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Tim Loughton (East Worthing and Shoreham) (Con): As we have not made much progress on the thorny issue of pension rights, may I ask the Minister about another practical implication of the Bill? Will prisoners be liable to apply for a gender change certificate if they started that exercise before they became prisoners? If so and they are granted a certificate, what will be the accommodation arrangements for that prisoner? Will he or she have to be moved, or is this something else that the Government need to think about but have not, as with pension rights?
Mr. Lammy: Prisoners can apply and that person will be subject to prison arrangements for their new acquired gender. We are talking about a very small group of people and the hon. Gentleman knows that that situation would arise in limited circumstances.
Miss Ann Widdecombe (Maidstone and The Weald) (Con): I am grateful to the Minister for giving way; I appreciate that he is taking many interventions.
If a woman who has lived her life as a woman, has been registered at birth as a woman and has borne children decides that she wishes to change gender to become fully a man, and the birth certificate is rewritten to reflect that, who is the legal mother of those children?
Mr. Lammy: She is the parent of those children and she has acquired a new gender, but the right hon. Lady should let me describe the terms under which the panel will make that decision.
The specific provisions are divided into three sections. The first makes provision for applications for a gender recognition certificate. The second sets out the consequences of the issue of a gender recognition certificate. The third deals with supplementary matters.
The first section sets out the criteria for application and the process by which applications will be determined. That process must be robust, credible and sustainable. That is why the Bill proposes the establishment of gender recognition panels to determine all applications. The panels will consist of legally and medically qualified members. Schedule 1 sets out some of the detail of the proposed practice and procedure of the panels. We will continue to work with the professional medical bodies to ensure that the panels consider only medical evidence that comes from reputable sources. We will also continue to work with
groups representing the transsexual community to ensure that the process does not place undue demands on applicants.An application for recognition in the acquired gender will be considered according to three criteria set out in clause 2. The person must have or have had gender dysphoria, the recognised medical condition that drives the transsexual person to live in the opposite gender. A person must have lived in the acquired gender throughout the preceding two years and must intend to continue to do so until death.
Mr. Andrew Robathan (Blaby) (Con): I have been listening with great care. I do not applaud the Bill. I think it is the most arrant nonsense. However, will the Minister explain what happens if, after someone has acquired a new gender, they decide that they wish to go back to their previous gender?
Mr. Lammy: I am sorry that the hon. Gentleman does not support legislation that attempts to support a vulnerable group of people. However, he is right that a very small minority of people wish to return to their existing gender. The panel will be able to consider that request.
Mr. Mark Oaten (Winchester) (LD): Does the Bill provide the opportunity for an individual to appeal against the panel's decision, and, if so, how does that work?
Mr. Lammy: Individuals will have the opportunity to return to the panel six months later to request that the decision be reconsidered.
The criteria are designed to establish whether a person has taken decisive steps to live fully and permanently in their acquired gender. That must be the test for legal recognition in the acquired gender, not whether the person's physiology fully conforms to the acquired gender and not whether they "look the part". Such tests are inappropriate and inconsistent with our broader ambition to respond to the needs and concerns of a small minority group.
The Bill must also account for the situation of the relatively small number of transsexual people who are in existing marriages. After recognition in the acquired gender such couples will become same-sex couples, and marriage is of course an institution for opposite-sex couples. It has always been so, and the Government intend it to remain that way. That means that existing marriages will have to end. We acknowledge that that will have emotional and practical repercussions.
The decision to require existing marriages to end was not taken lightly. Ultimately we believe that these same-sex couples should be treated in the same way as other same-sex couples and should therefore have access to the civil partnerships that the Government propose to make available for same-sex couples, but marriage should remain an institution for opposite-sex couples.
Angela Watkinson (Upminster) (Con): I thank the Minister for giving way; he has taken an inordinately large number of interventions. The explanatory notes say that if somebody who is married acquires a new gender and an interim gender recognition certification, the marriage is voidable, but they also state:
- "Proceedings for dissolution on this basis must be begun within six months of the issue of the interim certificate."
Mr. Lammy: It is our intention to make this process as swift and easy for the applicant as possible. We would like the process to take place in a day, but six months is the period within which we have mandated that that decision should be made.
Mr. David Rendel (Newbury) (LD): Will the Minister give way?
