§ 7.4 p.m.
§ Lord Filkin
My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, 1 beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Filkin.)
§ On Question, Motion agreed to.
§ Schedule 4 [Effect on marriage]:
Lord Tebbit moved Amendment No. 86:
Page 26, line 4, at end insert—
( ) Notwithstanding any other provisions of the Gender Recognition Act 2004, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other.
The noble Lord said: My Lords, I expect to be told that the amendment is in conflict with the European Court ruling, but I do not believe that it is. In aid of that view I shall quote the finding of the court which the noble Lord, Lord Filkin, mentioned on 13 January in Grand Committee:
The court had found under Article 8 of the Convention that a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual'".—[Official Report, 13/1/04: col. GC 5.]
I believe that those last words are the most important.
The amendment states that:
Notwithstanding any other provisions of the Gender Recognition Act 2004, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other".
§ It is slightly badly drafted and it would be better if it said, "and each possessing genitalia". I leave that to one side.
Last week on 29 January, during the first day of Report stage, the noble Lord, Lord Filkin, set out in commendably robust and clear terms the policy of the Government:
We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position".—[Official Report, 29/1/04; col. 401.]
One may believe that the noble Lord would welcome an amendment that would prohibit marriage between persons of the same sex. That is a marriage between persons whose chromosomes and sexual organs are of the same sex. After all, that is the undoubted determinant of biological sex. I know that some people think that one's sex is determined by one's mind, but that is surely no more than a superstition.
I hope that the noble Lord will acquit me of discourtesy—I am sure he will—if I say that his robust rejection of same-sex marriage does not go so far as rejection of same-sex marriage. In his answer to a Written Question on 19 January he set out his position more openly. I asked Her Majesty's Government,
Whether they intend to legalise marriage between persons each possessing the XX chromosome (or each possessing the XY chromosome) and each possessing the genitalia of the same sex.
The noble Lord replied:
The Government believe that marriage should only be possible between people of opposite gender in law".—[Official Report, 19/1/04; col. WA 124.]
There we have the problem. The Government believe that marriage should only be possible between people of opposite gender in law. I believe that it should only be possible between people of opposite sex.
The noble Lord may yet have to eat some of his words. The other day I was reading my birth certificate. I have brought it into the Chamber this evening. I know that Government Whips suspect that I might not have had one, but here is the document. At the bottom, I found something that I had never noticed before. It states:
Caution. Any person who (1) falsifies any of the particulars on this certificate, or (2) uses it as true, knowing it to be false, is liable to prosecution under the Forgery Act 1913 or the Perjury Act 1911".
I presume that if I were to be overtaken by sexual dysphoria and became possessed of the idea that I was indeed a woman, and secured the agreement of a gender recognition panel to that, I would receive a new certificate. However, it would be in conflict, quite clearly, with the Forgery Act 1913 or the Perjury Act 1911, in that it would state, contrary to this certificate, that I had been born as a female. We do get into deep water in these matters, do we not?
§ Let us consider the Minister's proposition from the Written Answer to the Parliamentary Question that I have just recounted. His answer would mean that two persons, each of whom had given birth to children—and I can think of no better test of whether a person is female than that—and each of whom remains capable of bearing children, could be legally married provided that one has been given a certificate that states that she was born a male, was a male at the time she gave birth, and remained a male. That is the implication—nay, the meaning—of the Minister's reply. What would the noble Lord think should appear on their child's birth certificate; that his mother was a man? For sure, that would have to appear on it.
Let me remind the Minister of his Written Answer to another Parliamentary Question of mine on 19 January. I asked the Government whether they were,
aware of any cases of persons certified at birth as male who had given birth to children".—[Official Report, 19/1/04; col. WA 125.]
I have just enunciated the circumstance where somebody who had been certified as male at birth could give birth to children. Will any such caveat as appeared on my birth certificate appear on those issued under the Bill?
§ What of the marriage so disrupted by the person who purports to be the husband and who then gives birth? Would such an event establish in the minds of the noble Lord's legal advisers that it was a same-sex marriage? Would that marriage fall to be annulled under the dictum of the Minister as enunciated in his response last week to Amendment No. 28; that is, that a marriage between persons of the same sex should be annulled? Or would the noble Lord's advisers shrug their shoulders and say, "Well, it's just one of those things, isn't it? People giving birth these days might well be women; they might well be men. Anyway, so long as they are legally female, all is well".
§ Even at this late stage, I beg the Government to see the world as it is. There is something absurd in the proposition that the problems—I accept that they are very real ones—of transsexual people require us to accept that while today the marriage of two people each bearing the chromosomes and the sexual organs of the same sex would be a same-sex marriage and therefore illegal, a piece of paper that declares one of those two people to be of the opposite sex would be permitted by this legislation to make it a legal marriage of opposite sexes. That cannot make sense. I beg the noble Lord to consider that matter and to accept the amendment. I beg to move.
§ Lord Turnberg
My Lords, I am afraid that I do have a problem with the amendment. A problem arises from the attempt to base so much on the possession of the X and Y chromosomes and on the external genitalia, not least because there are so many exceptions to the general rule that one can determine a person's sex by them. One example is the condition known as Turner's syndrome, which affects women, most of whom have only one X chromosome. Is one X enough to count as a woman? Those who have Turner's syndrome certainly are women. Another is Klinefelter's syndrome, which affects men who have two Xs and a Y. Should they be classified 619 as men or women? They believe that they are men, but they have two Xs. Genes on other chromosomes also contribute to the sexuality of a person.
One comes then to the possession of the relevant genitalia as the determining factor. However, there are many examples of babies born with genitalia that are at variance with their chromosomes. Some of those babies have had some form of surgery that placed them clearly and permanently in one or other gender. Only in some cases do those genders coincide with their chromosomes. Some of those people have married on reaching adulthood. Those couples are of course infertile as, unfortunately, are many other couples, but infertility was never a bar to marriage. However, the amendment would prevent their marriage on the chromosomal count.
All of the above says nothing of the rights of transsexual people to marry, which the Bill would allow, but it simply points out the difficulties in practice of using the criteria that are set out in the amendment. I cannot support it.
§ 7.15 p.m.
§ Lord Winston
My Lords, I reluctantly join the debate at this stage of the Bill. I apologise for not being in the House at Second Reading and for hearing only part of the Committee stage. However, I feel so strongly about the amendment, as well as about Amendment No. 128, that it is important to put on record the medical facts.
As a practising obstetrician and gynaecologist who has been involved with reproductive medicine and the definition of sex in both animals and humans for the past 30 years in my research, I can only reiterate the comments of my noble friend Lord Turnberg.
The definition of sex is extremely complicated. It is not just a question of chromosomes. It is possible of course to have chromosomal sex and it is probable, though by no means certain, that all of us in this Chamber have chromosomes that are either XX or XY. However, even in the case of Turner's syndrome, which my noble friend has just described, it is possible to have an XY mosaic, with some of the cells carrying a Y chromosome and some having a deleted X chromosome. The variations of that syndrome mean that people may have different degrees of masculinity or femininity.
Most practising doctors in the field would describe sex on six, totally separate, definitions. Those definitions can be chromosomal but, more importantly, they are genetic. It emerges that genes on the Y chromosome are not the only genes that define sex. Although the SRY gene is by far the most common and important, there are genes on chromosome 17, chromosome 11, chromosome 10, chromosome 6 and chromosome 3 that can, in exceptional circumstances, determine sex of various kinds. Those people can carry on a completely normal life.
Genetic sex is therefore no less important than chromosomal sex, but that is not the end of the story. There is also hormonal sex. Some people will produce 620 hormones that will tend to feminise them, while others will be masculinised. That can happen in utero. Good evidence has emerged from Professor Waters of Monash University in Australia—he is now long retired—that suggests that some people who become transsexuals later in life have been exposed to an abnormal surge of either male or female hormones during pregnancy. That has caused them to have a different psychological sex from their genital sex. Psychological sex of course depends on brain function. That also varies greatly and is probably genetically determined, but so much exploration of that subject is being conducted that it is not fully understood.
Genetics is rapidly changing our understanding of where sex is determined. But to define it simply as genital, hormonal or, as the noble Lord, Lord Tebbit. seeks to do, as gonadal, is a travesty of what really happens.
Let me give one example. Janice was the most beautiful woman, who came to my unit some time: ago. She was six feet tall, and had been brought up as a woman. She had very well developed breasts, a perfect physique, and was actually XY. She did not find that out until she was 20. Some people with XY dysgenesis believe themselves to be female and relish being female. Others find that when they are actually male because of their chromosomes, they entirely change their view psychologically.
I should like to make the point made by Robert Jaffe, now retired, a very distinguished endocrinologist. He says in his chapter on reproductive medicine headed "Disorders of Sexual Development":It is crucial that the clinician who deals with patients with genital ambiguities be sensitive to the emotional as well as the physical needs of the patient. The patients frequently have a great deal of confusion and anxiety about their sexual roles Whereas genetic, gonadal, hormonal, and genital sex may be of prime importance to the physician, the gender identity (that is. how the patient views himself or herself) and the sex of rearing are paramount in determining the patient's sexual identity".Robert Jaffe is effectively saying that there needs to be an understanding of the autonomy of the person concerned because, on the whole, they are the best people to judge how they feel about their sexuality. That is true of the 200 different mutations which could have affected Janice, my patient. There are so many different fluctuations in this broad spectrum of sexuality that I urge the House to be very cautious about defining it in terms of chromosomal, genital or any other simple definition. It simply is not medically just, and I am sure that it would produce bad law.
§ Lord Lucas
My Lords, I entirely support what the noble Lord, Lord Winston, has just said. Klinefelter's syndrome, in particular, seems to be quite common, occurring in one in 1,000 male births. We are not talking about a collection of extremely rare symptoms but about something which probably affects someone we know. I do not think there is any way in which we can sensibly define gender as a biological phenomenon. It is too much a continuum, much as we may like to think that it is separated. It just does not exist in that way.
621 It makes the Minister's arguments quite attractive to say that someone's gender is what the law says it is and that is to be accepted. It will make for an interesting variant on the Scottish play—a man not of woman born—and there can be other explanations once the Bill is passed. It could perhaps explain what is going on in the words of "Colonel Bogey", when it was clear that the Third Reich was populated almost entirely by people afflicted by such symptoms.
The noble Lord knows that I sympathise with the amendment. What hurt me in the earlier amendments was the tearing apart of a marriage between a genetic man and a genetic woman just because of some legal fiction. That does offend me. But allowing a marriage between an emotional or a psychological man and a psychological woman who are apparently, in some aspects of their genetics, both of the same sex, is much more reasonable. I am happy to go down that route, particularly given the explanation of the noble Lord, Lord Winston. Tearing apart a real marriage seems much more serious than allowing the sort of marriages that will be allowed if the Bill is passed in its current form. I will therefore not be supporting the noble Lord, Lord Tebbit, in this amendment
§ Earl Ferrers
My Lords, to listen to the noble Lord, Lord Winston, is always a fascination. His knowledge and experience of these matters go way beyond anything any of us would normally know about or experience. However, I do not agree with him that sex is quite difficult to decide. Sex, on the whole, is pretty obvious. There may be a difficulty in the one thousandth or one millionth case, but on the whole there cannot be a real difficulty because it is obvious, is it not?
§ Lord Filkin
My Lords, it is novel to have the support of my noble friends Lord Turnberg and Lord Winston and the noble Lord, Lord Lucas, at the same time. It is also a privilege. I will speak briefly, because as the noble Lord, Lord Tebbit, and I spoke before we started this stage of the Bill, we have rehearsed these arguments in part before, although I am interested in some of the legal conundrums and challenges he posits for me today. 1 will look with interest at what he has said when I study Hansard and reflect on it.
At heart, the noble Lord knows that we will not agree because the system for recognition under the Bill in the acquired gender is not to be based on chromosomes or genitalia. It has been set on the tests that are set out on the face of the Bill, the three measures which we have debated time after time. Those do not turn on the genitalia or the exact chromosomes, nor should they, as my noble friends Lord Winston and Lord Turnberg have made clear so powerfully as part of their expert advice to us from their medical practice.
Sex and gender are not determined purely by chromosomes. Recognition, therefore, cannot depend purely on chromosomes. Similarly, having or lacking the right genitalia is not the nub of the Bill, and surgery 622 should not be a precondition either. The noble Lord, Lord Tebbit, was with me on the last point, and I respect him for that.
The appropriate test is whether a person has taken decisive tests to live fully in the acquired gender and there is clear evidence of gender dysphoria after a proper process of inspection and testing over a number of years. We do not intend to compel transsexual people to undergo surgery, even though most wish to do so. The principle of legal recognition in the acquired gender will, subsequent to the issue of a gender recognition certificate, become the acquired gender for all purposes in law, as we have said before.
The amendment would have us define a person's gender in law in one way but define the person's gender for the purposes of marriage in another way. That goes against the central purpose of the Bill.
Marriage in our society is a status for two parties of the opposite gender in law. The Bill retains that principle, hence the basic nature of marriage as an institution. The amendment would mean that a person who had been recognised by the state as being of a changed gender in law after the process we have discussed would not be able to marry. That would not be compliant with our ECHR obligations and would also, I believe, be wrong in principle for reasons we have debated many times.
I am grateful for the clarity that my noble friends Lord Turnberg and Lord Winston brought to the complexity of the issues. When I was younger, I tended to think that the world was rather simple. As one becomes older, one learns that the world is more complex; it is clearly more complex medically, whereas I perhaps focused on its greater social complexity. By and large, I have found that that complexity enriches life rather than diminishes it.
With regard to what the noble Earl, Lord Ferrers, said, we are talking about only 5,000 people in Britain. That is why this is such a unique and specific set of circumstances. This is one of the smallest minorities in our society, yet the evidence we have had prior to the Bill and during our debates shows that for that very small minority this issue is very significant. I think we have an obligation in justice to help them live their life as they believe it to be. Therefore, while I have a lot of respect for the unflinching opposition of the noble Lord, Lord Tebbit, to the Bill, we will not be able to support the amendment for these reasons, and I hope he will not press it.
§ Lord Tebbit
My Lords, I thank the Minister for his reply. Let me make it absolutely plain that I would not be party to any legislation that forced a transsexual person to undergo surgical mutilation in order to benefit from the provisions of the Bill, if it becomes an Act of Parliament. That would be quite wrong and quite outrageous.
I am enormously flattered that this evening the Government had to bring in the heavy mob, in the shape of the noble Lord, Lord Winston, as well as the light cavalry in the shape of the noble Lord, 623 Lord Turnberg—light cavalry is a formidable weapon when it is used effectively. Let us not forget that it can even undo heavy cavalry.
