Equality Bill

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Dr. Harris: The problem is the other way around. Often, one can have an external manifestation without an internal decision being made. The fundamental point that we have made in both these debates is that we need to find a way to cover people who, for example, may cross-dress. It is therefore obvious that they may be a target for discrimination, and indeed harassment in certain circumstances. They may not necessarily have made a decision or, in respect of harassment and discrimination outside employment, they may be too young—below the age of Gillick competence or Fraser competence—to be legally able to start or to propose externally that they should undergo gender reassignment. There is still a fundamental difference between our positions.
The Solicitor-General: No. The hon. Gentleman has that completely on its head, to be frank. No one is too young to cogitate about their gender identity. The consequences of doing so may be very different. We are not, as he seems perpetually to be stuck on, talking about the medical model of gender reassignment, on which some people may well be too young to be responsible enough to decide. This is not gender reassignment on a medical model. He really needs to come off that tramline and look at this for what it is. It concerns a personal journey and moving a gender identity away from birth sex. I am sure that that is as capable of being done by a young person as by an older person, and it is indeed likely to have manifestations. Those manifestations are the things that will indicate that some sort of process is in place.
If a person makes the proposal—it is a proposal, not a decision where someone says, “I will do it and never turn back”—that they may move along that pathway, at that point, and at that point only, does it become practical to protect someone. Someone who is having internal concerns about themselves is not manifesting it in any way that can be acknowledged and protected by any external person. As soon as there is a manifestation—as I have said already, and we discussed this last week too—the duty not to discriminate comes in.
Lynne Featherstone: I would like the Minister to elucidate on the situation in which someone is not considering living in another gender, but the external manifestation leaves them looking indeterminate. How would they get protection if they were to be discriminated against for being unable to be identified as male or female?
The Solicitor-General: It would depend upon the definition in clause 7. If she feels that such people are neglected, I should point out that nothing in the amendment would help them. We are talking about an amendment changing the definition of when someone triggers this particular protection, not extending the definition within clause 7, so we can focus on the remarks made by the hon. Member for Daventry.
As I have said already, if we thought the hon. Gentleman’s proposals would help, we would consider them further. However, we do not, for the reason I have outlined, which is that there has to be a practical way to trigger protection against discrimination. Let us remember the perception element. If people manifest what is thought to be a tendency to move towards the opposite sex—away from their sex identity—they might be perceived to be within the definition under the provision. They will therefore have protection when they make those manifestations on the basis of perception. Any behaviour that may be a precursor to an individual proposing to undergo gender reassignment may be covered by perception, so anyone who has gender diaspora and experiments with transvestitism before starting the process of living full-time or even from time to time in what they see as becoming their acquired gender will be protected.
There does not seem to be a problem about people who are considering reassigning their gender. We have covered the territory directly under the definition and through perception to cover those who are making manifestations or who may be misperceived to be in the process of gender reassignment. We have to cope with the fact that the public are probably not massively well informed and will make relatively simple judgments about people. The individual who is misperceived to be on a journey, when, in fact, they are manifesting something that is not part of a journey, will be protected. We have deliberately cast the definition widely to cover all those who need protection against discrimination. We have no evidence that there is a need for anything wider.
Dr. Harris: As for whether the perception works in a way that the Minister identifies, Equality Network noted in the Government’s equality impact assessment at paragraph 2.20 her view that protection on the basis of perceived gender reassignment will provide new protection for people who are “considered as being transvestite”. I, like Equality Network, welcome that assertion. However, the concern is that such people might not be adequately protected on the basis of perceived gender reassignment, because relying on that provision would perhaps require proof that the discriminator wrongly perceived the person to be transsexual—proposing reassignment, as the Minister put it—as opposed to knowing or perceiving that they were transvestite, inter-sex or androgyne. If the perception has nothing to do, in the mind of the discriminator, with gender reassignment but relates to whether someone is a transvestite, would that be covered by the perception provision?
The Solicitor-General: I am not sure of the nature of the hon. Gentleman’s argument, because I was sitting down when he began to speak. However, I am happy to help him as best I can, although it is a fairly endless job. The matter of perception rests on whether someone is perceived to come within clause 7. It is as simple as that.
Mr. Boswell: I suppose that it is an indulgence that we end up second-guessing the Minister’s response before we have finished with the amendment. In this case, I did almost precisely that. The Minister understands why we tabled the amendment, and she has been generous about it. In effect, she has put the counter case in that such things are difficult to tie down without a fairly clear evidential test. I accept that, but I hope that I had at least entertained the possibility that any relevant evidence could be considered as part of the process of “considering undergoing”. We are really talking about what would be a test, and as the hon. Member for Oxford, West and Abingdon has reminded the Committee, that is considered not only by the individual, but by the potential discriminator.
I probably have to give ground to the Solicitor-General. The only point that I would stick on with my amendment is that, in a sense, No. 1 for a gender discrimination counsellor or medic consulted by someone who is contemplating the process should be to say, “Sign a chit here, saying you are proposing a process of reassignment and that will protect you, otherwise you might get hit—discriminated against, or whatever.” That could trigger a decision or perceived decision that might not be helpful to the person’s interest.
11.30 am
We are going to have to leave the argument on that side of it, legally, except that the Solicitor-General has introduced some rather interesting additional tests, which go some way towards meeting the concerns of Liberal Democrat Members—clearly not far enough for them, but far enough for me.
My amendment is pinned on a specific issue: is the performative action saying, “I propose to undergo this”? The Solicitor-General has said that that could be one example. If I wrote that I was consulting a specialist about the situation, that would be incontestable. She also said that a number of actions, including cross-gender dressing, behaving in a way that is not consistent with the natal gender or whatever, might be regarded as similar performances and would activate the protections under clause 7. If so—that is obviously her view—we should record that that is the case. That is a welcome advance, because it gives additional protections.
We need to come back to the real-world situation. People with considerable vulnerability may be treated badly in different ways, whether through formal discrimination or not. Often those people who are mistreating them are unfamiliar with such conditions and will not have the appropriate sensitivity. It may well be that the Solicitor-General is right and that we cannot capture all that in the anti-discrimination legislation without stretching the test of what is proposed beyond its normal limits or the possible evidence. However, it is important always to bear in mind that there are people who have such problems and need to be treated properly. Perhaps it cannot be done under anti-discrimination law; certain cases could be a matter of criminal law, if people are hit, threatened or abused, which is not acceptable.
Given the Minister’s assurances and the extension of what might be termed the literal-minded approach to take other factors into account, I am minded to withdraw my amendment on the understanding that the Solicitor-General will continue to review the matter. If she can come up with any better ideas that are a little more pointed but meet such cases, we would be grateful. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.