Mr. Lammy: If the hon. Gentleman will forgive me, I will make some progress. I have taken a number of interventions, and if I can make progress we can then have a full debate.
In short, although the marriage will have to end, there is no impediment to the continuation of the relationship, and, should civil partnership legislation be enacted, it will be possible for the relationship to regain a legal status and for there to be mutual rights and responsibilities.
On how the marriage is to end, we are concerned to leave the individual in control of the process and to tackle the practical difficulties that ending an existing marriage may create. If a married individual applies and is successful, he or she will receive an interim gender recognition certificate, which will provide the basis, in schedule 2, for a new ground for dissolution of the marriage. On dissolving the marriage, the court will substitute a full gender recognition certificate for the interim one. In that way, the Bill proposes to avoid the situation where a married applicant first has to end his or her marriage and only then learns whether his or her application meets the criteria. The process provided in the Bill eliminates the potential for that vulnerability and allows a person to plan his or her affairs. When dissolving the marriage the court will also be able to deal with practical matters such as the sharing of pensions or making provision for children of the family.
The Government will also introduce during this Session legislation on same-sex civil partnerships. Should that legislation be enacted, a couple who have to end their marriage to allow one party to gain recognition in the acquired gender will be able to enter into a civil partnership. After the recognition of the acquired gender, they will be a same-sex couple like any other, and will have access to the rights of a same-sex couple. The effect of that is that the couple will be able again to acquire a legal status for their relationship, with legal rights and responsibilities. We plan to make it possible for a couple to end their marriage, for the full gender recognition certificate to be issued, and for a civil partnership to be formed, all on the same day.
The second section of the Bill outlines the consequences of issuing a gender recognition certificate. The consequences are largely straightforward. The two main principles are stated in general terms in clause 9. Once a certificate has been granted, a person's gender becomes in law the acquired gender. The Bill proposes to provide transsexual people with access to the rights and responsibilities that are appropriate to their
acquired gender. This change of gender is, however, prospective only—the Bill does not seek to rewrite history.Clause 10 and schedule 3 are critically important. Following a successful application for recognition, the panel will issue a gender recognition certificate. The appropriate Registrar General, depending on whether the individual's birth was initially registered in England and Wales, Northern Ireland or Scotland, will then create a new record on the individual in the gender recognition register. A birth certificate in the new name and gender recorded on the gender recognition certificate can then be issued from the new record. The link between that new birth certificate and the original birth certificate will be confidential. I want to make one thing very clear. The original birth record will not, and should not, be erased, because it is a record of a historical fact. The original birth record will remain in existence, and any person who has the original birth details will have access to a certified copy of that record. The point of issuing a new birth certificate is to allow the transsexual person privacy by not revealing their gender history in a public document. We feel that this is a reasonable safeguard for that small group of people.
I shall mention one vital aspect of the third section of the Bill. Clause 22 prohibits the disclosure of information about a person's application for gender recognition or about a successful applicant's gender history. That information is to be protected whenever it has been acquired in an official capacity. Changing gender is a difficult process. It is difficult in terms of the person's own identity and in terms of their relationships with others. Recognising the change of gender in law will produce benefits for transsexual people. Those benefits will be undermined if there remains open access to, and open disclosure of, the fact that the person was once of the other gender.
Gender dysphoria is, after all, a medical condition whereby a person feels driven to live in the opposite gender. To be reminded of the original gender, to be regularly confronted by it, and to have others knowing that one suffers from that medical condition and to know that they might be talking about it is not conducive to feeling secure and it makes it very difficult to live in the acquired gender in dignity. We do not believe, as a Government, that we are able to, or should seek to, prevent all rumour and gossip—that would require too great an encroachment into the private sphere—but we do believe that those with access to information about a person's gender history in an official capacity should play no part in any such activity. Clause 22 seeks to achieve that.
There will be instances of the individual's previous identity being relevant. All human rights legislation should try to balance the rights of one set of individuals with the rights and interests of others. To that end, clause 22 sets out the limited circumstances in which disclosure is permissible, for example, for prevention or detection of a crime or in pursuance of a statutory duty.
I should like to add to the theme of respecting the rights and interests of third parties. Schedule 4 contains a conscience clause for ministers of the Church of England and the Church in Wales.
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