§ 11.32 a.m.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
My Lords, I beg to move that this Bill be now read a second time.
The Gender Recognition Bill is a part of the Government's commitment to reforming the constitution so that it better meets the needs of all people. It also reflects our commitment to social inclusion. It is essential that no one is left behind as we create the conditions for a credible and effective modern democracy. There is a strong tradition of legislation in this country that has sought to respond to the concerns and needs of minority groups, whether these be ethnic minorities, people who are disabled, or now, with this Bill, transsexual people. I believe that this is a reformist tradition of which we can be proud.
Our commitment to further developing a culture of rights in this country is exemplified by the introduction of the Human Rights Act 1998. The Gender Recognition Bill continues the process of "bringing rights home". The Bill provides transsexual people with the opportunity to gain the rights and responsibilities appropriate to the gender in which they are now living. Transsexual people, at present, live in a state of limbo. Their birth gender determines their legal status, even though they may have lived fully in the opposite gender for many years.
The absence of legal recognition is no mere technicality. For example, a person who is now living as a woman may take out motor insurance in her new name. That would seem the natural thing to do. If, however, she has an accident, she risks prosecution for driving without insurance and for fraud, as her legal status is still determined by her gender at birth. She is therefore faced with little choice but to take out insurance under her previous name, in the gender to which she no longer feels she belongs. She then has to explain, every time she has to produce her insurance documents, why there is a discrepancy between those documents and the reality of how she presents to the world.
These are extremely personal matters. Yet transsexual people, because of the disjuncture between their birth gender and the gender in which they are now living, have to describe their gender history to 1288 complete strangers. The Gender Recognition Bill will ensure that this intensely private matter can remain private.
The Bill is the product of much thought and consultation with stakeholders over many years. The Interdepartmental Working Group on Transsexual People, set up in 1999, published its report in April 2000, and that work led to the publication of a draft Bill on 11th July 2002.
The Gender Recognition Bill has also been influenced by the judgments of the European Court of Human Rights. The court, in interpreting the European convention, now a part of UK law, has stated that a system for recognising transsexual people in their acquired gender must exist and that transsexual people must be granted their rights under Article 8, the right to respect for private life, and Article 12, the right to marry.
The Law Lords, in the case of Bellinger, concurred with the view that transsexual people ought to have a means of marrying in their acquired gender. Their Lordships stated that transsexual people do not have that right at present and legislation will be required to ensure that they do.
The draft Bill has been subject to pre-legislative scrutiny by the Joint Committee on Human Rights. The Joint Committee received submissions from a wide range of sources, and I am grateful to the committee for its report. The Government have now responded to this report and copies are available in the Library. We have not accepted all the recommendations of the Joint Committee. However, I am glad to note that the Joint Committee has welcomed, as the report puts it,the Government's determination to deal with the very difficult problems faced by people in this field".The Gender Recognition Bill proposes to provide legal recognition in the acquired gender to those transsexual people who have taken decisive steps to live fully and permanently in that gender. The effect of legal recognition will be that a transsexual person gains the rights, and responsibilities, appropriate to the acquired gender. For example, a person will be able to marry in the acquired gender; a person's entitlement to benefits and pension will be determined according to the acquired gender; and a new birth certificate will be issued to those with UK birth register entries. In order to ensure that the privacy of transsexual people is protected, the Bill will ensure that a new birth certificate does not reveal that a person has changed gender.
The first section of the Bill sets out the criteria for application and the process by which applications will be determined. The Bill proposes the establishment of a gender recognition panel to determine all applications. The panels will consist of legally and medically qualified members. Schedule 1 sets out some of the detail of the proposed practice and procedure of these panels. My department has been consulting extensively on this process. Our aim is to create a process that meets the needs of those who will be 1289 entering the process, transsexual people, and those who will be providing evidence as a part of the process, medical professionals.
An application for recognition in the acquired gender will be considered according to four criteria. The person must have or have had a gender dysphoria, the recognised medical condition that drives a transsexual person to live in the opposite gender; must have lived in the acquired gender throughout the preceding two years; must intend to continue to do so until death; and must comply with the evidence requirements under Clause 3. The criteria are designed to establish whether a person has taken decisive steps to live fully and permanently in their acquired gender. That must be the test for legal recognition in the acquired gender, not whether the person's physiology fully conforms to the acquired gender, nor whether the person "looks the part".
The Bill must also account for the situation of transsexual people who are in an existing marriage. Such marriages will not be able to continue. The Joint Committee on Human Rights recommended that existing marriages should not have to end. However, there is an issue of principle at stake here. Marriage is an institution for opposite-sex couples. After recognition in the acquired gender is attained, if existing marriages could continue, these would become marriages between same-sex couples. The Government are not going to change the fundamental nature of the institution of marriage in this way.
What the Bill provides, however, is a simple mechanism whereby an individual who has decided to seek recognition can dissolve his or her existing marriage. We are concerned to leave the individual in control of this process and to tackle the practical difficulties that ending an existing marriage may create. If a married individual applies and is successful in their application, they will receive an interim gender recognition certificate. This certificate will provide the basis for a new ground for dissolution of the marriage, provided in Schedule 2. On dissolving the marriage, the court will substitute a full gender recognition certificate for the interim certificate.
In that way, the Bill proposes to avoid the situation where a married applicant first has to end his or her marriage and only then learns whether or not his or her application meets the criteria. The process provided in the Bill eliminates the potential for that vulnerability and allows a person to plan his or her affairs. When dissolving the marriage, the court will also be able to deal with practical matters, such as, for example, the sharing of pensions or making provision for children of the family.
The Government will also be bringing forward legislation on same-sex civil partnership in this Session. If that legislation is enacted, a couple who have to end their marriage to allow one party to gain recognition in the acquired gender will be able to enter into a civil partnership. The couple will be able to acquire again a legal status for their relationship, with legal rights and responsibilities. As the civil partnership legislation is developed, the Government 1290 will seek to minimise the time between the marriage ending and the civil partnership commencing. We expect to minimise it to one day.
The second section of the Bill outlines the consequences of the issue of a gender recognition certificate. Once a certificate has been granted, a person's gender becomes in law the acquired gender. The Bill proposes to provide transsexual people with access to the rights and responsibilities appropriate to their acquired gender. That change of gender is, however, prospective only. The Bill does not rewrite history.
Clause 10 and Schedule 3 are critical. Following a successful application for recognition, the panel will issue a certificate. The Registrar General will then create a new record in relation to the individual in the gender recognition register. A birth certificate in the new name and gender recorded on the gender recognition certificate can then be issued from the new record. The link between that new birth certificate and the original birth certificate will be confidential.
There has been some speculation in the media over the past few days on the implications of the Bill for sport. Frankly, I have been puzzled by some of what has been said. Let me make it clear that it will not be possible for a man simply to declare that he is of the opposite gender and then compete in women's competitions. A person seeking recognition in the acquired gender will have to apply to the panel, and a gender recognition certificate would be issued only if the panel were satisfied that all the criteria were met.
Further, and perhaps even more fundamentally, the Bill does not bring transsexual people into existence. Sporting bodies already deal with the issues raised by the participation of transsexual people. As part of the process of developing the Bill, more than 300 sporting bodies were consulted. Nothing in the Bill forces sporting bodies to allow transsexual people to compete in their acquired gender. In fact, the Bill allows sporting bodies the flexibility to deal with the issue in the way each believes most appropriate to its own circumstances. Sporting bodies already do that.
Other countries already have systems for recognising a change of gender, and their sporting bodies have been doing that, too. There may well be considerations of safety or competitive parity, and guidance will be published to enable sporting bodies to make informed choices about how best to treat transsexual people within the context of their sport.
Finally, Clause 21 prohibits the disclosure of information about a person's application for gender recognition or about a successful applicant's gender history. That information is to be protected whenever it has been acquired in an official capacity. The prohibition on disclosure is essential as the positive effect of allowing a person to change gender in law would be greatly diminished if, at the same time, there were to be widespread and indiscriminate access to the fact that the person used to be of another gender.
The Government do not accept that all people need to know whether a person who has recognition in the acquired gender used to be of another gender. The 1291 relevance of that intensely personal fact is questionable, and the distress or embarrassment that a transsexual person may suffer at its disclosure is considerable. However, there will of course be instances when the previous identity of an individual is relevant. Clause 21 therefore sets out the limited circumstances in which disclosure is permissible, such as for the purposes of prevention or detection of crime.
I present to the House a Bill that seeks to provide transsexual people with the opportunity to enjoy the rights and responsibilities appropriate to their acquired gender and to leave behind the vulnerable position which they presently have to endure. The Bill provides a long-ignored minority with social justice, legal rights and a place in our evolving democracy. I commend the Bill to the House.
Moved, That the Bill be now read a second time.— (Lord Filkin.)
§ 11.44 a.m.
§ Baroness Buscombe
My Lords, it gives me pleasure to make it clear straight away that in principle—I stress "in principle"—we on these Benches are supportive of the Bill. We believe it is right to confront the issues that it raises, so that changes can be made in the law to bring about great improvements in the lives of Britain's 5,000 transsexuals.
I am, however, concerned that the Government may be attempting to play down the Bill and to give it a low profile. Why did the Government choose to exclude it from the gracious Speech, despite the fact that it was clearly part of the immediate legislative agenda? The day before State Opening, I was asked for diary availability for Second Reading before Christmas Recess, yet the following day there was no mention of it in the gracious Speech. What was the reason for that? I advise the Minister that there is nothing to hide in the Bill, which if we get it right—I emphasise that—can bring great comfort to a section of society that has been so badly affected by living, hitherto, in limbo.
It is to the great credit of the Joint Committee on Human Rights that it has considered with care a number of key aspects of the Bill in draft form, as set out in its 19th report of the 2002–03 Session. The Bill raises a number of serious issues and begs a number of important questions and concerns that remain to be answered by the Government. Probably one of the most difficult issues to resolve is the potential effect on a marriage and the children of a marriage given that, as the Bill is currently drafted, where a person is married and then changes his or her gender, that change will not be fully recognised as long as that person continues to be married. The simple notion of introducing legislation to insist, in certain circumstances, on divorce or annulment of a marriage goes very much against the grain. That said, we on these Benches have never supported the legalisation of same-sex marriages.
The Bill makes provision for an interim certificate to be issued while the person is still married. What happens if the individual wants to stay married? Will 1292 the interim certificate expire after a time? Will it be renewable? I note that the Joint Committee on Human Rights states in its report that it is,troubled by the submissions which draw attention to the distress caused to parties to a marriage and their children, who still form part of a close and loving family group, by the idea that the marriage would have to be annulled or dissolved before the applicant's change of gender could be legally recognised".Will the civil partnerships Bill contain provisions similar to the French Pacte Civil de Solidarité, which enables two people to register their union and then, three years later, enjoy the statutory rights afforded by that registration? I note that the Minister said today that he was hopeful that there would be just one day between divorce or annulment and the ability to enter into a civil partnership arrangement, but that still raises the question of what happens during that day. That is an important question of principle that we need to consider further.
