Dr.
Harris: I beg to move amendment 306, in
schedule 23, page 237, line 8, at
end insert— ‘(4)
Sub-paragraph (1), insofar as it relates to gender reassignment
discrimination, does not apply in the case of a person who holds a
gender recognition
certificate’. This
is to prevent gender reassignment discrimination against a person with
a gender recognition
certificate. I
will make a brief point that we have touched on before. I was prompted
to table the amendment to probe the Solicitor-General a little further
on her understanding. Perhaps she will remember that elsewhere in the
Bill, there was a question about discrimination—presumably in
employment—on the basis of gender reassignment. I asked what
would happen regarding someone who has a gender recognition certificate
because they had changed
gender. The
Solicitor-General, quite fairly, made the point that that would be
gender discrimination—I believe that it was during a flowing
debate, so it might not have been something she had prepared, but I was
persuaded at the time and certainly went on to reflect on it. If the
relevant provision did not allow gender discrimination, then
discrimination on the grounds of gender reassignment against someone
who had a gender recognition certificate would not be
permitted—if it was otherwise permitted. I went away to reflect.
When I asked a couple of people, they were not certain that that was
the
case. Will
the Solicitor-General confirm that as soon as someone has a gender
recognition certificate they cannot be acted against on the basis of
gender reassignment? They have to be acted against—if indeed
there is a case for them to be acted against—on the basis of
their actual gender. Let us take someone who was born a man but has
transitioned to a woman and has a gender recognition certificate,
which, therefore, recognises that she is a woman with the full rights
of a
woman.
Mr.
Boswell: This may further complicate the matter, but there
are two types of gender recognition certificates—an interim
certificate and a definitive one. The Minister will need to respond to
that point, because the situation will depend on whether someone has
entered the final stage.
Dr.
Harris: The hon. Gentleman is correct. I am happy for the
Solicitor-General to consider both cases. Like me, he is a
veteran—a very young one of course—of the Gender
Recognition Bill, which was enacted in 2004, and we remember debating
such issues in detail
then. A
man has transitioned to a woman and, for the sake of my example, has a
final gender recognition certificate. The question is, if an
organisation does not permit that woman to access services that are for
women on the basis that they used to be a man, is it discrimination on
the basis of gender reassignment? Given that everyone else who is using
those services is a woman, how could that person argue that they were
being discriminated against as a woman in not being allowed to access
those
services? Will the Solicitor-General educate me as to how that could be
seen as gender discrimination? I am getting out of my comfort zone
here. To say, “Yes, women can come, but you can’t come
even though you are a woman” would be gender discrimination. It
is intended as gender reassignment discrimination, it is received as
that, but the question is whether it is covered in
law. My
fear is that without something like the amendment, which is probing in
this part, that doubt—or even legal loophole—remains on
behalf of the provider and the recipient, and it perhaps applies in the
other place where we came across this.
I should like
to make a stand part point, because we do not have the opportunity to
have a stand part debate. The Government have been right to recognise
that the schedule does not permit, for example, Catholic adoption
agencies to discriminate against people on the basis of sexual
orientation. The Bill, quite rightly, closes down the loophole whereby
charities might try to change their instrument. The proportionate and
legitimate test, which is welcome, will stop charities from wasting
their time trying to get around the provisions of schedule 23 by
approaching the Charity Commission.
I rest my
case and just say that we would like clarification on the point that I
have
made.
The
Solicitor-General: The amendment would reduce the scope of
the exemption that applies in the provision of communal accommodation,
so that a provider could not justify discriminating against a
transsexual person with a gender recognition certificate. The Gender
Recognition Act 2004 is intended to provide transsexual people with
legal recognition of their acquired gender. That is what it is for. It
is not something that people will carry about as a sort of identity
card. It has its own purpose. The hon. Gentleman’s amendments
may suggest that gender reassignment might be obvious or that it might
be that that is how someone deals with a certificate, which we do not
think is awfully likely. In limited circumstances, it might be
reasonable to permit different treatment of someone with a gender
recognition certificate in the provision of communal accommodation, for
practical reasons of privacy. That is the point of the availability of
the
provision. 2.15
pm The
example would be a female-to-male transsexual, who may not have had any
surgery but remains physically female and may not want to be
accommodated in all-male accommodation. We do not want to discriminate
against transsexual people, especially those who have gone through the
rigours of getting a gender recognition certificate. We want to allow
for the provision of sensitivity in that narrow area. The clause is
carried over from the sex discrimination legislation, and in 15 months
of operation we have not been aware of any incidents of discrimination
arising from it. It is there for purposes of availing
parties of sensitivity if necessary; we do not expect it to be used
much.