Both noble Lords perhaps suffered from the disadvantage of not having read every word of the proceedings at earlier stages of the Bill, although I would not wish to sentence either of them to that, as it comes under the heading of cruel and unjust punishment. I have never maintained that there is a single test of sex. In this amendment, I propose a triple test. The noble Lord, Lord Winston, said that that is not satisfactory. I am terribly tempted to ask him—particularly as I know that under the rules of the House he cannot speak again—exactly how he would set about defining sex. I acknowledge that he said that it is extremely difficult.
It is a wonder to me that the human race has got on quite well for so long without the benefit of all this doubt about the matter. We have had marriage for centuries, for thousands of years, and we have always had an understanding—initially informally but gradually more formally and eventually legislatively—that marriage is possible only between people of opposite sexes. Now the noble Lord, Lord Winston, tells us that it is almost impossible to distinguish whether people are of opposite sexes. It would seem to indicate that we have been making a massive mistake of some kind for thousands of years. I do not accept that that is so. He is over-elaborate in his cautions. We may be in danger of damaging society, and the institution of marriage, because of these doubts that spring from our better understanding of the fact that no simple theory of the structure of life is adequate.
There is a legal requirement to differentiate between the sexes. We should not throw aside all common sense and experience, and rest everything upon the judgment of a couple of medical practitioners and, even worse, registered psychologists, particularly when in recent weeks we have seen just how fallible expert opinion may be. We all revere expert opinion. We all revered the opinion of the medical expert on whose expert evidence many women were unjustly sentenced to gaol for murder. We would be wise to ask whether we should uncritically accept expert advice or whether we should accept common sense advice. If we had accepted the common sense view, those women would not have been sentenced to gaol. They were sentenced to gaol by a medical expert. In future we shall rest our conclusion upon whether a couple may marry upon just such expert opinion. I would rather rest upon common sense. It is something that we have done in this country for a very long time. It is why we have juries. It is why we do not always trust judges, who are very expert, to come to the right conclusion unless they are assisted by juries.
The choice here is between what some people think and what all of us can see. We should choose what all of us can see.
§ Lord Elton
My Lords, before the noble Lord sits down, will he explain to me a point that is probably clear to others? He has said that we should not rely 624 upon expert witnesses, but who, except an expert witness can tell us whether a particular person answers to one or other of the descriptions in his amendment?
§ Lord Tebbit
My Lords, the descriptions are not terribly difficult. Two-thirds of them would be obvious if the marriage ceremony were to take place in a nudist encampment. The other one, the definition of the chromosomes, is not terribly expert. It ought to be within the ability and experience of an A-level student in biology, although with the degradation in standards in schools and universities it would probably now take a master's degree.
§ I wish to test the opinion of the House.
§ 7.35 p.m.
§ On Question, Whether the said amendment (No. 86) shall be agreed to?
§ Their Lordships divided: Contents, 46; Not-Contents, 121.625
|Division No. 3|
|Ashcroft, L.||Mancroft, L.|
|Attlee, E.||Marlesford, L.|
|Brookeborough, V.||Miller of Hendon, B.|
|Brougham and Vaux, L.||Montrose, D.|
|Byford, B.||Northesk, E.|
|Carlisle of Bucklow, L.||O'Cathain, B. [Teller]|
|Cope of Berkeley, L.||Palmer, L.|
|Dixon, L.||Plummer of St. Marylebone, L.|
|Erroll, E.||Roberts of Conwy, L.|
|Ferrers, E. [Teller]||Rotherwick, L.|
|Gardner of Parkes, B.||Saltoun of Abernethy, Ly.|
|Geddes, L.||Seccombe, B.|
|Glentoran, L.||Shaw of Northstead, L.|
|Home, E.||Soulsby of Swaffham Prior, L.|
|Hooper, B.||Southwell, Bp.|
|Jopling, L.||Stoddart of Swindon, L.|
|Kimball, L.||Strange, B.|
|Knight of Collingtree, B.||Swinfen, L.|
|Lindsay, E.||Taylor of Warwick, L.|
|Lofthouse of Pontefract, L.||Tebbit, L.|
|Luke, L.||Thomas of Gwydir, L.|
|Lyell, L.||Ullswater, V.|
|Maginnis of Drumglass, L.||Vinson, L.|
|Acton, L.||Carlile of Berriew, L.|
|Addington, L.||Carter, L.|
|Alli, L.||Chandos, V.|
|Amos, B. (Lord President)||Clark of Windermere, L.|
|Andrews, B.||Clinton-Davis, L.|
|Archer of Sandwell, L.||Cohen of Pimlico, B.|
|Ashton of Upholland, B.||Corbett of Castle Vale, L.|
|Barker, B.||Crawley, B.|
|Bassam of Brighton, L.||David, B.|
|Beaumont of Whitley, L.||Davies of Coity, L.|
|Berkeley, L.||Davies of Oldham, L. [Teller]|
|Bernstein of Craigweil, L.||Dean of Thornton-le-Fylde, B.|
|Bhatia, L.||Desai, L.|
|Billingham, B.||Dubs, L.|
|Borrie, L.||Eatwell, L.|
|Bragg, L.||Elder, L.|
|Brooke of Alverthorpe, L.||Evans of Parkside, L.|
|Brookman, L.||Evans of Temple Guiting, L.|
|Burlison, L.||Farrington of Ribbleton, B.|
|Campbell-Savours, L.||Filkin, L.|
|Freyberg, L.||Nicol, B.|
|Fyfe of Fairfield, L.||Oakeshott of Seagrove Bay, L.|
|Gale, B.||Oxford, Bp.|
|Golding, B.||Parekh, L.|
|Goldsmith, L.||Patel, L.|
|Goodhart, L.||Pendry, L.|
|Gordon of Strathblane, L.||Phillips of Sudbury, L.|
|Gould of Pottemewton, B.||Pitkeathley, B.|
|Grabiner, L.||Radice, L.|
|Graham of Edmonton, L.||Ramsay of Cartvale, B.|
|Grantchester, L.||Randall of St. Budeaux, L.|
|Grocott, L. [Teller]||Rendell of Babergh, B.|
|Hamwee, B.||Roper, L.|
|Harris of Haringey, L.||Russell-Johnston, L.|
|Harrison, L.||Sainsbury of Turville, L.|
|Hayman, B.||Sawyer, L.|
|Hilton of Eggardon, B.||Scotland of Asthal, B.|
|Hogg of Cumbernauld, L.||Sharp of Guildford, B.|
|Hollis of Heigham, B.||Simon V.|
|Howells of St. Davids, B.||Smith of Clifton, L.|
|Howie of Troon, L.||Smith of Leigh, L.|
|Hughes of Woodside, L.||Symons of Vernham Dean, B.|
|Jones, L.||Taylor of Blackburn, L.|
|King of West Bromwich, L.||Thomas of Gresford, L.|
|Layard, L.||Thomas of Walliswood, B.|
|Lea of Crondall, L.||Thornton, B.|
|Lester of Herne Hill, L.||Tomlinson, L.|
|Livsey of Talgarth, L.||Tope, L.|
|Lockwood. B.||Tordoff, L.|
|Lucas, L.||Triesman, L.|
|Macdonald of Tradeston, L.||Turnberg, L.|
|McIntosh of Haringey, L.||Wallace of Saltaire, L.|
|MacKenzie of Culkein, L.||Walpole, L.|
|Mackenzie of Framwellgate, L.||Warner, L.|
|Maddock, B.||Warwick of Undercliffe, B.|
|Mallalieu, B.||Whitaker, B.|
|Mar and Kellie, E.||Whitty, L.|
|Massey of Darwen, B.||Wigoder, L.|
|Merlyn-Rees, L.||Winston, L.|
|Miller of Chilthorne Domer, B.||Worcester, Bp.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.45 p.m.
Lord Filkin moved Amendment No. 87:
Page 26, line 5, leave out from beginning to first "gender" in line 6 and insert "A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's
§ The noble Lord said: My Lords, I seek to be relatively crisp because this is not the first time that the Government have moved an amendment having sought to listen and respond to points made at earlier stages of a Bill.
§ Ministers of the Church of England and the Church in Wales are legally obliged to solemnise the marriages of parishioners. The Bill therefore provides a conscience clause so that ministers are freed from their legal obligation if one of the parties to the marriage has been recognised in the acquired gender. Although the relevant minister may not wish to solemnise the marriage, there are plenty of other opportunities for a person to get married and not be debarred of their legal rights.
§ There is wide support for the principle of a conscience clause, including from the transsexual community. Similar provision exists, for example, in relation to a person who seeks to remarry after having been divorced.626
§ There was considerable discussion on this issue in Grand Committee. I accept the difficulty posed by the present version of the provision. If the person seeking to marry does not, or refuses to, tell the minister, a minister will not be in a position to know that a person has changed gender. Information about a person's change of gender is, for good reason, protected under the Bill.
§ We have listened to the arguments and consider that it is sensible to amend the schedule so that it provides protection for the conscience of a minister both where he or she knows that a person wishing to be married has been recognised in the acquired gender and where he or she has a reasonable belief that this is the case.
§ Were the noble Lord, Lord Chan, present, I would speak to his amendment in a little more detail. However, the succinct response regarding why we consider his amendment is inappropriate is that it is perfectly possible for an unreasonable belief to be held sincerely by a person. The noble Lord's amendment would therefore, if accepted, open up an injustice.
§ As I have said, we are open to addressing the concerns of the clergy regarding being able to act on their consciences on the matter. I have met with representatives of the Church of England and my officials have worked with them to formulate an acceptable form of words. I understand that the Church in Wales has examined the new wording of the schedule and is content with it.
§ This is the first opportunity to pay tribute to someone else who has been a redoubtable adversary of the Government on this Bill. If I am being polite, that means that I have not agreed with every word that the noble Baroness, Lady O'Cathain, has said. However, I recognise the passion and sincerity with which she has argued her case. Therefore, it is fitting to recognise that today is her birthday. I beg to move.
§ The Lord Bishop of Worcester
My Lords, I have not been able to participate in earlier discussions on the Bill. However, I consider that it is important to place one reflection on record. In doing so I pay tribute to both Ministers and staff in the relevant departments who have engaged in very careful and thorough discussions with staff of the Church of England and with bishops about this matter. I do not wish my remarks to be pressed to the point of a vote on the amendment, but I wish to place on record that I and many others feel considerable discomfort at those regrettably frequent occasions when we come to the House as agents of the country's religious communities and ask for our consciences to be protected from a proposed law.
We need to recognise that the clause, which is an attempt to balance some difficult matters, makes it possible for a person who will have been through a nightmarish life experience to endure the suspicion and then rejection of their request to marry. Some of the stories that have come our way and some of the people I know, who are the subjects of the Bill, are asking no more than that they should be protected from being suspected, inquired into and perhaps gossiped about. The clause, for all its right protection 627 of the consciences of some clergy, actually troubles the consciences of many others of us by what it puts certain people through in their request to be married.
I am not pressing the matter to a vote and I respect the attempts that the Government have made to produce a form of words which is acceptable. I also accept that if there is no conscience clause in the Bill there will be far stronger opposition to it than would otherwise be the case. However, I would not feel that I have done my job in the Chamber if I did not place on record the discomfort of a considerable number of people, when religious communities ask for their consciences to be protected from what society's conscience has come to think is right.
§ [Amendment No. 88, as an amendment to Amendment No. 87, not moved.]
§ On Question, amendment agreed to.
§ [Amendment No. 89 not moved.]
Lord Filkin moved Amendment No. 90:
Page 26. leave out lines 8 to 10 and insert —
(2) A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person's gender has become the acquired gender under that Act."
§ [Amendments Nos. 91 and 91 A, as amendments to Amendment No. 90, not moved.]
§ On Question, Amendment No. 90 agreed to.
§ [Amendments Nos. 92 and 93 not moved.]
§ Schedule 5 [Benefits and pensions]:
§ [Amendments Nos. 94 and 95 not moved.]
Lord Carlile of Berriew moved Amendment No. 96:
Page 29, line 20.. at end insert—
(2A) But sub-paragraphs (1) and (2) do not apply to a person who was born not less than 50 years before the appointed day and who is a woman immediately before the certificate is issued, and the rights of that person to a Category A retirement pension are to be decided as if the certificate had not been issued.
§ The noble Lord said: My Lords, my noble friend Lord Goodhart and I and all other noble Lords who have discussed the matter are grateful to the noble Baroness, Lady Hollis. She has been at great pains to try to explain to me and to others that the amendment is unnecessary. I think—and when I say "I think" it is my fault, not hers—that she has pointed out to me that no female to male transsexual will be disadvantaged in terms of his pension as a result of obtaining a gender recognition certificate; or, at least they will not be disadvantaged financially if they fall within a certain age group. That is the subject of the amendment.
§ The issue was drawn to my attention by Mark Rees, a female to male transsexual who is well known because he brought one of the cases that went to the European Court and because he wrote an excellent autobiography about his experiences as a person who has had to endure the whole process and live with it for many years. He wrote to me to point out that people of his age—that is, people who are now at the age 628 when, had they remained of female legal status, they would have retired or would have been about to retire and receive their pension—find themselves potentially disadvantaged. It is a simple point. The Bill helpfully gives them the status of the gender which they have acquired once they obtain the certificate. A female to male transsexual, therefore, receives a pension at 65. A male to female transsexual receives a pension at 60. In legal terms that is as it should be. But there is an anomaly.
§ A person like Mr Rees will have gone through the process of law, which included going to the European Court of Human Rights; of lobbying, including a Private Member's Bill, which I presented in another place with the assistance of Mr Rees many years ago; and various other experiences that led him to the conclusion that he was never going to acquire the legal status of a man, which he is pleased to see that the Bill will give him. Of course he openly welcomes the Bill, almost without reservation. But it took a long time to reach the present position and successive governments made it clear to him that he was not going to reach it. So, he was entitled to assume that he would receive a pension at 60. There are possibly a dozen people who fall into that anomalous group. I suggest to your Lordships that we need to be sure that those people will not be disadvantaged in any way. We need to be sure that, even if they do not make themselves available for work because of their reasonable expectation of what was going to happen to them regarding their pensions, they will not find themselves disadvantaged.
§ Amendment No. 96, for which I do not claim anything except simplicity, is an attempt to put that issue in simple terms and to find a solution for it. I strongly suspect that the comments we will hear from the noble Baroness, Lady Hollis, in response to this short debate will be a little more complex than the amendment. When she responds I should be grateful if she would make it absolutely clear—since it may become a Pepper v Hart point—that there is no risk of the people to whom I refer being disadvantaged in any way. If there is a risk, surely the way to deal with it is by an amendment such as this, which would remove all doubt. I beg to move.
