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Gender Identity (Registration and Civil Status) Bill
Order for Second Reading read.
1.55 pm
Mr. Alex Carlile (Montgomery): I beg to move, That the Bill be now read a Second time.
The Bill is about transsexuals--a significant group of people in our society who, in a phrase, are deprived of the ordinary protections of law that we take for granted.I am grateful for the support that I received in the preparation of the Bill from transsexuals and others all over the country who have effectively lobbied not only me but hon. Members in all parts of the House on this issue. I am also grateful for the support of right hon. and hon. Members in all parts of the House. I have yet to hear from a right hon. or hon. Member who does not support the principle of the Bill, and only one significant misgiving has been expressed about part of it.
I should like to express my gratitude to Mr. Terence Walton from the firm of Fallon, solicitors in London, for his assistance in the drafting of the Bill. Mr. Walton was the solicitor for April Ashley in the well-known and leading case of Corbett v. Corbett, in which judgment was given 26 years ago to this very day. The issue has been in the public domain for more than a quarter of a century. The problem remains unresolved and is becoming increasingly acute.
It gives me special pleasure to note that the Minister who is to respond to the debate is the Under-Secretary of State for Health, the hon. Member for Orpington(Mr. Horam). I can think of no one in the House better qualified to understand the issue. The hon. Gentleman started his active political life as a Labour Member, later going into limbo as an early member of the Social Democrat party, and has emerged as a Conservative Minister. No doubt he would say that his brain has always been Conservative really. An interesting analogy can be drawn between the Minister's political position and the rather more unfortunate situation faced by transsexuals. The Minister, from his august and influential position, is able to claim many rights for himself. I hope that when he replies to the debate he will not seek to deprive others of rights.
It used to be thought that transsexualism was a florid psychological state enjoyed--I use the word advisedly--by hysterical individuals who wished to draw attention to themselves, and who were the object of a good deal of laughter and risible printed comment. I am glad to say that the situation has changed. Since I have been involved in this issue, for some 10 years or so, press comment has moved away from the jokey, freak-of-the-week-type comment to a serious discussion in newspapers and journals about the issue of transsexualism, why it arises and what should be done about it.
Perhaps one of the main reasons why the flavour of the argument has changed is that science has at last begun to play a real part in our understanding of what transsexualism is and how it arises. In November last year, neurobiologist Dr. D. F. Swaab of the Netherlands and his international colleagues at the Netherlands Institute for Brain Research in Amsterdam announced and published their post mortem study of a tiny region of the brain known as the BSTc--the central subdivision of the bed nucleus of the stria terminalis.
The study showed that, on average, the stria terminalis was 44 per cent. larger in heterosexual men than in heterosexual women. More remarkably, the BSTcs of six male-to-female transsexuals, whose post mortem brains the researchers had painstakingly collected during the course of 11 years, were 52 per cent. smaller than those of the average man in the study and were in fact about the same size as those of the females-from-birth. The researchers had chosen to study the BSTc because previous research in rodents had shown that it plays a pivotal role in sexual behaviour. Remove the BSTc from a rat, and the animal will show no interest whatsoever in sex. The findings led very distinguished scientists to conclude that in humans, too, BSTc size is programmed during foetal and neonatal development--perhaps as a result of an interaction between sex hormones and the developing brain--and is probably not the result of parental, social or psychological pressures after birth.
Dr. Swaab and others concluded that transsexuals are right in their belief that their sex was wrongly judged at the moment of birth, and can understand why it was so judged. At the moment of birth, it is possible to look at the sex organs, but it is not possible to look at the BSTc in the brain. However, the research seems to demonstrate that in terms of their brain BSTc, transsexuals are in fact of the gender that they later come to acquire after gender reassignment therapy.
In a paper given to the Council of Europe's23rd colloquy on European law, Professor Gooren suggested that there is now evidence that the sexual differentiation process of the brain in transsexuals has not followed the ordinary course. Although sex assignment at birth by the criterion of the external sex organs is statistically reliable, in people who experience transsexualism it is not. Those people are exceptions to the statistical rule, and perhaps therein lie the roots of their difficulty: we all know how easy it is to rely on statistics and to ignore reality.
What are the consequences in human terms? Transsexuals in this country have told me and otherhon. Members of those consequences. I pay tribute, in particular, to the work done in this sphere by thehon. Member for Birmingham, Selly Oak (Dr. Jones), who has established the Forum on Transsexualism. We worked as a partnership to try to improve the situation of transsexuals, and I suspect that I am presenting the Bill rather than she only because I was successful in the ballot and she was not.
