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
8Marriage
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
Solicitor-General: I am grateful for the definition, which
saved me from raising questions of uncertainty about brothers and
sisters and so on. The hon. Lady makes an interesting point about hotel
discrimination.
There is a nice story, which now goes way back, about the then
Archbishop of Canterbury going with his wife to a hotel, signing the
register “Geoffrey Cantuar and Mrs. Fisher”
and being asked to leave because they were not married, although of
course they were. For the sake of those who are not Latin scholars,
unlike the hon. Member for Daventry and me, “Cantuar” is
how the archbishopric of Canterbury is described in Latin.
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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