The
Solicitor-General: I will give way, although I have an
“angels on the head of a pin” sense about this
debate.
Lynne
Featherstone: The debate may hinge on a pin head but it is
vitally important to a particular community. I am seeking reassurance
from the Minister—although I know she feels she has probably
already given it. I have constituents who are indeterminate and would
not necessarily be identified as gender reassigned or as one sex or the
other. They are somewhere in between and unidentifiable physically. I
want to make sure that those people are protected. They may not even be
on a journey; they may just be indeterminate in their gender identity,
so there is no reassignment at all. Would that be
covered?
The
Solicitor-General: We have not found evidence of
discrimination against people who one might call third sex. We have not
found discrimination against people like that at all. What causes
discrimination is characteristics that other people can see. A state of
indecision within oneself or a tentative reflection on where one wants
to be on the spectrum will not light itself up so that somebody can
discriminate against the person who is thinking or feeling that
way.
Lynne
Featherstone: I would argue against that point because
there are people who are indeterminate or third gender of whom it
cannot be said which sex they are and they face discrimination simply
because they do not look quite as expected in either
gender.
The
Solicitor-General: We have not come across discrimination
against any such people that has not been linked to a
separation—however tentative, however temporary and however
partial—of gender identity and real
sex.
Mr.
Boswell: Would the Minister at least agree that it would
be extremely undesirable in terms of humanity and public policy if any
individual who was in this ambiguous position felt under any pressure
to undergo some physical process of gender reassignment by medication
or whatever on the fear that otherwise they would not be able to avail
themselves of defence under the protective characteristics provisions.
The last thing we want is to drive somebody into doing something they
do not want to do in order to get them protections they feel
they need.
The
Solicitor-General: There is no suggestion anywhere that a
person has to be driven into a medical process. As I have said
innumerable times, quite the reverse. Gender reassignment, as defined,
is a personal process so there is no question of having to do something
medical, let alone something surgical, to fit the
definition.
2.15
pm The
hon. Member for Daventry was worried that the protection would not
apply to young people but it does. In due course I am sure we will have
a debate about age discrimination not applying to people under 18, but
all the rest of the statute does so. I ask the hon. Member for Hornsey
and Wood Green not to press the new clause. I understand why she tabled
it, but it was on the false basis that medicality is the key. I hope
that I have explained that it is
not.
Dr.
Harris: Before my hon. Friend the Member for Hornsey and
Wood Green responds, I should like to make two quick points about what
the Minister has just said. First, the whole Committee is grateful to
her for explaining the intention behind the wording of clause 7. Even
though we are discussing it under the hook of an amendment to clause 4,
the wording of clause 7 is critical.
The Minister
used two arguments, which are important and I recognise the intellect
behind them. Proposing to undergo a process of reassignment does not
involve medication or medicality. We accept that. Just because part of
the definition in new clause 8 reintroduces that point, it does not
mean that we think that is the criterion. Obviously it is not, because
the other three components of our definition in new clause 8 have
nothing to do with being under medical supervision.
The problem is
the use of the term “gender reassignment” and the process
of gender reassignment, to which one must refer to have any protection,
even if protection can be obtained by arguing that the person is
proposing to undergo gender reassignment. The hon. Member for Daventry
helpfully suggested the idea of “considering”,
but even that would not capture someone who has
absolutely decided that they will not reassign themselves—that
is in their own terms. Although the Minister may say that
cross-dressing because of their gender identity is in itself a process
of gender reassignment, I do not think that it is for Parliament to
tell people how to describe their own processes. Those who do not wish
to have gender reassignment resist the idea that they are seeking
gender reassignment simply because they have a gender identity that
involves adopting facets and characteristics of a gender, for example
in the way that they dress, that is different from the one they
were born in. It would be
unfortunate if the Bill ran against the face of advocates for that
group of people. That is why we still think that the definition in
clause 7 is unsatisfactory. The Minister said there is no
evidence—another limb of her argument—that the sort of
people we are talking about are discriminated against. That may or may
not be the case. We will have to go back to their representatives to
see whether they can give us some examples. It is generally one of the
benefits of equality law that we can act to provide protection before
there is clear evidence of discrimination. That is exactly what
happened under disability, race and gender, where many more data were
made available after the law came
in. Finally,
the Minister says that in any event we can rely on the read-in
provisions of perception in clause 13. Obviously we hope that is true.
