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Baroness O'Cathain: My Lords, I am grateful to my noble friend. I was going to ask whether the registrar would lose his job, if he refused to perform the ceremony. He loses either way.

In the case of religious marriage, it could be equally difficult. Churches, alongside everyone of common sense, believe in the definition of marriage as a union between a biological man and a biological woman That, to me, is a matter of enormous spiritual and moral significance. That is a wholly personal view, but I think that others will support it.

How can the Government abuse their position of power by creating a legal fiction allowing a biological man to marry a legal but non-biological woman, while maintaining that they support only the marriage of opposite sex couples, as the Minister said? How can we have a legal woman who is a man? How can any government create and dictate such a ridiculous and nonsensical category? It is against all reality, natural senses and scientific fact.

It is Christians' religious conscience that forbids many from endorsing transsexualism as a valid lifestyle. Schedule 4 gives clergymen a conscience clause, saying that they are not obliged to marry transsexual people, but that is meaningless if they have no authoritative means of determining the true sex of the persons wishing to be married. Under the Bill, they have no right to see the original birth certificate. All that they would be entitled to see is the new birth certificate in the person's chosen gender, which will look exactly like a real—original, I should say—birth certificate. The situation is fraught for the clergy. We must do something to protect them in such situations. It is not beyond the bounds of possibility that the clergy could be sued, as happened in a case that went against the person who sued.

We must not allow our natural sympathy for those who struggle with a serious psychological problem to blind us to the problems that the Bill will create for other people. If the Government persist in pushing through the Bill, they must make radical amendments to protect the freedom of conscience of those who simply do not believe that the law can declare a man to be a woman or a woman to be a man. It is only

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common sense and a basic human right for individuals to be free to believe fact rather than fiction, otherwise we are entering a dark future of coerced totalitarian-style law making.

I have a final question for the Minister. Will the Bill be whipped? My understanding is that it was always going to be a free vote.

1.8 p.m.

Lord Goodhart: My Lords, like the noble Baroness, Lady Buscombe, I start by saying that, on these Benches, we support the Bill. The difference between us in that, in my case, it happens to be true. Gender dysphoria is a condition that causes enormous distress. We believe that the Bill will go some way—by no means the whole way—towards reducing that distress and will cause no foreseeable harm.

Views on sexual behaviour and the nature of sexuality in law have changed radically. Forty years ago, homosexual acts between consenting adults were criminal offences. It would be unthinkable for us to go back to the conditions of 40 years ago. We now have openly gay people in politics—indeed, in the Cabinet—in the professions and in many other walks of life.

The Government are going to introduce a civil partnerships Bill to permit the registration of same-sex partnerships, which will have many of the characteristics of marriage. Until now, the laws on the position of transsexual people have lagged behind the changes that have been made in the case of homosexual people. I believe that gap is now being filled by this Bill.

Of course, there are problems with the Bill, some of which are relatively minor. The most substantial problem relates to existing marriages. On that, I feel that the Government are being rigid. We are not suggesting that marriages should be entered into between same-sex couples. But the Government's principle does not have to be extended to the dissolution of a marriage that was validly entered into, and which both parties wish to retain in spite of the recognition of the gender change of one of them.

Of course, we recognise that the issue of a registration certificate should be a ground for annulment should either party to the marriage wish to bring an end to that marriage. But the annulment of the marriage should not be the precondition for a grant of the full certificate.

The Government refer to the possibility of a couple annulling their marriage and then entering into a civil partnership as a same-sex couple. But I see two problems with that. The first problem is obvious: we do not have civil partnerships and are unlikely to have them for some time to come. Secondly, it is easy to envisage circumstances where one or both parties to the marriage might want the marriage to continue in spite of the gender change to one of them, but be unwilling to enter into a new single-sex partnership. To require people to do that as a condition of renewing the partnership between those parties is unnecessary and undesirable.

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Some minor points have already been mentioned. My noble friend Lord Carlile of Berriew referred to problems, which I entirely see and with which I entirely agree—in particular, the problem as regards the female to male gender change. People may make plans in expectation of receiving a retirement pension at the age of 60, but find that they are unable to draw their pension until they reach the age of 65. For those aged 50 or more at the time that the Bill comes into force, it would be reasonable to make a change to cover their situation.

