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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.
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—
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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