Dr.
Harris: That illustrates the problem with the definition
of “long-term” in schedule 1 that I probed in amendment
180. I support the idea behind the amendment, although the problem is
that it is disease-specific. There are plenty of mental health
conditions for which the chance of recurrence might not be as high as
the 70 per cent. figure that the hon. Gentleman quoted or about which
there is less certainty, less data and less research information on the
likelihood of the condition’s recurrence or of the recurrence of
the effects. Therefore, the amendment should be seen as
illustrative. All
the hon. Gentleman’s points, however, urge the Minister to
reconsider her reliance on the wording that
the “effect
is likely to
recur”, because
in many cases in which protection is needed, physicians will find it
difficult to say that they believe that the condition is likely to
recur. It is far better to have a definition that does not require
independent medical reports to stretch to cover what is required by the
law, but to have common sense apply. Therefore, the amendment
illustrates again that we need to find alternative wording that does
not depend on a likelihood that covers a balance of probabilities,
which would be the wrong threshold for many disabling and debilitating
diseases that can and do recur but are not necessarily likely to recur.
The amendment covers just one example of
those.
The
Solicitor-General: Overall, the broad view is that the
issue is one for the medical profession and its diagnosis of
depression, rather than for anti-discrimination measures, which already
provide for recurring conditions. I remind hon. Members that schedule 1
defines the effects of an impairment being long term, specifically
saying in paragraph
2(2): “If
an impairment ceases to have a substantial adverse effect on a
person’s ability to carry out normal day-to-day activities, it
is to be treated as continuing to have that
effect”— even
if it does
not— if
that effect is likely to
recur.” If
a doctor can say that a condition is likely to recur, if evidence from
the past on how the individual has reacted suggests that it is likely
to recur, or if the evidence suggests that it is likely to recur, the
person will rightly be treated as having a fluctuating illness, which
is capable of meeting the definition in paragraph 2. However, if we are
talking about an awful personal event that puts someone into depression
for a period, but they are not depressed in any other sense and do not
have an underlying difficulty, and within five years some other awful
event occurs—such things can, unfortunately, happen in that
sequence—that quite separate element of perfectly sensible
depression, as it were, which is a response to an event in a
person’s life and would throw anyone into depression, ought not
to make them
disabled. Most
people in such a situation would not want to be classed as disabled. It
would be extremely difficult to know what anyone else could do to help
them through the interim period, when they have been perfectly healthy
because the impact of such an event has not been playing upon them. It
is the reverse of what the hon. Member for Oxford, West and Abingdon
said. We should not be looking for a way of defining every instance of
depression to ensure that it is within the protection of disability
provisions. If something is likely to recur, that person obviously has
a long-term illness and must be protected. That is the way around the
problem, as common sense, which he prays in aid, and medical evidence
require it to
be. Mr.
Harper: I want to probe the Minister on one point about
medical evidence. If someone has a condition and there is a fair amount
of consensus among medical practitioners regarding diagnosis and the
likelihood of recurrence—this returns us to the point made by
the hon. Member for Oxford, West and Abingdon—what she says is
perfectly fair and straightforward and will capture all the cases at
hand. However, the case put forward by the DCC shows that there is a
lack of consensus about the diagnosis of depression in the medical
community, and there is a debate about whether it is an underlying
condition or whether there are separate episodes. That is why the
amendment focuses specifically on depression. There is an argument
about the likelihood of recurrence, with no particular agreement
reached, and it could end up with cases going to court and experts
arguing with each other. That might be inevitable, and the court would
then have to take a view.
What
information does the Minister have, and what research has the
Department done, on depression or any other long-term conditions? To
what extent are there differences in medical opinion? Is the diagnosis
and the likelihood of recurrence in any way controversial, likely to be
challenged or at variance? Some people have an underlying condition and
suffer recurrent bouts of depression and its disabling effects. It is
not in anyone’s interest to force such people into a courtroom
or a situation in which they have to weigh up different medical experts
against each other. As far as they are concerned, they have a disabling
condition that periodically recurs. Will the Minister give more
information about the state of medical opinion on that
condition?
