and different interests. One of the key questions running through the debate yesterday and today concerns the striking of that balance—indeed, whether the Government admit that there is a balance to be struck at all and whether other rights beside those of the transsexual person should be taken into account.

Whatever the Bill provides, it must be at the least very likely that where a transgendered person is engaged in public ministry in a religious body, information about his or her past will sooner or later become known to other members of that body. The Minister will remember that, on 18 December at Second Reading, I noted the very tricky question of professional directories. Unless elements are to be expunged from professional directories, they will themselves make clear the previous history of a transgendered person. That makes it all the more important for those involved in deciding on appointments and the like to know the true position at the outset, and to know it rather than imagine or infer it. Such people should not be put in the position of reaching decisions to which they and others—including those to whom the transgendered person would be ministering—would have strong doctrinal objections if they had known the facts.

Amendment No.100 is related to but, strictly speaking, different from Amendment No.84 to Schedule 6, to which we will come later. The object of the amendment is to ensure that making those facts known to those who need to know them does not fall foul of the ban in Clause 21 on disclosing information required in an official capacity. My example is from the Church of England, but I hope that Members of the Committee will understand that I am thinking just as much—although I do not have the terminology—both of other Christian traditions and, where appropriate, of communities of other faiths.

In the Church of England, for example, if a transgendered person was a member of the clergy or a lay minister seeking to move from one diocese to another, this amendment would allow his or her present bishop to provide essential information in strict confidence to the bishop of the new diocese. That is all the more important because Clause 21 does not merely give rise to a civil remedy; it creates a criminal offence. I am sure that that is something that all religions would take very seriously.

I recognise that this is a complex area and that the Minister may say that it could best be dealt with by an order under subsection 5 of Clause 21, to which my later amendment relates, rather than by the Bill itself. If that is the preferred way forward, the Church of England would not wish to stand in the way. However, if the Bill were to pass without any express provision on this very significant and important area, I am sure that the Minister will appreciate our concern to have some explicit reassurance at this stage that the matter will be addressed and by whom.

4.30 p.m.

Baroness Hollis of Heigham

On a very quick point, I should be grateful if the noble Baroness, Lady O'Cathain, could in due course give me a copy of the letter she cited towards the end of her speech. That would be very helpful.

On a second point, I am slightly inconvenienced—I do not know whether other Members of the Committee are— by the fact that many of these arguments cut across other and related amendments, particularly Amendment No.79. In retrospect, I think it might have been more helpful if we had been able to group them together. Many of the issues, particularly issues of conscience, cut across the amendments. Slicing the amendments in this way makes the Government appear less helpful than we intended to be.

Like other Members of the Committee, I accept that there are people in certain religious organisations who dispute the Bill's fundamental proposition that a person should be able to change gender in law. That proposition raises issues of religious conscience as far as they are concerned. The noble Baroness, Lady O'Cathain, was rightly very clear on the issue. They do not feel able, for example, to solemnise the marriage of individuals seeking to marry in their acquired gender, or that those recognised in their acquired gender should be admitted to membership or to be able to hold office in a religious organisation. It may be—I will defer to the right reverend Prelate on the matter—that these issues are not so very different from some of those previously raised around the conscience issues of divorce.

It would be puzzling—and this is where I am somewhat disconcerted—knowing the views of a religious minister or religious organisation, if a transsexual person who was an adherent of that same religious faith were to seek to force the conscience of a co-believer; or indeed, knowing the views of that minister or organisation, if a transsexual person were to conceal the fact that he or she had been recognised in the acquired gender. I think that when such issues arise between members of a religious community—issues of conscience—the state should have as minimal a role as possible.

An amendment is proposed to Schedule 3 to enable a religious organisation to receive a birth certificate which makes plain whether it had been compiled from the gender recognition register. That is entirely inappropriate. The very purpose of the gender

recognition register is to enable the issue of a new birth certificate that does not violate the privacy of the transsexual person. The very personal fact that a person has changed gender should not be made apparent on the face of this public record. My noble friend has said on several occasions that we are protecting privacy here.

In any case, if a religious minister or organisation needs to know whether a person is or is not a transsexual person, the solution would be to ask the person, particularly if their co-religionist is within a specific faith. There is nothing in the Bill to prevent the question being asked. I do not understand why we should assume that a person who is asked this question—a person who is a member of the same religious community—will refuse to answer or will lie, particularly to his priest. Essentially, I cannot believe that a member of a faith group will base his faith on bad faith. That is what the amendment impugns.

Officials have discussed the issues in this area at length with, most recently, officials from the Church of England. There are practical ways in which the information required by a minister or organisation can be requested and obtained. Following on from those discussions, I agree in principle that the "conscience clause" in relation to marriage should be reworked slightly. In a moment I shall turn to Amendment No.75, tabled by the right reverend Prelate, and I hope to say something that may move the discussion forward. Were we able to group that with this amendment, we could take the point on board now.

I also agree in principle that where information about a person's gender history is obtained by one member of a religious organisation, there may be a need—for example, in relation to appointments—to disclose that information to others involved in the appointments process. Primarily, there is no reason why the consent of the person concerned should not be obtained. The onward disclosure of information would then be permitted.

The question of whether there is a residual need for any other exemptions to the disclosure provisions depends on the detail of, for example, the appointments process in different religious communities. My noble friend's officials are in close contact with representatives from religious organisations, including officials from the Church of England, and I think that the matters of detail which will have to be entered into in order to get satisfactory answers in this area are not for today. I know that the noble Baroness raised a series of possibly—I think she would accept—worse case scenarios. I accept that the law must be able to look at those and see what would be the responsible situation. I invite her to say that this is best conducted in discussion with officials from the Church of England and other appropriate organisations to see how they might be resolved.

Officials will continue to examine these issues in conjunction with representatives from religious organisations. Any further disclosure protection that is needed will be provided in secondary legislation. The Committee will, however, appreciate that the Government are bound by their obligations under European Human Rights law to protect the privacy of transsexual people. Any further exemptions in secondary legislation will have to be consistent with those obligations.

So my answer is really in three parts. First, I am assuming a congruence between the faith of a person and the good faith of that person when working within a religious organisation, seeking to marry within that Church or indeed to become an ordinand of that Church. I cannot concede that a believer would wish to construct his vocation on had faith. That is so profoundly implausible that I find it hard to understand as a serious argument.

Secondly, I absolutely accept the argument of the—what I would call—"conscience clause", that ministers have the right to refuse to marry people and that there are particular responsibilities and obligations on the Church of England, given its pastoral and established status. The issue of conscience will be further opened up in Amendment No.79. But my understanding is that if a minister has a reasonable belief that someone is a transsexual who refuses to confirm or deny it, and as a result feels unable to pursue a marriage ceremony, that that would be a legitimate response and protected by the conscience clause.

Thirdly, I remind the Committee that we are also subject to the European Convention on Human Rights. Although we cannot go down the line pursued by the noble Baroness in some respects, my noble friend has made it clear that he is happy to continue to discuss with the faith communities how best to reconcile the European obligations with particular concern for British organisations, so that we treat people decently while respecting conscience.

Lord Carlile of Berriew

We have listened to an interesting debate on an important subject, opened with some emphasis, which we well understand, by the noble Baroness, Lady O'Cathain.

The Committee is encouraged to hear from the right reverend Prelate the Bishop of Winchester that he believes that Clause 21(5) provides an opening for the law to be amended on a realistic basis. It may or may not be that any additional orders will be made available before the Bill is enacted. But I believe that Ministers should and would be sensitive to considerations of whether further orders were required under Clause 21(5). No group of transsexual people would wish in any way to inhibit the proper exercise of Clause 21(5) if it was thought necessary.

I am encouraged too to hear that the Minister believes that the conscience clause needs to be looked at again. I have a great deal of sympathy with ministers of religions other than the established Church who may wish to be placed in a similar position to ministers of the Church of England and the disestablished Anglican Church in Wales. I remind the Committee that it is disestablished and that Wales is very proud of Lloyd George's achievement in securing that position about 100 years ago.

I agree also with the Minister that the criminal provisions, which have caused some difficulty certainly for some of my noble friends who are not present today, need to be looked at. In appropriate circumstances where disclosure is given in a particular function, it could be forwarded to someone else exercising the same capacity, with the risk of a criminal offence being committed by the original recipient of the information. That would just be bad law. It probably would never be enforced, which makes it even worse bad law—if one can have such a thing.

I have, however, been troubled by some of the arguments I have heard during the debate. In my view, we have had a slight muddle between conscience, which I understand to be a subjective matter, and an attempt to turn conscience into an objective concept. This debate could open up a very long discourse on the difference between, and the relative importance of, faith and doctrine. I shall not go down that road. I share the Minister's view that it is extremely unlikely, save in the world of those who could defraud any of us, that any conscientious transsexual is going to try to force a minister of any religion—any clerk in holy orders—into doing anything that they would not wish. That is to break the faith which underlines not only their religious belief, but the whole objective behind the legislation.

I remind the noble Baroness, Lady O'Cathain, that religious organisations have to put up with many things that are contrary to their subjective consciences, of which they can know nothing. For example, it must be commonplace for people who have committed adultery to marry in church. No register of adultery is kept, so that fact can never be discovered. There must be many clerks in various forms of holy orders who marry women who have undergone abortions, but there is no register as such of abortions. Of course, if one could look into a woman's private medical records one could find out whether she had undergone an abortion. I am unaware of any attempt in recent years to amend any legislation to give a doctor, who may be conscientiously opposed to carrying out an abortion, the opportunity to examine medical records that he may not have in his possession—for example, the records of charitable organisations that carry out such procedures. Indeed, there may be clerks in holy orders with conscientious objections to marrying women who have undergone abortions, but they have no register to turn to. No one is suggesting, so far as I am aware, that they should be able to look at the medical records of the women they are about to marry just in case they may have had an abortion.

The Lord Bishop of Winchester

The last examples that the noble Lord has given are quite outwith the matter. The legal situation, which is what we are talking about, is simply quite different. Therefore, the parallels he adduces, either with adultery or abortion, do not relate to the matter in hand.

Lord Carlile of Berriew

I very respectfully disagree with the right reverend Prelate. I think the matter is right on the point. If a clerk in holy orders conducts the marriage of a woman who has had an abortion and he finds out about it afterwards, he may well have a great concern that he has been forced to act outwith his conscience; but he has no right to find out whether the woman has had that procedure carried out.

The noble Baroness, Lady O'Cathain, in my view—I say this with great respect—used such words as "duped" and "deceived" in a totally inappropriate context. The legislation seeks to give a changed legal status to people whose change of gender has been recognised. The nature of marriage is that in law it is a contract between a person who in law is a man and a person who in law is a woman. If a person chooses to go to a clerk in holy orders and says, "I am a man", and he is in law a man, I am afraid that in law he is deceiving no one; and the Churches faithfully apply the law.

Of course the conscience clause, with appropriate information provided, gives clergy the privilege to break the law on the basis of their consciences. In my view that is something that should be considered as privilege. So I support what the Minister has said; I think that there is a little room for manoeuvre on legal grounds, which the noble Baroness mentioned during her speech; but we should not allow ourselves to be emotionally moved by the use of verbs and adjectives that talk of fraud, deceit and lack of conscientious behaviour by people who are likely to behave perfectly properly at almost all times.

7.45 p.m.

Baroness Turner of Camden

I have listened to the debate with a great deal of interest. I know little about religion, but I am interested, as my noble friends know, in employment. In moving the amendment the noble Baroness made reference to employment, as did the right reverend Prelate, who referred to appointments. What concerns me is that Churches, like many large organisations, employ great numbers of people. I think that it would be quite inappropriate if individuals applying for employment were to be subjected to a loss of the privacy which is otherwise guaranteed by the legislation and be forced to disclose personal information for positions with religious organisations.

I know the amendment refers to ordination, which is quite separate. But, on the other hand, I would be very unhappy if that position were extended in any way to appointments other than ordination and to ordinary employment within religious organisations. That would be totally inappropriate. I am sure that my noble friend will have regard to that issue.

The Lord Bishop of Chester

Perhaps I may ask the Minister a specific question in relation to ordination and not employment. I think that there is a clear distinction between the two cases. In the Church of England various bishops hold different views on the matter. Suppose a priest who has changed gender applies for a job in another diocese. Would it be lawful for the bishop of the first district, in the consultations which naturally take place between bishops on appointments, to disclose the fact to the second bishop that the priest in question—for whom he has been asked to provide a reference—has a gender recognition certificate? Or would the bishop be in danger of committing a criminal offence if he passed information on to fellow bishops?

Baroness Hollis of Heigham

I shall comment briefly on two points. First, I want to say how much I agree with my noble friend Lady Turner. Clearly, employees within a religious organisation could be running the local teashop provided in the cathedral vestry, for example. I am quite sure that the right reverend Prelates do not mean to suggest that as a result this consideration comes into play. I think their concern is primarily on ordination. As the noble Lord, Lord Carlile, indicated, we wish to make clear the Church's exact position on that.

The more detailed questions are much better explored in discussion. However, on the specific points raised by the right reverend Prelate, if the consent of the ordinand or the priest moving from one diocese to another has been granted, the answer is that it would be lawful. Otherwise, it is a matter that will be considered in secondary legislation.

Does the right reverend Prelate expect a priest moving to another diocese not to reveal that information to his bishop? As the noble Lord, Lord Carlile, said, the whole of the Bill is based on trying to defend a concept of integrity that transsexual people wish to pursue in their lives. We are discussing the integrity of a priest moving from one diocese to another, presumably knowing the views of both bishops. Is there any suggestion that if the bishop were to ask that a priest might feel it appropriate to lie?

The Lord Bishop of Chester

I take a specific case that arises all the time. When a priest moves from one diocese to another, he deals with two bishops. I can understand that it would be natural for the bishop in the first diocese to ask the priest concerned for his consent to pass on the information that he had been subject to a gender recognition certificate. The point is that we are creating a criminal offence. It is a serious matter if the bishop is going to be prevented from passing that matter on where permission has not been given.

The amendment seeks to avoid criminalising a bishop going about his ordinary business in advising a fellow bishop on the appointment of a priest. We are a little sensitive to—I agree—the unlikely case because the Bill creates a criminal offence.

Baroness Hollis of Heigham

At the moment it would be an offence if that information were given without consent; in other words, it would run contrary to this provision. Again, there is no reason why the issue should not be pursued as part of other discussions and, if necessary, as I said, the amendment of secondary legislation.

The Lord Bishop of Chester

I thank the Minister for that assurance. There is a real issue that should be pursued.

The Lord Bishop of Winchester

I thank the Minister for the assurances she has given that the officials and the Minister in charge are prepared to continue with the very considerable and detailed work. She has also undertaken that the discussions may appropriately be widened to include representatives of other Churches and other faiths. I welcome both what she and the noble Lord, Lord Carlile, said. I have every intention of pursuing these issues. They are delicate, detailed and important.

Baroness O'Cathain

1 have listened with not surprise but pleasure at the conciliatory nature of the Minister's comments. At least I have not been gratuitously offensive, even though I used the word "duped". Her answer generally has to be welcomed, but, like the curate's egg—which I think is very appropriate—it is good in parts.

The Minister made three points, the first of which is that the faith of persons would not permit them to act in anything other than good faith. Sadly, we are all fairly frail human beings and there have been cases where that has not occurred. It is wonderful that she feels so positive about people of faith. We have had discussions privately on faith in the past. I hate to disabuse the noble Baroness, but actually people of faith are not necessarily of good faith all the time.

