[back to previous text]

Nevertheless, the Act was driven by a European Court of Human Rights case, which said that the issue had to be dealt with. One of the glories of this place, and one of the glories of the European convention in keeping us to our vocation—if I can put it that way—is to look at the protected status of minorities. It is well known that those involved in gender transition at whatever stage are a small minority. I happen to have a distinguished and very articulate constituent who has been in touch with me about the legislation. He is following our every word, as we go through the Bill.
I have strong sympathy with the arguments, and I just want to draw out two particular points. First, as the hon. Lady has said, it is very much a spectrum of consideration. At one end is the full acquisition of legal status through the issue of a gender-recognition certificate, which takes us in the United Kingdom out of the idea of a three-gender situation, because it in effect switches from one to the other, being a kind of digital solution. However, long before that there will be people who have inclinations or concerns, others who may be seeking treatment—often with difficulty in finding access to it, or getting the appropriate counselling—and others then moving on to medical interventions and therapies. Eventually they may move through the whole spectrum or, in certain cases, reverse away from that and not take it forward. Those are very intense and personal decisions for a limited number of people. It is really important—I cannot see it as subversive of anyone or of any policy, or likely to cause cost—to embrace as many of those people as we possibly can. I would like to see the widest possible clear definition.
My second point has particular bearing when read with the age exclusions in the Bill in relation to persons under the age of 18. That lady constituent of mine who has been in touch with me has drawn attention to the fact that she has been concerned about her status and sexuality since her teenage years—she is now of mature years and is older than me. There is some plausibility in arguing, as came out in the evidence sessions, that there is a battery of local authority responsibilities in relation to persons under the age of 18 in school, for example. Nevertheless, given that people live in the community as well, and as such concerns, confusions, doubts and very difficult personal situations can start earlier, it is important to make sure that young persons, who are vulnerable enough in their teenage years, who have that extra incubus or difficulty to contend with are covered by legislation. If the Minister can look at whether more can be done in that area, it would be very welcome.
The Solicitor-General: The hon. Member for Hornsey and Wood Green referred a number of times to a medicality of definition. Let me assure her that there is no medicality of definition. It is removed from the old definition that related to gender reassignments. Although we are discussing the matter under clause 4, the definition of gender reassignment is in clause 7—it is clear why she needs to discuss it under clause 4, none the less—where there is no medical reference whatsoever. It is not a medical definition; it is about a personal process.
Lynne Featherstone: I thank the Minister for that information, but:
“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”—
that sounds pretty much as if it is an end-game decision and process to a complete reassignment. “Medical” might be the absolute end but before that is a total reassignment of gender, whereas I am arguing that gender identity is more complex than an absolute switch. There are stages in which people do not change physically at all, but they do change, and they need to be protected at whatever point they are at. That is the point that I am trying to make.
The Solicitor-General: I hope none the less that the hon. Lady accepts that there is no reference at all to medicality in the Bill. The existing law talks about being under medical supervision, which may be what has misled her, but there is nothing here. We have deliberately left that out. The process is a personal one that an individual chooses to go through—I did not want to argue about the presence or absence of free will or any other way it might be driven, but it has nothing to do with medicality. I hope she has got that point.
Mr. Boswell: I look forward to clause 7, which uses the phrase
“is proposing to undergo, is undergoing or has undergone”.
In the spirit of my remarks, I am wondering whether a better formulation for the Minister’s consideration might be “is considering undergoing”. “Proposing to” rather implies a definite decision, albeit one that has not yet been implemented, whereas “considering” could cover the ambiguous issues in which many young people in such a situation, and others, find themselves involved. I do not have that final rubric, but it might be an idea that would make the provision a little wider without destroying the clarity that is required.
2 pm
The Solicitor-General: I acknowledge that and give way to the hon. Member for Hornsey and Wood Green.
Lynne Featherstone: That is a helpful comment. However, the word “reassignment” implies that there is a reassignment as opposed to an identity confusion anywhere on that spectrum. Even the word “considering”, implies considering a complete reassignment, whereas people may not ever get to considering reassignment—they may be wondering about their gender, which is not the same thing.
The Solicitor-General: It is difficult to protect someone who is only wondering about their gender. What we are considering is that many people’s gender identity is the same as their sex—mine is and the hon. Lady’s is. Therefore, sex is protected, it is one of the extant characteristics. If one changes one’s gender identity away from one’s sex toward the other, then one is reassigning one’s gender identity. That is what the provision is about.
Mr. Harper: I am becoming increasingly confused. The new clause proposed by the hon. Member for Hornsey and Wood Green provides a definition of gender identity. However that new clause, given the debate that has just been happening, specifically talks about gender reassignment and specifically reintroduces the concept of medical supervision. However, the whole point of what is in the Bill—or certainly as I read it and explanatory note 57—is that the medical necessity in provisions in the Sex Discrimination Act 1975 was specifically removed, thereby widening the range of people who would be protected. I felt that that was a sensitive change. New clause 8 seems to be going in the opposite direction. I draw that to the Minister’s attention, and perhaps the hon. Member for Hornsey and Wood Green may want to intervene in due course.
The Solicitor-General: It is clear that part of the definition in new clause 8 reverts to that medical basis of reassignment, but it is only part of the definition, so the hon. Lady is not totally regressing, although it is probably what is leading her astray about our definition.