§ Lord Monson
My Lords, when we debated the Bill last week the noble Lord, Lord Filkin, made it clear that once an individual changed sex or acquired a different gender—however one puts it—they would henceforth be entitled to all the advantages and disadvantages, fiscal or otherwise, associated with that newly acquired gender. The amendment would allow a woman who has legally become a man to have his cake and eat it to some extent.
I thought from what the noble Lord, Lord Filkin, said last week that that was contrary to the Government's purpose, but the noble Lord, Lord Carlile, suggests otherwise. He suggests that his amendment sets out in clearer form what the Government intended all along. That totally puzzles me because it seems inconsistent with what the Government have said. If someone who 629 has become a man draws his state pension at 60, he is not being treated the same as all other men who have been men all the time.
Moreover, the right of women to receive the state pension five years earlier than men is an unjustifiable anomaly, as I believe all political parties now agree. I stand open to correction, but I believe the anomaly is being phased out over a period of years and not before time. In a sense, therefore, the amendment is retrograde.
If I am mistaken and that is what the Government intended all along, there is little I can do about it, but I should be grateful for an explanation from the Government Front Bench.
§ 8 p.m.
§ The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)
My Lords, the amendment focuses on the state pension provision. The noble Lord, Lord Carlile, supported by the noble Lord, Lord Goodhart, proposes that some individuals who gain a gender recognition certificate should receive their state pension according to their acquired gender but that others should be given special status and receive their state pension according to their birth gender. Like the noble Lord, Lord Monson, I believe that that runs entirely counter to the principle of the Bill.
Last Thursday, your Lordships' House decided that the marriage will end if one partner changes gender and wants to obtain a full gender recognition certificate. The amendment could not fit in with that decision. The marriage comes to an end and the consequence is that each partner must now be treated as an individual in his or her respective gender.
Let me focus on the fundamental difficulties which I believe are raised by the amendment, which is to allow category A pension provisions—the basic £77 state pension—for female to male transsexual people over the age of 50. The noble Lords feel that because such people have made financial preparations for retirement based on the expectation that they would be retiring at the age appropriate for women, we should respect and honour that by virtue of the amendment.
I want to make four brief points because the noble Lord, Lord Monson, anticipated most of my argument. First, if female to male transsexual people over 50 who gain legal recognition of their acquired gender retain entitlement to the category A pension— the basic £77 state pension—as though they were still women, that clearly discriminates against those legal males who have not changed gender but would like the same right. We would be creating a special group of men who would be treated differently because of the fact they were once women, despite the fact that they want to be recognised as men. That is unfair and could, I am led to believe, be open to legal challenge. Obviously, I would defer to the weight of legal opinion on the Bench.
Secondly, if female to male transsexual people over 50 are to be treated for state pension purposes as remaining in their birth gender, it would be legally difficult not to 630 treat the opposite group of transsexuals—in fact the majority; those who are male to female—in their birth gender for pension purposes also. They, too, presumably on the noble Lord's argument, have been planning their financial retirement as though they were going to retire at 65 while in their new gender they would be entitled to claim their basic state pension at 60. I emphasise that 80 per cent—three-quarters or more—of transsexual people move from male to female. In other words, if we are to be fair across the category of transsexual people, three-quarters would be disadvantaged for the one-quarter who might on this account gain. Obviously, one cannot distinguish only female to male; I would argue that one would have to distinguish similarly male to female. I do not believe that that would be reasonable.
The third point, in practical terms, is the financial situation mentioned by the noble Lord, Lord Carlile. Whether someone is male or female between the ages of 60, his or her financial situation can be virtually identical. Anyone over the age of 60—male or female—subject to income, is entitled to an income-related benefit which is pension credit. It used to be called MIG. That is important. It is worth £102 to the individual however much towards that £102 he or she brings in the form of basic state pension. In other words, if as a female she has a basic state pension in her own right of £50, £60, £70 or £77, MIG—pension credit—would top it up to £102. But if as a male by either birth or by acquired gender he does not yet have an entitlement to the basic state pension, he none the less, subject to income, can also get pension credit of £102. Therefore, in practice a female to male transsexual, a male to female transsexual, a birth male and a birth female will all receive the same sum of money between the ages of 60 to 65. subject to income, of £102 a week, whether there had been a change of gender or not.
Finally, from 2010 we begin to equalise the retirement basic state pension age for both men and women alike. Not only will we be reducing financial difference in terms of eligibility for basic state pension between men and women, we will be reducing legal entitlement too,
I have made four points. First, that it is not fair to men in their birth gender if some men in their new acquired gender have a different entitlement. Secondly, in all logic one would have to extend the same principle to male to female transsexuals and therefore the majority of transsexuals could lose financially in this package if one takes the argument of the noble Lord. Thirdly, eligibility for income-related benefits is the same irrespective of gender acquired or at birth between the ages of 60 and 65. Finally, we are equalising gender state retirement ages. I hope that with those four brief points, the noble Lord, Lord Carlile, will feel able to withdraw his amendment.
Lord Carlile of Berriew
My Lords, I am grateful to the Minister for her response. Had we achieved equalisation of pension ages—a laudable aim which I and my party support—I would not be moving the amendment. I recognise the validity of that point—we just have not got there yet.
631 The points on discrimination and legitimate expectation illustrate the dilemma we are in. We have a conflict between two concepts. On the one hand, we have the legitimate expectation in the example I gave of Mr Rees who was led by the Government, particularly by their hostility until recently into recognising he was a man, to expect that he would receive his pension not subject to income measurement at the age of 60. On the other hand, others might conceivably claim that they were discriminated against for the reasons the noble Baroness gave.
I do not accept for one moment that what has been said is a satisfactory answer for that very small number of people because a non-income-related benefit will be replaced by an income-related benefit in some cases. Among that small group, there will be people who have occupational pensions who will without doubt be losers. I find that unsatisfactory.
Having said that, in recent days I have spoken to and corresponded with people who are in this position. We all recognise that the Bill is a significant step forward in the law. It would be inappropriate to divide the House over the issue, but it is appropriate to register disappointment at the outcome of this short debate. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 6 [Sex discrimination]:
Lord Goodhart moved Amendment No. 97:
Page 34, line 30, at end insert—
1A In section 2A (discrimination on the grounds of gender reassignment)—
§ The noble Lord said: My Lords, the Sex Discrimination (Gender Reassignment) Regulations 1999 introduced a number of new sections into the Sex Discrimination Act 1975. Their purpose was to extend the protection of the 1975 Act to transsexual people undergoing gender reassignment or who had undergone or intended to undergo it. The new sections did not extend the protection of transsexuals to the full width of the Act.
§ Section 2A, introduced by the 1999 regulations, extended the Sex Discrimination Act to cover transsexual people in relation to discrimination over employment under Part II of the Act, but did not extend protection against discrimination to the provision of goods and services under Part III.
§ Amendment No. 97 serves two purposes. First, it extends the rights of people undergoing or having undergone gender reassignment by forbidding discrimination in the provision of goods and services. Secondly, it recognises that male and female transsexual people will be entitled to the protection of the Sex Discrimination Act in their legal status as women. But discrimination may be specifically against male-to-female transsexuals and not against women generally; so there is a lacuna.632
§ We see no adequate reason why the anti-discrimination legislation should be limited to discrimination in employment under Part II of the 1975 Act and not to discrimination in the provisions of goods and services under Part III of the Act.
§ The amendment's second purpose is to extend the protection expressly to transsexual people who have acquired, or intend to acquire, a gender recognition certificate. Gender reassignment, as defined in subsection (3) of Section 2A of the 1975 Act, involves medical treatment. That can, of course, be surgery, but it could also be hormone treatment without surgery. The majority of people who seek or obtain a gender recognition certificate will, as part of the process, undergo medical treatment of some kind, but it is not in fact a requirement of the Gender Recognilion Bill that they should do so.
§ It seems pointless for a person who has obtained a gender recognition certificate to have to produce evidence of medical treatment to be able to bring a complaint about discrimination when the very existence of the certificate shows that they are people who are intended to be protected. The absence of any specific reference to people who have received gender recognition certificates may cause particular difficulties where the applicant has changed gender under the law of an approved foreign country and evidence of medical treatment would have to be obtained from abroad, which might present difficulties and perhaps involve the translation of documents.
§ Not only should the existing protection be extended to include Part III as well as Part II of the 1975 Act, but it should also involve a specific reference in Section 2A to those who have obtained gender recognition certificates, as well as to those who have undergone or may intend to undergo gender reassignment. 1 beg to move.
§ Lord Filkin
He does indeed. These issues are complicated. The thrust of our response is not that there are no issues worthy of study here, but that because of their complexity this is not the best place or time to do so and there will be another opportunity relatively shortly. I shall speak on that in a little more detail.
As the House knows, once gender recognition had been granted, an individual would be able to claim all the rights appropriate to that gender. The person would therefore have protection in the acquired gender under existing sex discrimination law. However, fundamentally, this Bill is about legal recognition in the acquired gender and not about the totality of anti-discrimination law.
633 Anti-discrimination protection for transsexual people as transsexuals already exists in the areas of employment and vocational training. That has been set out in the Sex Discrimination Act since 1999. Protection is provided on the basis of intending to undergo, undergoing or having undergone gender reassignment. There are a number of exceptions relating to genuine occupational qualifications where the circumstances are specified in which discrimination on the grounds of gender reassignment is not unlawful.
Some of the exceptions apply only to a person who intends to undergo or is undergoing gender reassignment and not to a person who has undergone gender reassignment. However, the Act does not contain a definition of the point at which a person is to be regarded as having undergone gender reassignment. Therefore, the creation of a new legal status in this Bill gives us the opportunity to provide such a definition.
First, the Bill amends the Sex Discrimination Act so that the genuine occupational qualifications allowing discrimination on the grounds of gender reassignment will not apply in the case of people who have been legally recognised in their acquired gender. The effect would be that, while there would be occasions when it was legitimate to discriminate against a transsexual man or woman on the grounds of his or her acquired gender, it would no longer be permissible to discriminate against them in employment matters on the grounds that they were previously of another gender, unless the separate exception for organised religions under Section 19 is applicable.
However, a further extension of the protection against discrimination into the realm of goods and services would require an evaluation by the Government of the nature and extent of the problems faced by transsexual people in those areas. We would need to consider the implications and practicalities of extending the law, including the nature of new burdens on service providers in all sectors, including education, to which the amendment extends, and the necessity for exceptions in any particular circumstances. And, as has been the case in relation to this Bill, we would also want to have proper consultation with stakeholders and those affected.
We firmly believe that if that is to be done—we have heard the arguments that have been made today—it should be done only once a recognition system is in place and once the impact of recognition in the acquired gender has been evaluated. That would provide better evidence of the nature of the problems. For the reasons that I have touched on, we do not think it right suddenly to do so as part of this Bill.
However, I do not believe that that is an argument for unreasonable delay. On 5 November 2003, the European Commission published a draft directive on sex discrimination in the field of goods and services. Negotiations on that directive will provide a suitable forum in which discussions can take place with our European partners and the Commission. Those discussions will provide a far broader, European-wide discussion of the issue, including the possible need for exemptions and legal protection against discrimination.
634 Taking action in this Bill would risk the possibility of having to revisit the same area of anti-discrimination law once the directive was finalised. It would be unhelpful if we were to legislate now in haste and then find, as I believe would almost inevitably be the case, in a relatively few years' time that we had to legislate again because a significant number of burdens were placed on service providers to bring themselves into compliance as a consequence. If they were required to do so twice, I believe that that would be unreasonable.
Having said all that, we hear the arguments surrounding the issues most clearly. They will be issues for ongoing study within government and will inform our discussions with the European Commission and the relevant parts of the Council of Ministers on these matters. We shall look to amass evidence and experience as part of that process.
§ 8.15 p.m.
§ Lord Goodhart
My Lords, naturally, I am somewhat disappointed by that reply, particularly in relation to the part of the amendment which proposes that there should be a specific reference in subsection (3) of Section 2A not only to those who have undergone or are undergoing gender reassignment but also to those who have obtained a gender recognition certificate. That seems to me to short-circuit some of the evidence that it would be necessary to produce without in any way taking decisions about the extension of the coverage of the anti-discrimination laws.
However, there is obviously a considerable degree of comfort in the knowledge that the Government are planning to consider this matter in the wider context of the proposed European directive. In those circumstances, it would obviously be inappropriate for us to push this issue to a Division. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness O'Cathain moved Amendment No. 98:
Page 35, line 9, at end insert—
(5) A person—
§ The noble Baroness said: My Lords, in moving this amendment I shall also speak to Amendment No. 101 in my name. They are identical except that Amendment No. 98 refers to Great Britain and the other to Northern Ireland.
§ The purpose of these amendments is to allow a Church to refuse employment to a person who will not consent to the disclosure of an entry relating to them on the gender recognition register. Any employer will say that getting the right person for the job is essential. 635 In any business if the right person is employed it goes brilliantly, but if the wrong person is employed it becomes a disaster. It can have a very negative effect on the whole organisation if someone is employed who does not share the basic values, or what we term in business "the ethos of the business".
§ If that is true in a secular organisation how much more true it is in a religious organisation. In a religious group the staff are bound together by very strong beliefs on fundamental issues and shared values. These are beliefs not about mundane matters such as management style or marketing techniques, but about human nature, right and wrong and the nature of truth.
§ Churches teaches us that our sex is decided by God. They also teach that your sex is a matter of absolute truth, not personal choice. I ask, how could a Church employ a transsexual who effectively believes that God got his sex wrong? How can they employ a person who, in their eyes, lives a lie by impersonating the opposite sex?
§ The Government know that it is wrong to force this on religious groups. In 1999 they enshrined the right of religious bodies to refuse to employ transsexuals. This is found in Section 19 of the Sex Discrimination Act. Yet only five years later we are severely limiting the ability of Churches to exercise that right by taking away their right to know the birth sex of the candidate for employment. If a job applicant conceals his or her transsexualism religious employers will have no way of knowing it.
§ At present they can resolve any doubts they may have by requesting sight of the birth certificate. Either the person will supply it, in which case it will declare their true sex, or they will decline it in which case they can be turned down on the basis of bad faith.
§ But this Bill takes that option away. It would be pointless to ask for a birth certificate to verify their sex because it will simply confirm the applicant's version as to his or her sex. As a way of establishing a person's true biological sex, birth certificates will in effect become useless.