Can the Minister throw a more focused light on the Government's intentions with regard to the timetabling for bringing the Bill into force, and how that relates to the timing of measures introduced in the civil partnerships Bill? I note that he said that he was keen for that Bill to be brought into law this Session. At the same time, however, I know that the usual channels have had some difficulty agreeing whether that Bill should have pre-legislative scrutiny. If it did, that could considerably delay its introduction. If there is a significant delay before that Bill, that will clearly have implications for those couples forced to divorce to permit one of the pair to obtain a full gender recognition certificate.
There are also fundamental issues of human rights in the Bill, affecting individuals who have not themselves undergone a change of gender but may have their rights compromised by a person who has changed gender. For example, it will be possible for an individual to change their gender without undergoing an operation for a sex change. That person will then be quite within his or her rights, as we understand it, to, for example, share a prison cell, nurses' quarters or sports changing facilities with others of their chosen gender. Even though there is treatment to modify sexual characteristics, should we not consider the feelings of those with whom that person shares very private areas? Whose human rights take precedence? How does one judge in individual circumstances what is balanced and proportionate? It is very difficult for all concerned.
I know that my noble friend Lord Moynihan will be focusing upon the impact that these measures will have on participants in sports. In response to the Minister's comments on sport, I say straight away that we fundamentally reject his arguments. I know that my noble friend will be able fully to illustrate why. The potential outcomes have not been thought through in the Bill.
There are numerous additional points to which we on these Benches would like a response from the Minister. For example, can he set out to the House, for the sake of clarity, the new arrangement for birth certificates? Precisely what documents will be kept in 1293 the transsexual register? And what will appear in the register of births that is open to the public? How will an individual entitled to track down the original certificate—for example, a police officer conducting a criminal investigation—be prompted to look in the transsexual persons' register if they have no suspicion that the person concerned is a transsexual?
Clause 21 makes it an offence for a person who has acquired protected information under the measure in an official capacity to disclose that information to any other person. However, Clause 21(4) provides certain exemptions to that offence. Those provisions are by no means clearly drawn. In particular, it is not an offence for a person to disclose protected information if, under Clause 2l(4)(f),the disclosure is for the purpose of preventing or investigating crime".There is no procedure stated on who should inform the person holding the information of how an assessment can be made of whether a crime will be prevented, or what "investigating" means.
In addition, Clause 21(5) provides that the Secretary of State may by order prescribe circumstances in which the disclosure of protected information will not be an offence. Furthermore, what will be the criteria for issuing further birth certificates for those who wish to resume their original gender? Given the fact that the Bill allows for a clergyman to refuse to marry a person in his or her acquired gender, would it not be sensible to allow ministers access to original birth certificates where there is a dispute, deception or suspicion?
I am anxious to hear what safeguards are in the Bill to prevent encroachment on religious freedom. I am sure the Government understand that some people, many people, will continue to believe that a person remains the sex designated at birth in the eyes of God, even if the law states otherwise. Those law-abiding citizens have strong beliefs. May those individuals find themselves pursued in the courts as a consequence of their unwillingness to recognise and associate with transsexuals? Would the Church be breaking the law by refusing to ordain transsexual priests?
Can the Minister confirm that the minimum age of legal access to the transgendering process remains 18? For the Bill to be effective, the "acquired gender" of an individual must be taken to be his or her sex for the purpose of all other legislation. I understand that that is the Government's intention and I welcome the changes made to Clause 9(1) to make that more explicit. But, I would welcome reassurances from the Minister that—with particular regard to the Sex Discrimination Act 1975—the Government view the Bill as sufficiently clear in that respect and beyond possible misinterpretation.
I am also keen to hear the Minister's reasons for rejecting the call in the Joint Committee on Human Rights report to rectify the law, which currently permits discrimination against a transsexual in the fields of education, housing and the supply of goods 1294 and services. As I understand it, the committee heard significant amounts of evidence detailing ongoing discrimination in those fields and the Bill would seem to be the natural place to rectify that. Will automatic annulment of marriage be legally available where one of the partners is transgender? I suspect that other noble Lords will have more questions and concerns to put to the Minister. In particular, I am looking forward to hearing the comments of the noble Lord, Lord Chan, who is an eminent paediatrician; and the perspective of the right reverend Prelate the Bishop of Winchester.
In conclusion, I stress that it will not be enough for the Minister to say that we should accept the Bill because it will affect only a small number of people. The measures involve some important principles of law, so we must proceed with caution. Whatever the outcome, I believe it is equally important in all our debates on the Bill that we approach the many issues with care and compassion for those for whom the measures are intended.
§ 11.55 a.m.
§ The Lord Bishop of Winchester
My Lords, the Bill places me in two dilemmas, the first especially pressing. There can be no argument about the acute, distressing and chronic effects of gender dysphoria upon those who suffer with it; so they should clearly have the greatest possible sympathy and assistance from others—especially from the Churches. They should be free to live as fully as possible in their acquired gender confidently and without what they may experience as discrimination, let alone molestation. Indeed, some, and some of their medical advisers, assert that it is a necessity for their fullest health. Yet, and I quote Lord Reed,what is possible has to be decided having regard to the interests of others (so far as they are affected) and of society as a whole (so far as it is engaged), and considering whether there are compelling reasons, in the particular context in question, for setting limits to the legal recognition of the new gender".With many other Christians across the whole range of the Churches, with many of other faiths and with many others, it seems that there may be such "compelling reasons" on both of Lord Reed's counts for opposing a number of the Bill's provisions including that described by the Government in the Explanatory Notes as its "fundamental proposition".
My second dilemma has to do with the legal position in which both the Government and your Lordships' House find themselves. It appears that we are bound by the European Court of Human Rights judgment in Goodwin and by the Government's acceptance of it; yet if I may dare to say, as a layman with regard to the law, that judgment seems to leave a good deal to be desired in the quality and comprehensiveness, and so in the cogency, of its argument.
My basic point is that nothing in the judgments of the Court of Appeal, or of your Lordships' House, in the case of Mrs Bellinger, and nothing in Goodwin— and I have re-read all three this week—seems to me to present a cogent argument that a person's sex can be 1295 changed. So I cannot agree to "for all purposes" in Clause 9(1), the Bill's "fundamental proposition", which will especially permit people to marry in their acquired, recognised, gender. Their noble and learned Lordships admit in different ways that that is to change irrevocably the fundamental character of marriage in UK law:Marriage according to the law of this country is the union of one man with one woman".That is proclaimed by the plaque on the wall of every register office. To change fundamentally that character of marriage will have incalculable effects down all the years to come.
If the Bill becomes law as it stands, the words "woman" and "man" will no longer have the meaning that everyone, including the law, has always assumed. Whatever their protestations the Government will have introduced marriage of two people of the same sex. And as the noble and learned Lord, Lord Hobhouse, notes at paragraph 74 of the House of Lords judgment:once you make this change, how do you, in a non-discriminatory way, deal with mere cohabitees or with homosexuals of the same gender?".Yet there is no section on page 16 of the Explanatory Notes to this Bill about its effects on marriage, arguably the most critical building block of a healthy and fruitful society; just as there is no consideration of marriage in the risk assessment section of the consultation document on civil partnerships.
Therefore, I am grateful for the presence in the Bill of paragraph 3 of Schedule 4, which gives to those bound by law to conduct the marriages of parishioners an exemption on grounds of conscientious objection. I much appreciate all the patient contact between officials of the DCA and of its predecessors and those of the Archbishops' Council. I also appreciate the two meetings that I have been able to have with Ministers—one 14 months ago with Roman Catholic and Evangelical Alliance colleagues, and one a month ago with the noble Lord the present Minister.
However, how will clergy of the Church in Wales or of the Church of England or anyone else, whether Roman Catholic priest, Rabbi, Imam or Baptist minister, who, on grounds of belief, cannot conduct the marriage of two people of the same sex, know the truth about the person who has approached them for marriage? Must there not be added both a requirement that a person of acquired gender, seeking to marry, discloses that fact about himself to the person whom he is asking to conduct the marriage, and a right in conscience for those other than the clergy of the Church of England and the Church in Wales to decline to conduct such a ceremony? And should not such provisions also include registrars, who do such a critically important job so well? Without such a provision, shall we see registrars threatened with dismissal on account of their beliefs, like the social workers who were not prepared to further adoptions by same-sex couples?
1296 Staying with the Government's responsibility to support, honour and defend marriage, I am glad to find myself agreeing with the Joint Committee on Human Rights, the Equal Opportunities Commission and the noble Baroness, Lady Buscombe, about Clause 5, with its requirement of divorce or annulment before a full gender recognition certificate may be issued. However, I believe that I may differ from all those in what I am about to say.
As the Minister knows, I have seen the letter to another bishop, copied to the noble and learned Lord the Lord Chancellor, from a couple who have worked through the enormous pain and upheaval in their marriage caused by the gender dysphoria of one of them. They are desperately distressed by the implications for them of that provision, and, to my knowledge, they are not the only married couple in that position.
In the Government's mind, the provision safeguards the possibility of creating a same-sex marriage. The Minister has already laid that out. However, to me, that is already the effect of the Bill. But I believe it also follows that that is not the effect of honouring such a couple's commitment to their marriage because the sex of the party recognised as having an acquired gender has not, in fact, been altered. Nor will it do to say, as has been said elsewhere and as the Minister said this morning, that such a couple should be permitted a fast-track entry into a civil partnership. That is not what they committed themselves to, perhaps many years earlier, and it is not the equivalent of marriage.
There is, too, deep anxiety in the Churches and the faith communities about their human rights in matters of employment, appointment, selection for training for ordination and ordination itself and its various equivalents. I was grateful that those points were raised in outline in the speech of the noble Baroness, Lady Buscombe. What conscientious rights and safeguards will there be for bishops and their equivalents in other Churches and other faiths—and for whole congregations in those Christian and other bodies where the whole congregation makes an appointment—where,male and female created He them".is held to be intrinsic to the community's beliefs? That goes not only for Christians but for Jews and Muslims, too, and where ministers and others are required to exemplify the community's teaching.
It is not enough to say that degree certificates and the like will not, under the present form of the Bill, be retrospectively altered. Some already want to see provisions of that kind added. As the Bill stands, to whom may such information be disclosed? And what about professional directories and the like— Crockford's Clerical Directory in the case of clergy—if the publisher is obligated not to include elements of the public history of the individual before she or he began to live in the acquired gender and name? What of the expectations and rights of the purchaser and user of the directory?
1297 In Clauses 2 and 3, the Bill is more widely drawn— I understand why—than, for example, Goodwin, which requires the recognition only of post-operative transsexual persons. How will that work out in practice in matters and places of employment, leisure or sport? And is it the Government's intention to make provision for those who may, at some later point, feel compelled to seek de-recognition, as some will?
As we know, the Government are not seeking to legislate in these extraordinarily delicate and complex matters only on account of the distress of those who suffer this disability and who, with their supporters, understandably long and press for the fullest recognition in their acquired genders. They are doing so following the judgments, to which reference has already been made, of the Court of Appeal in 2001, of the ECHR in 2002 and of your Lordships' House this year. All three— but the last, it seems to me, largely on the basis of the second—point towards the overturning of the judgment in Corbett v Corbett (otherwise Ashley) 1970.
