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Lord Carlile of Berriew: I am grateful to the Minister for giving way; I promise not to make a habit of interrupting him. However, if I may, I gently remind him of the first test, which gives the complete answer to a point made by the noble Baroness, Lady O'Cathain, when she talked of someone who wished to change sex or wished to change gender. The first test is that they have to prove that they have or have had gender dysphoria. That is a very specific diagnosis, and in fact a very big hurdle to have to cross before one goes on to tests B, C and D.
Lord Filkin: I am grateful to the noble Lord. It is novel in such situations to receive assistance in Committee. I hope that it will become a habit. He is fundamentally right. I was wracking my brains trying to recall the third fundamental leg of this platform. I am grateful. Clearly, that is an issue where the panel will be looking for a diagnosis. If I recollect correctly, the diagnosis has to have two limbs; it is not simply a single opinion from one medical practitioner.
I shall take no more of the Committee's time on this. I think that those are the best answers that I can give to the points raised so far.
The Lord Bishop of Winchester: I would not normally begin by taking issue with a fellow noble Lord, but it seems that we need to be clear in the light of the earlier comments of the noble Lord, Lord Carlile. My sense—and I say this because it affects many of the rest of us—is that it is not fair to say that the noble Lord, Lord Tebbit, was making a Second Reading speech. He seemed to be doing what others in Committee are doing—moving from Second Reading to proposing amendments. In doing so, one has to give at least a little background on why one is proposing amendments. I did not think that that was accurate. I mention it now, with all respect, because it seems important that we are clear about the ground rules on which we are working.
Before turning to the specifics of the amendments I should like to deal with another point that runs through the debate. I noted that the Minister quoted more than one of the Law Lords and their judgment in
favour of the admission of what they called "psychological factors". When I read that material, it seemed to me that that was as much a philosophical judgment as a legal one. I find that those judgments of the Law Lords have no power on me at all. However, such statements seem to be particularly natural in the present age.I confess that I am not moved by the semantic question of "gender" or "sex". Perhaps the noble Lord, Lord Tebbit, will explain it later. I recognise the slightly different ways in which the words have come to be used. It seems to me that this is to do with the recognition of an acquired sex or an acquired gender. Unless the Government have a specific intention of using "gender" rather than "sex" throughout much of the Bill—and if they have, they have got into some confusion in Clause 9—it seems not to be a matter of great interest.
Nor do I think that this is the moment—and here I agree with the Minister—for getting into questions of causation, whether physiological or psychological, because I think that they are now beside the point. They are indeed, as he said, matters that are still controversial within the medical profession—as the noble Lord, Lord Chan, made clear on Second Reading, and as many of us know from meeting a range of general surgeons and psychiatrists involved in these matters.
I wish to repeat my comments on Second Reading about my profound sympathy for those who suffer from this immensely serious condition. I meant my comments then and I mean them now: I want to be as helpful as possible to their needs and the needs that others recognise to be theirs. I am therefore sensitive to the question of wrecking amendments and would not be minded to support the noble Lord, Lord Tebbit, in his Amendments Nos. 5 and 20, because they could be described as "wrecking amendments" in terms of the Bill's philosophy. The exception is that the Bill contains in Clause 9 those critical words "for all purposes". If the Bill were less far-reaching or less serious in its consequences, then I would want, as I made clear on Second Reading, to go with its basic premises for the easing of the position of trans-gendered people. But I would be careful, as I tried to be then and shall be now, about necessary limitations on the word "possible".
Of course I recognise, too, as the noble Lord, Carlile, noted, that those of us making such points may in the end prove unsuccessful. But it is a duty for myself and others to make our case regarding Amendment No. 78, which, as the noble Lord, Lord Tebbit, said, is oddly yoked in this group of amendments, because it goes right to the heart of profoundly serious matters. It is perfectly in order for myself and others to argue that if one does not believe that gender or sex is changed in gender reassignments—and it is interesting that we are using words such as "assign" or "reacquire"—then it is clear that in the current wording of the Bill, if a person marries someone with an acquired gender, one will have a same-sex marriage, which the Government
have consistently and admirably said they do not intend to make legal. It is for that reason that Amendment No. 78 is of a different order to the others and it is important that I support it.