Dr. Lynne Jones (Birmingham, Selly Oak):
I thank my hon. and learned Friend--I will call him that at least for the purposes of today's debate. Tribute should also be paid to those individuals who have been brave enough to allow hon. Members and the public to know about their personal experiences. That has contributed a great deal to the changed atmosphere and the way in which society at large regards those people. We should pay tribute to their bravery because they risk discrimination and suffering as a result of their willingness to reveal their experiences.
Mr. Carlile:
I agree with my hon. Friend, and I recommend that hon. Members and others read some of the recent serious and useful short autobiographies
I wish to say a little more about the human consequences and the discrimination that transsexuals face. In employment terms, it is apparently possible--at present, at least--for transsexuals to be dismissed solely because they are transsexuals. They also face discrimination in educational institutions, and in Department of Social Security offices where, although the staff may be extremely polite and helpful, the computer does not tell the real truth about the person before it. There are many other examples, but I do not have time to cite them as we have only half an hour or so available.
What type of people face discrimination? I received perhaps 200 letters from transsexuals during the preparation of the Bill. That is a remarkable number because, as my colleague implied a moment ago, it is more convenient for transsexuals to remain in the closet, keep themselves to themselves and function quietly in their acquired gender. Nevertheless, some very brave people have come forward.
Hon. Members should not get the idea that transsexuals are not playing their full part in society. I have had letters from at least two dons at Oxford university who are transsexuals and involved in distinguished scientific and other work. Other transsexuals are lawyers, doctors, company owners and executives, civil servants, teachers and nurses. In one case, a nurse is obtaining support from other members of the medical staff at the hospital where they work. Transsexuals are to be found across the spectrum of society and represent a cross-section of the population.
I shall say a word about a group of people who are not covered by the Bill but of whom I hope that the Government will take account. Very occasionally, genuine physical hermaphroditism arises at birth. I have received two moving letters from midwives who have been involved professionally in such cases. It is extremely difficult to judge what should appear on the birth certificate at that stage, and a wrong judgment has been made in one or two cases when viewed in light of the feelings, activities and behaviour of the people involved, but there is no mechanism to correct misrecording at birth. I raise that point simply so that it is not overlooked. Such cases have produced moving submissions.
Let us compare the situation in this country with that in other countries. In Germany, perhaps as one would expect, there is an efficient tribunal system to deal with transsexuals. Once they have gone through the system, they can live with full rights in their acquired gender. In the United States, it is permissible in certain states for a transsexual to marry after treatment. In Australia, there is a limited right to marry, although problems have arisen in connection with female-to-male transsexuals.
If a person who is a transsexual marries in their acquired role in one of those countries and comes to live with their spouse in the United Kingdom, they face an extraordinary situation. They would not have been allowed to marry here and yet, as I understand private international law, they are entitled to have their marriage recognised as lawful. It is a confusing international legal situation which needs to be sorted out. Transsexuals can
also marry in this country, but only in the most bizarre circumstances: one transsexual can marry another transsexual provided that, in law, the bride is the groom and the groom is the bride. We surely do not want our law to support such an asinine situation.
Is the transsexual community simply sitting back and waiting for the Government to take half a century to reach a conclusion, on the basis that the matter has taken a quarter of a century already, so it may as well take another quarter of a century? Not a bit of it--if the Government do not take some action, it will cost them a great deal of money because they will lose case after case in the international and possibly also the domestic courts.
In a case going through the European Court of Justice,P v. Cornwall county council, Advocate-General Tesauro has given an unfavourable opinion, which I suspect is likely to be upheld. If that is so, it will be held that the United Kingdom should have anti-discrimination legislation relating to the employment of transsexuals. The European Court of Human Rights in Strasbourg--the difference between the two courts is not often well understood, but they are very different--has before it, with leave to proceed to full judgment, the cases of Kristina Sheffield and Rachel Horsham, which relate to birth certificates and their consequences. Reading the preliminary documents from the court, it seems very likely that the Government will lose.
Leave to move for judicial review was given byMr. Justice Brooke--the recently retired chairman of the Law Commission who has now returned full time to the Bench--in a case heard on 29 January. Other cases are before the Queen's Bench division of the High Court in relation to transsexuals, and there are many more to come. We should not be looking for piecemeal reform of the law through reaction to the Government's loss of case after case. We know that there is a problem and a solution must be found. My Bill seeks to provide that solution by a procedure which does not command universal support, but which seems to be as good a mechanism as can be found without offending certain assumptions.
One of the assumptions that I have accepted for the purposes of the Bill, although I am not sure that I accept it fully intellectually, is that a birth certificate can never be amended. It ought to be possible to amend a public document that is proved to have been scientifically wrong when it was prepared. For present purposes, however, let us say that that is not appropriate.
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