§ Of course, the Church can ask a direction question: have you changed sex? Some transsexuals will be honest and answer truthfully, but some will not. They may have a deep-seated urge to conceal their true sex. They may have no compunction at all about saying, "No, I have not changed sex. I have always been what I am now". The Church may then feel that it has no choice but to believe them. It might not emerge that they have been deceived until months or years later.
§ Why do the Government not seem to care about this possibility? Why do they recognise that it is changing the nature of the relationship between the Church and its potential employees?
§ I ask the Minister three questions. First, does he understand the dilemma that Churches face through not knowing the true sex of job applicants? Secondly, what is a Church supposed to do about it? Thirdly, does the Minister agree that it would be offensive to 636 Churches, mosques or temples or other religious bodies who are employers, to discover that they had unwittingly employed a transsexual?
The human rights barrister, Paul Diamond, issued a legal opinion about this Bill on 26 January. He believes that the Bill may breach the freedom of religion under Article 9 of the European Convention. He put it like this:
It is rather like saying to a Muslim school: 'We don't know if the food given to your children has pork in it. Further, you are not allowed to inquire, or check whether this is the case". Thus the choice for the Muslim is not to eat. Or to say to a Jewish person, that you should become a vegetarian as you cannot secure Kosher meat. The very posing of the question illuminates the clear violation of religious rights".
If we say that we respect people's religious opinions we must take steps to avoid this scenario. This Bill must be amended to protect the existing rights of Church employers. I beg to move.
§ Lord Filkin
My Lords, the amendments seek to ensure that a person who has acquired a new gender under the Bill or who will not consent to disclosure of their entry in the gender recognition register is covered by the exemptions in Section 19(3) and (4) of the Sex Discrimination Act. Those subsections allow discrimination against those who are undergoing or have undergone gender reassignment in relation to employment, authorisation or qualification for the purposes of an organised religion, provided that this is done to comply with a religious doctrine or to avoid offence to the religious susceptibilities of a significant number of the religion's followers.
I am happy to be able to reassure the noble Baroness and the House that no addition to Section 19 is needed, as the existing provisions already do all that is needed.
Where a person is refused employment, or an authorisation, or qualification, this is unlawful under Section 2A of the Sex Discrimination Act only if it is done,on the ground that the person intends to undergo, is undergoing or has undergone gender reassignment".Whether or not that is the case is a question of fact for the tribunal, were one to be engaged to decide on the case. What is important to note is that wherever it is found that an organised religion has discriminated on this ground they are entitled in principle to seek to claim the benefit of the exemption in Section 19.
I shall deal with the concerns which underlie this part of the amendments. The amendments suppose that a person who has acquired a new gender under the Bill applies for employment or ordination for the purposes of an organised religion but refuses to consent to the register being consulted. In this situation, if the Church refuses employment or ordination, it is very likely that the discrimination would be held to have been on the ground that the person has undergone gender reassignment. The Church will therefore be entitled to seek to rely on the relevant part of Section 19.
The Church will succeed under Section 19 only if it can show that the restrictions imposed satisfy the tests laid down in Section 19. In other words, the Church will have to show that the restrictions were imposed to 637 comply with a religious doctrine or to avoid offending the religious susceptibilities of a significant number of the religion's followers, which is, I think, the thrust of the noble Baroness's amendment. The fact that the Church had not seen the gender recognition register would not prevent it from seeking to rely on this examination.
Amendment No. 99 seeks to insert into the Bill an exemption covering ordination and appointment. We have already said in Grand Committee that the question of whether the Church may discriminate against transsexual people in these respects is one that must be answered in the context of our EU obligations and specifically the Equal Treatment Directive that must be implemented by October 2005. We have clearly also signalled that we would be happy to continue discussions with the Church about that issue.
§ Baroness O'Cathain
My Lords, I thank the noble Lord for giving way, but we are not talking about Amendment No. 99, which is the amendment of the right reverend Prelate the Bishop of Winchester and is not grouped with my amendments. Unfortunately, the right reverend Prelate is not present.
§ Lord Filkin
My Lords, I apologise. I will say no more on that. Amendments Nos. 100 and 102 would add a new Section 33—
§ Baroness O'Cathain
My Lords, I am sorry to do this to the noble Lord especially when he has been so gracious as to wish me a happy birthday, for which I thank him. The actual amendments I am speaking to are Amendments Nos. 98 and 101. They are very narrow ones and are identical. Amendment No. 98 applies to Great Britain and Amendment No. 101 applies to Northern Ireland.
§ Lord Filkin
My Lords, I am most grateful to the noble Baroness for her help. I shall seek to find any relationship to Amendment No. 101 in my notes.
§ 8.30 p.m.
§ Baroness O'Cathain
My Lords, perhaps I can help the Minister. I do not think it matters because both amendments refer to the same point. Amendment No. 98 applies to Great Britain and Amendment No. 101 to Northern Ireland, but the wording is identical.
§ Lord Filkin
My Lords, yet again the noble Baroness has fooled me. Clearly, I have answered the point and I shall say no more.
§ Baroness O'Cathain
My Lords, I thank the Minister, in particular for his gracious handling of the amendment. He said that my amendment is unnecessary because Section 19 already allows the Church to refuse to employ any transsexual whether or not they have a gender recognition certificate.
638 The point is that Section 19 should cover all transsexuals. That needs to be made explicit on the face of the Bill to avoid Churches having to foot the bill for litigation on this point. We also need to avoid rogue court rulings. Schedule 6 states that a person with a gender recognition certificate is not a transsexual for the purposes of Section 7A of the Sex Discrimination Act. We do not want an employment tribunal reading that across and saying that the same applies to Section 19. That is the purpose of my amendment. Although I would love to say that the Minister has given me great comfort, I fear that he thinks that Section 19 would be adequate; I fear that it will not be.
§ Lord Filkin
My Lords, before the noble Baroness sits down perhaps I may say that I shall study yet again what she has said to see if there is any further engagement we can have on this before Third Reading to identify whether there is a significant difference between us on policy or law, or whether we have not been clear enough about the nature of the issues.
§ Baroness O'Cathain
My Lords, I am grateful to the Minister. Certainly, I shall take him up on his offer. Therefore, I have great pleasure in begging leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Lord Bishop of Southwell moved Amendment No. 99:
Page 35, line 9, at end insert—
In section 19 (ministers of religion etc), insert at the end—
(5) Without prejudice to subsections (3) and (4) above, in relation to discrimination falling within section 2A. this Part does not apply to any thing done for the purpose of an organised religion in relation to—
§ The right reverend Prelate said: My Lords, in the unavoidable absence of my noble friend the right reverend Prelate the Bishop of Winchester, I rise to move Amendment No. 99 standing in his name. In substance it is identical to the amendment he moved in Grand Committee and reflects concerns which he raised at Second Reading.
§ The amendment is intended to safeguard members of churches and other faith communities against the risk of liability under the Sex Discrimination Act 1975 when they act on the basis of doctrines of their religion or the strongly held convictions of a significant number of the followers of their religion in relation to selection and training for ordained or recognised, authorised work or service.
§ I emphasise that the amendment does not seek a blanket exemption to discriminate in matters of employment, let alone membership. We shall come to those issues later where, indeed, the Church of England seeks no such exemption. Our concern is with public representative office, which ordination—and perhaps a limited number of other roles—conveys, and where we believe a genuine and determining occupational requirement could be demonstrated.
§ On a number of occasions during the passage of the Bill, reference has been made to the need to balance the proper rights of transsexual people with the proper rights of other parties. Section 13 of the Human Rights Act requires courts involved in determining human rights to have particular regard to the exercise by the religious organisation of the convention right to freedom of thought, conscience and religion.
§ As we move into a more overtly multicultural and multiracial Britain, the need to recognise and respect the reasonable rights of minorities will become progressively more evident in a whole range of issues. The case for appropriate safeguards in this matter was recognised by the Minister when he spoke in Grand Committee. He acknowledged that as well as providing rights for transsexual people, the Bill protects the rights and freedoms of others where appropriate. The Minister went on to say that these protections would be best provided not in the Bill itself but in the regulations that will need to be introduced to give effect to the equal treatment directive, which must be implemented by the United Kingdom by October 2005.
§ I can see the case for dealing with all these matters together in the round, in the totality of the situation, as the Minister put it in Committee. Will the Minister confirm that the Government recognise the potential rights of religious communities and minorities in relation to the appointment of transsexual people to representative public office or equivalent roles? Whether this is dealt with in the Bill, as the amendment proposes, or in regulations is of secondary concern.
§ We would prefer it to be in the Bill, both as a guarantee of this recognition, but also because, as things stand, there is likely to be a gap between the passing into law of the Bill—the Minister mentioned April 2005—and the new regulations, which must come in by October 2005. As I understand it, there will 640 be no legal protection for Churches and religious groups in that gap, which is a cause of considerable concern. If the matter is to be dealt with by regulations, can the Minister assure the House that the gap between the enactment of the Bill and the regulations will be kept to a minimum? Might it even be the case that the equal treatment directive could be implemented in two stages, the first dealing with transsexual and other areas relating to sexual discrimination legislation? Perhaps that might be considered.
§ Let me be clear. This amendment has a limited, but vital scope. I seek the Minister's assurance that the strictly limited concerns that are outlined here are shared by the Government and will be recognised by appropriate action without any avoidable delay. I beg to move.
§ Lord Filkin
My Lords, noble Lords will be relieved that I will not speak at great length on this, but not because the issues are not important. We have already signalled our position. Amendment No. 99 seeks to insert into the Bill an exemption covering ordination appointments. We have already said at Grand Committee that the question of whether the Church may discriminate against transsexual people in these respects is one that must be answered in the context of our EU obligations, specifically the equal treatment directive, which must be implemented by October 2005.
I hope, and I have some confidence, that it has been pretty clear from how we have handled this Bill so far that where it is possible to accommodate the profoundly held beliefs of religious organisations, without infringing the human rights of transsexuals, we have been open to discussions and efforts to do so. I make that clear, with that caveat, without that being a total blank cheque, that we will continue those discussions in the nature of the equal treatment directive.
In so far as the present position in law is concerned, office holders are not covered under the existing employment protection that is accorded to transsexual people. This will change with the implementation of the equal treatment directive, but this Bill will itself make no change to the existing position. That is why we have said before, and we say again today, that the discussions that have taken place with the Church will continue in preparation for that implementation. I hope that the right reverend Prelate will feel minded to withdraw his amendment.
The Lord Bishop of Southwell
My Lords, I am grateful to the Minister, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness O'Cathain moved Amendment No. 100:
Page 35, line 9, at end insert—
After section 33 (exception for political parties), insert—
33A EXCEPTION FOR RELIGIOUS BODIES
§ The noble Baroness said: My Lords, I rise to speak to Amendments Nos. 100, 102 and 108. Again, we have a situation like the last two amendments that I moved. Amendments Nos. 100 and 102 are identical: Amendment No. 100 applies to Great Britain and Amendment No. 102 to Northern Ireland.
§ The purpose of Amendments Nos. 100 and 102 is to prevent litigation under the Sex Discrimination Act, which forces religious bodies to allow those with gender recognition certificates into membership or to use the facilities provided. The purpose of Amendment No. 108 is to query why the Government are willing to give wide exemptions to sporting bodies, but are reluctant to make concessions for religious groups. The grouping is a bit crazy, but I hope that it will be all right.
§ Amendments Nos. 100 and 102 deal with what one might call the "Bill Parry scenario". Mr Parry has been mentioned several times, at Second Reading, in Grand Committee and on the first day of Report. He was a Congregationalist minister, a husband and the father of three. A few years ago, he decided to change sex. He started attending the Maesteg Christian Centre. The Church believed that it was morally wrong to try to change sex, but, for two years, he attended none the less.
§ Mr Parry would not accept the Church's teaching on transsexualism, and matters came to a head when the Church refused to allow him to attend the ladies' prayer meeting and would not let him use the ladies' toilet. Mr Parry is an activist and has used the law more than once against people who would not treat him as a woman. In July 2000, he won a £6,000 out-of-court settlement with a college. He claimed that it had discriminated against him, as he was on its beauty therapy course. Three months later, he forced the Welsh equivalent of the Women's Institute to change its membership policy. So, it was no surprise when, in 2002, he sued Maesteg Christian Centre over access to the ladies' fellowship and use of the ladies' toilet.
§ The Church engaged a barrister and successfully resisted Mr Parry's legal action, but the judge expressed strong sympathy with Mr Parry and criticised the Church. Even though the Church won the action, the judge ordered it to pay some of its legal 642 costs. Sadly, if the Bill had been in force, the judge might have found a way of giving Mr Parry what he wanted. There is plenty of scope for that in the Bill. The Bill says that a man who holds a gender recognition certificate is to be treated in law as a woman. Clause 9 says that he is a woman for all purposes. That means that he is entitled to sue for discrimination as a woman under the Sex Discrimination Act.
§ The Government are creating a new legal landscape, in which the sort of action pursued by Mr Parry could succeed. After all, what legal justification could a Church have for refusing to allow a woman to use the women's toilets? Even if a legal action failed, Churches would have to put up with the distress and might even have to foot the bill. We must put protections against that into the Bill.
§ Amendment No. 108 simply gives me the opportunity to point out the inconsistency between the Government's treatment of sports bodies and their treatment of religious bodies. I feel sure that the Minister will have had a sense déjà vu, when he saw the wording of Amendment No. 108. As noble Lords will have noticed, it mirrors closely the wording of government Amendment No. 107, exempting sporting bodies.
§ The Government are willing to make broad, far-reaching exemptions for sports bodies. I support that, and I think that it is brilliant. However, they have not yet brought forth anything similar for religious bodies. The Minister will say that Churches can already discriminate and that there is no need for the amendment. I would nearly bet on that. However, in Grand Committee on 14 January, he said that there was no need for amendments to protect sport; then, he changed his mind. I ask him gently to change his mind about protecting religious bodies. I beg to move.
§ The Lord Bishop of Worcester
My Lords, I feel obliged to reiterate more strongly the point that I made earlier today. As we debate the matters, a picture is being built up in which organised religion always takes one view of the question. What will be the situation of the Government in the discussions, when they are faced with people who purport to represent the views of a religious body but actually represent only part of that body, in which there are others who hold the opposite point of view with equal force?
I do not know whether it is known in the House, but when the House of Bishops of the Church of England discussed this subject, it was clear that we had to acknowledge the existence in the Church of England of two equally strongly held doctrinal positions on the matter. I shudder at the thought of government having to adjudicate on the doctrinal position of an organised religion. I recognise that the words, "religious susceptibilities of a significant number of its followers", are already enshrined in statute. But they are highly dangerous. When I hold a religious sensibility, to me a significant number is one. I do not think that that is true of other people's religious convictions, but I notice that other people behave in similar ways.