Clause 8

Marriage and civil partnership
Lynne Featherstone: I beg to move amendment 127, in clause 8, page 6, line 7, leave out ‘or a civil partner’ and insert
‘, a civil partner, co-habiting or single’.
An amendment to protect single and co-habiting people from discrimination.
The Chairman: With this it will be convenient to discuss the following: Amendment 128, in clause 8, page 6, line 10, leave out
‘or is a civil partner’
and insert
‘, a civil partner, co-habiting or single’.
Amendment 129, in clause 8, page 6, line 12, leave out ‘or are civil partners’ and insert
‘, civil partners, co-habiting or single’.
Lynne Featherstone: The amendment has been tabled to probe the Government’s thinking on why single and cohabiting people have been left out. Why are marriage and civil partnership protected? Why are they protected and a cohabiting couple or a single person not? It is about relationship status and, in an anti-discrimination Bill, we would not expect any relationship status not to be as important as another. If the provision is not amended, surely single people and cohabiting couples will face the possibility of real discrimination. I would welcome the Government elucidating whether there is something particular that they had in mind that applies to married couples and civil partnerships and from which they, but not cohabiting couples and single people, need protection that.
The Solicitor-General: The hon. Lady would help me enormously if she defined a cohabiting couple.
Lynne Featherstone: I would define a cohabiting couple as two people living together—perhaps as simple as that.
The Solicitor-General: Brothers and sisters? Mothers and fathers?
Lynne Featherstone: Not a familial relationship. The point is to probe the equivalent of a married couple or a civil partnership, which involves love and a sexual relationship.
The point is that the cohabiting couple and a single person are likely to face the same kinds of discrimination. If they are excluded from the protection, it will create a whole new disparity: treating people differently according to their relationship status. To give a couple of examples, would it not be wrong for a landlord not to want to rent to a single person because he believes that a single person is less likely to be responsible or settled, or more likely to have late-night parties? What about an employer who refuses to give work to a single person applying to look after children because they believe that only a married person is appropriate for such a job? What about a hotel that refuses to give a cohabiting couple a room because they are not married, even though they may have been cohabiting and in partnership for years? I would be grateful if the Minister would elucidate why those in the particular relationships of marriage and civil partnership are included in protection and not cohabiting couples or single people.
The hon. Lady is right that life is fraught for all sorts of people, but the point of the Bill is to provide protection against discrimination where it exists and where protection is necessary. We would add further characteristics to the scope of protection under the Bill if that were an appropriate and proportionate response to a real problem, but we have not had any evidence that such problems are faced by those who cohabit or are single. In fact, as part of the discrimination law review, the Government consulted on whether to remove the existing marriage and civil partnership protection, because there is not a lot of evidence of discrimination on that basis either. We listened to the responses on whether to remove it. They were pretty much 50:50. Some responses suggested that incidents of discrimination on that basis might still be taking place, but there was no indication of discrimination against those who cohabit.
It is a difficult definition. At which point does someone stop being a single person and become a cohabitee, after how long would someone qualify for that separate category and might they be in danger of losing their protection under the other category too quickly? It is an issue of certainty of definition as well. I hope that I have reassured the hon. Lady that it is a sensible course—just about—to protect married and civil partners, even though there is only the slightest evidence that they face discrimination, and that it would be both impractical and unnecessary to extend the measures following her amendment. I invite her, having probed the issue, to withdraw the amendment.
Lynne Featherstone: I have listened carefully to the Minister. With little evidence for marriage and civil partnerships and no evidence for cohabiting couples and singletons, I can understand the difficulty. It goes against the grain to leave a measure that bestows a differential between people in different relationships in an anti-discriminatory Bill, but as I do not have the evidence to bring before her, I will have to leave that disparity in place. However, I would like to put it on the record that I think it creates a differential.
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