The last two of the three—the ECHR and your Lordships' House—rely largely on the medical evidence given to the Court of Appeal. However, that court appears to have heard evidence only from three experts, who broadly agreed with each other, and from none who would have offered contrary expert advice. None of the three courts gives any recognition to the fact that these are still highly controversial, contested matters, as I understand it, within the medical professions.
The judgment in Goodwin, on which the Government appear bound particularly to rely is, to me, in parts a frankly shocking read in its unjudicial one-sidedness. The court, quite unbelievably, heard no advocate for marriage as it considered—again, I quote Lord Reed—whether there are compelling reasons… for setting limits to the legal recognition of the new gender",and before it decided to put much weight on what I considered to be the limp-wristed view that,marriage has changed, [it] is not what it was".I hope that the Minister will be able to tell me, too, the status of the Charter of Fundamental Rights of the European Union and who gave it that status. In its paragraph 100, the court places some reliance on Article 9 of the charter and on the "no doubt deliberate" difference between its wording and Article 12 of the convention.
Others will speak in this debate and in the Bill's further stages from the standpoint of other Christian Churches, other faiths—some of us have received a very concerned briefing from a representative of the Islamic Medical Association of the UK—and of sporting and other bodies. I must, too, own that at later stages there could be different views to mine expressed from these Benches.
I repeat my agreement that those who suffer from gender dysphoria should have the greatest possible sympathy and assistance—from the law as well as in other ways. Therefore, I deeply regret that it seems that neither the ECHR nor some of our own learned, and 1298 noble and learned, judges or the Government have grasped the significance for society of what this Bill is attempting or its profound significance for marriage and, thus, for the health of millions of individuals and our society down the years to come.
§ 12.9 p.m.
§ Baroness Gibson of Market Rasen
My Lords, I am very pleased to follow the very thoughtful and helpful contribution of the right reverend Prelate. I know that in the future we shall discuss many of the points that he has raised today.
This has been a good week for me. For the second time this week I thank the Government for bringing forward a Bill that those of us who worked in the equality field before joining your Lordships' House have long awaited. On Monday I welcomed the Domestic Violence, Crime and Victims Bill. The House was fairly unanimous in its reception. Today I welcome the Gender Recognition Bill, but I understand that it will need careful consideration by this House.
The Bill is part of the Government's social inclusion initiative and, as has been said, among other things it provides for the updating of transsexuals' birth certificates, so paving the way for those who wish to marry in their acquired gender. The Bill has been welcomed by others, including, as one may expect, Claire McNab who is Vice President of Press For Change, the transgender pressure group which praises the Government for,its commitment to British values of fairness as well as to international human rights law".As on domestic violence, I speak as a former trade union official who over the years has dealt with a number of cases of gender change and who has seen at first hand how that affects the individuals concerned, their families and friends and their work colleagues. Relatively speaking, there are few transsexual members of trade unions, but every member has a right to expect support and advice from his or her trade union official. After all, that is why they pay money to the union. I enjoyed assisting those members who decided to change their gender—not an easy choice. No one should underestimate the difficulties faced by people who take that decision.
Of the members with whom I worked each had experienced a mind-numbing period of self-doubt, often from a very early age. That was usually followed by worries about the inevitability of taking decisions, including medical decisions to change their gender, and particularly about how to begin to explain to the world at large why they had taken such a momentous step. All those with whom I worked changed their gender from men to women. When they took the decision to change, each faced varying degrees of prejudice, scorn and blatant discrimination. But a great deal depends on how the news is received by those with whom they work.
The first member who came to see me worked in an engineering company, where the employees were mostly male. He took the decision to change his gender 1299 in the summer and to use the occasion of the two-week July holiday, which in those days was relatively standard in the Midlands, to change from a male employee to a female employee and to dress accordingly. The management of the company was excellent. I went with the member to meet members of the management and when they heard their employee's reasonings, they were totally supportive. That assistance was taken as far as providing a woman's toilet in an area where none had previously existed. That is perhaps a simple matter, but an important one.
Somewhat to my surprise and pleasure the other workers were also supportive, the management having given the lead. Of course, there was some surprise expressed and a certain wariness and wondering about such a sudden change in their workmate. But there was not the prejudice or misunderstanding that I and the transsexual member had feared.
That story contrasts sharply with another case in which I helped a member a number of years later. In that case the management, to put it mildly, was outraged. They refused to assist the person, even threatening dismissal if the employee continued to change his gender. Because he was made to feel so uncomfortable and because he became so miserable at work, he chose to leave his workplace and to find a job elsewhere as a woman worker. He did not want the hassle and worry of challenging his employer.
I give those examples to show the importance of taking a positive approach to transsexuality, as the Government are doing in this Bill. Many of the benefits of the Bill will be highly practical; for example, the issue of a new birth certificate will mean that the holder will not have to reveal that he or she is a transsexual, thus keeping private something that is highly personal.
As has been indicated by speeches already, as in all Bills there will be issues—valid and important ones— that we shall need to consider in more detail in the future. But I believe that that is the strength of this House. We can and we do work together to improve Bills and I am sure that this Bill will be no exception. I am also sure that as we deliberate we shall improve the Bill and so improve the law for a group of people who have waited for this legislation for far too long.
§ 12.15 p.m.
Lord Carlile of Berriew
My Lords, it is a particular pleasure to follow the noble Baroness, Lady Gibson of Market Rasen. I agree with every word that she has said about the Bill. I commend the Government for introducing it. I am particularly grateful to the noble Lord, Lord Filkin, for taking much trouble to consult those whom he knew had an interest in the subject and who may have a contribution to make.
Getting on for 20 years ago, as a fairly young Member of another place, I was approached by a group of transsexual people who became Press For Change. I assisted them at the time when they formed Press For Change. I hope that others who speak in the debate, who may be less supportive of the Bill than I, 1300 have taken the same trouble to discuss with transsexuals the issues contained in it as well as to read fully about the issues surrounding gender dysphoria.
Not long after I first became interested in this matter and determined that it was a human rights problem— I still regard it as such—I arranged a fringe meeting on it at the Liberal Party conference. At the time the issue was on the cusp; it was translating itself from being a freaks' issue to one of curiosity. I am delighted to say that it has moved well on from being a matter of curiosity to a matter of law and rights. I hope that others will take seriously the human rights aspect.
When I introduced this subject to the Liberal Party conference—not for the first time—my then party leader, my noble friend Lord Steel of Aikwood, was not well pleased with me. I recall that we attracted more publicity than his meaningful visit to a seaside telephone exchange or whatever he was doing that day. But those involved in the meeting were all glad that we were able to command a half page in the Daily Mail for the first time, highlighting some serious matters about trans-gender issues.
Subsequently, I was once fortunate enough to come fourth in the Private Members' ballot in another place. I introduced a Bill, much shorter than the present Bill, that sought to achieve the same aims. At that time the Labour Party, then in opposition, undertook when in government to bring forward legislation. It has been a long time coming, but I make no complaint about that because we are thankful that it has arrived. I pay tribute to Dr Lynne Jones MP who has played a significant part in assisting Press For Change and other interested parties on this issue and Glenda Jackson MP and others who have been prepared to put their heads above the parapet on what has sometimes been an uncomfortable matter.
I say to those who feel uncomfortable about this proposed legislation that we are talking about a rights issue and a medical issue. When I started my involvement in these matters people used to ask me whether it was a psychological matter, a somatic matter, a psychosomatic matter or something else, as if one could pigeon-hole gender dysphoria as akin to measles (a physical illness) on the one hand or schizophrenia (a mental illness) on the other hand. After 20 years of research into this matter and a huge amount of reading, one cannot pigeon-hole this condition in any particular way. It is a whole person, whole body condition.
I say with great respect to the right reverend Prelate the Bishop of Winchester that the issue is sometimes the result of honest mistakes by medical practitioners—and we shall hear later from a very distinguished paediatrician. Sometimes the gender of a new-born baby is far from clear. Very occasionally— and every instance matters—people have been certified—mistakenly, as it turns out—as being male or female, and the full truth of their true gender has only emerged after a number of years. If someone has been a girl—for example—for nine years and in reality he is a boy, it is extremely difficult to change at that stage. Of course his parents, his school and society do 1301 not want him to change and dramatic surgical operations are not carried out on children if they can be avoided.
Some people have lived agonising lives until they have had the courage to address what may well have been inevitable issues throughout their lives. That is the kind of situation with which we are dealing.
A number of my friends and acquaintances have suffered from gender dysphoria. If I were to introduce noble Lords to many of them, they would not have a clue which were the men who had been registered at birth as girls or the women who had been registered at birth as boys. There is still a great deal of unjustified knee-jerk prejudice about the issue.
I further say to the right reverend Prelate that I recognise, as we all do in this House, his responsibility, let alone his right, to give us moral guidance. I certainly recognise his right to guide us on matters of Canon law, with which we are not concerned here, and I recognise his right to comment on matters of civil law, which we do recognise here, but we cannot in reality be choosy or picky about our international legal obligations.
Successive governments have recognised those international legal obligations. We may hear from the noble Lord, Lord Tebbit, in the debate. I respectfully remind the noble Lord, for whom I have a very great regard, that for several years he was a member of a government who repeatedly strengthened our international legal obligations, including our commitment to European Union law and European human rights law. I remind the House that the European Convention on Human Rights has been in existence since 1948—the year in which I was born— and no governments have taken steps to remove us from it; indeed, quite the opposite.
Therefore, as regards the cases referred to by the right reverend Prelate, the reality is that they are part of our law, and we have to follow our law. They are as much part of our law as though they had been decided in the Chester Crown Court.
§ The Lord Bishop of Winchester
My Lords, I thank the noble Lord for giving way. I thought I made it clear that I was not questioning the fact that we were bound by the cases, but the quality of that judgment by which we are bound.
Lord Carlile of Berriew
My Lords, that highlights another problem. Our judges are appointed to interpret and apply our law. I say with the greatest respect to the right reverend Prelate that I do not think we dignify ourselves by saying that an issue decided by the courts is wrong because we happen to think that the judgment was not of sufficient quality.
I also say to the right reverend Prelate, again with great respect, that he is exaggerating enormously when he predicts that there will be an "incalculable effect", as he put it. We are not the first country to introduce legislation of this kind. Other civilised countries with a higher church attendance than ours have done so. Marriage and civil order has not fallen apart. Society 1302 has continued and, indeed, transsexual people, who have been able to benefit from the changes in the law, have been left with a far better state of mind and in a far better legal status than in our own country—at least until this legislation is passed.
Having said all that, I recognise that we must consider the legislation very carefully in Committee, as the noble Baroness, Lady Gibson, said. I hope that I may have the opportunity to be part of that process.
There are a number of specific points which I seek to highlight at this stage in an effort to be helpful. The first is on the matter of pensions of older female to male transsexuals. A very small group of people have taken their cases all the way to the European Court of Human Rights. They have planned their lives on the basis that Britain will treat them as female even though they are male, so they will get their pensions, like it or not, at the age of 60. Two handfuls of people within that category is probably about the maximum order. I would ask the Government to consider their position and urge them to table an amendment to ensure that their pension rights are protected. If not, amendments will be tabled along those lines—probably simple amendments related to date of birth.