643 For the Government to confer on religious bodies the right to create membership qualifications that go against the convictions of the society in which those religions function, and to be protected when they do so, is a dangerous precedent. I urge the Minister to bear in mind in the conversations that will proceed in the coming months that, like gender, organised religion is a complex matter. The convictions and doctrines of organised religion are also complex. I am well aware of a significant number of members of the Church of England who find the collection of exemptions along these lines deeply offensive.
§ 8.45 p.m.
§ Lord Elton
My Lords, I shall listen to the Minister's reply with great interest, and shall do so in part in the light of what the right reverend Prelate has just said. What my noble friend has proposed is permissive, not obligatory. It is available for that section of any belief that holds her view without compelling any section that does not hold her view. To that extent, I feel that the objection of the right reverend Prelate is without much force.
I want to return to something that the right reverend Prelate said earlier when he expressed his discomfort in general—not in particular terms—at the position taken by my noble friend. Had it been expressed in particular terms, I would have been less concerned by it. He said that he was very concerned when the Church asked for shelter from the consequences of disagreeing with something with which the majority of society had come to a conclusion. I always thought that it was the function of Churches to do exactly that—to stand firm when the majority of society got things wrong. I am not saying that society got it wrong in this respect, as I see the right reverend Prelate quivering on the edge of intervening. I am referring to the general principle. I am thinking of the Church in Germany in the 1930s and early 1940s, and indeed, of our Churches during the civil war. It is plainly the duty of a religious body—especially a Church, and my own Church, in particular—to stand by principles when the majority of society has got them wrong, as they now have in many respects. I am not speaking about the Bill when I say that.
§ The Lord Bishop of Worcester
My Lords, perhaps I may assist the noble Lord. It might help if I say what my intervention would have been, rather than what he thought it might have been.
My concern is not that the Church should comply with everything that society says. It cannot be said that I advocate that position. My concern is that the Church should not seek protection from the costs of its obedience.
§ Lord Elton
My Lords, that is a much more honourable and enlightened position, but as to my first question, I shall leave it to the Minister.
§ Lord Filkin
My Lords, I thank the noble Lord, Lord Elton, for that challenge. It almost feels too late to go into full detail on all these issues. However. I am 644 grateful for being exposed to an alternative set of pressures from the ones to which I am usually exposed on this Bill. That is healthy and it is a reminder to Government of how one has to be cautious in trying to uphold two sets of rights. Clearly, in part, much of these discussions has concerned trying, if possible, to provide the proper rights to transsexual people that we clearly believe should be provided in a civilised society, and to do so in a way that does not, at the same time, infringe the right to freedom of religion and to freedom of religious expression. We are debating on that cusp.
The noble Baroness, Lady O'Cathain, gave me plenty of fervour and examination questions to take away with me. I shall not respond to them all tonight, but I shall look at them. For now, 1 shall make a few comments on the record.
Amendments Nos. 100, 102 and 108 would add a new Section 33A to the Sex Discrimination Act and Article 34A to the equivalent Northern Ireland order. The provisions will provide religious bodies with the freedom to restrict membership or the provision of benefits, facilities or services in such a way as to exclude a person who is recognised in the acquired gender or who will not consent to the disclosure of any entry relating to them in the gender recognition register. Amendment No. 108 has the same purpose.
On the face of it, that is a wide-ranging exemption. However, it would have no effect, as neither the Sex Discrimination Act nor the Northern Ireland order at present extends protection to transsexual people in terms of membership of religious organisations or the provision of benefits, facilities or services. As I have already explained, we do not consider it appropriate in this Bill to extend protection against gender reassignment discrimination to the area of goods, facilities and services, not as a point of principle, but as a point of practice. There is a better forum for engaging in those issues.
The Bill is concerned with providing transsexual people with access to a means of acquiring legal recognition; it is not an anti-discrimination Bill per se. The only changes that it makes to anti-discrimination law are consequential changes:providing access to legal recognition in the applied gender. We have had, and no doubt will continue to have, discussions with the noble Baroness, Lady O'Cathain, and representatives of Evangelical Alliance, for whom I hasten to say she does not speak. I was not seeking to ally her with a Christian institution.
On the outcome of Mr Parry's case, 1 do not want to comment on a particular case. The Bill does not open up a new class of discrimination claims. As I have already said, we are not using the Bill to extend discrimination on the ground of gender reassignment.
On sporting bodies, one is damned if one does and damned if one does not. We have been willing to provide an exemption for sporting bodies, but the Bill is not about discrimination. The exemption for sport is of a different character. It does not permit a sporting body to restrict the participation of all transsexual people; it allows a restriction only where that is necessary to secure fair competition or safety of other 645 competitors. An exemption for religion, at least under the terms proposed, would apply to all transsexual people.
I shall say no more about access to lavatories or other such issues. On a general point, I recollect, either tonight or previously, a question being asked about the Women's Institute. The present law would not prevent an organisation like the Women's Institute discriminating against a transsexual person if it wished to do so, as the Women's Institute could not be considered to be exercising a public function in considering applications for membership and, therefore, it would not be a public body. But I hope that it would not discriminate.
§ Baroness O'Cathain
My Lords, I thank the Minister again. I see the Bill as opening up the prospect of litigation against the Churches, which concerns me. I know that between now and Third Reading there will be discussions so I shall beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 101 and 102 not moved.]
§ Clause 16 [Peerages etc.]:
Baroness Buscombe moved Amendment No. 103:
Page 6, line 22, at end insert—
( ) Nothing in this section shall prevent the holders of any peerage or dignity or title of honour who are in receipt of a gender recognition certificate from styling themselves as if they had inherited the peerage or dignity or title of honour in their acquired gender, and the persons concerned shall have the right to require any organisation or body of which they are a member to address them by the style appropriate to their acquired gender.
( ) A person who is the holder of an order of chivalry which is limited to one sex shall after receipt of a gender recognition certificate have the right to petition for conferment of the equivalent degree of the order of chivalry appropriate to their acquired gender.
The noble Baroness said: My Lords, in speaking to Amendment No. 103 I return to a debate that we had in Grand Committee about peerages. Noble Lords will recall that Clause 16 states:
The fact that a person's gender has become the acquired gender under this Act … does not affect the descent of any peerage or dignity or title of honour".
In a sense, the clause provides for an exceptional treatment for peerages, in the way that Clause 15 provides for a different treatment for succession. In Grand Committee, we expressed our concern that if, for example, a male baron were to become a female, that male would not then be able to call himself a baroness. Similarly, an earl could not become a countess. Amendment No. 103 illustrates to the Government just one of our concerns about a number of anomalies in the Bill relating to how individuals should be treated in particular circumstances.
§ Noble Lords will note that my noble friend Lord Ferrers has tabled an amendment about peerages. I defer to him for he knows much more about peerages than do I. Indeed, I suspect that he knows much more about succession than do I.646
§ The Government conceded in Grand Committee that there were "issues to consider", not only about how title is officially recognised, but also about how other matters flow from the holding of a title. The Minister has since courteously written to me about those further considerations. It seems that a possible solution has been found. However, I would prefer to wait to hear the Minister's response to my noble friend Lord Ferrers about that solution. I beg to move.
§ Earl Ferrers
My Lords, as my amendment has been grouped with this one, I shall make some observations. My noble friend Lady Buscombe kindly said that I knew more about peerages and succession than does she. I do not know whether that is true, but I certainly do not know more than does she about changing gender. I have been lost in admiration at your Lordships' ability to understand the complexity of the Bill, in particular that of Ministers, who have fought bravely to defend it and all its complications.
I have a number of questions to ask. I suppose that I should declare an interest in so far as I am a hereditary Peer and the clause relates to hereditary peerages. I assure your Lordships that any interest 1 declare is not personal, but arises merely because I am a hereditary Peer.
In Grand Committee, I thought it extraordinary that the Government wanted to help hereditary Peers, because normally they do not. The noble Baroness, Lady Hollis, is shaking her head. Before she shakes it, perhaps she should hear what I say. It was extraordinary that they should help hereditary Peers by inserting a special clause for their benefit. I felt that either the Bill is so good that it should apply to everyone or that it is so bad that the Government cannot find a way of getting round the issue without making an exception for hereditary Peers. I shall quote what the noble Lord, Lord Evans, said in Grand Committee. He can sit in his place and be frightened. He said:I said that it raised a number of very interesting and important issues that the Government must consider. I said that we would go away and consider the points raised and return before Report with amendments".—[Official Report,.14/1/04; col. GC 105.]I became very excited. I thought that the Government had at last taken note of something that I had said. However, when I looked at the list of amendments, the Government had not put one down to address this problem. So I tabled an amendment to leave out Clause 16 to find out exactly what it means because, quite frankly, I do not understand it.
Clause 16 says that the fact that a person's gender has become the acquired gender under this Act,does not affect the descent of any peerage or dignity or title of honour".I can understand that. However, Clause 16(b) says that it,does not affect the devolution of any property limited (expressly or not) by a will or other instrument to devolve (as nearly as the law permits) along with any peerage or dignity or title of honour unless an intention that it should do so is expressed in the will or other instrument".647 I am not a lawyer; the noble Lord, Lord Carlile of Berriew is, and he no doubt understands that perfectly. However, I do not understand what it means and I would be grateful if the Minister would explain what it means.
I would like some explanations to some serious points, and I hope the Minister will answer them. What happens if an earl has a sex change? In order to make certain that there is no duplicity, we will call him Earl Dodger and his son Viscount Chump. If Earl Dodger has a sex change, does he become a countess, in which case there will then be two Countess Dodgers? Or does he remain as an earl although he masquerades as a woman?
As the earl has changed from being a male to a female, what happens to the title? Does Viscount Chump suddenly inherit the earldom and become an earl as the earldom is apparently vacant? That does not seem right because you would then have two earls. What happens if Countess Dodger, on the other hand, changes sex and becomes a man? What does she become? Does she become Earl Dodger, so that there are two earls? She cannot, because she was not appointed. What does she do?
Let us suppose that Earl Dodger has a son and a daughter. Let us suppose that the daughter is older and that she has a sex change and becomes a man. Does she then become Viscount Chump instead of her younger brother who, up till now, was Viscount Chump? If she does become Viscount Chump, does she inherit everything else? Does she inherit the title of earl instead of the proper Viscount Chump, and all the cash, if there is any? In my experience, earls do not have much cash nowadays, but they used to in the good old days. What happens to the proper Viscount Chump? There may be a trust fund under which it all goes to the holder of the earldom. Does the lady get that and, if so, will she remain friends with her brother?
Clause 16(a) states that the Bill does not affect the descent of any peerage or title of honour. Of course it does—it goes to someone to whom it was not supposed to go.
I have read Clause 16(b) six times and I cannot understand it. It says that the fact that a person's gender has become the acquired gender does not affect the devolution of any property unless an intention that it should do so is expressed in a will. In years gone by, quite a lot of these properties were expressed in wills by grandfathers and great-grandfathers who did not have the curiosities that exist nowadays.
If it is intended that the land owned by an earl should pass on to the next earl, and if Earl Dodger becomes a woman and vacates the earldom, does he have to pass his land on to Viscount Dodger, who presumably becomes the earl? Of course, he cannot become the earl, because the earl is still alive. It does not seem very fair, and it happens to nobody else in the country. I hate to put it like this, but the Government are discriminating against hereditary Peers. They have always hated hereditary Peers but I think hereditary Peers are jolly good folk. It is a pity to see the 648 Government discriminate in this way by suddenly saying that the Bill is wonderful, but the change must not appear to be part of the peerage.
The noble Lord, Lord Filkin, made an interesting remark in a letter to my noble friend Baroness Buscombe:The hereditary principle is hence untouched. However, this does mean that a person recognised in law as a woman may inherit a 'male title'. Clearly, a person in this position may wish to seek a change to the form of address".He said that the whole purpose of the Bill is to allow a woman to inherit a male title. Yet, earlier on, it said that there would be no change. In his letter, the noble Lord goes on to say that:Subsequent to these discussions",that he had with Garter Principal King of Arms,it is clear that a person in this position would be free to petition Her Majesty for a change in the form of address. Therefore, rather than making the detailed provision in the Bill to deal with every possibility, we believe that this issue should be dealt with on a case-by-case basis and that this discretion should rest with Her Majesty".Do the Government mean to say that they have introduced a Bill that is so complicated, and has made such a mess of every thing, including the peerage, that the only way out is to get Her Majesty to resolve it? I find that quite extraordinary.
I shall remind your Lordships of what the right reverend Prelate the Bishop of Winchester said in Committee. He asked what happens if a female priest changes sex and becomes a man and said:It [is] an infringement of her rights that Crockford's"—or, as the right reverend Prelate also mentioned, Who's Who, Dehrett's or Dod's—continued to contain details of the early stages of her ministry".—[Official Report, 14/1/04; col. GC 105.]If one removes the first part of a person's career from a professional directory, where does the editor stand in terms of the Trade Descriptions Act? I thought that that was a very trenchant point by the right reverend Prelate. The Government did not have an answer to that.
What happens if, as one does, one has a medical directory? Suppose there is a person who becomes a doctor, goes through the training, becomes a surgeon and decides to become a woman? Is the directory to cut all that out of a person's previous career? Would not anyone employing that person as a surgeon want to know where that person was educated, what medical school he or she went to and what happened in her career? That must all be cut out because she has changed sex and it must not be referred to.
One could say that if one looked in Dod's, or in a similar directory, and saw that a person was educated, for instance, at Winchester and Magdalene College, Cambridge, even though she was a woman, one could discover that she was probably a man because those places usually educate men not women. No attempt has been made to answer these points.
The Minister who will respond to this amendment— I am not certain who it will be, but I have a good idea that it will be the noble Lord, Lord Evans-may say 649 that when people are in positions of importance, such as bishops, priests, surgeons, Peers, and anyone in public life, everyone will know that they have changed sex and they do not have to worry about it. It is only people lower down the echelons who the Government are worrying about. That is no way to produce a Bill. If the Bill is so good that it has to refer to these 5,000 who, regrettably, for reasons with which we all sympathise, have to change sex, it must refer to everyone; a group cannot be excluded.
