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Lord Carlile of Berriew: My Lords, I am grateful to the noble Lord for giving way. I wanted to be clear about the Conservative Party's view of this question. Does the noble Lord agree that someone who had previously been a man who simply wanted to go through gender reassignment so that they could compete, for example, in a woman's sport, would fail the test set out in Clause 3 and therefore would not obtain a certificate from the panel? If that is right, surely the problem he is talking about is one that is barely going to register on the Richter scale of reality.
Lord Moynihan: My Lords, I agree with the noble Lord on his first point, but we are not talking about those people. We are talking about the category of people with the condition of sexual dysphoria; the transsexual who, as a result of changing his sex, will then have the full weight of the law when facing a governing body and, indeed, demanding that as a former man, he is now a woman recognised by the panel as a woman, and thus can compete as a woman in national and international events.
Whether this concerns 1 million people, 100,000 or even 10,000 people, it is bad law if, as a result, someone in those circumstances can win a 100-metre race in national finals or—to be more appropriate and accurate—a 2,000-metre rowing race in the Olympics. That is the point I seek to make. If the noble Lord will allow me, it is rather like arguing, "Fortunately, we do not have too many cheats as a result of doping in this country". But surely that does not lead the noble Lord to conclude that we should not put a tremendous effort into ensuring that we do not have people cheating by using performance-enhancing drugs to improve their performance.
I had the personal misfortune to be beaten in the 1980 Olympic Games by a fraction of a second by a crew who, post the end of the Cold War, are now seen to have all been on drugs. A silver medal came my way—I did not want the gold medal because I was beaten on the day—but the point I make is that, if it were only that one crew on drugs, it still sets an example to young people over the length and breadth of this country that cheating can win. We have to be tough and stand against that, even if the numbers are small.
I argue simply that while I agree with the opening comment of the noble Lord, we cannot allow a situation to occur whereby, as a result of this legislation, the whole definition of "male" and "female" is thrown into relief so that sport then has to require that someone who is a transsexual in a male body, but satisfies all the conditions of the Bill, can then demand to participate in female events at the Olympic Games.
I said that I would try to help noble Lords on the four principal areas of my concern with regard to sport. The first is fairness. Participation in competitive sport at all levels is based on an expectation of physical fairness and a level playing field. This would be severely compromised if the situation I have outlined came into being.
The second issue concerns doping. A person competing as a woman who had a full male anatomy would fail a random drugs test due to the far higher levels of testosterone present in the male body. UK Sport has already stated that the testing of post-operative transsexuals is a minefield. Guidance from the World Anti-Doping Association has not been forthcoming. The IOC has issued no clear guidelines. The British Olympic Association has indicated that its position will be governed by what the IOC eventually decides.
The world of sport is in turmoil over this. There is no clear answer from either the International Olympic Committee, the British Olympic Association or the governing bodies; nor, indeed, from the agency that would need to determine whether someone is competing as a man or a woman—that is, the anti-doping agency currently run by UK Sport.
The possibility of dropping the male and female category distinction would have to be considered in favour of a high testosterone/low testosterone eligibility. This is a recipe for chaos. We gave the world
the rules governing major international sports. Let us not give the world this unworkable legislation in addition.The third issue relates to that. Again, I should like to pick up on something that the noble Lord, Lord Carlile, said in his critique of some of the governing bodies of sport and, indeed, the anti-doping agency and the need to clean up sport. I agree that these issues, particularly in regard to the anti-doping agency, need to be seen against, for example, the removal of Michelle Verroken this week. I have called time and again for an independent UK anti-doping agency reporting to the Minister and accountable to Parliament. That decision can be made in an hour. It does not need further review at taxpayers' expense.
