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Lord Carlile of Berriew: In opening this debate, the noble Lord, Lord Tebbit, made use of creative textual amendment. But if one looks at that textual amendment—and the game is given away by Amendment No. 5—it is quite clear that what he is seeking to do is to re-open matters of principle that were discussed at Second Reading. His speech was effectively a Second Reading speech. He is of the "sincerely throwing up his arms in horror" school at the very idea that anyone should ever have their gender reassigned. I do not want to go further into the gender/sex distinction because it was made very clear by the Minister a few moments ago. One has only to look for simplicity at the very clear judgment of Lord Justice Thorpe in the Bellinger case.
Before the noble Lord, Lord Tebbit, throws up his arms in horror and takes further steps to try to wreck the Bill, I urge him to talk to some of his political colleagues in other countries which have already—well ahead of the United Kingdom—taken the European Court of Human Rights judgment and applied it within their domestic law. Perhaps from time to time the noble Lord, like me, enjoys holidays in Europe. If so, in recent times he will have been to a number of countries where the political establishment has not collapsed, where the economy is not in ruins and where the institution of marriage is extremely significantly stronger than it is in the United Kingdom, which is a matter of great regret to me. I speak as someone whose bride was, I am ashamed to admit, still in her teenage years. That was many years ago and, happily, I am still married to her.
The institution of marriage is not collapsing in any country because of gender reassignment legislation. International psychological, medical and scientific evidence supports these changes. The international evidence, particularly if one takes into account that of psychiatrists and psychologists, shows that there has been a very great improvement to the lives of a small number of people who, like everyone else, have rights. That improvement has taken place because of laws such as those that we are considering today.
I recognise and, of course, greatly respect the strongly held views of those who may, for example, have a theological opposition to this legislation. In the end, they, like all of us who have some principles, will have to consign those principles to the processes of Parliament and lose occasionally. If that is the view of some, I believe that in the final analysis they will lose on this legislation. I plead with noble Lords not to try to wreck this legislation by extending this Committee stage with many Second Reading-type speeches.
Baroness O'Cathain: I have one question for the Minister at this stage. In his opening comments he said that the evidence is inconclusive. He used the words "evidence is inconclusive". When have we legislated and put a Bill right through Parliament to ensure that
it becomes an Act on the basis of inconclusive evidence? I thought that the whole basis of our work in this House was to ensure that we never put through legislation that we did not believe was watertight. Much legislation that has appeared has been proved not to be watertight, but we have not started a Committee stage of a Bill as important as this by saying that the evidence is inconclusive and therefore we expect to legislate on the basis of inconclusive evidence.
Lord Filkin: I said that there is not universal consensus on the medical evidence about the causes, the aetiology and the effective treatment for gender dysphoria, and I used the word "inconclusive" as a consequence. I stand by that. However, that does not go to the nub of the issue. While it is true that medical scientists do not show unanimity on this issue—not an unusual circumstance—we believe that the majority of them are of a view that this is a medical condition that can be treated.
Ultimately, that is a side issue. We do not seek a process that makes a medically perfect judgment about whether a person is male or female or how one treats people who believe that they have gender dysphoria. We are seeking to apply proper tests and principles to someone who believes strongly, and over a period of time, that his or her gender is wrong. We are providing a process, after proper inspection and inquiry, through which the state can recognise that it is necessary to change a birth certificate. That is the essence of what we are doing.
The consequence of that, and why it matters, is that it gives legal rights to people to live their lives in the way that they believe is important. Regardless of whether there is total unanimity or disunity on the medical issues, the central issue is that there is recognition by the state that it is right, proper and fair—and compliant with European law—to give legal recognition, after proper inquiries and tests, to the small number of people involved.
Baroness O'Cathain: I am grateful to the Minister, but I would like to know how the law can really give power to a panel of doctors and lawyers to decree that a man is a woman. We are back to the point about gender and sex. As I said on Second Reading, I was greatly encouraged by the Minister's opening speech, when he said that marriage is very important and that it is recognised as the union of members of the opposite sex, male and female. In the debate on Second Reading, we came to the conclusion that, if a man and woman had been married and the man decided that he wanted to be a woman or felt that he was a woman, that marriage would have to be annulled. The couple would have to divorce. How can the law now be given the power to say that people are actually male or female?
As we know, transsexuals have healthy bodies. They are not suffering from an intersex condition, in which there is a physical problem with their reproductive organs. Many transsexuals have married and have had children. A transsexual man is truly a man: he is male.
He simply wishes to be female. Because of that, he is said to be suffering from gender dysphoria. We will be going through this Bill line by line. The reality is that if a person suffers from gender dysphoria and, just because they want to be a female, says, "I feel like a woman, I want to be a woman, I am a woman", then they will be allowed a gender change without any operation for gender adjustment, or whatever the terminology is—
Lord Tebbit: Sexual mutilation.