The problem is that I do not think it should be necessary for us to use
that back-door approach to get protection in such a limited area, on
the basis that if someone is cross-dressing, other people will perceive
that they are gender reassigning even if they feel that they are not.
That might catch it, but it is more than slightly unsatisfactory. The
Minister might accept that it is unsatisfactory from an intellectual
point of view, even if from a practical point of view it might catch
almost every
case.
The
Solicitor-General: I cannot see anything to take exception
to in relying on perception and association. They are key developments
in the law of discrimination and very important components of
protecting people. Perception should cover cross-dressers, whatever the
draft would afford.
Nobody here is
suggesting how people should define themselves. What we need to do to
nail it finally is to look at new clause 8 and see whether it includes
anybody who is not covered by our
clause. First,
the medical definition in subsection (1)(a) is undoubtedly covered by
our clause. Secondly, a person living permanently in the gender role
other than their birth sex is covered. Thirdly, somebody who has
received gender recognition would obviously be covered, and fourthly,
somebody “who
has a gender identity that is different from that expected of a person
of their recorded natal
sex”, is
covered too. Where is the deficiency in our clause? Each and every one
of those cases is covered, and I have said that at least 15
times.
Lynne
Featherstone: I thank the Minister. She has tried hard.
Perhaps the problem is not in the totality of the clause, but in the
title of “protected characteristic”. It is the
differential between gender reassignment and gender identity that for
me is the most forceful issue.
The
Solicitor-General: In the hon. Lady’s proposed new
clause,
a “person
has the protected characteristic of gender identity”
if they fall into one of
the four categories that I have just set out. The new clause that she
drafted would not add anything to those
categories.
Lynne
Featherstone: I thank the Minister, but I am not sure that
subsection (1)(d) of the proposed new clause is covered. It is people
with the protected characteristics who press for change and the
community behind them who are the most vulnerable, and the ones to whom
we have to try to give future-proofing for almost any eventuality on
the spectrum, which is barely discussed in the world as we know it. I
am worried, but I will not seek to divide the Committee. I ask the
Government to give a little more thought to that differential between
the words “identity” and “reassignment”,
which send out completely different messages to that community and to
others. I beg to ask leave to withdraw the amendment.
Amendment,
by leave,
withdrawn.
Mr.
Harper: I beg to move amendment 6, in
clause 4, page 4, line 11, at
end insert ‘or
paternity’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 139, in clause 16, page 11, line 15, leave out
‘maternity’ and insert
‘parenthood’. This
amendment extends protection against discrimination to fathers in the
first 52 weeks of his child’s life in non-work
cases. Amendment
138, in
clause 16, page 11, line 22, leave
out ‘26’ and insert
‘52’. This
amendment extends the protected period for protection against
discrimination on the grounds of pregnancy and maternity to 52
weeks. Amendment
141, in
clause 16, page 11, line 24, at
end add— ‘(4) A person (A)
discriminates against a man if, in the period of 52 weeks beginning
with the day on which his child was born, A treats him unfavourably
because he is a
father.’. This
amendment extends protection against discrimination to fathers in the
first 52 weeks of his child’s life in non-work
cases. Amendment
140, in
clause 17, page 12, line 18, leave
out ‘maternity’ and insert
‘parenthood’. This
amendment extends protection against discrimination to fathers in the
first 52 weeks of his child’s life in non-work
cases. Amendment
149, in
clause 17, page 12, line 22, at
end insert— ‘(2A) A person
(A) discriminates against a man if, in a protected period in relation
to a child he has fathered, A treats him unfavourably because he is a
father.’. This
amendment extends protection against discrimination to fathers in the
first 52 weeks of his child’s life in non-work
cases. Amendment
150, in
clause 17, page 12, line 27, at
end insert— ‘(4A) A person
(A) discriminates against a man if A treats him less favourably because
he is exercising or seeking to exercise, or has exercised or sought to
exercise, the right to paternity
leave.’. This
amendment extends protection against discrimination to fathers in the
first 52 weeks of his child’s life in non-work
cases. Amendment
151, in
clause 17, page 12, line 38, at
end insert—
‘(6A) The protected
period, in relation to paternity, begins with pregnancy and ends 52
weeks after the child is
born.’. This
amendment extends protection against discrimination to fathers in the
first 52 weeks of his child’s life in non-work
cases. Amendment
152, in
clause 18, page 13, line 23, at
end insert
‘parenthood.’. This
amendment includes pregnancy and maternity as a protected
characteristic in cases of indirect
discrimination.
