Mr.
Boswell: By no means will I guarantee regularly to
associate my views with those of the hon. Member for Hornsey and Wood
Green, but in this case I will. The Committee will know the
views—we have already
referred to this in the evidence
sessions—that I have formed in relation to gender reassignment,
because I was involved in the Gender Recognition Act 2004. We should
remember in passing that that was an achievement, which I think the
Government can rightly record, and I am delighted that it was passed
with our
support. 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.
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