The
Solicitor-General: As with all conditions, the question of
whether depression is likely to recur must be a question of fact, and
medical evidence will help the determination of that. Obviously, it is
likely that such matters will be determined as a question of fact long
before they get to court, but there is a limit on what one can do in
statute to clarify every possible situation that might arise. I think
that the provision is clear, and if the diagnosis is not, that is
outwith what can be captured within discrimination legislation. We
cannot set down a list of criteria that can be used to determine
whether depression is likely to recur. That would be outwith our
expertise.
All we can
do, which seems a very adequate measure and I think that it works, is
set out a fair definition based on, “Is it likely to
recur?” The hon. Member for Oxford, West and Abingdon equates
that with the balance of probabilities and all sorts of things that it
is not equated with in any way or case. It is an ordinary question: is
it likely to recur?
The hon.
Member for Forest of Dean gave an example—I hope that I am not
misquoting him—that there is a 70 per cent. chance of
depression recurring within five
years if it is not a situational depression. Should evidence suggest
that someone has depression that is likely to recur, that person will
be well protected. When it is not possible to say whether it is likely
to recur, we are in a hinterland that can only be determined by
evidence of earlier recurrences or by medical opinion. At that point,
we are outside the territory of the provision. The
definition of “long-term” is important and we must
distinguish it from people who have a short-term problem or who have a
disability as correctly termed. Making an exception for the condition
covered by the amendment would probably be unfair on people who have
conditions that are subject to the same problems of definition. The
hon. Gentleman has adequately probed the issue raised by the disability
charities, and probing is what they sought. He has done that job and
can now withdraw the amendment to let us go
forward.
Mr.
Harper: Before I do that, I want to say that given that
there is a fair bit of dispute and debate about the issue—she is
quite right, there are other conditions—perhaps we can place
some guidance on the record. Once the Bill has progressed through the
House and the other place, perhaps the EHRC, when it is drawing up its
statutory guidance, will consider fluctuating conditions and see
whether its guidance is as comprehensive as possible and gives
employers and others who will be relying on it a proper understanding
of the nature of fluctuating
conditions.
The
Solicitor-General: Indeed, there will be guidance. There
is provision in clause 6 for a Minister to issue guidance to help
determine whether a person is disabled. If we can probe the
uncertainties of this any further, of course we will do
so.
Mr.
Harper: I am grateful for that helpful intervention. I beg
to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Schedule 1
agreed to.
Clause
7Gender
reassignment Mr.
Boswell: I beg to move amendment 195, in
clause 7, page 5, line 25, leave
out ‘proposing to undergo’ and insert ‘considering
undergoing’. The
Committee will remember that we had a full discussion in
Thursday’s debate on the issues affecting persons who are in the
process of, or contemplating, transgendering. It is unnecessary and
inappropriate to pick up the whole of that discussion, but I said that
I had missed out by not moving an amendment on the specific point
raised. I have now done that to give the Minister a chance to respond.
My hon. Friend for this purpose, the hon. Member for Hornsey and Wood
Green, might want to say something on it, too.
The Committee
knows—we debated this and it is not an issue between
us—that any persons contemplating transgender issues and their
future are not in a simple situation. They are a small minority, and
that is why they need our support and attention. The
decision
might be initiated at an early age, or it might take years to make a
decision. It might not, in certain cases, go forward to surgery,
medical treatment, the formal process of gender reassignment or the
acquisition of legal status in the new gender as set out in the Gender
Recognition Act 2004. It is a complex and sensitive picture and almost
all individuals will be
different. We
are grateful to the Solicitor-General for introducing a more sensitive
definition. The amendment simply seeks to tidy up something where the
definition could be even better. The difficulty with the words chosen
by the Government, which appear in clause 7, are that they require the
person at the first stage to be “proposing to undergo” a
process of reassignment of their sex. I think that is a little too
precise for the circumstances of the case. I vaguely recall the Oxford
philosopher, J. L. Austin, who created a new class of what he called
“performative utterances”—if someone got up and
said, “I name this ship the Queen Elizabeth”, it was
difficult to deny that they were actually naming the ship the Queen
Elizabeth. It could be that if a person said formally and put it in
writing, “I am proposing to undergo a process”, that
would be a performative utterance. They would have deemed themselves to
be doing so, and they would automatically receive the benefit of
protection of the protected characteristics.