Secondly, the Minister's acceptance that the argument of the conscience clause should be looked at again was very positive. I thought—as I mentioned during the course of the debate to the right reverend Prelate—that that was good and that it gives us an opportunity and opening before Report for the issue to be examined away from the heat of Grand Committee. I am sure that some progress can be made.

Of course, the noble Baroness reminded me gently that the issue was subject to human rights legislation. I agree. However, as I said, it depends on how far one goes along those lines. I have a horrible feeling on this issue, as I do with many issues that come before the House that deal with the European Union or the European Court of Human Rights. And, by the way, I voted the right way in the Division—probably the wrong way for my party, but it was the right way. We tend to fall into gold-plating time and time again. I think that that would be generally accepted. People will not necessarily do that with this Bill, but, generally speaking, we have done so. That is something that we must bear in mind.

With the assurance that we can have further discussions, in a way which I have found very helpful, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.60A to 63 not moved.]

Lord Goodhart moved Amendment No.64:

Page 20, line 12, leave out from "passed" to end of line 15.

The noble Lord said: I hope to be brief.

Amendment No.64 deals with another point raised by the Select Committee on Delegated Powers and Regulatory Reform. The Regulatory Reform Act creates a general power to amend other statutes by secondary legislation. The Regulatory Reform Act procedure cannot be applied to another Act within two years of its enactment. It is also subject to an elaborate procedure of consultation and scrutiny. Schedule 3(11)(a) eliminates the two-year limbo period in relation to the Bill.

For reasons given in paragraphs 10 and 11 of its report, the Delegated Powers and Regulatory Reform Committee has no objection to that proposal. However, it objects to paragraph 11(b), which eliminates the first-stage scrutiny procedure and converts a regulatory reform order into what is in effect a simple affirmative resolution procedure. The purpose of the amendment is to remove paragraph 11(b) and to require the normal scrutiny procedure to be applied.

We were told yesterday that the Government intended to accept this recommendation of the Delegated Powers and Regulatory Reform Committee, so I think I need say no more. I beg to move.

Baroness Buscombe

Amendment No.65 seeks to achieve the same thing as Amendment No.64, tabled by the noble Lord, Lord Goodhart. I am pleased to hear from him that the Government are minded to accept the recommendation of the Delegated Powers and Regulatory Reform Committee. I hope to hear from the Minister that it is our amendment that has been accepted.

Baroness Hollis of Heigham

I shall be brief in saying that the Government have indeed listened, and were persuaded that the noble Baroness, Lady Buscombe, and the noble Lord, Lord Goodhart, had a very good case even before they heard it. As a result, the Government will introduce amendments on Report which we hope will please the House.

Lord Goodhart

I am grateful for that confirmation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.65 to 76 not moved.]

Schedule 3 agreed to.

Clause 11 [Marriage]:

Baroness Buscombe moved Amendment No.77:

Page 5, line 39, at end insert— ( ) A registrar or other public official empowered to conduct or solemnise marriage ceremonies may refuse on grounds of religious principle or conscience to conduct or solemnise a marriage between two persons, if he has reasonable grounds to believe that one of the persons seeking to take part in the marriage is in possession of a gender recognition certificate and that the ceremony would involve two persons born of the same sex. ( ) No person who has refused to conduct a marriage ceremony on the grounds set out in this section may be subject to any disciplinary procedure on the grounds of the exercise of his religious principle or conscience.

The noble Baroness said: Schedule 4(3) provides a conscience clause for a clergyman, such that he is not, obliged to solemnise the marriage of a person whose gender has become the acquired gender under the

terms set out in the Bill. Any member of the clergy who feels that the marriage should not occur because of a strong belief that it is not possible to change one's gender and as a consequence the marriage would be a same-sex marriage is not required to undertake the ceremony against his or her wishes. That is only right.

It seems unfortunate, however, not to extend that right towards registrars, who may have equally strong beliefs concerning a marriage involving a transsexual person. Surely the Minister would agree that it would be wrong for a Muslim, Catholic or Jewish registrar, for example, to be disciplined for refusing to marry a couple whom he or she considers to be a same-sex couple. Amendment No.77 adds to the Bill an opt-out for registrars, and guarantees that they would not be subject to any disciplinary procedure for refusing to conduct or solemnise such a marriage. I beg to move.

5 p.m.

Baroness O'Cathain

Amendment No.80 is grouped with the amendment tabled by my noble friend Lady Buscombe. My noble friend's amendment deals with registrars, while my amendment widens the marriage conscience clause in the schedule to encompass anyone who performs weddings. For the purpose of the Committee, I have tabled an amendment relating only to England and Wales, but if I returned to the issue on Report I would plan to insert the same wording in the legislation for Northern Ireland and Scotland.

The Government's proposed conscience clause in new Section 5B in the Marriage Act 1949 relieves Anglican clergy of the obligation to perform marriage ceremonies involving people who have a gender recognition certificate. The Government will say that it is worded in that way because only Anglican clergy are under a legal obligation to perform marriages for those in the parish. They must marry anyone in the parish who meets the legal criteria for marriage. The Government may argue that ministers of other denominations and religions are free to choose whom they marry because they are acting in a private capacity, but that ignores the fact that we are entering new and unknown territory with the Bill and the human rights complications that gave rise to it.

The Human Rights Act 1998 combined with the recent rulings of the European Court of Human Rights and this Bill could be used to make serious attempts to impose an obligation to perform transsexual weddings on all those who perform the function of officiating at wedding ceremonies. The Human Rights Act of course incorporates the European Convention on Human Rights into UK law. In the Goodwin case of July 2002, the convention was reinterpreted as including a right for transsexuals to marry. As a result, noble and

learned Lords from this House decided in April last year, in the Bellinger case, that UK marriage law was incompatible with the convention.

Article 6 of the Human Rights Act requires public authorities to comply with convention rights. It states that a public authority includes, any person certain of whose functions are functions of a public nature". It is very easy to imagine that an activist judge in a UK court might hold that a person performing marriage ceremonies is fulfilling a function of a public nature. It is also easy to imagine that a person who refuses to carry out transsexual weddings could be deemed to be exercising that public function in a way that is contrary to the convention. Such a use of human rights litigation to force the issue of transsexual marriage is a real possibility.

The noble Lord, Lord Filkin, wrote to me on 5 January, saying that, it seems unlikely that a person who has changed gender would place him or herself in the embarrassing position of forcing the issue before a minister who, in conscience, did not want to marry him or her". I am bound to say that that sounds optimistic, given that the reason why we have a Bill in the first place is because, for a period of more than 20 years, transsexual people have fought to force the acceptance of transsexual marriage in the courts, including going all the way to the European Court of Human Rights.

The Minister may be unaware of the case that I mentioned earlier of the male to female transsexual Mr Parry, who sued a church for refusing to allow him to join the ladies' fellowship. Mr Parry has a track record of using litigation, or the threat of it, to pressurise organisations into accepting him as a woman. There are some who will force the issue, and not only with Anglican clergy.

Clearly there are clergy in other denominations who perform weddings and who are just as vulnerable to litigation. Is the Minister aware that it is the practice of many of the free churches to allow lay persons to perform their wedding ceremonies? Then there are other religions, and not all those who perform religious weddings sit within the term "clergy", which the clause uses at present. There is also the issue of freedom of conscience for civil registrars—and I greatly welcome the fact that my noble friend Lady Buscombe has addressed that in Amendment No.77. Registrars, too, should be allowed to have a conscience; there will no doubt be many who took up the job because of a strong belief in the importance of tradition and marriage. They may disagree very strongly with the idea of marrying people who are biologically of the same sex. Whether those beliefs are religious or not makes absolutely no difference. Article 9 of the European convention protects freedom of thought and conscience as well as religion. A profound conscientious objection in that area ought to be respected.

There is a comparison to be made here with the Abortion Act 1967, in which public sector employees such as doctors and nurses were made responsible for performing abortions once it became legal, while those who conscientiously objected were given a conscience clause. Although Parliament had decided that it should be legal, it recognised that there were profound issues of conscience and that not everyone would want to be involved in such a procedure. There is a similarity with marriage in this case, although we are not of course talking about issues of life and death but about people's convictions about marriage, which can be profoundly important to them. They may consider it deeply immoral to take part in marrying two people of the same biological sex. Are such convictions to be ignored? Registrars across the UK will probably all be employees of the local authority, rather than office holders. That makes them vulnerable to dismissal by a politically correct local authority that wants all registrars to be willing to perform transsexual marriages.

I revert to another issue that we have addressed—I took part in it—in which a local authority took that approach with the social workers Dawn Jackson and Norah Ellis in relation to adoption by a homosexual couple. Although there are very few such adoptions and other staff were willing to cope with arty that arose, Sefton Borough Council applied a politically correct litmus test. It wanted Jackson and Ellis to be willing to undertake homosexual adoptions or lose their jobs. Because of their strong beliefs they lost their jobs. Can registrars expect a similar litmus test in relation to transsexual marriages? My amendment prevents their employers from obliging them to perform such ceremonies.

It is worth mentioning the situation in the Netherlands where civil registrars were obliged to perform transsexual weddings. However, one lady— Mrs Bellinger—took the matter to court. She said that it was her human right not to be forced to take part in such a ceremony. The Dutch court agreed. The Government should take note of that case. It must take action to ensure that anyone who performs weddings, whether civil or religious, is not required to go against his or her conscience when it comes to the fundamental issue of whether two people of the same sex can marry. I beg to move.

The Lord Bishop of Winchester

I support both amendments in the group. On Amendment No.80, to which the noble Baroness, Lady O'Cathain, has just spoken, the wording may need to be altered because the word "obliged" in Schedule 4, which she attempts to amend, places particular legal responsibilities and obligations on the clergy of the Church of England and the Church in Wales. That detail apart, it seems to me that, as the noble Baroness has pointed out, there are many other Churches and people of other faiths who conduct marriages and who, as I read the Bill, could be acted against in some way if they judge that they should not conduct such a marriage.

In relation to registrars—I mention this because I noted it in my Second Reading speech—this is an important matter for the reasons that the noble Baronesses, Lady Buscombe and Lady O'Cathain, have mentioned. It is an important matter because they are highly responsible and valued public officials. Also, in every registry office—it is not the case in every church, chapel, mosque or wherever—there is publicly and obviously displayed in a prominent position a very clear notice that sets out what marriage is according to the law of this land. I can conceive that some registrars—the Bill recognises that there will be some clergy too—will find it extremely difficult to conduct a marriage in which one of the parties is a trans-gender person, not least when, for everyone to see, there is a very clear statement of the law of the land at the minute.

That brings us straight to the core of the Bill and to the matter of whether a sex is changed when it is acquired. I recognise that the Government are firm on that point. It seems to me that the least that the Government can do is to note the potential difficulty for some registrars —maybe not many but some—and to honour their conscientious position as I am delighted to see that they are prepared to honour the conscientious position of clergy of the Church of England and the Church in Wales and as I hope they will be prepared to honour the conscientious position of some others who conduct marriages.

Baroness Hollis of Heigham

I do not believe that I can help noble Lords because I profoundly disagree with the position that they are taking. Marriages contracted by transsexual people, once the change of gender has been legally recognised, will be valid marriages between a male and a female.

The noble Baroness, Lady O'Cathain, discussed the point about ministers other than those of the Church of England. Other ministers could not be considered to be a public authority and therefore they are not bound by the Human Rights Act and are free to make the decision whom they marry or not. Other ministers are in a different situation. The core of these amendments is about registrars.

Registration officers have no legal grounds on which to refuse to provide the service and I would expect them to provide it. Many people in their public office must undertake functions with which they may not always, in every single respect, agree. That is part of being a public office holder and a public employee. Registrars will be asked and expected to marry people—as I am sure they will—who in the law of the land are entitled to be married. That is a registrar's job. It goes with the territory and rightly so.

On that argument, on the grounds of conscience, I can conceive—I hope this is not regarded as too far-fetched—of a junior member in a local Jobcentre saying, "I do not wish to pay benefit to a transsexual at the age of 60 because she is really a male and therefore we should wait until she is 65 and my conscience says that". I do not want to impugn any religious group, but an individual Islamic male in a local authority may seek not to make payment of housing benefit to an Asian lone parent on the grounds that he or she brings the family and faith into disrepute. Those may be exaggerated instances but they are public office holders and they have no such right to bring that argument into the territory. They have to do their job, which consists of treating people as the law of the land says that they should.

In practice there may be ways around the matter if someone feels so strongly. We are talking about a very small number of people who may seek marriage. Registry offices have a number of registrars and unlike the Church of England one does not have to marry in the registry office in the area in which one lives. If one knows that there are strong concerns, one may seek to avoid embarrassment by going to a different registry office.

At the core, I profoundly believe—this is my conscience—that public officials are required to exercise their duties and public responsibilities. That is the case whether someone is the most junior member in a Jobcentre but disagrees with what is being undertaken on benefit sanctions or whatever, or whether they are the registrar at a fairly senior level. On that I rest my case.

The Earl of Mar and Kellie

I did not expect to speak on this amendment, but the Minister may have made a slight error. She did not cover the position of ministers of the Church of Scotland. Could she clarify their position? I suspect that their position is the same as for those in the Church of England because it is an established church. She has brought me to my feet so perhaps she could put me down gently.

Baroness Hollis of Heigham

I am being given advice that is not entirely clear to me. I would prefer to write to the noble Earl on that point.

The Lord Bishop of Winchester

I have a question, but not on registrars. The noble Baroness will acknowledge that in the light of the very clear statements of her colleague at Second Reading and in writing since in his gracious and full letter, that point was clearly made. I respect the fact and the ways in which she noted the case.

I have a detailed question about who is and who is not in public office, or whatever language was used. What would be the situation for a substantial number of free Churches whose premises may have been assisted by lottery money or the like? In the past there has been discussion on the extent to which such funding made Churches public bodies.

Baroness Hollis of Heigham

I cannot conceive, knowing some of the issues associated with, say, racial discrimination, that this would affect that situation. We are talking about individuals who are public employees, whether of the local authority or of central government, in some way or another. We are saying that when their duties encompass X, Y or Z, as laid down by the law of the land, they are required to do that.

The Lord Bishop of Winchester

I was referring to the second of the amendments, Amendment No.80. That refers to clergy and ministers of other Churches and other faiths. I believe the Minister said that the matter did not apply to them because they were not in any sense public officials. There has been a good deal of discussion between some Churches and some elements of government about the extent to which receipts of lottery money and other funding, for example, for premises, made such premises places of public office.

5.15 p.m.

Baroness Hollis of Heigham

It may be the case that those providing the funding will insist that the premises are accessible to disabled people, for example, as a condition of a grant. If I am wrong about that I shall write to the noble Lord, but my understanding is that that does not affect the status of the ministers of religion in those Churches.

Baroness O'Cathain

I have a point of clarification. Suppose a Baptist minister also had a job as a local authority employee—some do because they are part-time ministers. What would be his position in terms of marrying people? Could he put aside his local authority job and, as a Baptist minister, use the conscience clause?

Baroness Hollis of Heigham

If I understand the noble Baroness correctly, she is saying that if someone has an occupation in local government and independent of that has a parallel occupation, there are segmented responsibilities.

I am now able to help the noble Earl in relation to the Church of Scotland. Ministers of the Church of Scotland are approved celebrants, but they are not required to marry couples. They do not have a statutory obligation as is the case in the Church of England.

Baroness Buscombe

I thank the Minister for her very full and cogent reply. I am bound to accept her argument. She has helped to clarify the fundamental difference between the position of ministers of the Church and those who are employed by the state as public employees. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Schedule 4 [Effect on marriage]:

[Amendment No.78 not moved.]