The second matter I raise has already been mentioned in some detail in the debate; that is, the status of existing marriages. I have personal experience of this. In my own constituency—although it was not known to me when I started my interest in this subject—there is a couple, a farmer and his wife. One member of the couple went through full gender reassignment. They remained a loving couple with children. The pain of an enforced divorce will be considerable for such couples. We ask the Government to consider extremely carefully the translation—if that is what is to occur—between a marriage and a civil partnership, in order to ensure that there is minimal pain and, indeed, minimal cost for these couples. Far be it for me to discourage anyone from paying money to lawyers. I am generally completely in favour of it, but on this occasion I do not think that it would fall into the pockets of lawyers such as myself with a moment of satisfaction. That is a practical issue. I hope the Government will be open to looking for solutions if we can find them.
The third particular I want to make relates to sport. There has been a great deal of publicity, as the noble Lord, Lord Filkin, said earlier this week, about problems relating to sport. I suggest to the House that if necessary we must look for a practical solution. If amendments are required, we should have amendments. However, sports have self-governing bodies which are perfectly entitled to set out their own lawful rules.
I read some grossly exaggerated publicity this week about supposed cheating by transsexuals, who apparently in droves were going to change their gender so that they could win Wimbledon and score the winning goal in the Cup Final. For a start, it is quite hard to do either, and changing one's gender does not generally achieve it for one.
1303 Moreover, I have to say that it ill behoves some sports to become sanctimonious about cheating in relation to a group of people whose very honesty has been the cause of their pain. Some sports need to put their own houses in order and drive out cheating before we start accusing a group of people, not one of whom in this country has ever cheated in this way.
However, I return to what I said at the beginning, I do not want particularly to be confrontational about the issue, I just think that we must be practical and, if necessary, find a solution. We shall take up other issues in Committee, but I do not propose to weary the House with them now. I simply close by saying to the Government that I commend them on the legislation and I hope that it will make good and relatively unimpeded progress.
§ 12.29 p.m.
§ Lord Tebbit
My Lords, even for me, it is unusual to be attacked for what I might say even before I have made a speech, but I guess that that is par for the course for the noble Lord.
I thought that it would be as well if we understood what we were talking about, so I took the trouble to read certain definitions in the Oxford English Dictionary. One was that of sex. I learnt, if I had not already guessed, that sex is defined as,Either of the two divisions of organic beings distinguished as male and female respectively".Gender is defined as, "set or class", but there is another definition in paragraph l(a):In modern (esp. feminist) use a euphemism for the sex of a human being often intended to emphasise the social and cultural as opposed to the biological distinctions between the sexes".I noticed that in introducing the Bill, the Minister scarcely used the word "sex"—I think he used it two or three times. He concentrated on the word "gender", and I can well understand why. I checked to ensure that my understanding of dysphoria was correct and found it defined as a,malaise or discomfort, a state or condition marked by feelings of unease or (mental) discomfort".We should bear those definitions in mind.
By the way, and before I forgeť, when my noble friend Lady Buscombe said that we on these Benches welcome the Bill, she did not speak for me or for a number of others.
§ Baroness Buscombe
My Lords, perhaps I may make clear that I said that we support the Bill in principle, but have a good number of problems with it.
§ Lord Tebbit
My Lords, I do not support the Bill in principle, in any way, up hill or down dale. This is a bad Bill. It is a most offensive Bill. It is certainly offensive to the followers of more than one religion, but I do not intend to make those criticisms today. In the speech of the right reverend Prelate, we heard of some of his telling concerns.
1304 Sex cannot be changed. It is no good the Minister shaking his head. Sex is decided by the chromosomes of a human being. If we have XX chromosomes, we are women; if we have XY chromosomes, we are men. I might perhaps accept the Bill if an additional requirement for registering changes of gender were that it had been discovered that those concerned had inappropriate chromosomes for the sex in which they had been registered. That is the only way in which the Bill could avoid telling a lie. So far as I know, there is no law nor any known medical procedure that can change the sex of a human being. The Bill purports to do so. It is therefore an objectionable farce.
Moral and constitutional issues are also involved. The Bill requires members of a gender recognition panel, on the production of certain evidence, in broad terms to certify that a person who was born a woman, lived as a woman, married as a woman and has borne children is, despite all that, entitled to be issued with a birth certificate falsely professing that she was born as a male child. That cannot be anything other than a lie. It is a lie that the state would require its servants, such as the Registrar General, to certify as a truth.
Under this Government, we have become accustomed to a certain lack of precision and distinction between what is true and what is untrue, but this is going a long way beyond that. It is of a different order. Not only does it provide that an untruth can be made a truth, that a legitimately and properly attested document may be altered to purport something different, but it provides for the punishment of anyone who dares to speak the truth about the matter.
The noble Lord, Lord Carlile, properly referred to some of the problems in sport. When a six foot eight inch, 22 stone lady turns up to join the hockey club and denies that she has changed gender, who can attest to the contrary? Her birth certificate will have been altered and it will be a criminal offence for anyone to reveal that fact. Just how do we proceed in that matter? It is no good saying that we can leave it to people in the sporting associations. We cannot. That is impossible.
Even worse, it is not quite an offence for anyone to reveal the truth about the matter because, properly, under Clause 21, the Secretary of State or Scottish Minister is to have by order power to make provisions prescribing circumstances in which disclosure of the truth would not be an offence. We have read in the papers during the past day or two some of the background to the Soham murders and about the real difficulty caused by the clash between data confidentiality and the need of the police to be able to identify people who have not been convicted of any crime.
Let us consider the Bill in relation to that. Suppose the suspected person had changed gender. That would be difficult to track back, because he would be a different person with a different birth certificate. If this wretched legislation is passed, I hope that the Attorney-General has thought his way through that one before we have another problem on the scale of the Soham affair.
1305 Mind you, all that is somewhat small beer compared to the power given to the Secretary of State in Clause 22 to modify,the operation of any enactment or subordinate legislation in relation to… persons whose gender has become the acquired gender under this Act, or… any description of such persons".So there is the potential to deal with what we may call the Soham problem but, as I said, I hope that the Attorney-General will tell us exactly how that will operate. He must have thought it through. The Bill has not suddenly emerged; it has been thought about for a long time.
As I read it, the Bill would also purport that a marriage lawfully undertaken and consummated would be annulled where one of those false certificates had been issued in respect of one of those who had been lawfully joined together in an indissoluble union in the presence of God. We have heard the right reverend Prelate's reservations about that. I wonder what His Holiness the Pope thinks about it.
Clause 16 provides that if an Earl re-registers himself as a woman, he fortunately does not have to become a Countess. That is a most liberal part of the Bill; for such small mercies we should be grateful. I therefore presume that if a King should undertake gender reassignment, he could rule as a woman, but he would still be a King. I must say that that would raise some curious thoughts.
§ Earl Ferrers
My Lords, my noble friend's speech is so fascinating that it has stimulated my thoughts. What happens if an Earl becomes a woman? Does his son then become the Earl?
§ Lord Tebbit
My Lords, I really do not know. Presumably, as he would remain an Earl rather than becoming a Countess, his son would have other problems on his mind than whether he would immediately succeed to the title.
§ Lord Tebbit
Indeed, my Lords, we hope that my noble friend's interest in the matter is not entirely personal.
Clause 12, which can only be described as part of the script of a farce in a theatre of the absurd, states that although a woman may be certified as having been born a man, he or she—I do not know which—remains the mother of her children. What an extraordinary mess; it defies logic. Whatever the noble Lord, Lord Carlile, says, it is clear that the problem, which is very real for some, is a psychological illness, not a physical one.
One of the distressing aspects of the Bill is that it will encourage the practice of sexual mutilation in what are called sex-change operations, when it is impossible to change the sex of a human being, unless one has discovered a way to change his or her chromosomes. The Bill is so bad that it should be taken away, and the 1306 Government should think of another way to help people who suffer this acutely distressing psychological illness.
§ 12.41 p.m.
§ Lord Chan
My Lords, although none of us would argue against the principle of the rights of people, including transsexuals, the Bill is not a satisfactory solution. In view of the detailed and learned speeches of other noble Lords, I intend to focus mainly on the clinical diagnosis of transsexual people and the grounds on which gender recognition certificates can be issued and birth certificates altered. The freedom of third parties must be protected; that is to say, people of the gender that the transsexual has acquired and members of the transsexual's family.
There are 5,000 transsexual people in the United Kingdom, among them more men than women. Transsexuals are also classified as having gender dysphoria or gender identity disorder. Sex-change operations were introduced in the 1930s to meet the demand for creating people of one sex who are chromosomally of the other. It has been estimated that only a proportion of transsexuals undergo surgery. Many refuse essential preparation, such as living successfully for two years as the opposite sex, and fail to keep follow-up appointments, so disqualifying themselves from surgery. In addition, among transsexual people there is a high rate of psychiatric disturbance, such as an increased rate of suicide, irrespective of surgical treatment.
The medical profession is divided on the issue of transsexualism. The term is used to describe, and has wide international recognition as, a mental and behavioural disorder in the World Health Organisation's International Classification of Diseases (10th edition). However, there are other classifications, such as in the United States, where the terms gender dysphoria or gender identity disorder are used, but they are also classified as behavioural disorders.
There is no consensus among clinicians about the effectiveness of psychological treatment for transsexualism, but there is evidence that the perceived quality of life of a proportion of transsexuals may be improved by cosmetic and reconstructive surgery, according to a recent review. As the European Court suggests, surgery and prolonged hormonal treatment involve numerous and painful interventions, reflecting an extraordinary level of conviction on the part of the person with gender dysphoria.
Transsexual people feel that they belong to one sex while their biological make-up is clearly that of the other. There is little evidence to show a genetic basis for the condition, because transsexuals have normal male or female chromosomes. Their genital organs are also normal male or female. Difficulties of diagnosis in cases of ambiguous genital organs at birth—so-called intersex syndromes—are rare. Most cases involve a chromosomal female with an enlarged clitoris due to congenital adrenal hyperplasia, a hormonal condition that is not difficult to treat. In such cases, the baby is 1307 a female, with two X chromosomes. A recent paper published this year in the Archives of Disease in Childhood on the surgical management of ambiguous genitalia, on behalf of the British Association of Paediatric Surgeons working party on the surgical management of children born with ambiguous genitalia, provides some useful information and advice. It states:In view of the comparative rarity and complex issues involved in treating these children, we would unreservedly recommend their early referral to the nearest regional centre for both immediate and continuing management by a multidisciplinary team. No assignment of gender should be made prior to referral. The disciplines involved must include appropriately trained paediatric surgeons and/or paediatric urologists, neonatologists, and paediatric endocrinologists and their specialist nurses/support workers, geneticists, biochemists, psychologists, and gynaecologists".As the condition is so rare, it does not contribute to transsexualism.