In the real
world, it is not like that at all. People are ambiguous—they
make tentative inquiries, go and see a doctor, talk to a
counsellor and start thinking about it. It would be better and more
sensible in those cases if the protection, which is rightly
intended by the Committee, was extended to those persons whose status
is not wholly determined, but are thinking about it. That is why I came
up with the phrase “considering
undergoing”. 11.15
am I
stress to the Committee that that would not be a test with no evidence.
If there was an act of discrimination, the person involved would have
to show some evidence that they had been “considering”.
They could not make it up afterwards—or rather, they would have
to convince a court that they had such evidence. But it would be more
informal than saying, “I am proposing to undergo a
process.” It would be saying, “I am not quite sure where
I am, but I need to think about it. It might transpire in the process
of gender reassignment.” It would be a softer but not
non-existent test. It is entirely consistent with the advances that we
have already made—we are just taking it a stage
further. I
say to the Solicitor-General that I have proposed those words because
they were the first ones that came into my head—I have no
proprietary interest in them. If she can come up with a better way to
catch the more nuanced definition of people starting on the process and
extending the protection to them—indeed, some of them will
really need it—the Committee will be grateful. As I said, I will
not stand on the words, but I think the issue is worth
considering. Lynne
Featherstone (Hornsey and Wood Green) (LD): I will not
hold up the Committee for long as we discussed the issue the other day.
I am grateful to the hon. Member for Daventry for tabling the
amendment, which
goes part way to where I was trying to reach, but not the whole way. It
is important to introduce the idea of uncertainty and confusion, which
populates the transgender world to a far greater extent than the world
in which people are settled in their decision to live in one gender or
the other. I felt that we had not touched on that complexity or allowed
for that confusion, although the amendment goes some way towards that.
Paragraph 56 of the explanatory notes
states: “The
clause also explains that a reference to people who have or share the
common characteristic of gender reassignment is a reference to all
transsexual people. A woman transitioning to being a man and a man
transitioning to being a woman both share the characteristic of gender
reassignment, as does a person who has only just started out on the
process of changing his or her sex and a person who has completed the
process.” The
amendment still does not capture those who are not considering a
change—those who are confused, but not considering living in or
transitioning to another gender—but who may still experience
discrimination because they are not physically identifiable as either a
man or a woman, whatever their latent state. I think that the amendment
still leaves that area somewhat unexplored, but it is certainly better
than where we were. I will also be happy if the Minister considers
bringing that into the Bill in some form that gives a voice to those
who are not covered by
reassignment.
The
Solicitor-General: I can see the point made by the hon.
Member for Daventry; it does arise—he already made that point in
our debate last week. I am incredibly impressed. Having read Professor
Austin myself—he was a positive jurisprudentialist—I can
tell the hon. Gentleman that his one reference to Professor Austin
makes it clear that he got a lot more out of studying the
professor than I ever did, despite many years of application. However,
I am not sure that the amendment would help. If it would, we would of
course consider
it. After
working as hard as we could on the right definitions for clause 7, we
concluded that the phrase “proposing to undergo” provides
the best practical coverage. It gives a degree of certainty and more
sureness, which the term “considering undergoing” does
not. A person can have lots of ways of thinking about their gender. At
what point that amounts to “considering undergoing” a
gender reassignment is pretty unclear. However,
“proposing” suggests a more definite decision point, at
which the person’s protected characteristic would immediately
come into being. There are a lot of ways in which that can be
manifested—for instance, by making their intention known. Even
if they do not take a single further step, they will be protected
straight
away. Alternatively,
a person might start to dress, or behave, like someone who is changing
their gender or is living in an identity of the opposite sex. That,
too, would mean that they were protected. If an employer is notified of
that proposal, they will have a clear obligation not to discriminate
against them. If anything, a good employer would help them. However,
without a clear decision even to propose to do that, it is difficult to
see how, practically, an employer will know that the
assistance is
necessary. If
what is going on is an internal cogitation, with no external
manifestation, it is difficult to see how this can work practically. We
want to ensure that people start their personal
journey—
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