Baroness O'Cathain: No, not sexual mutilation; gender reassignment. It is not necessary. No medical intervention has to occur. The person can get a certificate saying he is now female and then go off and get married.
I accept that the medical evidence on the condition is inconclusive. However, there is a huge body of opinion that says that this is a psychological and not a medical condition. Many people are scared about the implications of the Bill. They want to feel that the legislation that comes out of this place is right and does not open the floodgates to some ghastly social and cultural situation.
The Lord Bishop of Chester: I rise briefly at this point with a specific question for the Minister about what he said. First, however, I should like to comment on the discussion taking place in the Churches on this matter. I very much appreciated the speech by my noble friend the Bishop of Winchester on Second Reading. In recent years, he and I have worked on a small sub-committee of Bishops of the Church of England on both the specific issue of transsexualism and the wider issue of homosexuality. The predominant view of the Church is as he set out on Second Reading.
I am among those open to the possibility of recognising the reassignment of gender while also recognising the very powerful reservations held by people who feel differently. I also recognise the legal obligation that the Government are under and which I understand is overwhelming. I wonder whether the Government are right to treat this as a legal matter and then close their mind to other arguments, such as the anxiety being expressed on the right.
At this stage I shall restrict myself to a simple question. In the quotation from the European Court judgment, the Minister referred to post-operative transsexuals. One feature of the Bill is to recognise gender reassignment without medical intervention—as the judgment said, and as the noble Lord, Lord, Lord Tebbit, said at the end of his speech. That seems to raise questions of whether—as hard as it might seem; if one is to issue a gender recognition certificate and give people the right to marry in the acquired gender—there should not be a requirement of surgical intervention. Was that implied in the fact that the extract from the court judgment which the Minister read out referred to "post-operative" transsexuals"?
4 p.m.
Lord Filkin: I thank the noble Lord, Lord Moynihan. There is a slightly better chance—perhaps not much—that I will give proper answers if I take them two at a time rather than in a clutch. I thank also the noble Baroness, Lady O'Cathain, for her comments. I acknowledge that there is one—perhaps only one—issue on which we agree here: the importance of marriage, and the fact that it is a legal and moral relationship between a man and a woman, and that nothing else is possible.
The noble Baroness led us a little into the discussion that the right reverend Prelate also initiated—whether the physiological test ought to be a central issue. There is a half-implication that the noble Baroness's mind would be very slightly eased—though not much—if surgery had taken place, whereas the mind of the noble Lord, Lord Tebbit, would not be so eased. His grounds would then be the harder ones of chromosomal difference, rather than surgery.
In answering as best I can some of the points raised, I should like to say a few words about the Chief Medical Officer's advice on process. It is necessary to do so to avoid giving any impression that the Government think that, by whatever mechanism, this should be an easy, quick or simple process of the state giving recognition to such a fundamental change to a person's status and recognition in the world. I shall therefore talk first about the medical processes that the Chief Medical Officer sees as current best practice; then about the panel and how that bears on this; and then about surgery.
From the medical perspective, the gender reassignment process is divided into three stages. The first is the social gender role change, when a patient changes his name and informs his family and friends of his plans to live full-time in his chosen gender role. The second is the hormonal gender reassignment, when, after psychiatric assessment for suitability, patients are offered cross-gender hormone prescriptions. The third stage—the stages are not necessarily completely sequential—is surgical reassignment, after completion usually of two years living in the role, when primary surgery is undertaken in some but not all cases.
Therefore, from the medical perspective, there is a process which seeks to ensure that there is not a rush to anything as drastic or irreversible as a surgical change. In a sense that is a part of the process of the medical intervention—to try to ensure that people are reflective about what they are asking to do, and to ensure that their belief that they have a fundamental incongruity in how they are living their lives is well founded and well seated.
The panel has three tests. If I recollect them correctly, the first is that the person has lived in the gender which they believe is their true gender for at least two years. Many cases—the early cases—will involve those who have done so for very substantially more than that. We believe that that is a good and
necessary test and that two years should be the minimum. The second is that, as far as one can judge, they are as committed as possible to wanting to live in that state for ever.
We could have included the further test, which some European Union countries impose, of requiring surgery. We have not done so for a number of reasons. In some cases, there will be medical reasons why the person cannot or should not have surgery. It therefore did not seem to us right to deny them, if every other factor seemed to indicate that they are genuinely showing clear evidence of an intent to live in that gender for ever. As we know that most transsexuals do seek surgery, in cases where the person has not had surgery we would expect the panel not to treat that as prima facie evidence that there was doubt, but at least to question why surgery had not taken place. It might, just possibly might, have a bearing on the seriousness of the intent.
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