Male transsexuals have been reported to have more feminine brain microstructure. It is difficult to determine whether brain structure influences their behaviour, or whether brain changes have come about through long-continued behaviour. An example is that of an unusual study on London taxi drivers, who have enlargement of the part of the brain associated with navigation—that is a genuine study. Studies on enzyme and hormonal abnormalities, physical dexterity and psychological profiles of transsexuals have also been carried out, but there is little consistency between the studies; they are poorly replicable and demonstrate only minor links between sexual behaviour and the variables studied.
The ruling of the European Court supports a situation in which personal feelings and beliefs are given precedence over verifiable medical evidence. In support of that are four reports, which I have read, of men who were labelled as transsexual or having a gender identity disorder, but who no longer feel that they are women, and, a few years later, function normally as men. That demonstrates that the condition of some transsexuals is not permanent or lifelong.
Clause 2, on the determination of applications for a gender recognition certificate, requires two professional reports: one from a registered medical practitioner practising in the field of gender dysphoria or gender identity disorder, and another from a doctor, who need not practise in gender dysphoria, or a chartered psychologist. Other requirements are evidence that the person has lived in the acquired gender throughout a two-year period and an intention to continue to live in the required gender until death. No mention is made of undergoing reconstructive surgery of the genital organs.
It is therefore likely that individuals applying for gender recognition certificates will continue to be men with male sexual organs. About half of male transsexuals have not undergone surgery. If they are then given gender recognition certificates classifying them as females, serious consequences would affect their partners, children and other people, including women who use public toilets. There will doubtless be 1308 more reports of outrage by women protesting against the use of their toilets by people possessing gender recognition certificates as women who have male genitalia.
In sport, transsexual females with male chromosomes have been shown to have more muscle power than most women. The commitment of the individual wanting to have gender reassignment should surely need to be evidenced by undergoing reconstructive surgery. That requirement of surgery for gender recognition would give less committed individuals an opportunity to reconsider their position.
Individuals with gender recognition certificates are entitled to marry. In New Zealand and Australia, post-operative transsexual people are regarded as members of their acquired sex and can marry. As has already been stated, Paragraph 3 of Schedule 4 makes provision for ministers of religion to decline on grounds of conscience or religion from conducting a marriage of a transsexual person. That recognises the position of the Christian church, of Islam and of the Jewish religion that the only gender a person can have is that of their biological sex. Christian and Muslim organisations such as the Evangelical Alliance, the Christian Medical Fellowship and the Islamic Medical Association of the United Kingdom have contacted me to make their position clear with regard to the Bill. I join other noble Lords in asking the Minister how the human rights of religious groups will be upheld in the light of the Bill.
More medical research is needed into transsexual people in order to provide them with appropriate support. The Gender Recognition Bill assumes that the condition is already a discrete and clearly agreed medical condition, which is not the case. Therefore, I fear that the Bill would infringe the rights of third parties.
§ 12.52 p.m.
§ Baroness O'Cathain
My Lords, the issue before us is one of the most difficult that I have ever considered in this House. It would have been much easier for me to have been absent today or to shrug my shoulders and let the Bill take its course without expressing interest or concern. Unfortunately, on issues such as gender recognition, I can see yet another brick being torn away from the fabric of family relationships in this country. Therefore, I am putting my head above the parapet once more.
Today, I have an additional problem. My noble friend Lady Buscombe, who is unfortunately not in her place, stated that we on these Benches broadly support this Bill. I must disassociate myself wholeheartedly and totally with that statement. I am disturbed that, although my name has been on the speakers' list for some time, I was never approached by my noble friend either to inquire about my view or to tell me that we on these Benches support the Bill. At least it shows that independence is alive and well and living on the Back Benches of Her Majesty's Opposition.
1309 Under this Bill, transsexual people will, according to the Government,gain the legal recognition of their acquired gender".However, can gender be acquired? I know full well that there are people who genuinely wrestle with a very strong feeling that they are trapped in the wrong body. Those feelings can become uppermost in the mind colouring every thought and action and feeding permanently on themselves. It must be a veritable living torment.
However, a large body of research and experience composed among others of members of the medical profession, maintains that the condition is a delusion—a fantasy. The problem is psychological, not physical. Psychologists agree about that. For decades gender dysphoria has been well known as a psychological condition. There is no evidence for changing that view, apart from a form of political correctness. My noble friend Lord Tebbit described that brilliantly. He made a textbook sound utterly clear. I am sure that these views will be challenged, but I draw your Lordships' attention to a letter in the Daily Telegraph on 15th July last year from medical professionals at the Portman Clinic. It states:The experience of many psychiatrists, psychoanalysts and psychotherapists working with transsexual patients is that they are individuals who, for complex reasons, need to escape from an intolerable psychological reality into a more comfortable fantasy. By attempting to live as a member of the opposite sex, they try to avoid internal conflict, which may otherwise prove to be too distressing".The letter continues:It is a measure of the urgency and desperation of their situation that they frequently seek surgery to make their fantasy real. By carrying out a 'sex change' operation on their bodies, they hope to eliminate the conflict in their minds".The very important part, according to the eight medical people, is that:Unfortunately, what many patients find is that they are left with a mutilated body, but the internal conflicts remain".It is only fair to admit that some transsexual people who have had sex reassignment surgery do, indeed, experience some measure of comfort and relief. However, in the absence of any long-term research we only ever hear of the few really convincing and passable transsexual people who appear before the media. They are not generally typical.
At this point, I must take issue with the noble Lord, Lord Carlile of Berriew. He stated that the Bill was about intersex conditions. That is highly misleading. The number of truly intersex cases, globally, is minuscule. The Bill is overwhelmingly about people whose bodies are perfectly healthy and, indeed, who may be fathers. The noble Lord has confused transsexuality with intersex. The clarity of the exposition of the condition of intersex given to us by the noble Lord, Lord Chan, was most masterly, and leaves none of us in any doubt about the way intersex can be dealt with.
Research suggests that the majority of transsexual people experience instinctive human/societal rejection as they are pretty obvious to anyone who deals with them. Let me hasten to say at this point that I certainly 1310 do not condone any form of unfair prejudice or discrimination. I can express that no better than the right reverend Prelate the Bishop of Winchester who spoke so movingly on the issue earlier in the debate. The sad thing is that transsexual people often suffer from post-surgical expectations being dashed, still require ongoing lifetime therapy simply to cope and often lead a ghetto-like lifestyle. It should be noted that, internationally, transsexual people are beginning to request reversal procedures having realised that they made a mistake or were badly advised. What will the Bill do to consider the needs of those people?
Transsexual people are not really trapped in the wrong body. The body is healthy and the physical appearance and chromosomes are all in agreement, which was beautifully described by the noble Lord, Lord Chan. Lobbyists to the Scottish Committee taking evidence on this Bill stated that:The situation is actually very simple, given that gender dysphoria is a medical condition like any other medical condition. Unfortunately, because it relates to gender, that makes everything complicated. Currently we do not have the right to have our true gender recognised. We object to the use of the phrases such as 'sex change'. We have not undergone a sex change, we have aligned our gender to our true gender, which is the one in which we should have been born but unfortunately were not".This is surely wrong. At the risk of being repetitious, gender dysphoria is not a medical condition. We are born either male or female. To quote from Genesis 1:27:So God created man in his own image, in the image of God he created him; male and female he created them".Transsexual people are born with a gender that fits all known scientific criteria. Just because we have a yearning to be a boy or a girl does not make it so. It is just fantasy, reminding me how we used to pretend to be gnomes or sprites in the early days in the kindergarten sandpit. I have used the word "delusion" before—I use it again. I am sure that I am not alone in questioning whether it is right to go along with transsexual people in this delusion.
Some people shrug their shoulders and turn away from the problem. The implications of the Bill are too serious to permit such inaction, as the delusions or fantasies of a few individuals will be imposed on many. Surely, it is better to help them gently to come to terms with reality, rather than trying to change reality to fit their delusion.
If a person is paranoid and believes that he is being chased by secret agents, we do not hire a 24-hour bodyguard and buy them elaborate security devices. Similarly, if a person suffers from agoraphobia, we do not brick them into their home. Yet, instead of getting them all possible psychological help, surgeons trap transsexual people in their delusion by performing sex re-assignment surgery.
The issues and problems created by the Bill not only for transsexual people but for the rest of us are very serious. During the progress of the Bill, I shall address many issues. I give notice of them today. Will the recommendations of the Joint Committee on Human Rights be followed? One issue is the inclusion in the Bill of the supply of goods and services. They do not 1311 appear to be included at the moment. If they are included, it would cause serious problems for shops, pubs, the churches and voluntary organisations. Can the Minister give me an assurance that the Bill will not be extended in that way?
The noble Lord, Lord Chan, referred to the message that we got from Dr Majid Katme, spokesman for the Islamic Medical Association of the UK on medical ethics. In order not to prolong the debate, I will not read it out, but I think that it is required reading. It would be a good idea if I gave a copy to the Minister, who could circulate it. It is all about the issue.
Transsexuality is seen as a privacy issue, until it comes to demanding benefits and coerced responses from the public. The important question that no one seems to care about is the rights of third parties, something that the noble Lord, Lord Chan, drew to our attention. It seems to have been completely ignored by the Joint Committee on Human Rights. I shall come back to that.
Will pubs be able to enforce bans on transsexual people, for example following public complaints on the issue of using female facilities? What will be the situation if a transgendered man competes as a woman in female sports? I shall not go further on that matter. I am sure that my noble friend Lord Moynihan will deal with it, in view of his comments in The Times yesterday. I hate to admit it, but men are usually physically stronger than we are. The whole area of women's sport could be turned upside-down.
Will churches be able to prevent transgendered men insisting on attending the ladies' fellowship meetings and using female facilities? In that context, I realise that I have not pointed out that some 50 per cent of transsexual people never undergo sex re-assignment surgery. That issue has already been dealt with.
Those are some of the problems that the Bill raises. I am now gently leading the House into considering the fundamental problems that the Bill raises for society as a whole, which I foreshadowed just a few moments ago. The Bill proposes to convene a gender recognition committee, which, by a single vote, can determine that a man is a woman. A man who has lived as a man for 40 years or so, has married and has fathered children can be deemed to be a woman, for legal purposes, by the committee. Surely, that is wrong. We should think about the effect on the children, the extended family of nieces, nephews or even his grandchildren. If the committee vote is split on whether he is a man or a woman, the chairman has the casting vote. Is that even believable? It is ludicrous. It could even be comic, but it is extremely serious.
Society can be rocked by this, even though, I am told, there are only about 5,000 transsexual people in our population of 60 million. Let us not ignore the effect on the many hundreds or even thousands of people acting in an official capacity who will have to go along with the pretence. Many of them will feel that their conscience is being profoundly compromised. The Bill does not provide a conscience clause for those who have to get involved with, for example, 1312 performing and registering marriages. Under the Bill, a biological man will be able to marry a biological man. It may be obvious to a registrar that a particular couple who present themselves for marriage are of the same sex, and the registrar may believe strongly that marriage should be only between people of opposite sexes. I think that it was the right reverend Prelate who drew our attention to the fact that the definition of marriage is in every registry office in the land, saying that it is the union of people of opposite sexes.
§ 1 p.m.
§ Lord Tebbit
My Lords, it would not be an issue of conscience for a registrar of marriages. He is prohibited by law from marrying two people of the same sex. Under the law, he must reject such an application.