The Lord Bishop of Winchester moved Amendment No.79:

Page 26, leave out lines 5 to 7 and insert— (1) No clergyman is obliged to solemnise a marriage if—

1. (a)one of the parties is a person whose gender has become the acquired gender under the Gender Recognition Act 2004; or
2. (b)the clergyman is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that the person is not one whose gender has become the acquired gender under that Act. "

The right reverend Prelate said: I am very grateful for the extensive consultation between officials that has led to the clauses that appear in the Bill at this point. They appear in the Bill, as has been noted, because of the legal requirement on clergy in the Church of England and the Church in Wales in certain circumstances to marry parishioners. They are analogous to the exemption in the marriage Acts, as has been noted, concerning the marriage of divorced persons whose previous spouse is still alive. I am grateful for the consultation on those issues and others between officials on both sides.

Amendment No.79 arises because of the Government's refusal, which I understand but regret, to include any means of knowing any requirement to disclose. We have noted that questions may be asked and the Government have made it clear that they would trust, as I would, that questions would be answered honestly.

The amendment puts in a safeguard. I understand that further discussions between officials and the noble Lord, Lord Filkin, have led to the prospect of a government amendment analogous to, but still more delightfully worded than, Amendment No.79. If that is the case I shall be glad to withdraw my amendment in favour of the one that the Government plan to bring forward. I beg to move.

The Deputy Chairman of Committees (Baroness Ramsay of Cartvale)

If Amendment No.79 is agreed to, I cannot call Amendment No.80.

Baroness Hollis of Heigham

My noble friend has listened to the concerns of the right reverend Prelate. He is persuaded that when a minister asks a question and does not receive a definitive answer, or if a minister has reason to believe that one of the parties may be seeking to marry in the acquired gender, then under no circumstances should he be forced to solemnise a marriage. As we are accepting the principle of the amendment, the Government will return on Report with an appropriate amendment.

Lord Carlile of Berriew

Perhaps I may indicate the widest approval of this amendment in principle. In a contract in which the consideration, both in law and in fact, is love and affection, it seems to us that the person who solemnises a marriage should be able to enter into the ceremony fully. The intention behind the amendments is to achieve that.

The Lord Bishop of Winchester

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.80 not moved.]

Schedule 4 agreed to.

Clauses 12 and 13 agreed to.

Schedule 5 [Benefits and pensions]:

[Amendments Nos.81 and 82 not moved.]

Lord Carlile of Berriew moved Amendment No.82A:

Page 29, line 10, at beginning insert "Subject to sub-paragraph (2A), "

The noble Lord said: This amendment is extremely important. I may speak to it so briefly as to embarrass the noble Baroness, as she appears to be sucking a sweet at the moment. I hope that that is not unparliamentary language.

The amendment relates to social security and pensions. A small group of people who are female-to-male transsexuals will apply for certificates. Some of them, such as Mark Rees, for example, have made well publicised applications to the domestic courts and to the European Court of Human Rights and a number of years ago they lost their cases. They have planned their lives accordingly. That is a group of people who expect to receive their state pensions at age 60 because the state has regarded them as female until now, whereas when the Bill becomes an Act they will become male in law and, therefore, will receive their pensions at the male age.

I thank the Minister for the extensive consultation that there has been and particularly for the explanations that she has attempted to give, not all of which—this is not her fault; I am sure it is mine—I have understood comprehensively. However, I understand the situation to be that the Minister will be able to assure the Committee that the group of people to whom I refer will not be financially worse off, that they will have financial equivalence in accordance with the aims of the amendments. Therefore, I propose to leave the matter to the Minister to explain herself as she explains herself much better than I can. I hope at the end of this short debate we shall be reassured about the outcome. I beg to move.

Baroness Hollis of Heigham

Yes, as the noble Lord, Lord Carlile, said, the purpose of the Bill, and in particular of Schedule 5, is to ensure that transsexual people are given the same rights as others of their acquired gender to social security benefits and pensions. The schedule takes effect only from the point at which the full gender recognition certificate is issued. So it allows an interim period—it is worth spelling this out on the face of the Bill so that people understand—for transsexual people to consider their financial position on benefits and pensions before applying for a full gender certificate. The Government will produce guidance for applicants on the implications of recognition for benefits and pensions. That will be sent out with the application forms. In other words, we shall do our best—I was going to say our damnedest—to ensure that choice is informed choice. That is very important.

What the noble Lord has said is correct. If female-to-male transsexuals born before 1 January 1954, aged 60 to 64, were allowed to become entitled to their retirement pensions at the age and rates appropriate to women, a special category of men would be created; those whose male legal status is acquired through the gender recognition process, but none the less they would seek to draw their pensions as though they were women.

There are serious arguments about discrimination against people who have been male since birth, which is contrary to the intention of this Bill. That is the situation that we face. Given that, one could question whether someone wants a category where they would have to explain at a Jobcentre office that although they were living as a male, they were for social security purposes able to draw their pension as a female. That too would run counter to the spirit of the Bill and all the issues about privacy, data protection and so on that we have talked about.

None the less, I can help the noble Lord. The problem arises because men and women currently become entitled to state retirement pension at different ages and rates. A person who changes gender therefore becomes entitled to the state retirement pension at the age and amount applicable to his or her acquired gender. Had a male to female transsexual who is 62, remained a male he would not draw his pension until 65, but now he would be entitled to draw it from the age of 60. So at the flick of a switch, he, now she, immediately could draw the basic state pension.

Equally, if a 62 year-old she becomes a he, and has been drawing the state pension for two years, there is a switch and that person is no longer entitled to draw the basic state pension until he reaches the age of 65, as though he were male. That is why I am talking about informed choice. That comes with the consequence of changing legal identity in this way. This is in keeping with our principles.

Before I go on to explain why, I hope that your Lordships will not fear that this will lead to financial hardship as suggested, because the pension age will begin to be equalised from 2010, and that will be completed by 2020. Therefore, this problem should not exist after 2020. Men and women will have identical retirement issues, so any transsexuals will have identical treatment whether they be female to male or male to female.

There could be a problem with recognition if it led to severe financial hardship, and it could be argued that it might discourage people from seeking to do what they feel they ought to do to preserve the integrity of their identity. Let me explain why a female to male transsexual should not suffer financial hardship. A female to male transsexual will acquire all the same rights and financial support as all existing birth males have between the ages of 60 and 65.

Three options are available to them. The first is the option to go to work or to continue in work—as some will be doing—as men would do between 60 and 65, and if they are sufficiently low paid they would be eligible for the working tax credit. That applies to earnings up to £9, 000 or £10, 000 over 30 hours—very low earnings—and could be supported by the working tax credit. Similarly, they could claim job seekers' allowance, as men can between 60 and 65.

For many of them there is a more attractive alternative. All men aged 60—including in future those who have the acquired gender of male—can now instead of seeking JSA claim income support for that age group. That is because of the pension credit

guarantee—what we used to call the minimum income guarantee—which is equalised for men and women at the age of 60. All existing men can have their income support topped up to pension credit minimum income guarantee level of £102.10 per week for a single person and £155.80 per week for a couple. That happens now.

This means that if a woman decided not to go for gender reassignment and remained female, she would have a basic state pension of £77, topped up by pension credit to £102. Were she now to become a male, she would be treated like other men and be entitled to income support, which is topped up to the same figure of £ 102 pension credit. There is no requirement to seek job seekers' allowance and there is no requirement to seek work.

Therefore, in the circumstances that I have outlined, subject to the income tests related to the pension credit, the situation of male-to-female and female-to-male transsexuals should prove identical. There is also an additional allowance for disabled people—for carers' responsibilities, housing costs and so on. I hope that I have given the noble Lord the reassurance that he sought. I have taken a little time to spell out the situation because it is obviously a matter of major concern to people between the ages of 60 and 65 who may seek a gender recognition and wish to know where they stand. I hope that that is helpful to the Committee.

5.30 p.m.

Lord Goodhart

I am grateful to the Minister for making those points. However, she will accept—indeed, she pointed out—that income support is a means-tested benefit. A female-to-male transsexual may, from the age of 60, be in receipt of a modest occupational pension, which will continue. However, unless that pension is very modest indeed, he will not be able to draw income support. Therefore, while the provision may not lead to severe hardship, it is also true that someone who may have planned his retirement on the basis that from the age of 60 he would he in receipt of an occupational pension and a state pension will find that he is significantly less well off than he had expected because his occupational pension is too large to allow him to draw income support and he loses the state pension.

Baroness Hollis of Heigham

That is undoubtedly true, but I wish to make two points. First, if the individual remained female, the fact that she had an occupational pension might very well not allow her to claim the existing pension credit top-up from £77 upwards. However, secondly, I believe that basically this forms part of informed choice. My concern was to ensure that someone who was poor, who currently had access to the basic state pension, which was topped up because there was no other income, and who, as a result of being a female, may not have had access to a decent occupational pension scheme and whose basic state pension was therefore topped up to the minimum income guarantee, should not lose that money by virtue of changing her gender by law. Under certain circumstances, the occupational pension would already disqualify someone—whether male or female—from entitlement to the pension credit.

Lord Goodhart

I am sorry to return to this matter. I entirely understand that that will affect the position of people who are still at work and who recognise that, if they become female-to-male transsexuals. they will need to work until they are 65. Of course, their occupational pensions will no doubt be larger as a result when they do retire. However, a transitional problem arises for some people who may already have retired or who may have committed themselves to plans to retire and cannot increase their occupational pensions by working beyond the age of 60. Is there not a transitional problem here which should be dealt with by the Bill?

Baroness Hollis of Heigham

There is an argument on two levels. First, this matter forms part of informed choice. People may plan to draw their state pension from the age of 60 but, simultaneously, plan to change their gender identity. They do not have to go all the way to gender recognition; they can live the life and have the surgery without necessarily applying for the gender recognition certificate. If, as a result, they retain their pension entitlement, then that route may be available to them in certain circumstances. However, if, none the less, they choose to undergo gender reassignment, that is part of the informed choice obligation.

The noble Lord is right that this is a transitional problem. We shall be correcting it from 2010 to 2020. It is also the case that there is nothing to stop people who have taken retirement and are drawing an occupational pension from seeking part-time work if that is their choice. Many men and woman do so now.

However, I have to say that my primary concern was not for those who have reasonable occupational pensions and are now disconcerted to find the basic state pension taken away because they are making the change from the female to male gender. My primary concern was the hardship suffered by a person who has only a basic state pension topped up to the MIG level. As I hope I have persuaded the Committee, that person is protected under the Government's legislation.

Lord Carlile of Berriew

I am very grateful to the Minister for the explanation she has given. She has added flesh to the bones of a piece of paper in her own fair hand which I have been carrying round with me since moments after the debate on Second Reading. I now understand what she wrote—and that, I am afraid, is not merely a criticism of her manuscript.

As my noble friend Lord Goodhart has made clear, we are very concerned about this area. We will read the transcript of today's proceedings with great care and may possibly return to it on Report. For the time being, we are content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.83 to 83A not moved.]

Schedule 5 agreed to.

Clause 14 agreed to.

Schedule 6 [Sex discrimination]:

The Lord Bishop of Winchester moved Amendment No.84:

Page 35, line 9, at end insert— In section 19 (ministers of religion etc) insert at the end— (4) Without prejudice to subsections (3) and (4) above, in relation to discrimination falling within section 2A, this Part does not apply to any thing done for the purpose of an organised religion in relation to—

1. (a)the provision of training for ministry or service;
2. (b)the conferring of any such authorisation or qualification as is referred to in section 13(1) in relation to carrying on ministry or service;
3. (c)the appointment to any office or post involving ministry or service;

in the context of that religion if it satisfied the requirements of subsection (5). (5) The requirements specified in subsection (4)(c) are that the thing in question was done—

1. (a)on the grounds of the doctrines of the religion or strongly held religious convictions held by a significant number of the religion's followers; or
2. (b)in compliance with the normal rules or practices of the religion applying generally to persons seeking training. an authorisation or qualification to minister or serve in that religion.

(6) In view of the doctrines, religious convictions or other rules or practices referred to in subsection (5)(a), the person concerned failed to satisfy a requirement for the relevant matter referred to in subsection (4) or the person doing the thing in question was not satisfied, and in the circumstances it was reasonable for him not to be satisfied, that that person met the requirement. (7) In subsections (4) and (5) above, any reference to the doing of any thing include a reference to declining or omitting to do any thing. "

The right reverend Prelate said: The purpose of this amendment is to ensure that the Churches and the faith communities are properly safeguarded in acting on the basis of doctrine or deeply held religious convictions in matters of employment, appointment, selection for training for ordination and even ordination itself. I referred to the concerns about this in my speech on Second Reading, and they stem from the present legislation on sex discrimination, in the Sex Discrimination Act 1975, which also extends—by action in 1999—to discrimination on grounds of gender reassignment and indeed on grounds of marital status.

This is a very difficult and complex area, not least from the legal point of view. The present legislation applies mainly to employees, and of course many ministers of religion are not employees but office holders. However, there are some clergy and ministers who are employees; chaplains in schools, colleges and the like are normally in that position. I understand that there are also arguments for saying that part of the 1975 Act, in particular the section on conferring authorisations and qualifications, could extend well beyond employees, and that in the context of the Church of England it could, for example, cover a bishop's decision whether to ordain a given individual. This is clearly something of major importance, and we understand that other Churches and other faith communities may face analogous issues.

My Amendment No.84 seeks to amend the already amended Section 19 of the 1975 Act so as to safeguard action taken—or not taken—on grounds of doctrine or the strongly held religious conviction of a significant number of a religion's followers. It would also cover "indirect discrimination" where the religion's normal principles and practices might present particular issues for transgendered people. For example, where a religious body requires its ministers to be people who show stability in their own personal lives, it may well want to insist that, even if it can accept transgendered people in principle, they must first wait a reasonable time after the huge personal upheaval that gender reassignment involves. There are a range of other bodies—I guess that Relate would be one—in which a counsellor would be expected to stand down from counselling through a period of extreme personal upheaval.

I appreciate that Section 19 of the 1975 Act already provides some protection for organised religions, but only if they have an absolute position accepted by all their representatives, in this case concerning those who are undergoing or have undergone gender reassignment. Some Churches and some faith communities may have a substantial number of members with very real difficulties of religious principle over gender reassignment. They may not wish to seek to achieve the kind of absolute position that some other Churches and faiths have or will have, rather recognising that they are in a situation where there are genuine differences of belief and conviction among their members. It is this situation which my amendment seeks to address.

If a religious body in that position had to impose a total ban in order to obtain proper legal protection, its members might well think—and this would certainly be the case in the Church of England—that it was not in the interests of honest, open and thoughtful debate to do so. Indeed, those who wish to further greater acceptance for transgendered people would certainly not think it was helpful from that point of view.

I should also emphasise that we are not simply dealing with problems that exist already before the Bill is passed, if it is to be passed. However, if the Bill is passed the situation will become even more complicated. Churches and other faith communities will be faced with the existence of people who as a matter of law have become males—or, as the case may be, females—but whom a substantial number of people would regard as a matter of religious conviction as still being female. It is that which, for some, poses particular problems. Thus there would be a situation involving doctrinal objections regarding women's ministry as well as gender reassignment. If the person concerned were subsequently to contract a legal marriage with a person of the same "birth gender" within the meaning of the Bill, then that would give rise to even further problems for some, many or all of a number of Churches and faith organisations.

We fully recognise that framing an amendment to the Bill to deal with all these complexities is not an easy task. It is also one in which discussion between officials has already been enormously helpful. I should like again to thank the Minster for the marvellously skilled and patient collaboration of his officials with ours.