The anti-doping agency is one of the three principal functions of UK Sport. Today UK Sport is in chaos. It continues to run an anti-doping policy while simultaneously funding many of the sports it has a duty to keep clean. The principal reason it has steered through this conflict of interests is because of the professional and respected work of Michelle Verroken. She, like myself, is tough on drugs and very concerned about the issues before the House today. She more than I sees the challenges in this critical area of policy, where without people like her competition between athletes would all too soon become competition between chemists' laboratories. She has led this country in the development of drug testing in British sport. I appointed her when I was Minister for Sport. With a record like hers over the past 15 years she does not deserve to be treated like this. Our system is not perfect and she would be the first to admit that, but some governing bodies have resisted change.
The principal reason for the imperfections lies with the Minister who constantly washes his hands of an independent anti-doping agency reporting to him, backed, if necessary, by statutory powers. Whenever asked, he and his colleagues—and, I have to say, the Minister today—shift responsibility to governing bodies. I say to the Government that it is their responsibility. UK Sport is their responsibility; the anti-doping agency and its national and international commitments are the responsibility of the Minister for Sport. Today, they lie in shambles. How can you sack the respected head of the anti-doping agency on the eve of the Rio Ferdinand hearing without far-reaching consequences?
The Government should come to the House and make a Statement. Yet the Minister, Richard Caborn—as with this ill-considered legislation—is nowhere to be seen. This is no isolated case. This week UK Sport also lost its chief executive, the respected Richard Callicott. UK Sport is in chaos. When Richard Caborn next leaves the offices of UK Sport, will he please turn out the lights and start taking some responsibility for this Bill and for the future of sport?
Lord Tebbit: My Lords, before my noble friend sits down, I am very impressed with the rigour and the clarity with which he is dealing with the potential effect of the Bill upon the world of sport. But would he not
agree that if the whole of the Olympic competition crashed into ruins it would not do a great deal of damage to society? Could he turn his attention just for a moment to the effects on society of the institution of marriage being brought down? That seems to me something that he should not neglect before he sits down.
Lord Moynihan: My Lords, I shall certainly not neglect my noble friend's latter point. I clearly agree with the implications raised by him and by other speakers in the debate. But I shall not allow my noble friend to get away with his opening remarks in regard to the world not crashing down if we lose the Olympic movement. I passionately believe—I have done so all my life and will do so forever—that excellence in sport and the culmination of widespread participation gives young, middle-aged and old people a tremendous sense of achievement. For young people it is a vehicle whereby in fair competition they can learn to live within the rules of society and the rules of the game, learn to work as a team, to keep fit, which is so essential for them, and to make sure that the benefits of sport ultimately allow them to recognise and admire heroes who set good examples within the Olympic movement. With that small personal aside, I wish the 2012 London Olympics committee every success in securing the games for London.
Because of the interventions I have gone on for two minutes longer than I wished. With the indulgence of the House, perhaps I may swiftly refer to the point made about safety issues. In some contact sports at any level there would be serious safety concerns if pre-operative transsexual people were allowed to participate in their acquired gender.
The issue of communal changing facilities and how to handle transsexual people—especially pre-operative transsexual people—when they have the full legal rights envisaged in the Bill demands careful consideration. The scope for causing offence is significant and genuine. However, clubs the length and breadth of the country will have a real fear of being charged with discrimination.
There is also the matter of the cost of compliance. The Government's regulatory impact assessment dismisses the burden likely to be placed on sporting bodies by the Bill as some minor additional costs. This could not be further from the truth. Many people will be greatly concerned at the idea of themselves or their children being forced to share a changing room with a transsexual person. The cost and complexity of providing facilities suitable for all the concerned parties would place an immense burden on a small sports club as well as on local authority leisure facilities.
There is no doubt that the process of changing gender is a challenging and extremely traumatic experience. Anything that can reasonably make the life of a transsexual person easier has my understanding and support. But competitive sport has its own unique concerns. The practical impact of the Bill would be to force sports governing bodies at all levels to allow pre-operative transsexual people to compete in their
acquired gender without any surgical operation leading to a sex change. This is unacceptable and the potential consequences, both at the elite level and community levels, are disproportionate to any benefit realised by such a measure.The terms of the Bill are ill conceived. The complexities of the issue raised are obvious. There is much further work to be done on the Bill.
1.38 p.m.