§ Baroness O'Cathain
My Lords, I am grateful to my noble friend. I was going to ask whether the registrar would lose his job, if he refused to perform the ceremony. He loses either way.
In the case of religious marriage, it could be equally difficult. Churches, alongside everyone of common sense, believe in the definition of marriage as a union between a biological man and a biological woman That, to me, is a matter of enormous spiritual and moral significance. That is a wholly personal view, but I think that others will support it.
How can the Government abuse their position of power by creating a legal fiction allowing a biological man to marry a legal but non-biological woman, while maintaining that they support only the marriage of opposite sex couples, as the Minister said? How can we have a legal woman who is a man? How can any government create and dictate such a ridiculous and nonsensical category? It is against all reality, natural senses and scientific fact.
It is Christians' religious conscience that forbids many from endorsing transsexualism as a valid lifestyle. Schedule 4 gives clergymen a conscience clause, saying that they are not obliged to marry transsexual people, but that is meaningless if they have no authoritative means of determining the true sex of the persons wishing to be married. Under the Bill, they have no right to see the original birth certificate. All that they would be entitled to see is the new birth certificate in the person's chosen gender, which will look exactly like a real—original, I should say—birth certificate. The situation is fraught for the clergy. We must do something to protect them in such situations. It is not beyond the bounds of possibility that the clergy could be sued, as happened in a case that went against the person who sued.
We must not allow our natural sympathy for those who struggle with a serious psychological problem to blind us to the problems that the Bill will create for other people. If the Government persist in pushing through the Bill, they must make radical amendments to protect the freedom of conscience of those who simply do not believe that the law can declare a man to be a woman or a woman to be a man. It is only 1313 common sense and a basic human right for individuals to be free to believe fact rather than fiction, otherwise we are entering a dark future of coerced totalitarian-style law making.
I have a final question for the Minister. Will the Bill be whipped? My understanding is that it was always going to be a free vote.
§ 1.8 p.m.
§ Lord Goodhart
My Lords, like the noble Baroness, Lady Buscombe, I start by saying that, on these Benches, we support the Bill. The difference between us in that, in my case, it happens to be true. Gender dysphoria is a condition that causes enormous distress. We believe that the Bill will go some way—by no means the whole way—towards reducing that distress and will cause no foreseeable harm.
Views on sexual behaviour and the nature of sexuality in law have changed radically. Forty years ago, homosexual acts between consenting adults were criminal offences. It would be unthinkable for us to go back to the conditions of 40 years ago. We now have openly gay people in politics—indeed, in the Cabinet—in the professions and in many other walks of life.
The Government are going to introduce a civil partnerships Bill to permit the registration of same-sex partnerships, which will have many of the characteristics of marriage. Until now, the laws on the position of transsexual people have lagged behind the changes that have been made in the case of homosexual people. I believe that gap is now being filled by this Bill.
Of course, there are problems with the Bill, some of which are relatively minor. The most substantial problem relates to existing marriages. On that, I feel that the Government are being rigid. We are not suggesting that marriages should be entered into between same-sex couples. But the Government's principle does not have to be extended to the dissolution of a marriage that was validly entered into, and which both parties wish to retain in spite of the recognition of the gender change of one of them.
Of course, we recognise that the issue of a registration certificate should be a ground for annulment should either party to the marriage wish to bring an end to that marriage. But the annulment of the marriage should not be the precondition for a grant of the full certificate.
The Government refer to the possibility of a couple annulling their marriage and then entering into a civil partnership as a same-sex couple. But I see two problems with that. The first problem is obvious: we do not have civil partnerships and are unlikely to have them for some time to come. Secondly, it is easy to envisage circumstances where one or both parties to the marriage might want the marriage to continue in spite of the gender change to one of them, but be unwilling to enter into a new single-sex partnership. To require people to do that as a condition of renewing the partnership between those parties is unnecessary and undesirable.
1314 Some minor points have already been mentioned. My noble friend Lord Carlile of Berriew referred to problems, which I entirely see and with which I entirely agree—in particular, the problem as regards the female to male gender change. People may make plans in expectation of receiving a retirement pension at the age of 60, but find that they are unable to draw their pension until they reach the age of 65. For those aged 50 or more at the time that the Bill comes into force, it would be reasonable to make a change to cover their situation.
I understand and respect the points made by the right reverend Prelate the Bishop of Winchester. The principle that he raised is fundamental and there is no way of reconciling it with my views or those that lie behind this Bill. One simply has to accept that there is an irreconcilable difference here.
Of course, there are cases in which the biological sexuality of individuals is unclear. The right reverend Prelate's arguments did not consider those. The noble Lord, Lord Chan, said that these were relatively rare. A distinguished expert in reproductive science, to whom I was talking the other day on the subject, said that there are a significant number of people who are affected by ambiguous sexuality. But I accept that that cannot be said of all people who seek to change their gender. So I am afraid that the right reverend Prelate and I will simply have to disagree on the principle.
I accept that it is proper to allow the clergy to refuse to marry transsexual people in their acquired gender. However, I believe—no doubt the Minister can reassure me—that there is nothing in the Bill which prevents a clergyman from asking a couple who present themselves for marriage as members of opposite sexes whether either of them has an acquired gender. If one party admits that or refuses to answer, obviously it would be legitimate to refuse. I certainly would not accept the extension of this principle to registrars.
As regards sport, there is undoubtedly a difficulty. The Minister accepted that and said that it was within the powers of the sports authorities to make their own regulations to cover it. Whether that is sufficient, I do not know. I shall listen with interest to what the noble Lord, Lord Moynihan, has to say and I will keep an open mind on that subject. Certainly, there is nothing in the Bill to prevent an official from a sporting competition asking a potential competitor whether he or she has acquired a gender, if that is relevant.
This is not an easy issue. The issues raised by the noble Lord, Lord Chan, unquestionably, are important and show that opposition to the Bill is by no means irrational. As he said, the medical profession is divided. It is well known that gender reassignment is not always successful. Ultimately, I believe that this Bill will help a group of people who suffer from a problem that is deeply painful for them and it can assist without unavoidable damage or injury to them or to other people. The injury to other people is not caused by recognition; it is caused by their involvement in a problem which may involve a dearly loved partner and which causes them great distress.
1315 Once the gender change has occurred, the fact that it is recognised by certificate is a step forward in helping people.
§ Lord Tebbit
My Lords, I am most grateful to the noble Lord. At the beginning of the noble Lord's speech, he referred to the way in which we have legislated in recent years to accommodate changes in social attitudes. Does he not recognise that while there is a perfectly respectable case to be made for the law to be changed in relation to those matters, it is a very different matter when a Bill is introduced to change the law relating to a person's sex? This involves that which cannot be true; that is, a person with a double-X chromosome is not, in fact, a woman, but is a man. Does the noble Lord not understand the difference between those two types of legislation?
§ Lord Goodhart
My Lords, of course the noble Lord, Lord Tebbit, makes a point that is a justifiable part of the argument. But our belief is that we should recognise that there is a group of people who while, biologically (chromosomally perhaps) are of one sex, are socially and in other respects—psychologically— of a different sex. In those cases, I believe that it is legitimate. It obviously is not compulsory, but it is legitimate for the Government to take the view that they should be treated in relation to the sex to which they socially belong and not to their chromosomal sex. I am not attempting to persuade the noble Lord, Lord Tebbit. Of course, his argument, which he holds very firmly, is equally legitimate.
§ 1.19 p.m.
§ Lord Moynihan
My Lords, I speak today in my capacity as shadow Minister for Sport. Thus, my speech will focus on the subject of sport, which has been raised by a number of your Lordships. I believe that sport needs to secure full exemption from the Bill if competitive sport is to continue as we have known it. From the outset, I would like to say, in particular to my noble friends, that in my experience, the great advantage of Second Reading debates is the readiness of Her Majesty's Opposition to listen, to reflect and to respond. Such is the advantage of debates of high quality, as exemplified today. In my humble opinion, to listen, to reflect and to respond, we must.
The noble Lord, Lord Chan, the right reverend Prelate and my noble friends all recognise that transsexuals go through deep personal trauma and that the condition of sexual dysphoria is serious. But as with so much of the legislation presented to Parliament over recent years, this Bill does not follow through to the consequences of the intentions laid out by the Government. On the contrary, it is a patchwork quilt of proposals, as my noble friend Lord Tebbit highlighted in the context of the interesting consequences both for inheritance and, indeed, for royal succession. However, I am pleased to note that in both of those examples, the Government have recognised the principle of exemption. I shall seek to argue why, with regard to competitive sport and sport 1316 in general in this country, there should be exemption. Amendments will be tabled at later stages to secure and protect the future of competitive sport.
I contest today that the Bill as drafted would decimate the continuation of competitive sport. That is not because I disagree with the first principle raised by the Minister, who rightly said that anyone who is recognised under this legislation will have to satisfy all the criteria. Perhaps we have been reading different newspapers, but those I have read on the subject of sport all recognise that the criteria of this legislation would need to be satisfied by a transsexual.
However, it is the second point made by the Minister that is of greatest concern. I do not believe that the Minister can reasonably argue that the status quo with regard to sport—namely, the continued determination of competition by governing bodies—will stay unchanged. This Bill will change fundamentally the relationship between governing bodies and sportsmen and women because its whole purpose is to give—here I quote the Minister's summary—a long-ignored minority legal rights. Armed with those legal rights the transsexual can challenge any governing body, sports club or national federation.
If there is no need for the Bill in the first place, the consequences are such that the status quo would remain. But if, as I understand, it is the Government's full intention to give the transsexuals concerned under this legislation full legal rights, that totally changes the status quo between those individuals and the governing bodies of sport.
The Government's position is clear: under the Bill, a trans-gender man or woman is as much a man or woman as anyone else. To prohibit them from competing in their acquired gender at any level would therefore fall foul of any number of human rights such as, for example, Article 8 covering the right to respect for private life. Cases are already in progress in which transsexual athletes are claiming that their exclusion amounts to restriction of employment. If a Bill is passed which would prohibit them from competing, that would provide a beanfeast for lawyers—a point I made earlier this week.
Why is that? It is because Ministers, including through collective responsibility the Prime Minister and the Minister responsible for sport, are seeking de facto today to redefine what constitutes "male" and "female". In sport the law has sensibly regarded male and female as determined by biological appearance, testosterone levels and chromosomes. Today, a new and overriding criterion is being proposed. As a result of the condition of sexual dysphoria, that condition is to be treated, in summary, as, "My gender is what I think it is". My view is that it is essential for the future of sport in the United Kingdom that it is specifically exempted from this legislation.
Recognitions for a sex change under the Bill do not, as the noble Lord, Lord Chan, pointed out, require invasive surgery. The requirement is that a transsexual should be able to demonstrate to the gender recognition panel that the individual has changed their sexuality from whatever appeared on their birth 1317 certificate. This requires no necessary physical change of the person. It is, precisely, a mental change. Here I pick up a point made by the noble Lord, Lord Carlile. I do not believe that it is necessarily a whole-body experience. It can be for some, but in the context of the legislation as currently drafted, it is not necessarily an experience of the whole body. This will mean that the belief of the individual concerned is overriding in seeking recognition as a woman or, vice versa, as a man. If the gender recognition panel is convinced, the full weight of the law will support the applicant.