I understand and respect the points made by the right reverend Prelate the Bishop of Winchester. The principle that he raised is fundamental and there is no way of reconciling it with my views or those that lie behind this Bill. One simply has to accept that there is an irreconcilable difference here.

Of course, there are cases in which the biological sexuality of individuals is unclear. The right reverend Prelate's arguments did not consider those. The noble Lord, Lord Chan, said that these were relatively rare. A distinguished expert in reproductive science, to whom I was talking the other day on the subject, said that there are a significant number of people who are affected by ambiguous sexuality. But I accept that that cannot be said of all people who seek to change their gender. So I am afraid that the right reverend Prelate and I will simply have to disagree on the principle.

I accept that it is proper to allow the clergy to refuse to marry transsexual people in their acquired gender. However, I believe—no doubt the Minister can reassure me—that there is nothing in the Bill which prevents a clergyman from asking a couple who present themselves for marriage as members of opposite sexes whether either of them has an acquired gender. If one party admits that or refuses to answer, obviously it would be legitimate to refuse. I certainly would not accept the extension of this principle to registrars.

As regards sport, there is undoubtedly a difficulty. The Minister accepted that and said that it was within the powers of the sports authorities to make their own regulations to cover it. Whether that is sufficient, I do not know. I shall listen with interest to what the noble Lord, Lord Moynihan, has to say and I will keep an open mind on that subject. Certainly, there is nothing in the Bill to prevent an official from a sporting competition asking a potential competitor whether he or she has acquired a gender, if that is relevant.

This is not an easy issue. The issues raised by the noble Lord, Lord Chan, unquestionably, are important and show that opposition to the Bill is by no means irrational. As he said, the medical profession is divided. It is well known that gender reassignment is not always successful. Ultimately, I believe that this Bill will help a group of people who suffer from a problem that is deeply painful for them and it can assist without unavoidable damage or injury to them or to other people. The injury to other people is not caused by recognition; it is caused by their involvement in a problem which may involve a dearly loved partner and which causes them great distress.

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Once the gender change has occurred, the fact that it is recognised by certificate is a step forward in helping people.

Lord Tebbit: My Lords, I am most grateful to the noble Lord. At the beginning of the noble Lord's speech, he referred to the way in which we have legislated in recent years to accommodate changes in social attitudes. Does he not recognise that while there is a perfectly respectable case to be made for the law to be changed in relation to those matters, it is a very different matter when a Bill is introduced to change the law relating to a person's sex? This involves that which cannot be true; that is, a person with a double-X chromosome is not, in fact, a woman, but is a man. Does the noble Lord not understand the difference between those two types of legislation?

Lord Goodhart: My Lords, of course the noble Lord, Lord Tebbit, makes a point that is a justifiable part of the argument. But our belief is that we should recognise that there is a group of people who while, biologically (chromosomally perhaps) are of one sex, are socially and in other respects—psychologically—of a different sex. In those cases, I believe that it is legitimate. It obviously is not compulsory, but it is legitimate for the Government to take the view that they should be treated in relation to the sex to which they socially belong and not to their chromosomal sex. I am not attempting to persuade the noble Lord, Lord Tebbit. Of course, his argument, which he holds very firmly, is equally legitimate.

1.19 p.m.

Lord Moynihan: My Lords, I speak today in my capacity as shadow Minister for Sport. Thus, my speech will focus on the subject of sport, which has been raised by a number of your Lordships. I believe that sport needs to secure full exemption from the Bill if competitive sport is to continue as we have known it. From the outset, I would like to say, in particular to my noble friends, that in my experience, the great advantage of Second Reading debates is the readiness of Her Majesty's Opposition to listen, to reflect and to respond. Such is the advantage of debates of high quality, as exemplified today. In my humble opinion, to listen, to reflect and to respond, we must.

