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- House adjourned at two minutes before nine o'clock.
Official Report of the Grand Committee on the
Gender Recognition Bill [HL]
(First Day) Tuesday, 13 January 2004.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
Lord Tebbit moved Amendment No. 1:
- Page 1, line 3, leave out "gender" and insert "sex"
The noble Lord said: As I understand it, in this Grand Committee procedure, as in that of the House, we shall discuss all the other amendments in the grouping. I have no concerns about that except that I believe that Amendment No. 78 is very different from the others and I shall address myself to that amendment separately.
The great mass of the amendments are very similar in that they replace the word "gender" with the word "sex". That is because, apart from anything else, my concern is to smoke out in some way the Government's view of the distinction between those words or to ascertain whether they believe that there is a distinction between them.
I notice that, according to the Oxford English Dictionary, "sex" is defined as either of the two divisions of organic beings distinguished as male and female respectively or the distinction between male and female in general. It states that the sum of those differences is in the structure and function of the reproductive organs on the grounds of which beings are distinguished as male and female and the other physiological differences consequent on those.
Turning to the issue of gender, we find a slightly different story. "Gender" is defined as:
- "In modern (esp. feminist) use a euphemism for the sex of a human being often intended to emphasise the social and cultural as opposed to the biological distinctions between the sexes".
However, I then draw the attention of the Grand Committee to one or two other amendments and, in particular, to Amendment No. 5, which relates to page 1, line 7 of the Bill. I believe that it is useful to take a look at that matter as we deal with it. In many ways, it lies at the heart of the Bill as it concerns the conditions under which a person of either sex or gender may make an application for a recognition certificate. I would place a third requirement upon that: not only that the person has been living in the other gender, as the Bill states, or, as my amendments would state, as a person of the other sex, but that the individual possesses the XX chromosome if the change desired is to the female sex or the XY chromosome if the change is to the male sex.
I am not sure how many people have been for certain issued with a birth certificate that wrongly categorises their sex at birth. I do not know whether the Government have any figures on that either. However, it is important that we have some sort of understanding of whether we believe and whether the House intends to legislate that a person with XX chromosomes can be a male or with XY chromosomes can be a female. That would seem to fly in the face of all biology. However, we should of course recognise that it is possible that a mistake could be made on a birth certificate. If a mistake has been made, of course it is reasonable to legislate to allow that mistake to be corrected. That is the third test that I would impose.
Amendments Nos. 15 and 16 are simply consequential to the earlier amendments. They would leave out the words, "in the acquired gender" and insert,
- "as a person of the other sex".
Amendment No. 20 would require an addition to Clause 3. It deals with evidence that must be brought for an application to be successful, or indeed to be made at all. At present it requires that it must include,
- "a report made by a registered medical practitioner practising in the field of gender dysphoria"—
- "and a report made by another registered medical practitioner . . . or a report made by a chartered psychologist practising in that field and a report made by a registered medical practitioner".
- "evidence that the chromosomes of the applicant are appropriate for the intended sex".
Lastly, I turn to Amendment No. 78, which seems to be slightly oddly tucked in with these others, but none the less there is no reason why we should not deal with it now. It concerns the vital issue of marriage in Schedule 4. One of my doubts and misgivings about the Bill is the way in which it confuses the matter of whether marriage is an indissoluble union between a man and a woman or whether it is something else and whether the Bill is opening the door to same-sex marriages. I know that the noble Lord said on Second Reading that that was not so. However, I beg him to consider the implications, particularly brought out by Amendment No. 78, which relate to the effect on marriage and amendments to the marriage act. The Bill would allow marriage to a person whose gender has become the acquired gender under the Gender Recognition Act.
We need to be perfectly clear about this issue. We should have a statement that, notwithstanding any other provisions of the Bill, no two persons, each possessing XX chromosomes, or each possessing XY chromosomes, or each possessing genitalia appropriate to the same sex, may be married, one to the other.
Since the Bill as currently drafted does not require the issue of a gender recognition certificate—which states that the person concerned has suffered what I would call "surgical mutilation"—the person would have, for example, a female birth certificate but male genitalia. If married, such people would have their marriages annulled, as the noble Lord said, on the grounds that the law does not allow two people of the same sex to be married. It would be two people, each possessing, for example, a female birth certificate.