Under Clause 2(1), a transsexual person may achieve full legal recognition of their acquired gender without going through any kind of physical medical procedure. The International Olympic Committee has its own definition of a woman. That definition is capable of being stretched to include post-operative transsexual people. However, that is markedly different from what the Bill would require for a transsexual to be fully recognised as a woman. Its terms leave sports governing bodies open to legal action if they attempt to exclude any transsexual athlete from competing in their acquired gender. The implications for sport are therefore manifestly serious and I say that particularly in relation to maintaining fair competition, safety issues and to the drug testing of trans-gender athletes.
There are also many practical difficulties to be faced by sporting bodies at all levels in the absence of any defined policy on trans-gender athletes. These difficulties would not be resolved by the Bill in its present form. The only effective way satisfactorily to resolve them is for the Bill to include a precisely defined exemption for competitive sports. I am grateful to noble Lords on the Liberal Democrat Benches for accepting the importance of giving due consideration to those amendments when they are brought forward and for considering the points made about sport and recreation at later stages of the Bill.
Lord Carlile of Berriew
My Lords, I am grateful to the noble Lord for giving way. I wanted to be clear about the Conservative Party's view of this question. Does the noble Lord agree that someone who had previously been a man who simply wanted to go through gender reassignment so that they could compete, for example, in a woman's sport, would fail the test set out in Clause 3 and therefore would not obtain a certificate from the panel? If that is right, surely the problem he is talking about is one that is barely going to register on the Richter scale of reality.
§ Lord Moynihan
My Lords, I agree with the noble Lord on his first point, but we are not talking about those people. We are talking about the category of people with the condition of sexual dysphoria; the transsexual who, as a result of changing his sex, will then have the full weight of the law when facing a governing body and, indeed, demanding that as a former man, he is now a woman recognised by the panel as a woman, and thus can compete as a woman in national and international events.
1318 Whether this concerns 1 million people, 100,000 or even 10,000 people, it is bad law if, as a result, someone in those circumstances can win a 100-metre race in national finals or—to be more appropriate and accurate—a 2,000-metre rowing race in the Olympics. That is the point I seek to make. If the noble Lord will allow me, it is rather like arguing, "Fortunately, we do not have too many cheats as a result of doping in this country". But surely that does not lead the noble Lord to conclude that we should not put a tremendous effort into ensuring that we do not have people cheating by using performance-enhancing drugs to improve their performance.
I had the personal misfortune to be beaten in the 1980 Olympic Games by a fraction of a second by a crew who, post the end of the Cold War, are now seen to have all been on drugs. A silver medal came my way—I did not want the gold medal because I was beaten on the day—but the point I make is that, if it were only that one crew on drugs, it still sets an example to young people over the length and breadth of this country that cheating can win. We have to be tough and stand against that, even if the numbers are small.
I argue simply that while I agree with the opening comment of the noble Lord, we cannot allow a situation to occur whereby, as a result of this legislation, the whole definition of "male" and "female" is thrown into relief so that sport then has to require that someone who is a transsexual in a male body, but satisfies all the conditions of the Bill, can then demand to participate in female events at the Olympic Games.
I said that I would try to help noble Lords on the four principal areas of my concern with regard to sport. The first is fairness. Participation in competitive sport at all levels is based on an expectation of physical fairness and a level playing field. This would be severely compromised if the situation I have outlined came into being.
The second issue concerns doping. A person competing as a woman who had a full male anatomy would fail a random drugs test due to the far higher levels of testosterone present in the male body. UK Sport has already stated that the testing of post-operative transsexuals is a minefield. Guidance from the World Anti-Doping Association has not been forthcoming. The IOC has issued no clear guidelines. The British Olympic Association has indicated that its position will be governed by what the IOC eventually decides.
The world of sport is in turmoil over this. There is no clear answer from either the International Olympic Committee, the British Olympic Association or the governing bodies; nor, indeed, from the agency that would need to determine whether someone is competing as a man or a woman—that is, the anti-doping agency currently run by UK Sport.
The possibility of dropping the male and female category distinction would have to be considered in favour of a high testosterone/low testosterone eligibility. This is a recipe for chaos. We gave the world 1319 the rules governing major international sports. Let us not give the world this unworkable legislation in addition.
The third issue relates to that. Again, I should like to pick up on something that the noble Lord, Lord Carlile, said in his critique of some of the governing bodies of sport and, indeed, the anti-doping agency and the need to clean up sport. I agree that these issues, particularly in regard to the anti-doping agency, need to be seen against, for example, the removal of Michelle Verroken this week. I have called time and again for an independent UK anti-doping agency reporting to the Minister and accountable to Parliament. That decision can be made in an hour. It does not need further review at taxpayers' expense.
The anti-doping agency is one of the three principal functions of UK Sport. Today UK Sport is in chaos. It continues to run an anti-doping policy while simultaneously funding many of the sports it has a duty to keep clean. The principal reason it has steered through this conflict of interests is because of the professional and respected work of Michelle Verroken. She, like myself, is tough on drugs and very concerned about the issues before the House today. She more than I sees the challenges in this critical area of policy, where without people like her competition between athletes would all too soon become competition between chemists' laboratories. She has led this country in the development of drug testing in British sport. I appointed her when I was Minister for Sport. With a record like hers over the past 15 years she does not deserve to be treated like this. Our system is not perfect and she would be the first to admit that, but some governing bodies have resisted change.
The principal reason for the imperfections lies with the Minister who constantly washes his hands of an independent anti-doping agency reporting to him, backed, if necessary, by statutory powers. Whenever asked, he and his colleagues—and, I have to say, the Minister today—shift responsibility to governing bodies. I say to the Government that it is their responsibility. UK Sport is their responsibility; the anti-doping agency and its national and international commitments are the responsibility of the Minister for Sport. Today, they lie in shambles. How can you sack the respected head of the anti-doping agency on the eve of the Rio Ferdinand hearing without far-reaching consequences?
The Government should come to the House and make a Statement. Yet the Minister, Richard Caborn—as with this ill-considered legislation—is nowhere to be seen. This is no isolated case. This week UK Sport also lost its chief executive, the respected Richard Callicott. UK Sport is in chaos. When Richard Caborn next leaves the offices of UK Sport, will he please turn out the lights and start taking some responsibility for this Bill and for the future of sport?
§ Lord Tebbit
My Lords, before my noble friend sits down, I am very impressed with the rigour and the clarity with which he is dealing with the potential effect of the Bill upon the world of sport. But would he not 1320 agree that if the whole of the Olympic competition crashed into ruins it would not do a great deal of damage to society? Could he turn his attention just for a moment to the effects on society of the institution of marriage being brought down? That seems to me something that he should not neglect before he sits down.
§ Lord Moynihan
My Lords, I shall certainly not neglect my noble friend's latter point. I clearly agree with the implications raised by him and by other speakers in the debate. But I shall not allow my noble friend to get away with his opening remarks in regard to the world not crashing down if we lose the Olympic movement. I passionately believe—I have done so all my life and will do so forever—that excellence in sport and the culmination of widespread participation gives young, middle-aged and old people a tremendous sense of achievement. For young people it is a vehicle whereby in fair competition they can learn to live within the rules of society and the rules of the game, learn to work as a team, to keep fit, which is so essential for them, and to make sure that the benefits of sport ultimately allow them to recognise and admire heroes who set good examples within the Olympic movement. With that small personal aside, I wish the 2012 London Olympics committee every success in securing the games for London.
Because of the interventions I have gone on for two minutes longer than I wished. With the indulgence of the House, perhaps I may swiftly refer to the point made about safety issues. In some contact sports at any level there would be serious safety concerns if pre-operative transsexual people were allowed to participate in their acquired gender.
The issue of communal changing facilities and how to handle transsexual people—especially pre-operative transsexual people—when they have the full legal rights envisaged in the Bill demands careful consideration. The scope for causing offence is significant and genuine. However, clubs the length and breadth of the country will have a real fear of being charged with discrimination.
There is also the matter of the cost of compliance. The Government's regulatory impact assessment dismisses the burden likely to be placed on sporting bodies by the Bill as some minor additional costs. This could not be further from the truth. Many people will be greatly concerned at the idea of themselves or their children being forced to share a changing room with a transsexual person. The cost and complexity of providing facilities suitable for all the concerned parties would place an immense burden on a small sports club as well as on local authority leisure facilities.
There is no doubt that the process of changing gender is a challenging and extremely traumatic experience. Anything that can reasonably make the life of a transsexual person easier has my understanding and support. But competitive sport has its own unique concerns. The practical impact of the Bill would be to force sports governing bodies at all levels to allow pre-operative transsexual people to compete in their 1321 acquired gender without any surgical operation leading to a sex change. This is unacceptable and the potential consequences, both at the elite level and community levels, are disproportionate to any benefit realised by such a measure.
The terms of the Bill are ill conceived. The complexities of the issue raised are obvious. There is much further work to be done on the Bill.
§ 1.38 p.m.
§ Lord Filkin
My Lords, as is not unusual in this House, some of our legislation brings out the range of interest and experience of Members, not least when we are dealing with issues that touch on faith, gender, sexuality, the law and human rights all at the same time. This will clearly be one of those Bills that will demonstrate the full range of interests.
I start by thanking the noble Baroness, Lady Buscombe, for expressing her support in principle—I emphasise the word "principle", as she did—for this measure. We are not unused in this House to finding that Front-Bench and Back-Bench views on measures are not unanimous. Nevertheless, the noble Baroness outlined a number of areas of question and challenge. I will respond to a fair number now but, given the length of the debate, I will be writing, as is my wont, to all Members before the Bill goes into Committee, seeking to go into more detail on any points to which I cannot do justice in the amount of time available without testing your Lordships' patience. I also give an undertaking that if any Members who have taken part in this debate or others in the House wish to have further face-to-face discussions with me before the Bill goes into Committee, I shall be pleased to see them.
The noble Baroness, Lady Buscombe, asked about the interim certificate. What if a person wanted to stay married? I think in that situation, they would not apply for gender change. Therefore, they would not put themselves in that position.
Concern was expressed about whether the civil partnership Bill will follow on in sufficient time to allow a translation without delay between the ending of a marriage and the registration of a civil partnership. I cannot specify exactly when the civil partnership Bill will come before the House and be enacted, but we hope it will be in this Session. If, however, there was a gap between the one piece of legislation and the other, one would expect anyone who wished to avoid making themselves subject to the legal anomaly to wait before they applied for gender recognition change as a consequence. That would be their right and their freedom of choice.
Many human rights issues were touched on. The noble Baroness, Lady Buscombe, talked about sporting facilities and changing facilities. For a start, most people—not all—will have had surgery. The fundamental issue is that this is already happening. There are transsexuals in our society, the vast majority of whom do not wish to draw attention to themselves or cause embarrassment to others. Therefore, whether or not the law is changed, these issues are being coped with in society as we speak.