The real answer is that the Bill is so bad because it is based on a deception. The whole idea is a deception. My noble friend Lord Tebbit, who regrettably is not here, has said this all along. It is based on a deception whereby you say, "Here is a person who was born a female," and then you say, "We have decided 40 years later that he was born a male". That is a deception. It turns nature topsy-turvy. I hope that the noble Lord who replies to the amendment will provide perfectly clear and not complicated answers to these questions as the measure has turned nature upside down and we should like to know what the position is.
§ Lord Monson
My Lords, the noble Earl, Lord Ferrers, is an extremely hard act to follow when talking about matters of this kind. I shall not even try to emulate his tour de force. However, there are a couple of points that even he did not cover in his splendid peroration.
If I have interpreted the noble Baroness's speech correctly, which I hope that I have, I am relieved to learn that Amendment No. 103 is in effect tongue-in-cheek. I hope that I am right about that because, if it is not, we must consider some of the consequences. Clause 16 as it stands talks only about descent but Amendment No. 103 refers to actual titles. If a baronet were to change his sex, presumably he would become either a lady or possibly a dame, I am not sure which. However, if the amendment is tongue-in-cheek, that does not really matter.
The other curious aspect of the amendment is that it would give someone the right to require an organisation or body to address them by the style appropriate to their acquired gender. How can they do that? No criminal penalties are set out in the amendment or in the Bill. Would the people in question be able to take civil action against the organisation in question to force it to address them in a certain style? I shall be interested to hear what the Minister has to say on the matter.
§ Lord Evans of Temple Guiting
My Lords, I rise to speak in an attempt to match the extraordinarily funny and interesting contribution of the noble Earl, Lord Ferrers.
The Government do not hate hereditary Peers. I am a Member of the Government. My closest friend, who does not sit in this House, is a hereditary Peer. Without wishing to pre-empt anything that may happen later in the Session, it may be hereditary Peers sitting in the 650 House of Lords who present the problem. However, we regard them as an endangered minority who have to be looked after and nurtured.
§ Earl Ferrers
My Lords, the whole of this Report stage has been worthwhile just to hear the noble Lord say that.
§ Lord Evans of Temple Guiting
My Lords, I am very grateful to the noble Earl, Lord Ferrers, for that. He challenged me to answer all the questions that he raised. I shall not do so this evening as we hope to finish by 10 or 10.30 p.m. However, the week-long holiday will soon arrive and I should be very happy to spend that week with the noble Earl, Lord Ferrers, talking about the extraordinary family he has constructed in which everyone seems to have changed sex.
I must apologise to the noble Earl for saying in Committee that I was so overwhelmed by his arguments that the Government would bring forward amendments on this matter. However, we have not done so. We have not done so because after very careful reflection—but I am afraid that the noble Earl, Lord Ferrers, will need a great deal of persuading on this—we consider that Clause 16 is necessary and that it ought to remain in the Bill. I shall tell the noble Earl, Lord Ferrers, why that is so in rather a dull way, I am afraid, which does not match his style and humour. However, it is important that this is put on the record.
Clause 16 states that the issue of a gender recognition certificate does not affect the descent of peerages. It has been included so as to exclude the possibility of a person changing gender—I refer to an elder daughter changing gender in these circumstances—in order to leap-frog a sibling and in that way obtain a peerage, dignity or title of honour. If that could occur it would defeat the expectations of the person to whom the peerage would have otherwise descended. Peerages are also unique because they descend to the eldest son, according to birth. That is another reason why birth gender should continue to count. The adoption and children act of 1992 makes a similar exception, about which the noble Earl, Lord Ferrers, may have waxed eloquently 13 years ago. The exception is there so that the adopted children may not inherit a peerage, even if they qualify—as, for example, the eldest son.
I can see from the expression on the face of the noble Earl, Lord Ferrers, that he does not think that my argument is impressive. But it is our argument and we have considered his comments in Committee. Perhaps my noble friend Lord Filkin and I can have a meeting with the noble Earl so that we can sit down and avoid—if we wish to avoid—a brilliant performance from him at the next stage or perhaps we should just wait and enjoy his comments when we discuss the matter again. I can see out the back of my head the expression on the face of my noble friend Lord Filkin. Seriously, the noble Earl made some interesting points and we would like to discuss them with him over the next week or so—even if I have to do that myself.
§ 9.15 p.m
§ Earl Ferrers
My Lords, may I interrupt the noble Lord for half a moment? I am amazed that he could see what his noble friend Lord Filkin was saying and thinking, since he was sitting behind him. He must have eyes in the back of his head, like a chameleon. My real concern is that he said I had waxed eloquent over a matter some 13 years ago. I do not wax eloquent over many issues, but I do over some. There are so many matters, that I cannot remember my actual comments 13 years ago. I am deeply impressed that the noble Lord did.
§ Lord Evans of Temple Guiting
My Lords, I was imagining what the noble Earl may have said—I have not read Hansard to see whether he did contribute. I shall do that first thing in the morning. I am taking the matter extremely seriously. Before I move away from the amendment tabled by the noble Earl, I wish to say that although his comments were amusing, he made some serious points and I would like to make a valiant attempt to convince him that the clause should stay in the Bill.
Amendment No. 103, tabled by the noble Baroness, Lady Buscombe, raises the issue of forms of address. The noble Baroness also raised the issue in Committee. It was never the intention that a Knight Commander who became a woman in the eyes of the law should continue to style herself as "Sir". But the noble Baroness has raised a valid point—and I hope that I am not upsetting the noble Earl, Lord Ferrers, by acknowledging that—about whether a Peer or the holder of another title can legitimately swap it when his or her gender changes in law.
In fact, all of us are in the gift of Her Majesty. She, alone, can confer a title and she, alone, can alter the form of address that a holder uses. However, that does not mean that an amendment to the Bill is necessary. The Government have, since Committee, consulted the Palace and the Garter Principal King of Arms. We are in agreement that the best way to proceed in such rare cases—I underline "rare"—would be for the holder of the title to petition Her Majesty to ask that she change the form of address. There is a wide range of circumstances under which an individual may wish to adopt a different form of address as a result of the Bill. In addition to transsexual people themselves, the former or future spouse of a transsexual person may have a claim on a courtesy title.
Legislating for this multitude of circumstances would seem disproportionate given the very low frequency with which the situation would arise. It would also reduce Her Majesty's prerogative powers in this area. Accordingly, the Government are satisfied that the right to petition Her Majesty, which already exists and will continue to do so, is a sufficient and proportionate method of dealing with the matter.
§ Baroness Buscombe
My Lords, this has been an extremely illuminating debate and I am deeply grateful to my noble friend Lord Ferrers for, as I suspected, illustrating the fact that he knows more about peerages 652 than I do. It is a knotty problem and one which I am glad we have raised. The Government need to resolve it.
I join my noble friend in regretting that there is no clear amendment to the Bill to deal with the problem. However, I recall that during Grand Committee I looked to the officials with considerable sympathy, given their task of coming up with a solution in time for the Report stage. I take my hat off to them and to the Minister for turning to Garter Principal King of Arms and the Palace for their support in their search for the solution.
While the Minister's proposal seems convoluted, it is fair to say that for those who will have to go through the difficult and lengthy process of gender recognition, this final phase for a tiny number of individuals will not be viewed as particularly arduous. It surprised me that the Bill would necessitate involving Her Majesty. I wonder whether that is why it was not even mentioned in the gracious Speech. Perhaps if it had, it might have caused some disturbance at that stage. It seems an enormous length to go to in turning to Her Majesty to change a form of address.
That said, I suspect that this is the best and most practical solution that could be found. Like all noble Lords, I accept that we are talking about a tiny number of individuals in the years to come—perhaps none at all, who knows? I am grateful to all noble Lords who have taken part in the debate, including the noble Lord, Lord Monson, and my noble friend Lord Ferrers, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Earl Ferrers
had given notice of his intention to move Amendment No. 104:Leave out Clause 16.The noble Earl said: My Lords, I am grateful to the noble Lord, Lord Evans, for the answers he gave. Unfortunately, during the Committee stage he said that the Government would have to think about these things and I had hoped that he would come up with some answers. I believe that the proper thing would be to have a Division in order to discover what people really feel. We would then know where we were.
However, I would not wish to disturb the noble Lord, Lord Evans, too much and I think that he had better go away and think about it. Perhaps he could consider the questions I asked and give me some answers. I would not want him to do that first thing tomorrow morning because that would be most disturbing. He has plenty of time to think during the forthcoming Recess. I do not want him to go to any great trouble nor, particularly, to chat me up about it because he might persuade me. But if he would give me the answer on apiece of paper I should be very grateful. I shall not move the amendment.
§ [Amendment No. 104 not moved]
§ Clause 17 [Trustees and personal representatives]:
§ [Amendments Nos. 105 and 106 not moved.]653
Lord Evans of Temple Guiting moved Amendment No. 107:
After Clause 18, insert the following new clause—
§ The noble Lord said: My Lords, the question of sport pre-occupied us for some time in Committee. The Government have introduced an amendment which we hope will solve the legitimate problems raised at that time.
§ We have been of the view that the existing legal framework of the Sex Discrimination Act and Human Rights Act combined provides sporting bodies with the necessary flexibility to deal with the issues raised by transsexual competitors. However, during the debate in Grand Committee I said that we would consider the issue further. Since then, the issue has been discussed between my department—the Department for Constitutional Affairs—the Department for Culture, Media and Sport and UK Sport.
§ This is a complex area of law. The Government believe that by making express provision in the Bill, sporting bodies will be placed in a better position to formulate clear and lasting frameworks for dealing with the issues raised by transsexual sports people. As your Lordships may know, the International Olympic Committee is also presently looking at the issues raised by transsexual competitors. I understand that it is due to issue guidelines shortly. We will need to ensure that the provisions for sport in the Gender Recognition Bill do not pose a problem for sporting bodies that wish to use the IOC guidelines in the future. The provisions may therefore need to be revisited once the guidelines have been issued. I beg to move.
§ Baroness Buscombe
My Lords, as I understand the Minister is aware, my noble friend Lord Moynihan is 654 in Norway today meeting officials from the Norwegian sports anti-doping agency. From these Benches we would like to express our support for the Government's conversion to our case—a case that my noble friend put forcefully both at Second Reading and in Grand Committee—to exempt competitive sport in the Bill. It now takes a privileged place alongside the monarchy and hereditary Peers.
As it stands, the amendment recognises the strength of argument made by my noble friend and supported in principle by the noble Lord, Lord Goodhart, in Grand Committee to allow governing bodies of sport to continue to determine their criteria for classification, thus preserving fair competition and protecting the safety of competitors, particularly in contact sports. In so doing, the Government are joining us in responding to the representations made to that effect by the Central Council for Physical Recreation, the Sports Council and many governing bodies of sport.
We also support the Government's intention to keep open the possibility of a further amendment during the Bill's proceedings in another place. At the end of this month the International Olympic Committee will be meeting, inter alia, to consider the issue of gender classification. It is possible that its findings may allow Parliament to improve on the wording suggested this evening.
My noble friend Lord Moynihan and I appreciate the sensitivity with which this important issue for sport has been approached by the Minister and his officials since the subject was extensively debated during Second Reading and again in Grand Committee. We thank the Government for listening and are pleased to lend our support to the proposed amendment.
§ Lord Goodhart
My Lords, we welcome the amendment. It follows the solution for which I expressed a preference when speaking in Grand Committee. We think it is a sensible step for the Government to have taken; it deals with a serious and important problem. We are happy to support it.
§ On Question, amendment agreed to.
§ [Amendment No. 108 not moved.]>
§ Clause 19 [Scottish gender-specific offences]:
§ [Amendments No. 109 not moved.]
The Earl of Mar and Kellie moved Amendment No. 110:
Page 7, line 25, leave out subsections (2) and (3) and insert—
(2) The following are relevant gender-specific offences for the purpose of subsection (1) above—
§ The noble Earl said: My Lords, here is something simpler. Amendments Nos. 110 and 126 have been inspired by the Law Society of Scotland in a further attempt to ensure that the Scottish gender-specific legislation is identified in the Bill. This matter remains as relevant as it was in Grand Committee. The Minister rejected a similar amendment in the fear that at present the list might not be all-inclusive and that future legislation might be needed to add to the list. I remain sufficiently unconvinced to have tabled this amendment. Clarity is an important attribute in legislation.
§ The Minister is bringing forward an amendment to apply the concept of gender-specific offences to all three legal jurisdictions of the United Kingdom. Therefore, I look forward to hearing from the Minister the implications of his amendment for Clause 19.1 beg to move.
§ 9.30 p.m.
§ Baroness Buscombe
My Lords, I support these amendments. Noble Lords may recall that I proposed similar amendments in Grand Committee, although I sought to amend the wording slightly in the sense that I felt that the list was not entirely adequate. However, I see no harm in having some such list with some expression on the face of the Bill that the list is not exclusive. I believe that having some form of clarity is a good idea.
§ Lord Evans of Temple Guiting
My Lords, Amendment No. 110 seeks to insert a list of gender-specific offences into Clause 19 in place of the general definition of gender-specific sex offences that the clause contains at present. The amendment and Clause 19 as presently drafted have the same purpose. The disagreement here is about means and not ends. The problem with using a list—the means proposed by the amendment—is that, if further offences were created or if the definition of existing offences were changed to include or exclude a gender-specific element, the list would require amendment. Although the amendment, taken together with Amendment No. 126, provides for changes in the list, the virtue of using a definition of gender-specific sex offences is still that the need for future amendments is avoided.
Government Amendment No. 131 also relates to Clause 19. At present, Clause 19 extends only to Scotland. However, the law on sex offences in Northern 656 Ireland remains, to a large extent and in the same way as Scots law, gender specific. As a consequence, the Gender Recognition Bill as drafted will have a disabling impact on the law on sex offences in Northern Ireland—particularly on rape—unless it is amended in a similar fashion to that in Scotland.
It was originally felt that a temporary lacuna in the law in Northern Ireland might be acceptable, given that a review of Northern Ireland law was in progress and that subsequent legislation would be expected to remove gender-specific crimes from the body of law on sex offences. However, given the straightforward nature of the amendment that will plug the gap in Northern Ireland in the interim period before the new law on sex offences is ready, the Government believe that it is appropriate to take action.
Therefore, I am proposing Amendment No. 131 to adjust the extent of Clause 19 so that it applies throughout the United Kingdom. Although the Sexual Offences Act applying to England and Wales uses gender-neutral terms, this amendment will ensure that no residual problem arises in England and Wales. The Sewe1 Motion in the Scottish Parliament will take place this Thursday, 5 February.
