Equality Bill

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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.
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 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 7

Gender 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.
“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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