1322 On the important issue of discrimination, Clause 9 makes it clear that a transsexual person would have protection under the Sex Discrimination Act as a person of the acquired sex or gender. Once recognition has been granted, they will be able to claim the rights appropriate to that gender.
Fundamentally, however, the Gender Recognition Bill is about the legal recognition in the acquired gender and not anti-discrimination law. While the Bill amends the sex discrimination legislation in the fields of employment and vocational training, that is only to the extent necessary as a direct consequence of the provisions on recognition. The Bill does not, as a number of people said, go further than that with regard to goods and services. Some will deplore that and some will rejoice.
On 5th November 2003, the European Commission published a draft directive on sex discrimination in the field of goods and services. Negotiations on this directive will start in the new year. The Government's view has been that as there is a European directive on this measure, we should wait for that, see how it progresses and use that as the vehicle by which we make any necessary change in respect of goods and services.
The noble Baroness also asked about the working of the registry. The purpose of the gender recognition register is simply to create a new record from which the Registrar General may produce a new birth certificate. The birth register will be linked to the gender recognition register and a birth register entry for a person who also has an entry in the gender recognition register will be marked. This will ensure that when a person applies for a new birth certificate in their acquired gender, the Registrar General does not incorrectly issue the birth certificate in the original gender.
The noble Baroness asked further about the age at which a person can apply for recognition. I am sure she will be glad to know that no one under the age of 18 will be able to apply for a gender recognition certificate. She also asked about how others will have access to gender history. The fundamental issue here, as has been touched on by a number of speakers, is crime or the prevention of crime. First of all, I should make the point that there is no reason to assume that there is in principle any more risk with transsexual people than with anyone else, in that respect. Nevertheless, before a person is cleared to work with children, the employer carries out background checks with the Criminal Records Bureau. We have clearly seen the importance of those checks this week. The CRB will have access to information about any offences committed by a transsexual person in their previous gender and identity. The CRB will, therefore, be able to continue its lawful function and transsexual people will not be able to evade traces made by the bureau.
§ Lord Tebbit
My Lords, I hate to delay the Minister. However, I hope that he recognises that even by changing his name, Huntley seemed to manage to dodge some of the provisions.
§ Lord Filkin
My Lords, I shall not prejudge the conclusions of the inquiry that my right honourable friend the Home Secretary announced this week, to be led by Sir Michael Bichard. However, if I am to believe what the radio said, the issue seemed to relate as much to delay by police forces in entering issues of suspicion about a person as the name change itself.
The right reverend Prelate the Bishop of Winchester, with whom I was privileged to have a discussion on the issue—and perhaps we may have further discussions—expressed the greatest possible sympathy. I believe that he is genuine when he expresses that, as I believe many other speakers are. Where we differ is that the Government are clear that that sympathy must be turned into some action, to give effect to changing what we believe is an injustice.
The right reverend Prelate asked important questions, as other noble Lords did, about the position of clergy, with specific reference to clergy in the Church of England or the Church of Wales. He asked how the clergy will know the truth. In fact, the clergy will have the right, as the noble Lord, Lord Goodhart, said, to ask a person whether they have had a gender change recognised. The clergy will also have the right to refuse, either if the person says "Yes", or if that person refuses to answer the question. No doubt, in Committee that will be challenged further. It seems unlikely that a person who has had a gender change recognition would place themselves in the embarrassment of forcing the issue before a clergyman who, in conscience, did not wish to marry them.
The noble Lord, Lord Goodhart, is right about registrars. We do not intend to allow a similar exemption for registrars. Many people in their public office must undertake functions that they may not always, in every single respect, agree with. That is part of being a public office holder and being a public employee. We see no reason why a registrar who did not agree in conscience—although one would respect that—should have the liberty to inquire into and refuse to exercise his function.
We shall undoubtedly return in Committee to the issue of the ending of marriage in detail. It is one of the most difficult and painful issues. I have set out as clearly as I can the Government's position on that matter, and we shall not change it. We shall not allow the recognition of marriage between people whose legal status is of the same sex. Although we shall return to the matter, we shall not move from that position. As to whether that is unfair to those who are now married, one of whom wishes to have gender change, it is not a full or happy answer to them but they do not have to force the issue if they do not want to. I shall say no more than that.
The right reverend Prelate referred to the ECHR judgment. I shall not go into full detail on that, but gender dysphoria is a recognised medical condition. The Chief Medical Officer recognises it and the NHS provides treatment for it. We are glad to stand by our 1324 international obligations in that respect. Moreover, we also believe that it is a wrong that needs to be recognised.
§ The Lord Bishop of Winchester
My Lords, I am grateful to the Minister for his replies to elements of my remarks, and I shall not name again those to which he has not replied. I look forward to the letter that he promised. However, it is important to ask what he anticipates will be the position of clergy and Ministers of other Christian traditions, and their equivalents in other faiths. Supposing they are faced with somebody with an acquired gender, quite apart from the question of disclosure, will they be actionable? Will an imam, a rabbi or a Baptist minister be actionable, should they in conscience refuse to solemnise a marriage?
§ Lord Filkin
My Lords, with the aim of brevity, I was keeping my answer relatively focused on Church of England clergymen. In effect, the position will be exactly the same for ministers of other faiths and religions. If they wish to inquire and, as a consequence of the information or non-information, refuse to conduct a religious rather than a civil ceremony, they will be perfectly at liberty to do so. The Bill has a measure specifically with regard to Anglican clergy because they have a legal obligation to carry out a marriage ceremony, because it is both a religious and a civil marriage at the same time. That is why we have brought the exemption into effect.
As I indicated, the noble Baroness, Lady Gibson, spoke from her experience in a way that we should keep before us when considering the Bill. We are talking about real human beings who are suffering real pain as a consequence. I know that that issue cuts both way in this argumentation. However, the issue at the heart of it is how to address the pain and the need to enable people to live their lives as they believe they have the need and the right to do.
I am grateful for the support, knowledge and expertise on this issue of the noble Lord, Lord Carlile. I can well believe that I shall need that expertise before we have completed our consideration of the Bill. He pointed out that we are not alone in making this change; in fact, if anything, we are behind the times in making it. All of the 15 European Union countries except Ireland and ourselves have already legislated to allow such a process to be recognised. Before the noble Lord, Lord Tebbit, comes to his feet, I should add that that does not necessarily mean that we are necessarily right in doing so. However, it should give us pause for thought about whether we are automatically wrong.
I turn to the specific points raised by the noble Lord, Lord Carlile. The pension issue is an interesting and sharp one. Clearly, there is no issue as regards private pensions, where an inequality issue arises across the genders regardless. Clearly, given that we are going to equalise, there will also be no issue as regards state pensions from 2020; that issue arises only between now and then. I shall write in more detail on this issue as it is an important one, and, as ever, I shall copy it to the Front Benches.
1325 My good and noble friend Lady Hollis of Heigham advises me that essentially, in practice, if we are talking about a female-to-male switch, we are talking about the loss of state pension for the years in which the person is over 60 but under 65. She advises me that such individuals can claim jobseeker's allowance or, if they do not wish to apply for work, pension credit guarantee. She believes that the effect of those will be to equalise the gap. I am sure that other noble Lords will welcome that. We shall write accordingly.
On these and other issues, the noble Lord, Lord Tebbit, is one of the parliamentarians for whom one has the greatest respect. However, it is almost impossible to respond satisfactorily to a debate about issues of principle. If one starts from a completely different foundation, nothing that is said will be able to change that foundation. All one can do is honestly respect that people differ and seek to engage on the practical issues as far as possible. I recognise that that will not give satisfaction. However, I do not pretend that, even if I spoke for two or three hours, I would be able to have the slightest effect on the view of the noble Lord, Lord Tebbit, or other noble Lords whom one respects in this respect.
All I would point out is that the law is not seeking to change an individual's sex but to recognise that a change has occurred. That may be seen as a semantic point; nevertheless, we are not seeking to bring about a gender change as a consequence.
I shall say only a few words in response to the noble Lords, Lord Tebbit and Lord Chan, on the medical issues and medical evidence that we must and should consider in considerable detail in Committee. The Government have discussed the Bill with the key organisations representing the profession, including the BMA, the GMC, the Royal College of General Practitioners, the Royal College of Psychiatrists and the British Psychological Society. Clearly, there are elements of the medical profession that maintain that there is no convincing evidence of a physiological cause for transsexualism and that to recognise the new gender is to pander to psychological delusion, as has been argued in this debate.
The opinion of the Chief Medical Officer is strongly that gender dysphoria is a medical condition and that treatment is available on the NHS as a consequence. A point I should mention now is that, in the Goodwin and I judgment, the European Court of Human Rights took the view that the continuing debate over the nature and aetiology of transsexualism should no longer stand in the way of transsexual people enjoying their human rights as others do. I think that that is food for thought in our debate.
The noble Lord, Lord Tebbit, also raised the question of how police or investigating authorities will know if someone changes their name. I touched on that previously but, for the avoidance of doubt, I should say that the Registrar General will be aware through the note on the register if someone has changed gender, and will be able to supply the 1326 information to the police relating to previous names. It is quite right to press that point, as it is essential that that be the case.
I was saddened to be on the opposite side of the debate from the noble Baroness, Lady O'Cathain. I preferred it when we were on same side, I seem to recollect, in debates on smoking advertising two years or so ago. She mentioned two matters in particular. The first was that we are talking about approximately 5,000 people. One needs to have some sense of proportion, by which I do not mean that the moral issues are swept aside because we might be talking of one rather than 5 million. On the other hand, in terms of the societal effect, one has to reflect on the likely impact. She also raised the subject of the effect on children. As the Minister responsible for family justice, for my sins, I am deeply interested in that and no doubt will come back to it in Committee.
The noble Baroness asked whether the Bill would be whipped. It is a government Bill, so the Government will whip it. She knows as well as I do the traditions of this House, and the severity of the sanctions that Front-Benchers are unable to put on their Back-Benchers when, in conscience or for other reasons, they do not always choose to follow the party line. I will say no more, as I do not want to encourage dissent from my Back-Benchers on the Bill.
I thank the noble Lord, Lord Goodhart, for his support on the Bill. We have talked about existing marriages, civil partnerships and a little about clergy already, so I do not need to respond specifically to those points among the Liberal Democrats' concerns on the Bill.
The noble Lord, Lord Moynihan, brought an important debate to the Bill, and it was a most effective advertisement for other measures at the same time. One listened with interest to that. We have consulted pretty extensively on the matter. As he said, our position is that we do not believe that there is a problem. However, clearly the role of this House, and of Committee, is to explore whether such a belief is the case. If he would assist me, I would be most pleased to get any evidence or argumentation that he has from the sporting bodies to suggest that we should look at a problem that he does not believe has been addressed by my response to date.
I shall not weary the House by emphasising why we think that the Bill matters. We should be legislating on the issue, irrespective of any ECHR judgment, because it is part of the response of a civilised society to recognise the differences in that society in ways that do not infringe the rights of others. Having said that, it is clear that we will have some vigorous Committee debates on the Bill. I look forward to that and to the proper probing and testing that will come as a consequence. In principle, we are clear that we should legislate, and we look forward to doing so.
On Question, Bill read a second time, and committed to a Grand Committee.