Equality Bill

[back to previous text]

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 190

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.
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.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 3 July 2009