That would free someone who has had a gender change to marry a person, not only whose chromosomes were the same, but whose genitals were the same. The noble Lord said that that would not be a same-sex marriage. I conclude my remarks at this stage by saying that the noble Lord may not think that that is same-sex marriage, but if it took place in a nudist colony, I think that most of those present would believe that it was. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): We return to issues that were spoken about powerfully on Second Reading by the noble Lord, Lord Tebbit, and others. I now have even less expectation that I shall convince the noble Lord, but it is nevertheless important that I set out the Government's position on these issues, which is my responsibility.
It is fundamental to the Bill that legal recognition is given to transsexual people on the basis of their gender regardless of their chromosomal sex. The Government
have no intention of getting into an argument about the science of sex and chromosomes and the causes of transsexualism and gender dysphoria. The evidence around the issue is inconclusive and the argument continues.The Bill will give legal recognition to transsexual people in their acquired gender. A person's gender will, subject to the issue of a full gender recognition certificate, become the acquired gender.
The Government's understanding of transsexualism is rightly founded on the Chief Medical Officer's recognition of gender dysphoria as a medical condition that may require treatment. Treatment has been available within the NHS for a considerable time.
The Government have discussed the aims, objectives and impact of the Bill with, among others, the British Medical Association, the General Medical Council, the Royal College of General Practitioners, the Royal College of Psychiatrists and the British Psychological Society.
The principle of legal recognition in the acquired gender is that a person's gender will, subsequent to the issue of a gender recognition certificate, become the acquired gender. That will ensure, on the whole, the continuing effect of gender-specific terms in legislative enactments. The Government have always intended that once a full gender recognition certificate is issued to an applicant, the person's gender becomes for all purposes the acquired gender. If the acquired gender is the male gender, the person's sex becomes that of a man, and, if it is the female gender, the person's sex becomes that of a woman.
Where under any legislation it is necessary to decide the sex of a person who has an acquired gender, or to say whether that person is man or woman, or male or female, the question must be answered in accordance with the person's acquired gender.
The Government, and the European Court of Human Rights, have always acknowledged that opinion is divided in some parts of the medical profession on the nature and cause of transsexualism. However, the Government support the position of the European Court of Human rights that the remaining controversy over the nature and aetiology of transsexualism must no longer stand in the way of transsexual people enjoying their basic human rights. That is the central and essential position that we take.
I should at this stage make a few more points on the Government's position. It is probably as well to read them into the record in a little more detail.
The Committee will also know that one reason, although not the sole reason, that this Bill is before us is that the European Court of Human Rights has found that UK law is currently non-compliant. I wish to quote a little from that judgment as it has direct relevance to the points that the noble Lord, Lord Tebbit, raises. The judgment states that, although there are no conclusive findings as to the cause of transsexualism,
- "the Court considers it more significant . . . that [the condition] has wide international recognition . . . for which treatment is provided".
- "continuing international trend in favour of not only increased social acceptance of transsexuals but also a belief in recognition of the new sexual identity".
- "The court had found under Article 8 of the Convention that a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual".
We believe that it is false to say that sexual gender is determined purely by chromosomes. Chromosomes are one of the primary sexual characteristics. There are also a range of secondary sexual characteristics. In addition, gender identity is determined by a range of psychological factors.
I turn to the judgment of Lord Justice Thorpe in the Court of Appeal decision on the Bellinger case. He said:
- "Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche".
I refer to these issues with two purposes in mind. I am no expert on medicine and I do not pretend to be one. The Government do not base their argument that there is a simple or conclusive medical definition on whether a person is of one gender or one sex or another. However, an injustice is created for a very small number of people in our society who are absolutely convinced that their real life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a process of proper testing and validation, the state believes that it is right, fair and decent, as well as in accordance with European law, that we adjust that anomaly in the very limited number of circumstances in which it applies.
It is for those reasons that I do not wish, partly out of ignorance but partly because I do not think that it is central to our debate, to engage the great medical diversity on this matter. At heart, the Government's view is that this is a legal issue. Should the state give legal recognition to a person's birth identity when we
believe that there are pressing and good reasons for recognising that it should be changed? That is the Government's position in this respect.3.45 p.m.
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