Mr.
Harper: The amendment is short and probing. It would
simply add “or paternity” to the protected characteristic
“pregnancy and maternity”. There are two reasons for the
amendment, one of which is similar, I suspect, to the reason for the
amendments on parenthood tabled by the Liberal Democrats to cover
fathers in those clauses that refer to maternity and maternity breaks
from work. Given the developments that I think are supported across the
parties in increasing the role of fathers in bringing up their
children, especially at the early stage, I wish to explore with the
Minister whether she feels that having another look at that might
help. The
second, slightly wider reason, is one that we looked at when we
discussed the gender pay gap. A number of the witnesses in the evidence
sessions mentioned that one of the reasons for the gender pay gap might
be that, in many cases, women are still the primary carers for
children. Because of the compromises that they have to make in their
working lives to look after their children, they might either not be
paid as much, or not progress as far in their career. Another reason
for exploring the issue is that fathers taking more of a role may
equalise the roles of mothers and fathers in the workplace, and be of
benefit to fathers and their children. It might also even up the roles
that mothers and fathers take in looking after their children, which in
itself might help to deal with issues such as the gender pay gap, when
that occurs because of the choices that people
make. This
is a short amendment and I have given a short explanation. For both of
the reasons that I have outlined, I wish to explore with the Minister
what thinking the Government have done about the role of fathers and
paternity. As I have said, I have noticed that the Liberal Democrats
have tabled some amendments on fathers as well. Given the developments
that we have had since the parent legislation that has been rolled over
into the Bill, the Government might give that some
thought.
Lynne
Featherstone: I will be relatively brief, as I will
essentially make the same argument as the hon. Gentleman. It is
important that we probe the Minister’s thinking on this subject.
Many consequential difficulties, to quote Nicola Brewer’s
assertion, have arisen from people not employing women because their
maternity benefits were so good. If we can equalise the entitlement for
men, not only might it encourage men to take part more—I am sure
that all the Gentlemen in this room already do—but it will
further protect women from discrimination in the workplace.
Amendment 138
is slightly different. We do not understand why the Minister is only
extending the period of protection for mothers—and indeed
fathers, because amendment 141 is for fathers—from 26
to 52 weeks. We do not understand why it is protected at 26
weeks, when the allowances for mothers—and fathers, we
hope—now extend longer than that. We understand why that has
been cut down, but the essential point of all the amendments is to
create equality between men and women in their care for their
children.
The
Solicitor-General: Amendment 6 would add paternity to the
list of characteristics. Amendment 138 would extend the period of time
a woman is protected from maternity discrimination in non-work
cases. Amendments 139 and 141 would give men the same
protection against paternity discrimination in non-work cases.
Amendments 140, 149 and 151 would give men protection from paternity
discrimination in the workplace for the period from when their child
was conceived to 52 weeks after birth. Amendment 150 would give
new fathers protection from discrimination for taking, or trying to
take, paternity leave. Amendment 152 would prohibit indirect
discrimination where the relevant protected characteristic is
parenthood. Forgive
me for stating the obvious, but paternity would apply to men only.
There are clear and well established reasons why women need protection
against pregnancy and maternity discrimination, but there is no
equivalent evidence to suggest a problem where men are discriminated
against outside the workplace, particularly if they are new fathers. As
my colleague put it to me last night, what the lads usually do is take
a new father out for a drink; they do not start to discriminate against
him. We have not found any evidence to suggest a new strand that needs
protecting.
We would add
characteristics if there was a need. We recognise that fathers as well
as mothers should spend the time they need with their families and be
able to balance work and family life, but discrimination law is not the
way to tackle that. There is separate provision, alluded to by the hon.
Member for Hornsey and Wood Green, which advances the cause of
balancing work and life, and we will continue with that. When rights
are given, they will of course be in the legislation that gives
remedies in case those rights are breached.
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