Perhaps the Minister will suggest regulations under the 1975 Act as a more satisfactory way forward. As far as the Church of England is concerned, and I guess other faiths and Churches, we would not want to close the door on any possibility for tackling most effectively what I hope the Minister will understand are real problems. However, if the Bill does become law, then I would stress the importance of having the necessary legal protection for Churches and faith communities in place as soon as new law comes into force, and not simply to wait until regulations are needed for other reasons. There could he a substantial gap in time. This is vital in practice because there is substantial evidence of the enormous drain on religious bodies' small resources that any litigation can produce. However, it is also vital in principle. We are dealing here with matters of doctrine and religious conviction. I have no doubt that the Minister and other noble Lords will agree that those are something which must he appropriately safeguarded, not least from the point of view of human rights, when we legislate in the immensely sensitive areas covered by the Bill.

I apologise for speaking at such complexity, but it is a matter of considerable complexity and considerable interest. I know that the Minister well understands that. I beg to move.

Lord Filkin

Not for the first time, I agree with the right reverend Prelate the Bishop of Winchester that these issues are extremely difficult and complex legally, morally and doctrinally. In essence, they address in what circumstances it is legitimate to allow Churches to judge that they will not, in certain circumstances, treat women, transsexuals or, even more complicatedly, men who have become women through the transsexual process. Clearly, the state has not drawn a rigid line in the sand on this matter because in previous legislation it has already taken the decision to allow Churches to be exempt in certain matters from the full force of sex discrimination law.

I have also previously indicated that it is important that, as well as providing rights to transsexual people, the Bill protects the rights and freedoms of others where appropriate and where possible.

I should mark that the focus of the Bill fundamentally concerns providing transsexual people with the opportunity to gain recognition in the acquired gender. It is not a Bill about discrimination per se. The purpose of making that point is that the amendment, understandably for the clear and important reasons spelt out by the right reverend Prelate, seeks to provide religious organisations with the freedom to discriminate against a person recognised in the acquired gender in relation to training for ministry or service ordination and appointment. Perhaps I may explain why.

I shall give, to the best of my ability, my encapsulation of where we sit legally and procedurally on this matter and I shall set out what I consider to be the best way forward. As the right reverend Prelate signalled, the provisions in the Sex Discrimination (Gender Reassignment) Regulations 1999 apply the Sex Discrimination Act 1975 to transsexual people. However, as I believe the right reverend Prelate indicated, the 1975 Act applies only to discrimination against employees and not office holders. The great majority, although not the totality, of the clergy are office holders and not employees. Therefore, to the extent that ministers of religion are office holders, in the current situation there is not a problem. That is not a full answer because obviously some are not office holders and a change is also about to take place.

As I am sure the right reverend Prelate knows better than I do, the situation will change with the introduction of the amended Equal Treatment Directive, which must be implemented by the UK by October 2005. The directive will extend protection to office holders. Exemptions will be permitted only when they reflect a genuine and determining occupational requirement to be of a particular sex.

Questions have been raised as to whether the prohibition in the 1975 Act against discrimination in, conferring an authorisation or qualification". needed for a particular profession might apply to ordination. I do not believe that we have finalised an answer or a position on that at present.

Fundamentally, I am saying that a whole process of discussion and negotiation is necessarily taking place between the Government and interested bodies about how the EU directive, which we must introduce into British law, can be implemented and whether or not there is scope for discretion on it. The Women and Equality Unit in the DTI takes the lead within government on anti-discrimination law. It is consulting the Church on the way in which it will be affected by the directive and on what exemptions may be permitted in relation to clergy, both in terms of discrimination with regard to women and discrimination against transsexual people. Any protection given to the Church in this area must be consistent with the implementation of the directive; in other words, it is self-evident that we must fulfil the obligation, although there is no obligation to gold-plate it. Therefore, we shall deal with the matter in the context of the regulation which implements the directive.

I say that that is the right place to deal with the matter, first, because one must consider the totality of the situation and, secondly, because, even if there were no Gender Recognition Bill, the Government and the Churches would have to face this issue as a result of the EU directive. Therefore, I believe that that is the right place for it to be tested.

I shall signal only that we are not unsympathetic on the principle of the issue raised by the right reverend Prelate. I hope that that has been clear as we have dealt with a number of points in the Bill. It is a question of whether it is possible to meet the wishes of the Churches while complying with our international legal obligations. I hope very much that we can take forward the discussions between officials, Ministers and the interested Churches over the coming months in that spirit. For my part, I am keen that we do so.

5.45 p.m.

The Lord Bishop of Winchester

I am grateful, as ever, for the way in which the Minister has responded and for the specific detail that he has set out. Not only in the Church of England but fairly generally in the Churches and the faiths, people are aware of where this question lies, although some may not have quite grasped it. I am grateful, too, for the Minister's clear commitment to these questions being worked at through continuing discussions between officials. I shall, of course, ask for the amendment to be withdrawn so that those can continue.

My anxiety, and that of others, relates to the time-lag in this matter. We are concerned that we may find that the Bill goes through with amendments to the 1975 and 1999 regulations, with consequent work to be done following the coming into force of the employment directive with substantial gaps. It will be very much part of my concern and that of our officials, together with, I am sure, those of the Minister to see how all that can best be managed. There are some very awkward lacunae, if not abysses, in the middle into which some people may fall.

Lord Filkin

Before the right reverend Prelate sits down, I understand the point that he makes. I believe we should consider that issue between the earliest date by which the Bill could be passed and the latest date by which the directive could come into force. We should consider it with an open mind, although I cannot guarantee that we shall necessarily find a solution. However, I respect the point that the right reverend Prelate makes.

The Lord Bishop of Winchester

I am most grateful and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 15 [Succession etc.]:

Baroness Buscombe moved Amendment No.85:

Page 6, line 13, at end insert— ( ) A person who is in receipt of a gender recognition certificate may apply to the appropriate Registrar General for any will or instrument that is available for public inspection in an office for which they are responsible to be altered such that in any copy made available to the public, or in any certified copy of that will or instrument, reference to that person's gender will refer to the person's acquired gender. ( ) Nothing in this section shall prevent a person who is named in a will or instrument from seeing or receiving a certified copy of the original will or instrument.

The noble Baroness said: This is a probing amendment by which I hope to discover the Government's intentions vis-á-vis legal documents other than the birth certificate. The result of the Bill would be that the holder of a full gender recognition certificate would be entitled to be issued with a new birth certificate, with the sex on the certificate altered to reflect the individual's acquired gender. The original birth certificate would no longer be accessible to the public and, indeed, would be suppressed in perpetuity.

All the while, however, a number of other legal documents may exist that refer to the person by his or her gender at birth. Many of those documents would be open to inspection by the public. It would not be very difficult for a suspicious member of the public, a journalist or any person with an interest in, for example, exposing a person as a transsexual to access a will or instrument that is open to inspection. I should like to know the Government's intention on that. Will all legal documents have to be altered? I beg to move.

Lord Evans of Temple Guiting

The matter of wills and succession is complex. The Government have given consideration to issues surrounding the rights of transsexual people under the Bill. The noble Baroness wishes to allow people with a gender recognition certificate to apply to have publicly available wills and instruments amended to reflect their acquired gender. We do not consider that to be necessary. Further, we believe that to do so would rewrite history.

As the noble Baroness will be aware, the Government are of the opinion that transsexual people's gender histories should, wherever possible, be a matter only for them. We are committed to securing their privacy. However, I do not believe that the ability of the public to obtain copies of wills detracts significantly from the privacy of transsexual people. Wills are indexed by testator, and someone who seeks information in relation to a particular transsexual would need to know the identity of any testator who may have left that person a legacy.

We are taking exactly the same position on other documents. For example, the original birth entry relating to the transsexual person will remain on record, although it will be superseded by the entry on the gender recognition register. A copy of the original entry may be obtained by anyone with the relevant information. In conclusion, it may also be of interest if I say that the transsexual community has not raised this matter with us.

Baroness Buscombe

I thank the Minister for his reply. I note that he suggests that my amendment would rewrite history. I believe that a number of people would suggest that the Bill is rewriting history. Therefore, I find that a difficult argument to accept. In the light of the Bill, individuals will be allowed to have a new birth certificate, and that could be argued as rewriting history.

In the same way—I believe that we are talking about the need for consistency here—I am suggesting that, if the Bill provides the opportunity for individuals to obtain a new birth certificate, in a sense it does not seem consistent if they may then be possibly exposed by other means—for example, through copies of wills.

I should like to think about this matter. I do not wish to detain the Committee further at this stage, but I want to consider the arguments that the Minister put forward in relation to wills in particular. I shall then decide whether to return to the matter on Report. In our view, the fact that, like the Minister, we have not been approached by any transsexuals on this issue is not a reason not to come forward with what we consider to be an important point. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Peerages etc.]

Baroness Buscombe moved Amendment No.86:

Page 6, line 22, at end insert— ( ) Nothing in this section shall prevent the holder of any peerage or dignity or title of honour who is in receipt of a they had inherited the peerage or dignity or title of honour in their acquired gender, and the person concerned shall have the right to require any organisation or body of which they are a member to address them by the style appropriate to their acquired gender. ( ) A person who is the holder of an order of chivalry which is limited to one sex shall after receipt of a gender recognition certificate have the right to petition for conferment of the equivalent degree of the order of chivalry appropriate to their acquired gender.

The noble Baroness said: Amendment No.86 is designed to draw out some detail from the Minister on the subject of peerages, which is explained in Clause 16. The clause states that acquiring full gender recognition, does not affect the descent of any peerage or dignity or title of honour", or the devolution of property in a will. While that has the air of the absurd about it, in all seriousness I want to ask the Minister a number of questions. For example, would a transsexual man who was a Countess become an Earl or would he become a male Countess?

Given the Bill's extensive provisions on disclosure of information and the right to privacy, surely all that would be made a mockery of if, in attempting to prevent an individual changing gender simply to inherit a title or property in a will, the Bill created, for example, a female KBE. Anyone coming across the individual's name would either become immediately aware of that person's intimate gender history or, alternatively, just become very confused. I should like to know the Government's intentions on this matter. I beg to move.

Lord Evans of Temple Guiting

We are grateful to the noble Baroness for tabling the amendment. As she says, it raises some very interesting issues with which we must cope. Although on one level it is quite humorous, it is a serious matter.

Clause 16 is intended to safeguard the rights of Peers and holders of titles of honour to retain their titles. However, it was never the intention that, for example, a male-to-female transsexual person should remain a Baron. We had envisaged that she would style herself as a Baroness. However, it has been brought to our attention that, while a person may adopt a particular form of address, the instrument which conferred the peerage or the title of honour may be somewhat less flexible.

It is arguable that a person who previously had the title of Dame Commander conferred upon her should not begin to use the male equivalent—Knight Commander—because that was not the title conferred by Her Majesty. There are issues to consider here not only about how a title is officially recognised but also about how other matters flow from the holding of a title. For example, we must consider the forms of address of a Peer's spouse and of the ex-spouse where a new gender has been acquired after marriage.

We shall be happy to bring forward an amendment on Report in order to achieve what I believe we all want. I hope that, when tabled, that amendment will meet with the approval of the House.

Baroness Buscombe

I thank the Minister for his response and, of course, I welcome his reply. Perhaps I may suggest that the Minister uses the example of a Baron becoming a Baroness. I believe I am right in saying that, notwithstanding that, in effect, women are referred to as Baronesses, in our letters patent we are Barons. I would like to take this opportunity to say that I would be extremely grateful if, when considering all of this, the discrimination between Baronesses and the inability of their husbands to take a title might be taken into consideration. Perhaps that is a matter for the Government to consider another day because the situation is somewhat confused. I am grateful to the Minister for his response.

6 p.m.

Lord Cobbold

I would just like to say a few brief words on this issue, because there seem to be many potential anomalies, especially one that occurred to me. Would a daughter of an Earl or a Lord who had inherited a title be entitled to gain that title ahead of a younger brother when the parent died?

Earl Ferrers

I was deeply surprised to hear the Minister say that the object of this clause was to preserve Peers' rights and honours. I never thought that the Government would be heard saying that. I congratulate them and hope that they will continue this happy feeling throughout all their legislation. However, the provision produces some quite curious questions. It was suggested at Second Reading that an Earl could not change his sex and retain his earldom. We should consider the matter. What happens if an Earl changes his sex and becomes a woman when he is already married to a Countess? He obviously does not become a Countess because there cannot be two. Does he retain his earldom? It would be funny to have an Earl as a woman. If he has a son and if the earldom is therefore vacant, does the son become an Earl? There would then be two earls, which would be curious. What would happen?

The Minister may say, "This is trying to exempt the peerage", but how can one exempt part of the population when the whole purpose of the Bill as I understand it is to meet the requirements of a very few people? In order to do that we have to carve out a whole lot of the peerage. Under the present Government, we have always been told that hereditary Peers are a bad thing. Why are they therefore getting this wonderful treatment? The Minister shakes his head but I am telling him a fact. What happens if a Peer changes sex and retains his peerage?

The Lord Bishop of Winchester

There is another issue that it is permissible for me to raise under this amendment, certainly in the light of one element of the comments made by the noble Baroness, Lady Buscombe. At Second Reading, I raised the question of public directories which, for the Church of England, has already occurred. There are a number—Crockford's Clerical Directory, Who's Who and a range of others, such as Debrett's, Dod's and so forth. A transgendered person made the point to us that it was an infringement of her rights that Crockford's continued to contain details of the early stages of her ministry from the existence of which it could be adduced that she had been through the transgendering process. As you can imagine, this caused some of us to spend a remarkable amount of time thinking through this issue and I am by no means sure that we have thought it through sufficiently. However, it will not just be Crockford's that will have to think about this matter.

The other point of real importance is that, if we were to remove the first half of someone's career from a professional directory—which people buy as a reputable document—what have we done in terms of the Trade Descriptions Act 1968? The alternative might be that, if such a person were determined on such a course they should not appear at all. That question relates sufficiently for me to ask the Minister for guidance.

Lord Evans of Temple Guiting

When I rose to speak to the amendment of the noble Baroness, Lady Buscombe, I thanked her for tabling it. I said that it raised a number of very interesting and important issues that the Government must consider. I said that we would go away and consider the points raised and return before Report with amendments. The past 10 minutes of discussion have shown what a challenge it will be for us to produce amendments that will make everybody happy. However, I am confident that we will. At this time, however, there is nothing more that I can say in detail. We will carefully consider all the points made and return to them on Report.

Earl Ferrers

Would the Minister also be kind enough to consider this point? There are occasions when a Peer has to prove his peerage—to come to Your Lordships' House, for example, although that will not happen very much in the future. What happens when a son has to prove that he is his father's son if his father has become a woman and has a gender recognition certificate? He is not allowed to say, "That person is my father", because he would be in danger of making a legal mistake.

Some helpful information is coming from the noble Lord, Lord Carlile. Actually, it is not particularly helpful.

Lord Evans of Temple Guiting

I am advised that the person can say that he is the son.

Earl Ferrers

If he says, "This person is my father, but he is now a woman", does that not counter the whole purpose of the Act?

Lord Evans of Temple Guiting

May I suggest, subject to any further intervention, that we take all this away and return on Report?

Baroness Buscombe

I thank the Minister for responding to my noble friend and other noble Lords. Clearly, this amendment has pointed out that the subject is a minefield. It is an important minefield. The difficulty is that the underlying purpose of the Bill as I understand it is to protect the privacy of these individuals. Therefore, there is a problem with Clause 16 as it stands. We shall look with great interest at the amendments tabled by the Government on Report and will no doubt debate the subject again. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 [Trustees and personal representatives]:

[Amendments Nos.87 and 88 not moved.]