I have set out the Government's views on Amendments Nos. 110 and 126. In any case, if the House accepts Amendment No. 131, the list in Amendment No. 110 will be out of date. I would argue that the extent of Clause 19 should be expanded as proposed. In addition, especially in the light of the fact that any list in Clause 19 would have to cover all the criminal jurisdictions in the UK, I would argue that the present definition in Clause 19 provides the better legislative solution.
§ The Earl of Mar and Kellie
My Lords, there is no doubt that the Minister has got one over me at present. That often happens in these proceedings. I should like in the long run for the Scottish gender-specific offences to be at least listed in a schedule. That may come about. In any legislation to which the future Gender Recognition Act was relevant there would be a clause which amended it taking into account the new legislation. However, I shall read Hansard with regard to the implications of the noble Lord's amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 20 [Foreign gender change and marriage]:
§ [Amendment Nos. 111 and 112 not moved.]
§ Clause 21 [Prohibition on disclosure of information]:
Baroness O'Cathain moved Amendment No. 113:
Page 9, line 8, at end insert—
§ The noble Baroness said: My Lords, these amendments refer to Clause 21. Amendment No. 113 deals with disclosure in furtherance of the exceptions which are listed in the amendment. Amendment No. 116 deals with the penalties.
§ Clause 21 is one of the most heavy-handed parts of this Bill. It creates a criminal offence affecting anyone who learns of a person's sex change in an official capacity. If they disclose this information they can be prosecuted and fined up to £5,000.
§ What is most surprising is that the offence is not limited to civil servants such as people working in the Registrar General's office. It extends to all private employers and, more surprisingly still, to voluntary bodies. If the principal of a Bible college gives a job reference for a former employee, which mentions his change of sex, he is committing a criminal offence. If a church minister tells a church official that a member of the congregation has changed sex, he is also committing a criminal offence. That is really ludicrous.
§ The fact that a person has had a sex change is, as I have said before, of religious importance. It is a serious ethical issue on a par with lying or adultery. If the church is giving a job reference to another church, it may believe that it is vitally important that the other church knows the truth.
§ Even if they do not set out to disclose the sex change, they may feel that it is impossible honestly to answer a request for a reference without mentioning it. If the person used to be the woman in charge of ladies' ministries, how would they explain to the new employer how the job was done by a man? Clause 21 compels them to say in the letter that "she" is a "he". It will be a criminal offence to do otherwise.
§ Many churches, particularly the reformed churches, still operate the practice of requiring a reference from a previous church before accepting someone into membership of that church, not into a job situation, but actual membership on the parochial roll. This too may result in a prosecution. Indeed, it may be that someone will say, "Don't you dare declare it or I will sue". It seems that it would even be an offence to warn a bridegroom if he did not know that his bride-to-be was really a man.
§ Do the Government see that these are issues of conscience? Do they really want to fine church ministers for refusing to say that a woman is a man? 658 Do they not believe that it is wrong to prosecute churchmen for actions which most people would consider perfectly respectable?
§ In many places of worship several officials will be involved in decisions about employment or membership. Perhaps only one of them knows that the person has changed sex. If the others favoured the application, he would probably feel compelled by conscience to let them know yet he could be prosecuted for so doing. I ask the Minister this question. If half-a-dozen church elders did discuss the change of sex, would they all be prosecuted or only the one who made the original disclosure? Will there be six fines or just one?
§ Amendment No. 113 shows that it is possible to create narrow exceptions to protect religious conscience. We are not talking about protecting gossip here, but disclosure of a serious breach of religious ethics on a need-to-know basis. The same thing happens in politics. If a Government Minister told the Chief Whip that he was secretly donating funds to the Liberal Democrats, the Chief Whip would rightly discuss it with other senior party officials. Why should religious leaders not have a similar liberty of conscience?
§ I have another question for the Minister. What if a transsexual applies for a job in any organisation—not necessarily a Church organisation—and is asked for a job history, that is, a cv. The recruiting company wishes to check references and refers to one of the companies on the cv. Large organisations have large human resource directorates, and the people working in those would be aware of the law. But what if you have a small accountancy firm in a small market town, where the person who is the administration manager is the person who deals with job applications, or anything to do with a personnel function? Suppose they have an application from somebody called Janet Jones to join this firm. The cv shows where Janet Jones had worked. One of the organisations is rung up, but the person at the other end of the phone in another small accountancy firm in another town says, "We did not have a Janet Jones working here; we had a James Jones during that period— 1989 to 1995." "Are you sure that is James Jones? That must be a mistake. Surely it was Janet Jones."
§ Then what? Who is fined? What happens? This is the law of unintended consequences as part of this Bill.
§ I have put down Amendment No. 116 to show how harsh the penalty is in Clause 21. Not only would people who disclose this information get a criminal conviction, they could be fined up to £5,000. This is on a par with Section 71 of the Sexual Offences Act 2003. It stipulates the same maximum fine for the offence of having sex in a public toilet. This is clearly out of all proportion. I beg to move.
Baroness Mollis of Heigham
My Lords, I shall be as brief as I can without intending any discourtesy to the noble Baroness, Lady O'Cathain. If she feels there are points that I have not answered I will be happy to follow them up in writing, but the hour is late.
Amendment No. 113 deals with marriage. The Bill contains in Schedule 4 a conscience clause which is intended to provide for the situation of ministers of the 659 Church of England or the Church in Wales who have a profound difficulty in marrying a person who has been recognised in the acquired gender. The government amendment on this issue has already been presented. Ministers of other religious bodies, as we discussed on the previous day on Report, are not obliged to solemnise marriages.
With regard to the remainder of the amendment from the noble Baroness, this also seeks to provide exemption from the prohibition on disclosure but this time in order to provide religious bodies with the knowledge needed to restrict employment, or membership, or the provision of benefit facilities or services, in such a way as to exclude a person who is recognised in the acquired gender, or who will not consent to the disclosure of any entry relating to him or her contained in the gender recognition register.
There is no need for a further exemption to the disclosure clause for these purposes, when, as we explained in Grand Committee, there are other ways for a religious minister or religious organisation to find out if a person is or is not a transsexual. We are talking about co-believers here. A religious organisation can simply ask the individual concerned, and I find it hard that a co-believer would knowingly lie to a member of the faith on which presumably their life is constructed.
If that notion of "good faith, bad faith" is passably manipulated, none the less it is possible for the religious organisation to acquire this information in a way that prevents even that potentially awkward question and answer session. A Church could, for example, ask to see the person's baptismal certificate. Given that the vast majority of people are baptised before the age of 18, and that no person can change gender before the age of 18, the baptismal certificate would reveal whether a person was transsexual. As I have said, a co-believer should be happy to share this information with a religious organisation that thinks it is important. There are other ways in which such sharing of information could occur discreetly.
The noble Baroness, Lady O'Cathain, also raised a question about the level of penalties provided for breach of Clause 21. The effect of her amendment would be that the maximum penalty for breach of Clause 21 would be a £200 fine as opposed to the present maximum of £5,000, which is the upper limit. The precise sentence is for a judge to determine. The amendment would provide that even in a case where disclosure was made maliciously with intent to harm a transsexual person, the maximum penalty would be £200. That hardly seems a sufficient sanction for an act that could cause considerable harm, considerable distress and could become the cause for further acts of discrimination, harassment and abuse.
If the noble Baroness is concerned about the position of people who make a prohibited disclosure inadvertently, clearly that is a matter which the judge would be expected to take into account as part of the deliberations on sentence. Although the harm to the transsexual person would be no less it would be surprising if in those circumstances a judge was to impose a maximum penalty.
660 If, instead, the noble Baroness is concerned about disclosures that were made for a legitimate reason, we do not think this is the way to address that concern. Clause 21 already provides for a range of exceptions that seek to describe what counts as legitimate reasons for disclosure. Protected information and worries about criminality are obvious examples. Clause 21 also contains an order-making power for providing further exceptions to be used as and when a need to provide further exceptions is identified in future.
I am not sure whether I have persuaded the noble Baroness, but I have done my best to answer the questions she raised. I hope that as a result she feels able to withdraw her amendment.
§ 9.45 p.m.
§ Baroness O'Cathain
My Lords, I am grateful to the noble Baroness, Lady Hollis. As always, she has been gracious and helpful. I do not disagree with all that she says. A couple of points she made were valid.
The noble Baroness said that this clause concerns marriage. That is right, but I am hooking more issues on to that, as can be seen from the wording of the amendment, to cover other situations. We return to the point in Grand Committee when the noble Baroness referred to good faith, bad faith and co-believers. However, she made a suggestion tonight which I had not thought of and which is very valid; that is, the baptism certificate. I shall take that away and consider it. I am grateful to her for that suggestion.
The Minister also said that the sentence is for the judge to determine. That did not fill me with a great deal of confidence. Unfortunately, if someone inadvertently discloses information, as in my example of the administration manager of the small market town accountancy firm, that would still result in a criminal offence. I am very concerned that someone should inadvertently find themselves in that situation. It is up to the judge to decide whether or not there is a valid case to answer but that could result in a criminal offence. That worries me. The kind of situation I described could not occur frequently. After all, we are told that there are only 5,000 transsexuals or thereabouts and the chances of them applying for jobs in such accountancy firms are probably remote. However, it could occur and it would be dreadful if the Bill put people in those situations.
§ Baroness Hollis of Heigham
My Lords, perhaps I may draw the attention of the noble Baroness to Clause 21(4)(c) which provides that where the person does not know, no offence has been committed.
§ Baroness O'Cathain
My Lords, in the complexity of the Bill, that escaped me. I suppose I got carried away. I shall also take up the offer of discussions between now and Third Reading. The Minister is shaking his head. I will read what the noble Baroness said, and in the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 114 not moved.]661
The Lord Bishop of Southwell moved Amendment No. 115:
Page 9, line 12, at end insert ", or
(k) the disclosure is in relation to any matter referred to in section 19(4) of the Sex Discrimination Act 1975 (c. 65) (ministers of religion etc.) as amended by Schedule 6 to this Act
§ The right reverend Prelate said: My Lords, I move this amendment which stands in the name of the right reverend Prelate the Bishop of Winchester. The amendment relates to the sensitive issue of disclosure of the fact that a person has undergone the gender recognition process under the Bill. When I moved Amendment No. 99, I spoke about appointments, training for ministry or ordination or some other form of authorisation for ministers in Churches or faith communities. That is linked to this amendment.
§ However, the right reverend Prelate the Bishop of Winchester also explained in some detail at Committee Stage that the present amendment was needed to ensure that members of religious bodies who are responsible for decisions on those matters can be told in confidence the relevant facts, without the risk of someone committing a criminal offence. Providing safeguards on this is a vital part of safeguarding the Church's right to exercise freedom of conscience in reaching such decisions. That is why this amendment is before your Lordships again today.
§ We recognise that there are issues of human rights here. Nevertheless, the Minister will appreciate how essential it is to strike a proper balance between the rights of all those concerned. That includes the Churches and faith communities who number transgender persons with deep religious convictions among their members. We ought to be sensitive to their vulnerability.
§ At Committee Stage, the Minister indicated that if any provision was needed it should be made by regulations. The Church of England would not be opposed, in principle, to taking that approach, if it proved to be the most satisfactory one. Although I cannot speak for other Churches and faith communities, one would expect the same to apply to them. I stress that we are concerned with the need to address some problem areas that present real practical difficulties, as well as issues in principle. So far, the suggestions for overcoming them without legislation seem at best to provide only a partial answer.
§ That is why before abandoning the possibility of an amendment to the Bill, we need at least some reassurance from the Minister that the Government recognise that there are genuine problems. The discussions between officials, which are already in progress, could continue in their present, constructive spirit, against that background. It is in search of such reassurance that I speak to this amendment in the name of the right reverend Prelate the Bishop of Winchester. I beg to move.
§ Baroness Hollis of Heigham
My Lords, most of these issues have already been explored, but I hope that I can address the right reverend Prelate's concerns. We are discussing the position with the 662 Church of England. We would be interested to hear the views of other religious organisations. If it is demonstrated that an exemption is necessary, we will provide for that in secondary legislation.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 116 not moved.]
Lord Marlesford moved Amendment No. 117:
Leave out Clause 21.
§ The noble Lord said: My Lords, I seek, in moving this amendment, to remove Clause 21 to make this a much better Bill. A number of amendments have been moved that have touched on Clause 21. I have not spoken, except for very briefly, on this Bill before, but I have attended Second Reading, Grand Committee, and Report stage. I have great sympathy for those suffering from gender dysphoria. It is entirely reasonable that those who seek to change or redefine their gender should, after a proper review of their cases, be given official recognition of this fact.
§ It would have been better for this to have been done through changing administrative procedures, as I understand is done in certain other countries, rather than bringing in a whole Bill for it. It would be a simple procedure to issue a certificate stating that a gender change had been completed. The issuing of a second birth certificate, which would have the same date as the original certificate, would, at the least, be a rather confusing use of government documentation, although the Government will not say that. I was glad to hear on the first day of Report that the original certificate is retained and is available to those who ask for it. The second certificate could be seen as something of a fake.
§ There are, of course, documents that must be re-issued when they expire—a passport is an obvious example—but those are successor documents that, in no way, purport to be the first and original document issued. I object to the attempt to keep secret the fact that the gender change has been recognised. I use the word "secret" advisedly because Clause 21 makes it a criminal offence to disclose the information. That takes us far beyond the normal considerations of privacy. I am one of those who believe that the civil right to privacy in many situations should be extended.
§ I recognise that, in cases involving national security, governments must issue false documents to protect intelligence agents and others and, sometimes, police officers. It is also sometimes necessary to create false identities for reasons of witness protection. However, we should hesitate to create fresh criminal offences, with all the attendant implications. We should be sure that they are absolutely necessary. We should remember that the police must enforce such legislation, and they have enough to do already. I am sure that the Minister will say that she anticipates that little police time will be needed, but I would have thought that, as we are not in the business of extending the police further with this Bill, it would be undesirable 663 to bring in a new criminal offence. As far as I am aware, Clause 21 is not required by the ruling of the European Court of Human Rights.
Clause 21 goes absurdly wide and is riddled with contradictions, some of which my noble friend Lady O'Cathain referred to. In many ways, it could be unenforceable. In the Explanatory Notes, the paragraph relating to Clause 21 states that,
the prohibition extends only to information acquired in 'an official capacity' and so does not cover information acquired purely in a private capacity".
The implication is that civil servants should not be allowed to pass on information that they have acquired in an official policy. Obviously, that is right. It is normal practice and would probably still be covered by the Official Secrets Act 1989 and by the remaining sections of the Official Secrets Act 1911. However, Clause 21 goes far wider than the Explanatory Notes suggest. It covers anyone involved as an employer or prospective employer and anyone involved in "the conduct of business".