The noble Lord, Lord Chan, the right reverend Prelate and my noble friends all recognise that transsexuals go through deep personal trauma and that the condition of sexual dysphoria is serious. But as with so much of the legislation presented to Parliament over recent years, this Bill does not follow through to the consequences of the intentions laid out by the Government. On the contrary, it is a patchwork quilt of proposals, as my noble friend Lord Tebbit highlighted in the context of the interesting consequences both for inheritance and, indeed, for royal succession. However, I am pleased to note that in both of those examples, the Government have recognised the principle of exemption. I shall seek to argue why, with regard to competitive sport and sport

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in general in this country, there should be exemption. Amendments will be tabled at later stages to secure and protect the future of competitive sport.

I contest today that the Bill as drafted would decimate the continuation of competitive sport. That is not because I disagree with the first principle raised by the Minister, who rightly said that anyone who is recognised under this legislation will have to satisfy all the criteria. Perhaps we have been reading different newspapers, but those I have read on the subject of sport all recognise that the criteria of this legislation would need to be satisfied by a transsexual.

However, it is the second point made by the Minister that is of greatest concern. I do not believe that the Minister can reasonably argue that the status quo with regard to sport—namely, the continued determination of competition by governing bodies—will stay unchanged. This Bill will change fundamentally the relationship between governing bodies and sportsmen and women because its whole purpose is to give—here I quote the Minister's summary—a long-ignored minority legal rights. Armed with those legal rights the transsexual can challenge any governing body, sports club or national federation.

If there is no need for the Bill in the first place, the consequences are such that the status quo would remain. But if, as I understand, it is the Government's full intention to give the transsexuals concerned under this legislation full legal rights, that totally changes the status quo between those individuals and the governing bodies of sport.

The Government's position is clear: under the Bill, a trans-gender man or woman is as much a man or woman as anyone else. To prohibit them from competing in their acquired gender at any level would therefore fall foul of any number of human rights such as, for example, Article 8 covering the right to respect for private life. Cases are already in progress in which transsexual athletes are claiming that their exclusion amounts to restriction of employment. If a Bill is passed which would prohibit them from competing, that would provide a beanfeast for lawyers—a point I made earlier this week.

Why is that? It is because Ministers, including through collective responsibility the Prime Minister and the Minister responsible for sport, are seeking de facto today to redefine what constitutes "male" and "female". In sport the law has sensibly regarded male and female as determined by biological appearance, testosterone levels and chromosomes. Today, a new and overriding criterion is being proposed. As a result of the condition of sexual dysphoria, that condition is to be treated, in summary, as, "My gender is what I think it is". My view is that it is essential for the future of sport in the United Kingdom that it is specifically exempted from this legislation.

Recognitions for a sex change under the Bill do not, as the noble Lord, Lord Chan, pointed out, require invasive surgery. The requirement is that a transsexual should be able to demonstrate to the gender recognition panel that the individual has changed their sexuality from whatever appeared on their birth

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certificate. This requires no necessary physical change of the person. It is, precisely, a mental change. Here I pick up a point made by the noble Lord, Lord Carlile. I do not believe that it is necessarily a whole-body experience. It can be for some, but in the context of the legislation as currently drafted, it is not necessarily an experience of the whole body. This will mean that the belief of the individual concerned is overriding in seeking recognition as a woman or, vice versa, as a man. If the gender recognition panel is convinced, the full weight of the law will support the applicant.

Under Clause 2(1), a transsexual person may achieve full legal recognition of their acquired gender without going through any kind of physical medical procedure. The International Olympic Committee has its own definition of a woman. That definition is capable of being stretched to include post-operative transsexual people. However, that is markedly different from what the Bill would require for a transsexual to be fully recognised as a woman. Its terms leave sports governing bodies open to legal action if they attempt to exclude any transsexual athlete from competing in their acquired gender. The implications for sport are therefore manifestly serious and I say that particularly in relation to maintaining fair competition, safety issues and to the drug testing of trans-gender athletes.

There are also many practical difficulties to be faced by sporting bodies at all levels in the absence of any defined policy on trans-gender athletes. These difficulties would not be resolved by the Bill in its present form. The only effective way satisfactorily to resolve them is for the Bill to include a precisely defined exemption for competitive sports. I am grateful to noble Lords on the Liberal Democrat Benches for accepting the importance of giving due consideration to those amendments when they are brought forward and for considering the points made about sport and recreation at later stages of the Bill.

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