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Scottish gender-specific offences]:

[Amendment No.89 not moved.]

The Earl of Mar and Kellie moved Amendment No.90:

Page 7, line 25, leave out subsections (2) and (3) and insert— (2) The following are relevant gender-specific offences for the purpose of subsection (1) —

1. (a) section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39) (intercourse with a girl under 16);
2. (b) section 11 of the Criminal Law (Consolidation) (Scotland) Act 1995 (trading in prostitution and brothel keeping);
3. (c) section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 (homosexual offences);
4. (d) section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (non-consensual sexual acts);
5. (e) section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (persons providing care services: sexual offences);
6. (f) any offence under section 294 of the Criminal Procedure (Scotland) Act 1995 (c.46) (attempt at crime);
7. (g) rape;
8. (h) sodomy;
9. (i) clandestine injury;
10. (j) abduction of a woman or girl with intent to rape;
11. (k) assault with intent to rape;
12. (l) attempting to commit any of the offences set out in the above paragraphs. "

The noble Earl said: I did not take part in the Second Reading debate. However, the debates that we have held over the past two days have been enlightening and I believe myself to be reasonably apprised of the fundamentals of the Bill.

All the amendments to which I have put my name have been inspired by the Law Society of Scotland. I remind members of the Committee that gender is a devolved issue in a Scottish context. However, after the previous amendment, the Minister will be pleased to hear that these amendments are procedural and constitutional in nature in that they impinge on the power of the Scottish Parliament and of Scottish Ministers.

The purpose of Amendment No.90 is to bring clarity to the Scottish gender-specific offences clause—Clause 19. The amendment would delete the rather woolly and difficult-to-recognise subsection (2) and replace it with a complete list of legislation to which that subsection refers. I have no objection to Amendment No.91, which I fully acknowledge is consequential. Indeed, I suspect that I should have added my name to Amendment No.91.

Amendment No.90 improves the Bill, but I also recognise that we may have a clash of cultures here between the culture of Westminster parliamentary draftsmen and the Holyrood parliamentary draftsmen. In the latter case, much credence is given to the avoidance of obscurity. Members of the Committee should not be surprised by that. It is inevitable that diversity in legislative style will be demanded consequent upon devolution. When this Parliament is legislating on behalf of the Scottish Parliament, through the Sewel Motion procedure, Scottish provisions ought to be drafted in the established Scottish parliamentary style. I note that the Scottish Parliament has yet to pass a Sewel Motion on this Bill. If this provision is not passed, the Bill will have to be substantially amended to write out Scotland.

Amendment No.90 has only a positive effect on the Bill. assuming that the provision will be passed. There is no distortion to the Bill except that there will be greater clarity—is that a distortion? There is a further legislative benefit. Should it come about that a piece of legislation has been omitted by error, or a new piece of legislation needs to be added, that can be done positively by amending the Act. Everyone would know about it as a result. As the Bill is currently drafted, there is no such possibility. I beg to move.

Lord Cameron of Lochbroom

I put my name to this amendment for several reasons, not the least of which is that, as the notes on the clauses make clear, there is a great distinction between the nomination of sexual offences in Scottish law which are gender-specific. The equivalent provisions can be found in the Sexual Offences Act 2003. So far as English criminal law is concerned, they were introduced in gender-neutral terms. As members of the Committee will recollect, Schedule 2 to that Act specifically sets out offences to which Section 72 applies—offences outside the United Kingdom. The Scottish offences should he set out clearly and in full on the face of the Bill.

That principle, which I regard as proper in the preparation of legislation—whether it be for England and Wales, Northern Ireland or Scotland—in the United Kingdom Parliament, should obtain in this case. Therefore, I support the intention with which the amendment was proposed. However, having put my name to the amendment, I am conscious that, in certain particulars, the nomination of the offences is not accurate. For example, "clandestine injury" in the Sexual Offences Act 2003 is fully "clandestine injury to a woman", and in, assault with intent to rape", the words "or ravish" also appear as the appropriate nominations for the Scottish offences. Other offences may also be appropriately listed. It is proper that those who may be affected by what is an important new offence should know specifically to what it applies. In my humble submission, the amendment is well founded.

The reason for tabling Amendment No.91 is that the provision would have remained on the face of the Bill even if Amendment No.90 had been accepted. That underlines the importance of having a full list because it is not entirely clear what offences would be covered. For example, an offence may be committed only by a person of a particular gender. However, in the case of rape, one can imagine a circumstance in which a woman assisted a man in the act of rape. She would be responsible, as we say, "art and part", but the man may not have been identified. She would be able to stand trial on her own account. Those are the kinds of difficulty that could have arisen from a distorted way of construing Clause 19(3).

There may be other reasons why the provision should be included in the Bill. It might best be included in the schedule. Perhaps that is something that could be looked at further. However, 1 urge the Minister to look seriously at the fundamental point that has been made. As far as Scots criminal law is concerned, it would be appropriate for these offences to he listed in full in the Bill.

6.15 p.m.

Baroness Buscombe

I added my name to Amendments Nos.90 and 91. I entirely agree with everything that the noble Earl, Lord Mar and Kellie, and the noble and learned Lord, Lord Cameron of Lochbroom, have just said. It would be otiose of me to repeat what has already been said about the amendments. I especially agree with what the noble and learned Lord, Lord Cameron of Lochbroom, has just said about having a definitive list as set out in Amendment No.94.

There is a difficulty however. The proposed subsection (2)(j) in the amendment refers to the, abduction of a woman or girl with intent to rape". I believe that that should read, the abduction of a man or boy or woman or girl with intent to rape". That is one example in which it is dangerous to be too specific in terms of the listed offences.

For the sake of consistency and clarity, however, I do not know why what was good enough for the Sexual Offences Bill is not good enough for the Gender Recognition Bill. I therefore entirely support the noble and learned Lord's amendment, with the proviso that the definitive list may not always be adequate.

The Lord Bishop of Winchester

I speak very much as someone who is not a lawyer. However, I confess that, even with a good deal of experience, I am finding some legal language very hard to construe. I had not really read this clause until these past 10 minutes, but I am puzzled by subsection (1). The more that I look at it, the more I am beginning to think that it undermines the whole purpose of the Bill. It seems to be based on a premise that those who have acquired a new gender are not fully operative in that gender and something has to be safeguarded as a result. Perhaps I am misreading the clause, but I need to be assured that the Government are not cutting off their legs with Clause 19(1).

Lord Evans of Temple Guiting

That was an interesting short discussion. As we have heard, in Scots law, many sexual offences remain gender-specific; that is to say that the gender of the victim and the perpetrator are essential elements in the definition of the acts involved. Under the Bill, once a person has been recognised in the acquired gender, criminal liability will be determined with reference to a person's acquired gender. In addition, Clause 19 ensures that, when criminal liability for a gender-specific offence exists, but for the fact that a person's gender has become the acquired gender, that criminal liability should still exist. The Office of the Scottish Parliamentary Counsel not only approved this clause but it drafted it.

The proposed amendment seeks to insert a list of gender-specific sex offences into Clause 19 in place of the general definition that the clause contains at present. The problem with using a list, as is proposed, is that, if further offences are created or the definition of existing offences is changed to include or exclude a gender specific element, the list would require amendment. The virtue of using a definition of gender-specific sex offences is that the need for future amendments is avoided.

I appreciate that the definition of gender-specific sex offences is complex. This is a complex area of the law. The definition has, however, been pored over and we are confident that it catches all relevant gender-specific sex offences as intended. I invite noble Lords to write to me if they believe that the definition offered in Clause 19 is insufficient.

The Lord Bishop of Winchester

As the Minister has invited me to do so, I shall make an attempt. In so doing, it may prove that I am wrong in my supposition.

The Earl of Mar and Kellie

I am grateful for the support from the noble and learned Lord, Lord Cameron of Lochbroom, and the noble Baroness, Lady Buscombe. The noble Baroness is asking us to rewrite Scots common law, because we cannot alter Scottish gender-specific legislation to include the abduction of men and boys. We cannot rewrite Scots common law in this Committee so her proposal is not practical. However, I thank her for her support. Those who inspired me to table the amendment will no doubt be looking forward to reading and considering what the Minister has said. In that context I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No.91:

Page 7, line 29, leave out subsection (3).

The noble and learned Lord said: I have listened to what the Minister said. I can only express a great disappointment that the Scottish parliamentary draftsmen, who probably include those with whom I used to work as Lord Advocate, prepared Clause 19(3). I shall read what has been said by the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Foreign gender change and marriage]:

[Amendments Nos.92 and 93 not moved.]

Clause 20 agreed to.

6.30 p.m.

Lord Moynihan moved Amendment No.94:

After Clause 20, insert the following new clause:

"COMPETITIVE SPORT

The fact that a person's gender has become the acquired gender under this Act does not affect—

1. (a) the rights of Governing Bodies of Sport in the United Kingdom to determine the eligibility criteria for competition,
2. (b) the rights of the British Olympic Association to determine the gender of athletes seeking selection to compete in the Olympic Games,
3. (c) the rights of the British Paralympic Association to determine the gender of athletes seeking selection to compete in the Paralympic Games,
4. (d) the decisions made by sport and recreational clubs in the United Kingdom to determine restrictions in access to changing room facilities based on their definition of gender,
5. (e) the rights of Governing Bodies of Sport in the United Kingdom to determine the gender classification of competition for hermaphrodites,
6. (f) the rights of Governing Bodies of contact sports in the United Kingdom to determine the gender of competitors,
7. (g) the rights of organisers of sporting and recreational activities to impose reasonable restrictions on the participation of people whose gender has been acquired under this Act in sporting competition and activity on the grounds of—
1. (i)safety of competitors, or
2. (ii)fair competition. "

The noble Lord said: I anticipate that, by now, Members of the Committee will be aware of my view that, without an exemption to allow governing bodies the right to determine the classification for competition, the alternative route of allowing people to change their gender with the full legal rights accorded to them under this Bill will, particularly in the case of those who do not undergo surgery, jeopardise the entire future of competitive sport.

In Amendment No.94, I have tabled a series of important rights and the protection of those rights in sport. First, I shall address the importance of protecting the rights of governing bodies of sport in the United Kingdom to determine the eligibility criteria for competition, as set out in proposed new paragraph (a) in Amendment No.94. In so doing, there are three issues to address. The status of governing bodies of sport is a critical and important issue. I am most grateful to the Minister for his courtesy in considering this matter yesterday and, if I may say so in parentheses, for his courtesy throughout the debate over this difficult issue, not least in his recent comprehensive letter to me, to which I shall return.

Yesterday, he assisted your Lordships on the question of whether a governing body was always a private body, whether on some occasions it was a public body, or whether the law was uncertain in this area. That is critical to the amendment because, in the event that all governing bodies are private entities—private clubs—then no exemption would be required to this Bill. It would be a matter for the governing bodies and the Bill would not impact on those bodies.

I put aside for one moment the important point that it is not only governing bodies of sport which organise competitions and lay down the rules and regulations for entry to competitions. Local authorities also undertake that, as do government departments. When I was Minister for Sport, I had the honour and privilege of attending their sports days in the summer. They also determine the classification for entry into male and female categories. The key issue is for governing bodies of sport.

Yesterday, the noble Lord responded on this subject by stating that I was right to say that there are circumstances in which some sporting bodies could be treated as public bodies and could therefore come within the ambit of the ECHR and the challenge under Article 8 that they are potentially infringing private lives. That is not the end of the issue. Our firm position is that, in the interests of competitive parity, a sporting body will be able to discriminate against transsexuals in that situation. That would be a defence and a rebuttal.

In the world of sports law, I have never come across the concept of competitive parity, but I await with interest the Minister's description of that concept and of where its status in law is defined. In recent years, sports bodies have increasingly been seen to be public bodies. I refer noble Lords to the work undertaken by Dr David McArdle, who looked at the relationship between judicial review, public authorities and governing bodies. He recognised that, when governing bodies have committed discriminatory acts, the courts have taken the opportunity to force those bodies to comply with anti-discrimination law.

There have also been occasions—for example, in Couch v British Boxing Board of Control and Hardwick v Football Association— when the courts have reviewed the procedural fairness of football's internal decision-making processes, not least in the case brought in 1996 involving Stevenage Borough Football Club. Moreover, it would be accurate to say that public authority is not defined in this legislation, nor in the Human Rights Act 1998. It has been left to the judiciary to determine whether a particular organisation amounts to a public authority. That means that, while the decision to regard sports organisations as private bodies for the purposes of judicial review might seem to prevent them being seen as public bodies for another purpose, they could still fall within the scope of the Human Rights Act. The idea of sports bodies being subject to human rights legislation may seem far-fetched but if the courts interpret the phrase as meaning pertaining to people generally or collectively rather than narrowly defining it as governmental or official, then most sports bodies would be covered.

The crucial point of the 1998 Act concerns the Football Association and the Jockey Club, to which I referred yesterday, and most other sports, which through their origins and the monopoly powers they possess, would, indeed, arguably be brought within the scope of a public authority. This is an interesting area of law, not least because, in the wake of the Diana Modahl affair and the treatment of James Masani and others and attempts to stymie individuals' freedom of speech, the arguments in favour of extending human rights legislation to them seems certain to come before the courts in the near future.

There is at the very least uncertainty over the definition and the role of governing bodies. There is no doubt at all that there is case law that demonstrates their role as public bodies. If we do not place the exemption on the face of the Bill, the imposition will fall on the clubs. There will be an obligation on the clubs and the governing bodies to make a decision which, arguably, could interfere with a transsexual's rights under this legislation. It could lead to a court case and to significant involvement in fees for the governing body. In my estimation, a determination would be required to prove that that action is proportionate to the legitimate aim of their decision.

This is particularly relevant and important in the context of a case which is before a Manchester employment tribunal at the present time; namely, Claire Ashton v Philip Heaton, a secretary of Cycling Time Trials. The relevance of that is the weight that the employment tribunal placed on our proceedings in this House vis-à-vis that hearing. Just a few weeks ago, Claire Ashton requested that the tribunal postpone the further hearing of the case pending the passing of the Bill that we are considering into law. That would allow Cycling Time Trials time to consider the relationship between its rules and regulations— which it recognises will have to change—and the new law. Claire Ashton was very mindful of the point that I have just made about the costs that will be incurred by governing bodies in trying to decide this issue—a cost which we can avoid by placing the exemption on the face of this Bill, but a cost which can escalate significantly, particularly when incurred by a body such as Cycling Time Trials which has a very limited resource. It is a comparatively small national sporting body and any legal action of this kind would obviously place a very heavy financial burden on it.

I must say in passing that I have been greatly assisted by the experts from Lawrence Graham in trying to get to grips with this important and difficult area of law. I recognise their expertise and I am grateful to them for their advice. The first point I want to make relating to paragraph (a) of Amendment No.94 is a critical one. Even if there is doubt, the very fact that governing bodies undertake public duties, or can be deemed to be public in the context of their role, means that the argument that has been put forward so far—that as private clubs they are outside the remit of this Bill—is incorrect. Therefore, we need to address that issue. I argue that we best address it through an exemption.