Dr.
Harris: I shall reflect on what the Minister has said. I
thought that the example that she was going to use was that of a
provider of communal accommodation not wanting to allow someone who
retained the physical characteristics, or some of them, of their
original or
birth gender into accommodation; therefore, whether or not they had a
certificate, they would be entitled to do that. Her example was framed
in the way of protecting the individual at the request of the
individual, which I need to get my head around. I assume that both
could apply. I accept that that gives us an example to work with and to
go away and think
about. If
there are people who have a certificate who have not had surgery, it
might be a problem for other users of facilities—for example,
changing rooms—if there was someone there who looked remarkably
like someone of the other gender, even though they had a certificate. I
accept the Minister’s point, therefore, and I shall need to take
it back to organisations that represent the transgender community. It
may well be that there is a stronger argument to provide that here than
there is for the exemption to be allowed for employment. I invite her
at least to consider whether we can legitimately transfer the Sex
Discrimination Act 1975 provisions, post-Gender Recognition Act 2004,
in the case of employment, as she makes the case for doing in the case
of services. Given that she has provided me with an example to go away
and think about, it is not my intention to seek to divide the
Committee. If she has no intention of saying anything further, I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Schedule
23 agreed
to.
Clause
190Age John
Penrose (Weston-super-Mare) (Con): I beg to move amendment
30, in
clause 190, page 135, line 23, at
end insert— ‘(5) An order
under subsection (1) may only be made if the Minister can demonstrate
that persons of a specified age are being discriminated against for no
legitimate
reason.’. It
is a pleasure to see you in the Chair this afternoon, Mr.
Benton.
This is my
first opportunity to speak in Committee on this particular issue, and I
start by making it clear that the intention behind the amendment has
changed since it was tabled. When my hon. Friend the Member for Forest
of Dean and I first tabled amendment 30, it was intended to be the
first in a series of substantive amendments to explore what then looked
like a rather knotty and thorny problem posed by clause 190, whereby
the Government seemed potentially to make many hitherto legitimate
business models illegal, but say, “We’ll come back later
and work out which ones are okay in due course.” There was a
great deal of concern—about which I know that the Minister is
aware because she commented on it in Committee—in the House and
outside that that was not the right way to proceed. People were very
nervous about the potential chilling and destabilising effect on some
hitherto entirely legitimate
businesses. However,
since we tabled the first amendment—we are preparing to table
the rest of our slew of substantive amendments, helped by organisations
such as Saga—two important things have happened. First, the
Minister has already put some comments on the record in Committee, in
an earlier debate on age discrimination. She was kind
and clear enough to say to the Committee and the world outside that the
Government did not intend to make that part of the Bill operative and
put it into law unless and until they had completed a proper
consultation process, and that they had worked out what the resulting
secondary legislation might be. She said that it would all be clear in
advance and that everyone whose businesses are potentially at risk
would have a chance to make a case and explain why they thought that
their particular versions of age differentiation were legitimate and
should be allowed to continue without fear or favour from the law. That
was tremendously
reassuring. The
second reassuring thing was that, hard on the heels of the
Minister’s comment, the Government published—the Minister
also made this clear to the Committee—the consultation document.