Lord Filkin: My Lords, as is not unusual in this House, some of our legislation brings out the range of interest and experience of Members, not least when we are dealing with issues that touch on faith, gender, sexuality, the law and human rights all at the same time. This will clearly be one of those Bills that will demonstrate the full range of interests.
I start by thanking the noble Baroness, Lady Buscombe, for expressing her support in principle—I emphasise the word "principle", as she did—for this measure. We are not unused in this House to finding that Front-Bench and Back-Bench views on measures are not unanimous. Nevertheless, the noble Baroness outlined a number of areas of question and challenge. I will respond to a fair number now but, given the length of the debate, I will be writing, as is my wont, to all Members before the Bill goes into Committee, seeking to go into more detail on any points to which I cannot do justice in the amount of time available without testing your Lordships' patience. I also give an undertaking that if any Members who have taken part in this debate or others in the House wish to have further face-to-face discussions with me before the Bill goes into Committee, I shall be pleased to see them.
The noble Baroness, Lady Buscombe, asked about the interim certificate. What if a person wanted to stay married? I think in that situation, they would not apply for gender change. Therefore, they would not put themselves in that position.
Concern was expressed about whether the civil partnership Bill will follow on in sufficient time to allow a translation without delay between the ending of a marriage and the registration of a civil partnership. I cannot specify exactly when the civil partnership Bill will come before the House and be enacted, but we hope it will be in this Session. If, however, there was a gap between the one piece of legislation and the other, one would expect anyone who wished to avoid making themselves subject to the legal anomaly to wait before they applied for gender recognition change as a consequence. That would be their right and their freedom of choice.
Many human rights issues were touched on. The noble Baroness, Lady Buscombe, talked about sporting facilities and changing facilities. For a start, most people—not all—will have had surgery. The fundamental issue is that this is already happening. There are transsexuals in our society, the vast majority of whom do not wish to draw attention to themselves or cause embarrassment to others. Therefore, whether or not the law is changed, these issues are being coped with in society as we speak.
On the important issue of discrimination, Clause 9 makes it clear that a transsexual person would have protection under the Sex Discrimination Act as a person of the acquired sex or gender. Once recognition has been granted, they will be able to claim the rights appropriate to that gender.
Fundamentally, however, the Gender Recognition Bill is about the legal recognition in the acquired gender and not anti-discrimination law. While the Bill amends the sex discrimination legislation in the fields of employment and vocational training, that is only to the extent necessary as a direct consequence of the provisions on recognition. The Bill does not, as a number of people said, go further than that with regard to goods and services. Some will deplore that and some will rejoice.
On 5th November 2003, the European Commission published a draft directive on sex discrimination in the field of goods and services. Negotiations on this directive will start in the new year. The Government's view has been that as there is a European directive on this measure, we should wait for that, see how it progresses and use that as the vehicle by which we make any necessary change in respect of goods and services.
The noble Baroness also asked about the working of the registry. The purpose of the gender recognition register is simply to create a new record from which the Registrar General may produce a new birth certificate. The birth register will be linked to the gender recognition register and a birth register entry for a person who also has an entry in the gender recognition register will be marked. This will ensure that when a person applies for a new birth certificate in their acquired gender, the Registrar General does not incorrectly issue the birth certificate in the original gender.
The noble Baroness asked further about the age at which a person can apply for recognition. I am sure she will be glad to know that no one under the age of 18 will be able to apply for a gender recognition certificate. She also asked about how others will have access to gender history. The fundamental issue here, as has been touched on by a number of speakers, is crime or the prevention of crime. First of all, I should make the point that there is no reason to assume that there is in principle any more risk with transsexual people than with anyone else, in that respect. Nevertheless, before a person is cleared to work with children, the employer carries out background checks with the Criminal Records Bureau. We have clearly seen the importance of those checks this week. The CRB will have access to information about any offences committed by a transsexual person in their previous gender and identity. The CRB will, therefore, be able to continue its lawful function and transsexual people will not be able to evade traces made by the bureau.
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