I turn to my second point under paragraph (a) of Amendment No.94. I am conscious of time. Members of the Committee will be pleased to learn that most of my remarks address paragraph (a) of Amendment No.94. This point has been politely discussed by the Minister in conversation with me and in exchanges across the Committee. I refer to the views of governing bodies. What do governing bodies think about this legislation? What representations have they made? Yesterday, in an exchange on this matter, the Minister pointed out that he himself had not—I think that I use the phrase correctly—licked the 300 stamps that led to the consultation exercise that the Government have undertaken. He, indeed, mentioned that it was the Department for Culture, Media and Sport that had undertaken that consultation exercise. I have to say that I am saddened by not hearing the view of the Minister for Sport on this subject at any stage. I am even more saddened by not seeing the evidence of what I hope was a comprehensive analysis of the 300 responses presented for the consideration of this Committee. However, the Minister asked me, in the absence of that, for any evidence that I could produce in writing.

First, I shall quote from a select number of the responses that I have. Secondly, I shall pass on the record of anything that I have had in writing. I hasten to add, using as delicate language as I can, that some of the responses I have received are rather vehement in their desire for an exemption. I am not sure that that will enhance the reputation of those organisations vis-à-vis the Government when it comes to seeking financial support for their governing bodies. I hope that the Minister will allow an exemption to be made vis-à-vis those representations.

Thirdly, I took very seriously what the Minister said yesterday. I hope that my next point will be of assistance to him and his officials. In the middle of last night I decided that the best way to take this matter forward was to host a sports summit at the House of Lords. It is scheduled for Monday 26th at 11.30. I shall invite some of the very finest minds from the governing bodies and the international federations to join us. I issue an open invitation to any Member of the Committee who wishes to attend that summit. I issue that invitation particularly to the Minister and the Minister for Sport and his officials. I hope that they will attend that event to hear the concerns of those bodies. I shall ensure that invitations are sent to them. By that time, I very much hope that the Minister will have accepted the strength of the arguments that I put before the Committee and, if he is unhappy with my amendment, will have tabled an amendment of his own to cover the exemption. Monday 26th falls shortly before the date when I anticipate that we shall pass rather quickly to Report stage. I am sure that the rumour that is circulating is completely erroneous; namely, that the Bill will be fast-tracked so that its Report stage coincides with the week in which the vote on tuition fees will take place along with the publication of the Hutton report in order to shield this very important legislation from the public eye. However, I am sure that that rumour is mere mischief in the corridors of Westminster and Whitehall.

I turn to the representations from sports governing bodies. I wish to quote short extracts from the representations of the Badminton Association of England. It states that: Competitive badminton would benefit from an exemption from the terms of this bill".

Cycling Time Trials states: Any future legislation MUST contain a clearly defined exception for sport. In the interests of fairness, we need to be able to enforce rules that ensure a level playing-field is maintained for all the competitors in an event, without the risk of being dragged through the courts and other tribunals".

The All England Netball Association states: We would totally support the exemption for sport and particularly Netball for all the reasons given in Lord Moynihan's speech. Although the International Netball Federation has not yet addressed this topic they would also support us in our view".

The Football Association states: The participation of transgender athletes in their acquired gender could threaten the fundamental requirement of a 'level playing field' in sport. We would have to consider mixed football rules if male to female transsexuals are allowed to compete in female football—mixed football is currently prohibited by the FA rules for players over the age of 10 due to the comparatively greater physical strength of male players—disparity in strength levels would in our view lead to increased risk of physical injury. Dope testing of transgender athletes would be extremely problematic. The Bill is potentially in conflict with the Sex Discrimination Act under section 44, which allows the restriction to one sex where the strength and stamina of the average woman would put her at a disadvantage to the average man. The issue of changing facilities is a management issue—we believe the individual concerned would be personally responsible for upholding standards of behaviour in changing rooms".

The British Judo Association states: Whole-heartedly in favour of an exemption from the terms of the Bill to ensure the future of competitive sport is assured. Although the female competitors are every bit as good in technique, there is still a substantial gap between the levels of strength and it is not possible to mix elite male and female players of a similar weight in sparring or competitions. There is a substantial gap between the female under 70 kg world champion and the male under 66 kg world champion—any fight between the two would be potentially dangerous for the under 70 kg women—the risk of injury would be unacceptably high".

The Motor Sports Association states: The Bill does not directly impact on motor sport as we presently do not discriminate between genders in competition. This may change with the introduction of 'Formula Women' to be launched in 2004. Issues of changing rooms are mainly for the venue operators to resolve".

The Royal & Ancient Golf Club states: The R&A is most definitely in support of an exemption for competitive sport for the obvious reason of fairness to competitors".

The Ladies Golf Union states: We are in full support of an exemption for competitive sport, without such an exemption, the Bill would potentially have a detrimental effect on ladies' competitive golf. We think that 'competitive sport' however should include all levels of competition—from grass roots to elite level".

The Rugby Football League states: We would support the proposition that competitive sports and team sports especially, should have an exemption from the Bill".

The Amateur Swimming Association states: An exemption for sport at this stage would be helpful—imagine the impact on swimming, and god forbid synchronised swimming. FINA have not even considered this issue as we have asked them to do".

The Lawn Tennis Association, have already argued for an exemption in the Bill. The legal recognition of the acquired gender of transsexuals (particularly male to female transsexuals) would in all probability give the transsexual an unfair advantage in terms of strength, stamina and physique".

I end this small sample of quotations with a quotation from the English Volleyball Association, which states: The EVA board and Committee would not be supportive of the Bill as it would allow for 'unfair' competition".

In summary, the Central Council for Physical Recreation, which represents 265 bodies of sport and recreation in this country, relayed verbally its position to me this morning. It stated: We are in full support of an exemption within the Bill for sport. Lord Moynihan has our full backing with regard to his proposed amendment".

I have not yet come across a governing body of sport in this—

Lord Carlile of Berriew

In order that the noble Lord's remarks relating to the Central Council for Physical Recreation are correct, does he accept that it has also said, we are removing ourselves completely from the ridiculous attitudes"— I merely quote— of Tebbit and Co (so is Moynihan) and believe that the Bill is in itself a good thing (excellent move to more liberal attitudes); it is just the problems that it will create for sport that are an issue"?

6.45 p.m.

Lord Moynihan

I am most grateful for that intervention in one respect above all others. Many people genuinely understand the reason why there needs to be a sensitive approach to transsexuals. They have a genuine and reasonable approach to the issue of transsexuals within the law but nevertheless argue equally strongly for an exemption for competitive sport. That is a pertinent and important intervention and one that is useful to place on the record although I distance myself from the definition of the contribution of my noble friend Lord Tebbit to our proceedings which to date have been heartfelt and helpful in the consideration of the various clauses that do not relate to competitive sport. That concludes what I consider the fairly foolproof argument for paragraph (a) of Amendment No.94.

Paragraph (b) of Amendment No.94 is specific to the British Olympic Association. Here there is an interesting development. The International Olympic Committee has recognised the difficulty of' defining male and female. The IOC medical director, Patrick Schamasch, recently argued that, following the removal of gender testing at the time of the Sydney Olympics, the IOC is keen to move towards a position where it will have no discrimination and that it will respect the human rights of transsexuals. What is interesting about the position of the IOC, which, incidentally, is not finalised at the present time—the International Olympic Committee will meet in February to consider the whole question further—is that the IOC medical director, Patrick Schamasch, has stated that transsexual athletes will be eligible for the Olympics once a certain amount of time has elapsed after their sex change surgery.

Here you have within the IOC at the present time I emphasise that the IOC has yet to reach a firm conclusion on the matter—already a markedly tighter definition than the requirement in the Bill. Why is that? It is because the IOC accepts sex change surgery as a condition for recognising a transsexual for potential competition in the new sex. The Bill does not require sex change surgery. I was sympathetic to the medical case described yesterday in which a transsexual who has moved from being a man to a woman—and who might want to have the surgical operation to move from one gender to another but could not—would nevertheless have the full 'weight of this law behind them. They would receive their certificate whilst having the body of their previous gender; namely, a man. That has not been covered by the International Olympic Committee nor is it envisaged that that individual would be able to compete in the Olympic Games. It is a far, far tighter definition.

I emphasise that the IOC has yet to reach a final view on this matter. It is receiving reports. I understand that those reports will be presented to the International Olympic Committee delegates next month.

The position of the British Olympic Association is very clear. The British Olympic Association's position is that it is governed by the IOC concerning participation at the Olympic Games. The British Olympic Association states: The IOC still has no official position on the issue of transsexuals". The International Olympic Committee has status in the world of sport only for two weeks every four years. It is the British Olympic Association that needs the exemption because within the United Kingdom that association is in charge of all our Olympics preparation and the selection of the team that competes in the Games.

For that reason, in this difficult area of determining what is a man and what is a woman for the eligibility of competition in the Olympic Games, I would strongly argue that that role and responsibility should be undertaken by the International Olympic Committee as it concerns eligibility for its competitions. The British Olympic Association should thus have its rights respected in ensuring that it determines the gender of athletes selected for either male or female competition in the Olympic Games.

Paragraph (c) of Amendment No.94 refers to the paralympics. In my view the paralympics are just as important as the Olympic Games. I believe that to date they have received far too little consideration regarding publicity and the importance attached to them in the context of the 2012 bid. I hope that they will receive far more consideration in those regards. This country has some of the finest disabled athletes in the world and we should appreciate them to a far greater extent than we do. However, for the purposes of the amendment, the British Paralympic Association has stated: We should advise that competitive sport needs to be exempted from the requirements of the Bill. We would have grave concerns over the protection of vulnerable adults and children and the implications for volunteer supervisors in the world of disability sport, in particular in relation to the issues presented by a pre-operative individual". I am quoting selectively but on no occasion have I failed to reflect the views of a governing body that has written to me or contacted me in favour of this legislation. However, in the interests of time, I give a brief summary of the views of a number of governing bodies. In the context of paragraph (c) of Amendment No.94 it is important to recognise that the British Paralympic Association should continue to determine the gender of athletes seeking selection to compete in the paralympic games. The best way of ensuring that is to place an exemption on the face of the legislation.

Paragraph (d) of Amendment No.94 comprises a sensitive issue. I look forward to hearing the Minister's comments on that paragraph. Many sport and recreational clubs in this country—indeed, throughout the United Kingdom—have very real difficulty with regard to the provision of changing rooms if this legislation is enacted.

I would like to quote someone. I hope that in so doing Members of the Committee will not react negatively or over-emotionally to what I am about to read. It is from a top sports person who wrote not to me but to someone else in the sport, and she requests to remain anonymous. She states: I am writing to let you know how I am getting increasingly extremely angry with a certain competitor. I am not the only person to feel like this. Imagine my absolute horror yesterday morning as we arrived and I went for the ladies' toilet, and who was in there at 8.30 preening itself in front of the mirrors. From that moment on I almost dropped my handbag in shock. I felt under extreme pressure for the rest of the day. It has put me increasingly in a very embarrassing situation. I felt I was being watched all day. I came out with an enormous headache". There is a genuine issue here. There are those who understandably will respect their gender change, be sensitive to it and respond accordingly. I would have thought that that would refer to the overwhelming majority of transsexuals. But in sport there is a problem, especially under this law, with transsexuals who have behind them the full weight of the law to change in female changing facilities and yet they have a male body or what is traditionally perceived to be a male body; in other words, their gender prior to the reception of the certificate for change.

Mothers, children and daughters use the women's changing facilities. At present there is a real problem among competitors, as I have demonstrated. We should not make light of the difficulty that that creates in the immediacy of sports clubs the length and breadth of the country, many of which have very limited resources. It is impossible simply to ask them to create another two changing rooms and many would regard that as completely unreasonable.

In many circumstances it is possible to ensure sensible arrangements are achieved. But there are issues and incidents, even before this legislation is enacted. The one example that I have given shows that it is very important that we leave sports clubs and governing bodies of sports the right to ensure that sport and recreational clubs determine their own restrictions on access to changing room facilities based on their definition of gender.

In Amendment No.94, paragraph (e) deals with, gender classification of competition for hermaphrodites". That is a probing amendment for this reason: in making this case I do not want to lead the Committee to the conclusion that this is not an extremely difficult issue when it comes to determining the sex and thus the eligibility for different classifications of competition; namely, male and female. It is enormously difficult. It cannot be done simply on the basis of chromosomes. The International Olympic Committee recognises that. It is not just a matter of the simplicity of XX or XY chromosomes. There are XXY chromosomal people. It is not just a matter of testosterone levels. Some women have very high levels of testosterone, in addition to those who undertake gender reclassification, and there are competitors who have very high testosterone levels.

Equally, it is not possible to match chromosomal patterns with testosterone levels and oestrogen levels. One would probably achieve a fair definition of what conventionally would be determined as male or female for fair competition by matching those three, but the issue is enormously difficult for any governing body to undertake. Each and every governing body in making that assessment will have different criteria because of the differences between sports. There is a huge difference between the criteria necessary for fair competition in a contact sport, as opposed to fair competition in darts.

I table this not so much—I anticipate that the Minister will not immediately accept the amendment carte blanche— to emphasise that this is a big problem for sport, but it is a problem that sport has to address. It is better left to governing bodies to determine fair and reasonable classifications for competition within their sports. The sentence, which is one of the Minister's great historic sentences, in his letter to me reads as follows, considering this issue, it is important to note that it is not for sport to define male and female". I would strongly argue that that is precisely what sport must do. Sports bodies must define who may and may not compete in male and female sporting competitions. as the Minster went on to note. In defining who competes in either a male or female competition, by definition that sport, that governing body, must take a view as to whether someone is male or female. They must have regulations and, if necessary, supporting tests to satisfy their ability to make that distinction.

Lord Filkin

Just in case it assists to shorten the debate on this clause, the issue is not that sporting bodies need to go into the business of deciding whether someone is male or female. They must decide how to uphold competitive parity. That is the issue.

Lord Moynihan

But it is the issue. You cannot uphold the principle of competitive parity —whatever that principle is—if that means fair competition. I am with the Minister completely. You cannot uphold fair competition unless you define what is required to enter the men's 100 metres in the Olympic games as opposed to the women's 100 metres. I have said in my comments on paragraph (e) of Amendment No.94 that that is enormously difficult. It is so difficult that it has caused the International Olympic Committee not to test for gender after the Sydney games, although it is now coming back, having reflected on the matter, to what is fair. One cannot state that one is not going to test for gender at all unless one is prepared for a total free-for-all. That would be a nonsense in sport.

If you are not going to test on the basis of gender, you must classify for fair competition, for "competitive parity", a high testosterone event, or a low oestrogen event, or some form of classification to make competition fair. Unless you have that distinction, it is unfair for women to compete in open events against men. It is clear that there would be no fairness in many sports—certainly the strength sports and any of the athletic sports that I can think of—to make it totally open competition. Surely nobody in this room is seeking to persuade the International Olympic Committee to abandon the male/female distinction when it comes to open competition. We are seeking, I hope, to enable the International Olympic Committee and all governing bodies to have reasonable rules to ensure fair competition.

By providing them with an exemption, they can then determine those rules, put those rules to the test and ensure the continuation of fair sport. That is why I have put down the exemptions in paragraphs (a) to (e) of Amendment No.94. Paragraph (f) of Amendment No.94 focuses on the obvious dangers. It is an obvious safety issue with regard to contact sports. I quote the Football Association. I know that the Government rightly take great cognisance of what it says. I made it clear earlier that the personal safety issue in the context of football means that allowing male to female transsexuals to compete in female football would involve our having to consider mixed football rules. We would have no argument for prohibiting it. The disparity in strength levels would unarguably lead to an increased risk of physical injury. It is vitally important that all governing bodies recognise that their principal role is that of the safety of the competitors whom they control, to manage events and to provide the opportunity for fair and safe competition.

In paragraph (g) of Amendment No.94 I summarise that and go one step further. One cannot simply exclude governing bodies. Sport is not just run by governing bodies. I mentioned local authorities at the beginning of this short assessment of what is a comprehensive subject on which I could speak for much longer if we had time, and the importance of events run by government departments.