I have a copy here. In the introduction, it has the happy face of the
other Minister on the Committee, the Parliamentary Secretary,
Government Equalities Office, smiling out from the start of the
ministerial foreword. That further reassures not just Members of my own
party, but hopefully several people outside, that the Government are
very serious, not only in their commitment on the timing—they
restate that commitment in the document—but in the questions
that they are asking. They are clearly trying to ensure that they give
due weight to hitherto legitimate sources of
business. As
a result, instead of being the first of a series of substantive
amendments, we have decided to make amendment 30 a solitary probing
amendment. Quite a lot of the questions and issues that we wanted to
raise have already been, if not answered, asked in the
Government’s consultation document. Therefore, it is appropriate
that we have a chance to put on record our support and approval for
much of the Government’s approach in the
consultation. The
Minister, I am sure, would not expect us to give a blank cheque to the
Government on the proposals that they make when they have the results
of the consultation. However, the way that the matter has been phrased
so far, the approach that has been taken and the assumptions that have
been made are, in many cases, reassuring to many people outside. As I
said, we will have to wait and see what the final version is and how
the Government respond to the submissions that they receive during the
consultation, but that is the reason for the change of intention behind
amendment 30.
I would like
briefly to pick out several matters from the Government’s
consultation, which I think go to the heart of the points that we were
seeking to raise as part of the amendment. Most reassuring, I think, is
the first part of the executive summary on page 5, where the Government
say: “Age
is a valid criterion in the provision of many services and interfering
unnecessarily would not be in the general public
interest.” It
will be tremendously reassuring to many businesses that differentiate
on the basis of age that the Government accept that in theory. I
appreciate that there may be those that do not qualify, but it is a
pretty good starting place. Speaking for my party, the second half of
that sentence, which annunciates a clear conservative—with a
small “c”—principle that interfering unnecessarily
would not be in the general public interest is particularly
good. It implies that businesses that already have well-established
business models and are well-used by many members of the public should
have little or nothing to fear—we hope. There are
several examples of, in the phrase that my hon. Friend the Member for
Forest of Dean used, good age discrimination—I shall call it age
differentiation—as opposed to genuinely bad age discrimination.
The Government devoted an entire chapter in the consultation document
to health and social care, on which they had commissioned a special
report. I congratulate them on getting a heavyweight couple of people
to lead the report, one of whom is Sir Ian Carruthers, the leader of
the South West strategic health authority, which covers my the
constituency of Weston-super-Mare. He is an extremely able individual
of high calibre, so the Government clearly put in place high-class
leadership. We await the results of the
report. The
consultation began on Monday and is due to finish during September. I
think that Sir Ian’s team is due to report in October, so
perhaps the Solicitor-General can confirm the details of the
Government’s expected timetable thereafter because clearly they
will need time to examine and digest the recommendations and evidence
that are submitted. Given the Bill’s passage through the House,
Conservative Members would be grateful if the hon. and learned Lady
considered whether it would be possible to include the provisions that
might otherwise be expressed in secondary legislation in a separate
schedule. I am conscious that the Government have already done that for
other issues, such as in part 6 of schedule 3 relating to sex
discrimination. If
time allowed, and it were possible to put the Government’s
analysis of the consultation into a similar schedule, that would
reassure many people outside because they would know that they would be
less likely to be hit with other stuff coming in later under secondary
legislation. Will the hon. and learned Lady let us know whether the
Government’s envisaged timetable would allow that to be done? I
appreciate that time might be tight and that it would depend on
decisions made by the usual channels about when the Bill will come back
in the
autumn. I
have already mentioned health and social care, but other areas will
also be affected. Although obviously related, financial services and
insurance are different and will be especially affected by the
provision. Many organisations are involved in insurance for people of
different age groups, the classic example being car and travel
insurance. It is clear that age is an important factor in assessing
risk. Both the Government and others have already said that the risk
incurred by drivers is pretty high for those who are under 24. It drops
dramatically after that and, after the ages of 65 or 70, starts to do
two different things. The risk per mile travelled might start to rise,
as age inevitably starts to take its toll, and the number of miles
travelled frequently drops so the aggregate level of risk that has to
be reflected in the premium price might have unexpected results. Not
all insurers are comfortable with that, and they do not necessarily
understand all the details when, clearly, accurate pricing is
crucial. It
is vital that such matters are understood and that the Government
accept that it is possible for risk to vary, as I have described. The
Minister is nodding and, to be fair, the Government mentioned that in
the consultation document, which is welcome. Equally, in
other financial services, such as savings products, it is legitimate for
different types of financial advice to be given to savers depending on
their time of life. The type of financial instrument that a person
might legitimately be sold or offered, and which may be in the
person’s best interests, would be different if that person was
approaching retirement age, for example, compared with someone at the
start of their working
career. | 