The definition of protected information is information that,
concerns the person's gender before it becomes the acquired gender".
As my noble friend pointed out, that could cause tremendous complications for any employer who has a CV for somebody who presents themselves as a prospective employee and wants to check back. It creates questions about the legitimacy of the check. My noble friend Lord Ferrers also gave examples of questions about the extent to which inquiries can be made.
§ The noble Baroness, Lady Hollis of Heigham, said several times last week that information on individuals— an original birth certificate, for example—would normally be available only to close relations. Frankly, society is much wider than that.
§ We have been told throughout our discussions that some 5,000 people will be affected by the Bill. How many will mind people knowing that they have changed gender? I suspect that many will be so relieved to have received the official recognition that they desire, and which most of us support that they should have, that they will be inclined, to use the recent words of the Home Secretary, to open a bottle and invite their friends round. There are many other medical conditions, such as venereal diseases and psychological conditions, especially those relating to sexual dysfunction or aberration when there are far stronger arguments for secrecy, yet the general acceptance of the right of privacy provides adequate attention.
§ In most cases, changed gender will already be well known to friends and neighbours. I cannot see many unconnected private people seeking out information to abuse privacy. In any case, I do not believe that Clause 21, as drafted, will guard against that. I emphasise that the danger of discrimination against people for gender change will be well covered by the Sex Discrimination Act 1975.664
§ In summary, I would argue that Clause 21 is unnecessary, unenforceable and undesirable, and the Bill would be better without it. I beg to move.
§ 10 p.m.
§ Lord Evans of Temple Guiting
My Lords, I am sorry to intervene, but the Companion tells us that visual aids are not allowed in the Chamber. It is very emphatic on that. I apologise if I have spoilt the intervention of the noble Lord, Lord Tebbit.
§ Lord Tebbit
My Lords, with every respect to the noble Lord, if we were to go down that path, Ministers could not read their briefs. I do not accept that his is a rightful interpretation of the Companion, and I shall proceed as I intended regardless.
The visual aid which I have, which is rather akin to the visual aids used by Ministers, is nothing more nor less than my birth certificate. I am sorry if the noble Lord does not like birth certificates to be produced in the House, but I shall continue to produce mine.
I notice on the right hand side, it says:Insert in this margin any notes which appear in the original entry".If anyone were to seek a copy of my birth certificate, it would be incumbent on the registrar to insert in the margin notes that appeared in the original entry. If I decided that I should change sex and got the approval of the gender recognition panel for a change of gender, a certificate would be issued in which it would be forbidden to insert the notes in the margin. As I said earlier, to which the noble Lord, Lord Filkin, did not allude in his reply, it cautions any person who falsifies any of the particulars on the certificate, or who uses it as true knowing it to be false, and he would be liable to prosecution under the Forgery Act or the Perjury Act.
The Government should sort out the implications of that before resisting the amendment moved by my noble friend Lord Marlesford to delete Clause 21. Plainly they have not thought the matter through. If the Bill is enacted and a new birth certificate is copied, it would not have on it what was on the original. It would therefore be false. It would not be adequate according to the birth certificate which I have, and it would constitute either fraud or perjury. The Government need to think their way through that.
§ Baroness Hollis of Heigham
My Lords, first, I shall comment on the argument of the noble Lord, Lord Tebbit, before turning to the point raised by the noble Lord, Lord Marlesford. The noble Lord, Lord Tebbit, hung an issue on an available amendment which essentially is that he believes that any re-registration in the new gender, by virtue of a new birth certificate, is in some way fraudulent and makes one a liar. I believe that is where he comes from. I suspect that there will be absolutely no meeting of minds on this matter.
§ Lord Tebbit
My Lords, I am saying that in my case the original birth certificate would state that I was 665 born a boy. If I had a change of gender and acquired the appropriate certificate, a new birth would state that I was born a girl. Quite clearly, those two certificates would be in conflict.
Baroness Mollis of Heigham
My Lords, that is because the noble Lord thinks that the second birth certificate would, in some sense, be a lie because it differed from the first birth certificate. The point is that the second certificate would be a new certificate and not a copy of the original. Therefore, it would be as valid a document as the original birth certificate. That is the position of the Government. I know that the noble Lord does not accept that and that other noble Lords also may not accept it, but that is the whole point of having a new birth certificate.
§ Baroness Hollis of Heigham
My Lords, I shall defer to the wishes of the House. We can spar, but I am mindful that the House will want, if possible, to complete Report stage tonight. However, if the noble Earl insists on speaking, of course I shall give way.
§ Baroness Hollis of Heigham
My Lords, I am grateful to the noble Earl for his courtesy. I return to the amendment tabled by the noble Lord, Lord Marlesford. Changing gender is a difficult process. It is difficult in terms of the person's own identity and in terms of his or her relationship with other people. I believe that we would all accept that respect for a person's private life means that we must alleviate some of the dangers of humiliation, embarrassment and harassment.
As we have discussed, it is a medical condition whereby a person feels driven to live in the opposite gender. I do not think that being reminded of the original gender, being confronted by it regularly, having others knowing that you suffer from the medical condition and knowing that they might be talking about it, is conducive to feeling secure. I believe that that makes it difficult to live in the acquired gender in dignity.
That is why the Bill contains protections for the privacy of transsexual people, a privacy that is in accord with ECHR, despite the challenge of the noble Lord, Lord Marlesford. We have checked on that. These protections prevent harm to the transsexual person and to his or her family and friends. In turn, do they cause harm to others?
In Clause 21, as your Lordships have already discussed, there are references to exclusions, crime detection and hearings before courts and tribunals where information of the original birth gender may be properly disclosed. Clause 21 also has another important limit. Not only does it enumerate a list of exceptions that allow disclosure where it is justified in terms of public policy, but it extends only to information that is acquired in an official capacity, as 666 the noble Lord, Lord Marlesford, recognises. It does not intrude into the private sphere; it is not for the state to determine what friends may or may not say to each other about another friend or what family members may talk about. The law has limits beyond which ethics alone must suffice. With those remarks, I hope that the noble Lord, Lord Marlesford, will feel able to withdraw his amendment.
§ Lord Marlesford
My Lords, it is late and uncharacteristically the noble Baroness has given a self-contradictory reply. She started off by talking about the importance of Clause 21 which is to ensure that people do not chat or gossip about the situation, so making people feel uncomfortable with having had a gender change. Then she went on to point out that the limitations of Clause 21 would not make the slightest difference to that because it does not involve private people next door to each other who do not come under the limits drawn by Clause 21. Therefore, I go back to my point. Recognising the need for privacy and recognising that there is already provision for privacy under general practices, I found the Minister's answer unconvincing. It is an important issue. The Bill would be greatly improved without the clause, precisely because it meets a danger that is not there and does not meet a danger that the Minister suggested was avoided by it.
However, it is perhaps a little late in the evening to test the opinion of the House, so, for the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 [Power to modify statutory instruments]:
Lord Filkin moved Amendment No. 118:
Page 10, line 3, at end insert—
( ) Before an order is made under this section, appropriate consultation must be undertaken with persons likely to be affected by it.
§ On Question, amendment agreed to.
§ Clause 23 [Orders and regulations]:
Lord Filkin moved Amendments Nos. 119 to 121:
Page 10, line 5, after "State," insert "the Chancellor of the Exchequer,
Page 10, line 9, after "State" insert ", the Chancellor of the Exchequer
Page 10, line 12, at end insert—
§ On Question, amendments agreed to.
§ [Amendment No. 122 not moved.]
Lord Filkin moved Amendment No. 123:
Page 10, line 14, leave out "2" and insert "7
§ On Question, amendment agreed to.
§ [Amendment No. 124 not moved.]
Lord Filkin moved Amendment No. 125:
Page 10, line 17, after "section" insert "21 or
§ On Question, amendment agreed to.667
§ [Amendments Nos. 126 to 128 not moved.]
§ Clause 25 [Commencement]:
§ On Question, Whether Clause 25 shall stand part of the Bill?
§ Baroness Buscombe
My Lords, when we debated in Grand Committee whether Clause 25 should stand part of the Bill, I expressed my belief that the Bill should not come into force until the civil partnership Bill is enacted. We should have had an opportunity to debate that Bill first, particularly given the difficulty that many noble Lords, including myself, have had with coming to terms with a Bill that requires, in the event of an individual wishing to acquire full gender recognition, that he or she must, if married, go through the process of a divorce or annulment. If the civil partnership Bill does not reach the statute book, those who have divorced in order to acquire full gender recognition will be left in a terrible limbo.
I am sorry that the right reverend Prelate the Bishop of Winchester is not in his place because I wanted to take this opportunity to confirm that I do not believe that marriage and civil partnership are the same. Noble Lords may remember from our debate in Grand Committee that the right reverend Prelate was concerned at the suggestion that one could move seamlessly from marriage to a civil partnership arrangement. I would wish to see the process and time frame of moving from one state, marriage, to another, civil partnership, being made as smooth and straightforward as possible. That does not mean that the status of being in a civil partnership is equal to that of marriage.
I fear that by debating this Bill prior to the publication of a civil partnership Bill we are able only to hope that the latter will be enacted and will contain provisions to allow couples to enjoy some of the legal—I stress, legal—obligations proposed, for example, in the Private Member's Bill that was introduced in 2002 by the noble Lord, Lord Lester of Heme Hill.
§ Lord Filkin
My Lords, we spoke briefly on these issues last week during the first day of Report. I then put on record that it was the Government's intent to introduce the civil partnership Bill into this House by the end of March. I think that that is the first time that that had been referred to publicly. The consequence of that if, as we hope, it makes sensible progress—I note with gratitude the expression of support from the noble Baroness, Lady Buscombe, to that effect—is that this Bill should go live in April 2005 and the civil partnership Bill would go live in about October 2005, some six months later.
In short, a transsexual person who was married and wished to have their acquired gender recognised in law would be able, if they wished, to move ahead forthwith. Alternatively, if they wished to avail themselves of the very simple transition that we believe we have identified—from the married status through divorce to civil partnership, the final stages of which 668 we believe could be done in one day—they could wait until then. Therefore, they are in control of whether they move ahead forthwith or stay in their position.
That is a decent choice, but it is not a good reason for not proceeding with allowing transsexual people who are married and do not wish to wait until the civil partnership provision is in place to avail themselves of the legal opportunity as soon as possible or, indeed, the vast majority of transsexual people who are single.
I am with the noble Baroness in terms of intent—we want this process to be as quick as possible. If the gap is only six months, that is excellent. We have made the transition process as short and simple as possible—it can be as short as one day. People are in control of what they do. We feel this is the best possible situation, recognising that the two pieces of legislation cannot be synchronised exactly. I hope, with that explanation on the record, the noble Baroness will not press the amendment.
§ 10.15 p.m.
§ Baroness Buscombe
My Lords, I thank the Minister for his reply. I do not want to detain the House tonight, but I believe the Government should accept that it is wrong in principle to introduce one Bill, encourage noble Lords to support it and see it through to the statute book, before a Bill such as the civil partnership measure, which is of great importance to this Bill, is passed.
The provisions of the civil partnership Bill will, as we understand it, enable those who have to go through this really difficult process of divorce to be able to move to another form of legal status such as a civil partnership. However, I believe the Government have got it wrong; they have introduced the wrong Bill at the wrong time. The Government should have introduced the civil partnership Bill, seen it through and then, assuming that it makes it on to the statute book, introduce this very difficult Gender Recognition Bill that requires noble Lords to accept the notion that there must be a divorce or annulment if an individual wants to have full gender recognition when that individual is married and is changing gender.
As I have said, I do not want to detain noble Lords tonight, but I believe this is a matter of principle. However, I will not press the Question.
§ Clause 26 [Applications within six months of commencement]:
Lord Evans of Temple Guiting moved Amendment No. 129:
Page 11, line 7, leave out from "applies" to end of line 15 and insert "where applications are made under section 1(1)(a) during the period of two years beginning with the appointed day ("the initial period").
(2) Subsections (3) and (4) apply in the case of an application to which subsection (1B) applies and in the case of an application—
§ The noble Lord said: The noble Lord, Lord Goodhart, expressed the view in Committee that six months might be too short a time, taking into account the fact that some transsexual people may not become aware of the simplified procedure or that there might be extraneous circumstances outside their control which prevent them applying within the period.
§ In considering the noble Lord's arguments, I also considered a situation in which a married transsexual person who will have to end the marriage before he or she acquires full recognition may wish to wait for civil partnership legislation to come into effect so the relationship can be put back on a legal footing almost immediately. I am therefore proposing that the simplified procedure should be available for the first two years of the operation of the gender recognition panels. That should provide sufficient time for a transsexual person to find out about the process, prepare an application and make all the necessary arrangements, especially where a spouse or children of the family are involved.
§ The simplified procedure will be exclusive for the first six months. It is only fair that applications from those transsexual people who have lived in the acquired gender for a long time have their applications dealt with first. For a further 18 months the simplified procedure will run alongside the standard application procedure.
§ The amendment proposed by the noble Lords, Lord Goodhart and Lord Carlile of Berriew, Amendment No. 130, seeks to make the provisions in 670 Clause 26 available to any person who is able to satisfy the panel that he or she was entitled to apply on those provisions in the first two years of the operation of the panels but has a reasonable explanation for not doing so. I am concerned as to how the panel would be expected to exercise the discretion that is proposed. The amendment provides no guidance on what would constitute a reasonable explanation. The amendment would add discretionary aspects to the panel's deliberations and would decrease the simplicity and clarity of the panel's work. I also wonder whether the amendment would make the panel unduly vulnerable to challenge when exercising its discretion in this matter.
§ I am convinced that the government amendment that I have outlined is an uncomplicated solution that addresses the concerns raised in Committee and those of the noble Lords whose amendment is before us today. It is unclear what further advantage their amendment would bring. I beg to move.
§ Lord Goodhart
My Lords, I am grateful to the Minister. I put forward two amendments in Committee. One was to extend the fast-track period from six months to 12 months; the second was to allow discretionary applications to be made after the end of the 12-month period. The Government now propose to extend the fast-track period to not one year but two years. I regard that as adequate and I shall therefore not seek to move the amendment calling for a further discretionary extension.
§ On Question, amendment agreed to.
§ [Amendment No. 130 not moved.]
§ Clause 27 [Extent]:
Lord Filkin moved Amendment No. 131:
Page 11, line 41, leave out paragraph (a).
§ On Question, amendment agreed to.
§ In the Title:
§ [Amendment No. 132 not moved.]
§ House adjourned at twenty-four minutes past ten o'clock.