I would say with all the minimal persuasion that I can muster that, should the Government be in agreement with me about what I have said, there is no better way to demonstrate that agreement than by placing an exemption in the Bill. The principle of exemptions in the Bill is accepted—with regard to inheritance and the Monarchy, for example.

The principle of exemption is there, and I would argue that it is vitally important that we exempt competitive sport, more than any other part of society that I can think of. If we do not do so, we are adding a huge burden to the governing bodies of sport, and not only to prove their case before the courts if anyone with a certificate turns up. We immediately give primacy, with regard to all public bodies, for anyone who comes away from this legislation after two years with a certificate that they have acquired a new gender to insist that they can compete in that new gender in that sport, irrespective of the rules that are placed there for fair competition by the governing body. That is unacceptable. I beg to move.

7 p.m.

Lord Goodhart

We support the principle behind the amendment, although we would not regard this particular amendment as the appropriate one to include in the Bill. We believe that an exemption should be clearly placed on the principle in particular of competitive parity, and for safety.

There is an obvious problem with male to female transsexuals, because the evidence suggests that they retain to some extent, even after surgery, the advantages given by the male physique in most athletic sports. However, unconditional exemption should not necessarily be given to governing bodies. For example, I can see no reason why a female to male transsexual should not be eligible to compete in a men's golf tournament if they are able to qualify. Therefore, while we support the principle of competitive parity, we believe that the amendment goes further than is appropriate in some respects.

Baroness Buscombe

I fully support my noble friend's amendments, and I can merely repeat what he has already said. I find it extraordinary that the Bill as currently drafted protects the status quo with regard to succession and peerages and the devolution of property, but not something so important as competitive parity. I hope that the Government will listen to my noble friend on the amendment.

Lord Filkin

This is one of the not totally unique occasions when there is an agreement on objective but a debate about whether there is a problem in practice. The agreement on objective is that we are foursquare with the noble Lord, Lord Moynihan, the noble Baroness, Lady Buscombe, and the noble Lord, Lord Goodhart, on the fundamental importance of maintaining fair and safe competition. I shall not give a long speech about the importance of sport in our society, but clearly fundamental to that is the ability to have a sense of fair competition.

I do not believe that the problem as advanced by the noble Lord, Lord Moynihan, is quite of the extent or extremity that he has expressed, but I do not want to incite him to give me further evidence at this point in our proceedings. No doubt we shall have opportunities to have further discussions.

I also mark that sporting bodies have a problem, as he said, irrespective of the Bill. There is a problem of transsexuals in our society. I do not by that mean to imply that the problem is transsexuals; the problem is how to ensure competitive parity while recognising that some people are transsexuals. The issue is not caused by the Bill but is one that sporting bodies at international, national and local level are already addressing to varying degrees. However, in the evidence that I read, it was interesting how many national sporting bodies had not specifically engaged with that issue. It is an issue, but it is not necessarily at the top of their agendas, although that does not mean to say that it is irrelevant.

I shall set out, I hope not too lengthily, the Government's position on the matter. We believe that maintaining competitive parity, or fair and safe competition, is fundamentally important, but we are not convinced that there is a problem. I shall set out the law briefly as we see it, leaving that open as an opportunity for further engagement—perhaps not tonight, but it is a genuine invitation. We want to know whether people believe that we are wrong in our judgment that there is not a problem. Our ears are wide open.

Section 44 of the Sex Discrimination Act provides a broad exemption for any act in relation to any sport in which women are on average at a disadvantage. That broad exemption ensures that men have no right to participate in women's events, but it also allows single-sex sports teams not to employ transsexual team members when it is a reasonable response because of unfair competition or safety. Therefore, that section already provides for sporting bodies that are not public bodies—and I underline that point—to make judgments about whether competitive parity or safety would be infringed by allowing a transsexual person to be engaged, whether or not they had a legal gender recognition certificate. Therefore, they are totally at liberty to make a judgment not to allow a person to compete, if they can demonstrate its reasonableness, which in many sports they would easily be able to do.

The judgment of the ECHR on Goodwindoes not require the enactment of a general prohibition on discrimination against transsexual people. All it requires is legal recognition in the acquired gender and a right to marry in that gender; the Bill will not give transsexual people the general right to participate in sport in the acquired gender.

The noble Lord, Lord Moynihan. is correct in saying that some sporting bodies will be public bodies. When and if they are, they will engage ECHR. If that happens, Article 8.1 is engaged, concerning the right to a private life. There is a consensus that the ability to participate in sports is seen as part of a right to a private life. However, Article 8.1 is governed and limited by 8.2, which essentially allows interference with Article 8.1 when it is for one of the legitimate aims set out there, which is protection of health and the rights and freedom of others.

Our position, and the position of many others, is that because Article 8.2 explicitly governs Article 8.1. there will be occasions when safety will clearly be engaged—for example, in judo. Therefore, it is legitimate for a sporting body in such circumstances to refuse to allow a person who was, for example, a male to female transsexual, whether or not they have been given a gender recognition certificate, to participate in a sport as a consequence.

The other limb of Article 8.2 is the issue about rights and freedoms of others. The right of a woman to be able to compete in sports on a fair basis is a perfectly proper right, to be protected by Article 8.2. Therefore, in a situation in which a sporting body was a public body and when the physical advantage of a male to female transsexual, whether registered or not, would put a woman at a disadvantage in competitive parity, it is perfectly possible for that sporting body to discriminate against a transsexual as a consequence under Article 8.2.

Restrictions imposed by sporting bodies would be justified provided that they were proportionate to the need to ensure fairness of competition and safety. I am not stating, and nor would anyone who was sane, that that is completely at large: clearly with reference to a tiddlywinks competition, those issues would not be engaged. However, we are talking about the sort of example that the noble Lord, Lord Moynihan, mentioned. The issue is one of seeking to have a dialogue with those sporting bodies and explaining to them why we do not believe that they are at risk as a consequence of the law. In other words, the law is there and the issue is there for sporting bodies to face, whether or not the Bill is passed.

We intend to publish guidance on the issues, as that will he helpful to sporting bodies. We shall ensure that the guidance is published in draft, as usual, well before the Bill is enacted, so that they can see it and consider the issues.

I apologise for having spent some time setting our position on the law, but this is essentially an issue about the law and whether there is a hole in the law that causes an anxiety for sporting bodies. I respect the importance of those concerns and anxieties, and we welcome those bodies, if they wish to, to have further dialogue with us about those issues. We shall also consider further representations from them on the issues.

I am in the Committee's hands, as I could put on the record a response to paragraphs (b) to (g) of the amendment. If the noble Lord wishes me to do so, I shall be pleased to do it On the other hand, I could write to him and set out why we do believe those aspects of the amendment are unnecessary, copying the letter as ever to Opposition Front Benches. I have focused on the first part because I believe it to be the heart of the issue, and the issue that matters most to him. If he would like to intervene at this point, I shall defer to him.

Lord Moynihan

I am conscious of time and the will of the Committee to make progress and preferably to complete at the end of this second day. Therefore, I am more than happy to accept the kind offer of the Minister to write to me on the specifics of the issues relating to paragraphs (b) through (g), especially given the fact that I fundamentally disagree with his interpretation of the substantive point. That is why we shall return to that point in later stages of the proceedings of the Bill.

The Lord Bishop of Winchester

I am grateful to the Minister for his courtesy, as ever. I have listened with great care to the Minister's fascinating response to the still more fascinating disquisition given by the noble Lord, Lord Moynihan. The reason why I listened with such interest was because what I was hearing was the recognition of the importance for our society of comparative parity and the preparedness of the Government to put some restrictions, by implication, on the crucial phrase "for all purposes" in Clause 9. If the Government are doing that—and if they give way on that point to competitive sport, as it seems to me they must, and not on the institution of marriage—they will have a great deal of explaining to do, not only to the churches and the faiths but more widely in society.

Lord Filkin

I admire the adventurous busking that came in at that point, and I note it. I do not wish to excite the optimism of the right reverend Prelate; I was not signalling that we thought that there was a need to add anything to the Bill in that respect. I was saying why we believe that the current law gives adequate protection to sporting bodies.

I shall go slightly further and mark that, if the argument is that some sporting bodies are public bodies—which we agree—and that the Human Rights Act is engaged, writing things in the 1301 will not disengage the Human Rights Act. I leave that as pause for thought. Having said that, I conclude by saying that we are happy to look at further representations and to consider the issue further before we get to Report stage.

Lord Moynihan

I thank the Minister for his response. As I said, I fundamentally disagree with some of his interpretations. The Bill is clearly in conflict with the Sex Discrimination Act under the exemption under Section 44. I need only read Clause 9(1) to underline that point. We shall need to return to that.

I have never argued that, by putting an exemption on the Bill, the governing bodies would be exempt from the human rights legislation. On the contrary, I have argued that not only will they be clearly within the remit of that legislation but they will have the duty to deal with those cases that are difficult and which are prevalent in sport today, and will he in future. It will create a status quo for governing bodies, which will have to deal with the issue. Putting an exemption in the Bill would emphasise that they should continue to deal with the issue rather than entering the legal minefield that would be created, not only by the conflict with the Sex Discrimination Act but on the other issues that the Minister raised.

The one item on which I do agree with him is the concept of proportionality. In the context of human rights legislation, that will be a very important one for sport. I am grateful to the Minister and the other Members of the Committee for being so patient, and look forward to returning to the issue in detail on Report and Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Prohibition on disclosure of information]:

7.15 p.m.

Lord Cameron of Lochbroom moved Amendment No.95:

Page 9, line 3, after "disclosure" insert "made— (i)

The noble and learned Lord said: The amendment is grouped with Amendment No.96 in my name. These amendments were suggested by the Law Society of Scotland, and I am happy to take them up as probing amendments. I start from the premise that this clause creates an offence and that it is proper that the limits of the offence and any defence should be set out as clearly as possible for the sake of certainty.

The nature of the offence in subsection (1) is in the form of a prohibition against disclosure, with the important words, "to any other person". Subsections (2) and (3) deal, respectively, with protected information and the person who is subject to the prohibition in subsection (1).

Subsection (4) sets out the conditions under which disclosure is not to be regarded as an offence. The conditions vary: paragraph (a) refers to identity paragraph (b) to agreement to disclosure; paragraph (c) to the ignorance that a full gender recognition certificate has been issued; and paragraph (d) to disclosure, in accordance with an order of a court or tribunal".

Paragraph (e) also deals with that, but paragraph (f) relates to disclosure, for the purpose of preventing or investigating crime".

It is as bald and short as that. Unlike paragraph (g), it does not actually state to whom the disclosure can be made, and it is in that regard that I raise the matter.

When one is dealing with the issue of prevention or investigation of crime, the two institutions most narrowly involved are the prosecuting authorities or the police. Clearly, disclosure should be to as few people as possible. I submit that it is proper in principle that the limits to such disclosure should be, so far as possible, stated in the Bill in paragraph (0, so that one is clear what the offence is and what the defence may be to the disclosure.

Amendment No.96 would nominate the two persons in each of the two criminal jurisdictions who are responsible for prosecution—that is, the Attorney-General and the Lord Advocate—and for the police investigation, the chief constable. It is for those reasons that I suggest that it is proper that the terms of paragraph (f) should be extended to make it clear to whom the disclosure should be made in very special circumstances for the purpose of preventing or investigating crime. I beg to move.

Baroness Buscombe

I have added my name to that of the noble and learned Lord, Lord Cameron of Lochbroom, in relation to both amendments in the hope of probing the Government and pressing them to set out more clearly the permitted exceptions to the offence of disclosing protected information about a transsexual person.

I entirely agree with all that the noble and learned Lord, Lord Cameron of Lochbroom, has said thus far. The importance of subsection (4)(f) cannot be over-emphasised. It permits disclosure for the purpose of preventing or investigating a crime. As the Minister said in his Second Reading speech, there is no reason at all to believe that a transsexual person is any more likely to commit a crime than anyone else. However, the fact that he has acquired a new gender and birth certificate could, if we are not careful, make it easier for a criminal to cover his tracks.

Sadly, we know only too well of cases in which criminals have tricked the authorities as to their identities with far less than a brand new birth certificate. It is essential that it is as easy as possible for a police officer investigating a crime to be fully informed of an individual's identity history. On the other hand, I accept that there must be limits on who is able to access the information.

In short, we believe that subsection (4)(f) is too loose. It must specify the identity of the recipient of any disclosed information. Amendments Nos.95 and 96 would provide one way in which to do that, and I look forward to hearing the Minister's response on this important aspect of the Bill.

Baroness Hollis of Heigham

I hope to be extremely brief. The Bill provides a prohibition against disclosure of a person's gender history when that information is acquired in an official capacity. However, it also stipulates a range of exemptions that reflect legitimate public policy objectives—for example, preventing or investigating a crime. The noble Baroness has only to remind us of the change of name in the Soham case to illustrate the problems that that can generate.

While I agree with the spirit of the amendment—that disclosure of protected information should be permitted only in limited circumstances and that the privacy of transsexual people should be protected as widely as possible—the clause as drafted already fulfils that purpose. It limits the reason for disclosure, which means that it is unnecessary to specify individuals or organisations. It is also worth bearing in mind that the prohibition on disclosure applies to each person who acquires the information in an official capacity. Therefore, a police officer who acquires information about a person's gender history may disclose that information only under the terms of Clause 21—for example, when that onward disclosure is itself for the purpose of investigating a crime or when it is for the purpose of proceedings before a court or tribunal. The clause therefore provides a powerful safeguard for the privacy of transsexual people.

Lord Cameron of Lochbroom

I am grateful for the support that I obtained from the noble Baroness, Lady Buscombe, in this matter, and for the explanation given by the Minister. I shall consider what she has said. I accepted at the beginning that this was a probing amendment to discover whether it was possible to restrict the terms of the paragraph by setting out those to whom information should be passed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.96 and 97 not moved.]

The Earl of Mar and Kellie moved Amendment No.98:

Page 9, line 9, leave out paragraph (i).

The noble Earl said: This is a paving amendment for Amendments Nos.102 to 104, to which my name is added. The group is designed to remove from the Bill the opportunity for both the Westminster Secretary of State, in Amendment No.102, and Scottish Ministers, in Amendment No.103, to make regulations that will create further circumstances under which disclosure is exempt from the criminal offence provisions.

Subsection (4) is drafted to give a wide and broad-ranging list of the circumstances that will be exempt from the criminal offence provisions. It is difficult to conceive of circumstances in which either the Westminster Secretary of State or the Scottish Ministers would require to use regulations to expand the exemption provisions. Therefore, subsections (5), (6) and (7) would seem to be unnecessary. I beg to move.

Lord Cameron of Lochbroom

I have put my name in support of the amendments, to discover what the circumstances could be in which any such orders are as suggested in subsection (5) could arise. I do that against the background of subsection (4), in which the purposes for which such protected information should be disclosed are clearly set out—in paragraphs (f) and (h), for example. Furthermore, there is provision in paragraph (j) for disclosure, in accordance with any provision of, or made by virtue of, an enactment other than this section". So Parliament will have the opportunity to expand on the circumstances in which disclosure may take place.

For those reasons, I support the amendment. I should say that some reference to subsection (4)(i) was made in the course of a debate on Amendment No.60, relating to the concerns about passing information between two individuals for a certain purpose of onward transmission. It might be that, when one looks at the terms of subsection (4) and the reference to purposes, that if that was passed with that intent and it should go to the investigating authority into the crime, neither person would be caught in passing on the information.