Lynne Featherstone: I want people who are transsexual to have the protection as well, so that the measure is all-encompassing, wherever one is on the spectrum—not just medical, not just reassigned. However, in terms of what the Minister said regarding someone dressing as a different gender, that might be temporary—a passing phase. I want that protection wherever one is on the spectrum, so that the definition is as broad as possible so as not to exclude anyone. I repeat that this is a tiny group of people who are incredibly vulnerable—probably more so than any other group.
The Solicitor-General: Let me put it this way. We are confident that our definition includes everything in new clause 8 except, possibly, subsection (1)(d), which I do not entirely understand. That is why I say that I cannot be confident about it. However, it must be made clear that the term “gender reassignment” is about a personal move away from one’s birth sex into a state of one’s choice, so that one is no longer protected by sex and is in a different category. That is what the provision is about. It makes it clear, by deliberately leaving out the medicality, that we are talking about a personal process, which may be proposed but never gone through. It may be considered, in process, or it may have happened. Its nature may be a medical one. Its nature may be in choosing to dress in a different way.
The whole of that range is satisfactorily covered. If it is not, the perception element in the definition of discrimination in clause 13 may cover others who are perceived to be in the category we protect under clause 7, even if, in fact, they are not. I will say one more thing before I give way to the hon. Member for Oxford, West and Abingdon. There is an illogicality in new clause 8 as well, because it states:
“A person has the protected characteristic of gender identity if the person ... is perceived to be”
undergoing a transition. One does not make somebody into something by perceiving that they are it. If someone perceives that I am over 60, they will not make me over 60, and I will not have that characteristic. It is not there that it is necessary to put the point about perception. The definition of discrimination in clause 13 is wide enough to deal with perception. The new clause, however, is over-complicated and completely illogical at that stage, and we could not accept it in any event on that basis, but the real point is that we have covered everything the hon. Lady has covered.
Dr. Harris: The Minister’s last contribution was very helpful in delineating the difference between us, and I accept that as long as clause 13 covers perception, as the explanatory notes describe it as doing, then that is the best place to put the definition. That is just a criticism of new clause 8. However, the question is whether her reference to reassignment will actually be an obstacle for someone who, for example, chooses to dress in the clothes of the other gender but actually has denied thinking about reassignment and just chooses because of their gender identity to cross-dress. We worry that the Minister’s definition will exclude those people from protection, because it refers to reassignment, even if it is just proposing reassignment. That may be the only difference between us, given what she has just said.
The Solicitor-General: I shall try to make our intention as clear as I can. I am entirely satisfied that clause 7 fulfils our intention. Clause 13 covers the definition of discrimination, which is deliberately couched widely enough to include discrimination by perception and association, and comes to the aid of the category about which the hon. Member for Hornsey and Wood Green is particularly troubled.
The explanatory notes state that a person who was “born physically female” and decides to live as a man,
“starts and continues to live as a man”,
with no medical intervention at all—just passes as a man—will have undergone gender reassignment. He will have started that process by proposing to do it in the first place, and will have continued it, but if he had started it—had proposed it, but withdrawn—he would still have been covered while he was proposing it. All the various vacillations of the process—often a very long one, is it not?—are very adequately covered by the definition, which is our intention, and we have fulfilled it.
Dr. Harris: The Minister has just described someone who chooses to live as another gender from the one they were born in. If we take the case of cross-dressing, the decision is not always permanent; it is not always an every-day decision and not always an all-the-time-in-any-day decision. It can be intermittent. Given what the Minister has just said, can she reassure us now or at a later stage that she is confident that her definition is wide enough to capture the need to protect people who, because of their gender identity, and not for the hell of it, choose on some occasions—not permanently or seeking to do so permanently—to appear as, and live as the gender other than that into which they were born?
The Solicitor-General: Will that not be a question of fact in each case? Is it a characteristic, or it just something somebody fancies doing, not because they are driven by gender identity, but because they like to cross-dress? I do not know his name, but whoever is behind Dame Edna Everage cross-dresses for that purpose, but he is not driven to it. I do not think that Dame Edna will be involved in this clause, although in every other way she is safe with this Government. However, somebody who was driven by a characteristic would be in the process of gender reassignment, however intermittently it manifested itself.
It is hard to see why that would not be the case, but I can see that it would be a question of fact in each case. The person would be rescued anyway by the association and perception provisions.
Mr. Boswell: The underlying problem may arise from the use of the phrase “gender reassignment” because that is a relict of the medical process. If I have correctly understood the concerns expressed by the hon. Member for Oxford, West and Abingdon, he is worried about people who may manifest some of the behaviour of someone who is contemplating trans-gender but may have resisted medical reassignment. The Solicitor-General is saying in effect that anything about the issue of transsexuality, however tentative, however reversible and however expressed, is somewhere covered. If that is what she is saying, and she can reflect on it and assure us that it is so, we would be a lot happier. There is a worry that once we start setting out criteria that a court has to consider if there is an accusation of discrimination, people will ask for objective tests, which would be easy to frustrate or argue against in a particular case and could then cause a great deal of distress to the individual.
The Solicitor-General: How a court determined the question if the unfortunate situation that one hopes will not arise ever arose would be a matter for the court. The use of the term “gender reassignment”, which in the earlier definition did connote medicality, has now been specifically rid of that component. I cannot say more often or with more emphasis that we are talking about a personal process that may or may not have medicality.
Lynne Featherstone rose—
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 12 June 2009