Lord Goodhart

Disclosure is a matter of great sensitivity to transsexual people, and it is right that it should be restricted. There is a strong case for saying that disclosure should be made only for reasons set out in the Bill. However, even if one does not go as far as that, and even if it is accepted that there may be circumstances in which orders made under subsection (5) are required. In that case, it seems clear that orders under that subsection should he upgraded from the negative to the affirmative procedure. No amendment is standing for that purpose in the Marshalled List today, but that is something that we may well wish to table at Report stage.

Baroness Buscombe

I add my support, and I have added my name to the amendments. It would be otiose of me to repeat the comments of other noble Lords, but I add my voice on one aspect. Paragraphs (a) to (j) already cover such a broad range of circumstances that it is wrong to give the Secretary of State that additional leeway.

Baroness Hollis of Heigham

I do not believe that saying. "It is wrong for the Secretary of State to have additional leeway" reflects the reality of the situation. Legislation changes and circumstances change. Even in the course of today, following our discussions with the right reverend Prelate and the noble Baroness, Lady O'Cathain, we have taken the discussions forward on issues such as ministers for other religions, which we may need to include in the legislation.

The first argument relates to flexibility. If one insisted on having only those things in the Bill, it would restrict one's capacity to respond as other issues arise. We shall consider the issue of whether the process should be done through negative or affirmative procedure, and we shall study the implications.

The second point is that the Government's proposal to handle the matter in this way is, as I understand it, fully in accord with the recommendations of the Delegated Powers and Regulatory Reform Committee. I would therefore suggest that. the Committee having fully scrutinised the matter, the Government are wise to have that capacity to engage in extending the range without seeking to amend primary legislation—doing it by regulation. Let us look again at whether it should be affirmative or negative legislation.

The Earl of Mar and Kellie

I thank those who supported the amendments. I thank the Minister for the two points she has just made. We will be looking at that between now and Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Baroness O'Cathain moved Amendment No.99:

Page 9, line 12, at end insert", or (k) the person making the disclosure believed it to be in the public interest

The noble Baroness said: Again I rise to move an amendment tabled by the noble Lord, Lord Tebbit. He asked me to express his apologies. He had to take his wife to hospital today and was therefore unable to attend the Sitting.

We return again to Clause 21, which may turn out to be the most difficult part of the whole Bill, because it actually makes it a criminal offence to talk about a person's true sex. If you acquire information about a person's true sex in an official capacity, you can be prosecuted in the magistrates' court and fined £5, 000 if you tell anyone. People may say that civil servants and people like that are in positions of great public trust and are already under all sorts of confidentiality restrictions, so what is wrong with Clause 21? What is wrong with it is that it does not apply just to civil servants; it applies to voluntary organisations and to private employers. In no way are these people in the same category as civil servants.

A mosque may be regarded as a voluntary organisation. If an imam is approached by a person in his congregation about having a sex change, why should he be made a criminal for talking about it to others? He may want to tell his friends who are imams in other mosques in the area. He may know that they feel just as strongly as he does that it is immoral to try to change one's sex. Should he really he fined thousands of pounds for talking to his fellow imams and giving them information which they need in order to preserve their religious integrity?

What about employers? They have to give references for previous employees. What if Bob Smith were absent from work for months and finally resigned from the employment as part of his transition to becoming Barbara Smith? One may feel very strongly that what he was doing was wrong. Aside from the fact that he had not been doing his job for months, you may see his actions as having a devastating impact on his wife and children and you might have very strong views about that. What happens when his next employer writes saying, "Please provide us with a reference for Barbara Smith. Please make particular reference to your assessment of her honesty, her ability to work as a team player and her reliability"? The employer may well have difficulty in honestly answering those questions without mentioning the sex change.

The employer may object strongly to having to write a letter referring to him as "her". He may, in all conscience, simply not feel able to lie by sending a letter calling Bob, "Barbara". Yet if the reply is honest and refers to the historical reality that, "When Bob Smith worked with us he held a post in the administration department", you have broken the criminal law.

The Government have clearly not thought this through. The Bill enshrines a kind of selfishness that says that the only person who matters when someone is having a sex change is the transsexual and everyone else has no locus. That really is not good enough. My noble friend Lord Tebbit says that his Amendment No.99 takes a broad approach to the issue of disclosure and allows it "in the public interest". That would at least give a person hauled up before the magistrates the opportunity to make out a defence if he can show that he believed there was some public interest in his disclosure.

"The public interest" is an existing legal concept with which the courts are used to dealing. I wait with interest to hear what the Minister has to say about this proposal. Specifically, I should like her to say what she thinks Bob Smith's employer should say in his reference. I beg to move.

Lord Carlile of Berriew

I should like to say a couple of things about this issue. The first is that I am astonished by the suggestion that an imam would regard something said by a member of his congregation as less confidential than anything said by any other members of a congregation to their priest, their rabbi, or, for that matter, their doctor or their solicitor. This is a relationship governed by confidentiality. Frankly, whatever example one chooses, we have no business to be talking to other people about the private business that is disclosed in that way.

My second point is that the amendment does not seek to provide a public interest defence. It seeks to provide a subjective public interest defence. That is an extraordinary proposition, which would drive a coach and horses through many of our notions about public interest defences. If the noble Lord, Lord Tebbit, wishes to attempt to place a public interest defence on the face of the Bill, he should do so; but this is not it.

Baroness Hollis of Heigham

I am so glad that I was here to listen to the comments of the noble Lord, Lord Carlile. I have to say that—and I do not mean this disrespectfully—I was astonished at amendments which seemed in an ethical sense to be wrecking amendments to the concept of the Bill: that someone might gossip about someone else, simply because he thinks that it may be of interest to another person. I could not, and I am sure that the noble Baroness, Lady O'Cathain, does not, believe that to be a legitimate public interest defence of any sort.

We have carefully drawn up what we mean by public interest. We know that—for example—under Article 8 it obviously includes our national security. It is about the economic wellbeing of the country; the prevention of disorder and crime; the protection of health; and the protection of the rights and freedoms of others. Except for that, there can be no public interest defence. I think it would wreck the Bill if anyone who thought they might have a public interest in this could gossip maliciously or otherwise to other people. There would be no point in the Bill.

Baroness O'Cathain

"Do not shoot the messenger", I suppose one should say.

Baroness Hollis of Heigham

We drew that distinction.

Baroness O'Cathain

There is serious point here. I have a great deal of sympathy with the point about references. It will put people in a very difficult position. I know that there are people who say, "Once someone leaves your employment, it does not really matter what kind of reference you write". Having been in receipt of some of those references and employed people, I know that this is a very nasty habit that is creeping into our management practices in this country by virtue of the fact that people want to be litigious and sue on anything. So it is an issue that bears consideration. What does someone do in those circumstances? I should be grateful if the Minister could give me her feeling off the top of her head?.

Baroness Hollis of Heigham

In so far as we are talking about names, Robert Smith—an employer—can and should refer to his former employee by reference to his current identity. This is the new name set out in the gender recognition register. It is as though someone had changed their name by deed poll.

Perhaps the noble Baroness is pressing a deeper issue, such as to what extent the employer should be free to discuss the medical condition and history and so on. That is protected information.

Baroness O'Cathain

I thank the Minister. I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

[Amendments Nos.100 to 104 not moved.]

Clause 21 agreed to.

Clause 22 [Power to modify statutory provisions]:

The Earl of Mar and Kellie moved Amendment No.105:

Page 9, line 27, after "State" insert "after consultation with such persons as he sees fit"

The noble Earl said: I apologise to the Lord Chairman for me being a little dopey. Amendment No.105 is of a constitutional nature. It imposes a requirement on the Westminster Secretary of State in order to bring in some parity with the Scottish Ministers.

Clause 22(2) requires the Scottish Ministers to go through a process of consultation before tabling amendments to this legislation. That consultation is the procedural requirement of the Scottish Parliament. Amendment No.105 has the effect of imposing the same requirement to hold the consultation process before proposing amendments to the legislation upon the Westminster Secretary of State.

Clause 22(1) as drafted allows the Secretary of State to modify the legislation by order without a statutory process of consultation. Not only do I believe that it is unwise to have procedural diversity in this circumstance, but I also believe that it would be very wise for us to legislate now for such a process of consultation. I beg to move.

Lord Goodhart

Amendments Nos.107 and 109 in the names of my noble friend Lord Carlile and myself are grouped with this amendment. These are amendments that I would not in any event wish to press at a later stage in the Bill and in view of the time I do not propose to speak to them now.

Lord Evans of Temple Guiting

I shall be very brief. The amendment proposes that the power should be exercised only after the Secretary of State has consulted such persons as he sees fit. This is an entirely sensible and important safeguard and I shall bring forward a government amendment on this matter at Report stage.

The Earl of Mar and Kellie

It is not often that amendments proposed by me are described as sensible. I shall very quickly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Orders and regulations]:

[Amendments Nos.106 to 111 not moved.]

Clause 23 agreed to.

Clause 24 [Interpretation]:

[Amendment No.112 not moved.]

Clause 24 agreed to.

Clause 25 [Commencement]:

On Question, Whether Clause 25 shall stand part of the Bill?

7.45 p.m.

Baroness Buscombe

Clause 25 sets out the commencement procedure for this Bill. My opposition to the Question whether the clause shall stand part is intended to probe the Minister further on an issue which we discussed at Second Reading and which, indeed, we discussed briefly yesterday—that is, the timing of the Bill compared with the time at which the provisions set out in the civil partnerships Bill will be enacted. I have to say that the Government are slipping into the habit of getting ahead of themselves. Indeed, another Bill in your Lordships' House is currently creating huge powers for regional assemblies, and that is before the Government have held any referendums to decide whether the regions want them.

With this Bill, the Government are asking people to divorce in order to receive a full gender recognition certificate before the provisions are in place for them immediately, or almost immediately, to enter into a civil partnership—in fact, before the Bill has even been printed. Originally, I had in mind an amendment which stated explicitly that the Bill would not commence until the provisions of the civil partnerships Bill were in force. However, I was unable to name a Bill that had not yet been presented to Parliament.

After Second Reading, the Minister kindly sent me a letter saying that it was up to individuals to choose. If they want a minimal gap between marriage and civil partnership—I quote from the Minister's letter— it will be for a married transsexual person to decide whether to wait for the implementation of civil partnership proposals". But what if those never happen? What if parliamentary resistance is such that the Government are forced to abandon the Bill? Surely that would leave the people whom we have been discussing over the past two days in relation to the Gender Recognition Bill in A terrible limbo. What will happen? I beg to move.

Lord Evans of Temple Guiting

We have acknowledged the powerful arguments for allowing married couples to move smoothly into forming a civil partnership where one partner has changed gender. I do not believe that anything is gained by preventing transsexual people applying for gender recognition until a civil partnerships Bill is enacted. After all, there are very many unmarried transsexual people. We estimate that there are around 5, 000 such people in the UK. Of those, groups representing the transsexual community suggest that only between 100 and 200 are in existing marriages.

Even for transsexual people who are in existing marriages, this Bill does not force them into applying immediately. The individual is in control of the process. Therefore, a married transsexual person is perfectly free to wait until civil partnerships are enacted before making an application to the gender recognition panel.

Baroness Buscombe

I thank the Minister for his reply. However, my key point is that we should ask what would happen if the civil partnerships Bill never came into force. Let us suppose that the Bill, for whatever reason, falls. In that case, in my view, there would be a serious problem because the individuals who might wish to go ahead and seek gender recognition would do so on the understanding that they might then be able to enter into a civil partnership arrangement. However, if that Bill does not become law, there will be a problem.

I know that the Minister is correct in saying that a minimum number of people would be affected by the legislation, but the fact that it is a minimal number does not negate the problem. I do not wish to detain your Lordships this evening, but I believe that it is a serious challenge to the Government to appreciate that it is difficult for noble Lords to accept that the Gender Recognition Bill should come into force when the civil partnerships Bill is, to date, merely a wish and a hope. Can the Minister respond to that point?

Lord Evans of Temple Guiting

We are obliged to give rights to transsexuals. We cannot deny all transsexuals recognition because of a possible delay in relation to civil partnerships. Is it not purely hypothetical that the civil partnerships Bill will not become an Act?

Baroness Buscombe

Personally, I hope that it is hypothetical that the civil partnerships Bill will not be enacted, particularly in the light of the Gender Recognition Bill. However, I believe that I have put the Minister in a difficult position here because he obviously cannot guarantee that the civil partnerships Bill will be enacted. However, I hope that he accepts that, in some senses, we are jumping the gun here. I understand that the problem may be that the civil partnerships Bill is not ready, but I do not consider that to be a good reason for moving ahead with this Bill before that one. The hour is late. I know that we want to progress quickly and, for the time being, I shall not oppose the Question whether the clause stand part.

Clause 25 agreed to.

Clause 26 [Applications within six months of commencement]:

Lord Goodhart moved Amendment No.113:

Page II, line 8, leave out "six" and insert "12"

The noble Lord said: In moving Amendment No.113, I shall speak also to Amendment No.114 in the names of my noble friend and myself.

Clause 26 provides for fast-track applications to be made within six months of commencement of the Act. It can be relied on only by people who have already, prior to commencement, lived in their new gender for at least six years, as opposed to the two-year minimum for standard applications. However, in return, Clause 26 makes it easier to satisfy the evidential requirements. It is obviously intended to simplify the recognition procedure for those who underwent treatment in the more distant past—although it is not exclusively for them—and have lived in their acquired agenda for a long time.

The six-month time limit is very short. Transsexual people who could have applied may not become aware within that time that a fast-track procedure exists or that it is subject to a six-month time limit for making an application. Amendment No.113 extends the basic time limit for fast-track applications from six months to 12. I accept that some time limit is necessary, but I can see no reason why it needs to be shorter than 12 months.

Amendment No.114 allows a panel to hear an application which has commenced after the basic period has elapsed if it is satisfied that the applicant has a reasonable excuse for not applying within that period. For example, the applicant may be someone who has lived in his acquired gender for many years but who is, at the time of commencement of the Bill, working abroad and does not return to the United Kingdom and become aware of the new rights until the end of the basic period.

Amendments Nos.113 and 114 both leave necessary the fulfilment of the condition of a six-year life in the acquired gender prior to the commencement of the Bill. I believe that these amendments will make life easier only for people who are in fact entitled under Clause 26 to make the fast-track application. They prevent them losing that right because of extraneous circumstances outside their control. I cannot see that either amendment will do any harm to anyone. I therefore beg to move.

Lord Evans of Temple Guiting

From speaking with various members of the transsexual community, I am aware that they wholly agree with the noble Lord, Lord Goodhart, that the six-month cut-off point for applications under the fast-track scheme is viewed by some as a short period. I wish to give more consideration to this matter. I shall explore whether it is possible to ensure that the modified application process for those who have lived in the acquired gender for six years is available over a longer period. I am especially mindful of the position of transsexual people who are in existing marriages. They may need additional time to consider their situation in order to make arrangements for their spouse or any children of the family.

Between now and Report stage I shall explore this matter and, if possible, I shall table an amendment at that stage to enable, among other things, longstanding married transsexual people to take advantage of the fast-track process concurrently with securing the civil partnership. I shall consider whether the time limit should in fact be extended beyond the period suggested by the noble Lord.

Lord Goodhart

I am most grateful for that undertaking. I assume from the responses that have been given that the Government do not look kindly on Amendment No.114. However, obviously there has been a supportive reaction to Amendment No.113. I look forward with interest to seeing the Government's amendments. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.114 not moved.]

Clause 26 agreed to.

Remaining clauses agreed to.

Bill reported without amendment.

The Committee adjourned at four minutes before eight o'clock.