Lord Chan: I have listened carefully to the comments of noble Lords and the Minister. I detect a slight change in his approach, which I accept. I also accept that only a small number of people are affected by the Bill and that we should therefore support their human rights—that I am very willing to do. My main concern is that in doing so we must be absolutely sure that those who are given the opportunity for gender reassignment, and to have a gender recognition certificate, are correctly diagnosed and fulfil all of the criteria that have been laid down.
Therefore, as a clinical/medical person I return to the issue of the diagnosis. I do not wish to go over the ground regarding causes, but, having had the opportunity to have a medical colleague ring up a number of medical organisations, it is clear that the majority of them take no view on the Bill. Their reason is that they feel that it is an area for the specialist—and we must accept that. My only worry, which has been signalled by other noble Lords, is that those who will agree with the diagnosis would be of one viewpoint and may not consider people who ask for gender reassignment and then change their minds. I am aware of two or three psychiatrists who have had such patients and that made them worried about criteria.
I ask the Minister about the grounds on which the Chief Medical Officer would agree with the diagnosis of gender dysphoria. Would that be on the grounds that the person, or should I say the patient, has been examined over a period of time? Because I see in the evidence under Clause 3, to which we shall come later, that there have been, so I understand, stricter criteria, that there has to be a definite diagnosis. It is not a simple matter where the person goes to a psychiatrist or psychologist, receives a report, and then applies for gender recognition. A certain period of time must elapse when that is done, and it would be important to emphasise that that was the case. Only then, after all options have been explored, would the diagnosis be assigned. We need to be absolutely clear that the right people, who are absolutely convinced of the way forward, would be those who applied and were screened carefully by the panel in order that they may be given the certificate.
Finally, we insist that people spend four or five years in a country before they can receive citizenship. Therefore, it would be rather surprising if we permitted people to change their birth certificates after two years.
4.15 p.m.
Lord Moynihan: I shall try to address two specific points that have been raised in the debate on my noble friend's amendments. First, and central to them, is the response by the Minister that the person's gender becomes "for all purposes" the acquired gender. Throughout the passage of the Bill I shall focus on the implications for sport because they are widespread and
significant. In the context of the person's gender becoming for all purposes the acquired gender, it is necessarily the case that governing bodies of sport, both international and national, would have to recognise the effect of that primary legislation. They would have no other alternative. That is why we are here deliberating. It is particularly a problem where there is doubt as to whether all sports bodies are private bodies or perform some public functions as public bodies. That is the central point in the Government's argument that the Bill would not apply to sport.I tell the Minister that there is major doubt over whether it is possible to define sport governing bodies as private. I draw his attention to the words in another place of the then Home Secretary at the Committee stage of the Human Rights Bill, when he specifically drew attention to a sporting body as being of the type that he would expect to fall within the 6(3)(b) category, which is "a quasi-public body". He said:
- "There will be occasions, it is the nature of British society, on which various institutions that are private in terms of their legal personality, carry out public functions. I would suggest that it includes the Jockey Club . . . The Jockey Club is a curious body. It is entirely private but exercises public functions in some respects. And to those extents, but to no other, it would be regarded as falling within"—[Official Report, Commons, 20/5/98; col. 1020.]—
Judicial support for the assertion of the then Home Secretary, Jack Straw, that such bodies carry out public activities is particularly evident from the case law relating to the application for judicial review.
The Minister referred to Bellinger v. Bellinger in his response to my noble friend's amendments. In the context of gender reassignment, it is important to note that in that judgment the noble and learned Lord, Lord Nicholls of Birkenhead, stated:
- "The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport".
- "The criteria appropriate for recognising self-perceived gender in one context, such as marriage, may not be appropriate in another, such as competitive sport".
If a governing body undertakes public functions, as many do, and is in receipt of public money, how can it defend its position against accepting a competitor with a gender recognition certificate without—and this is most important—any necessary operative surgical change to that individual? I fully accept the sensitivity about the reasons why the Minister put forward the case for not putting on the face of the Bill the distinction between post-surgical transsexuals and transsexuals who do not undertake any form of operation. One must be sensitive to those transsexuals for whom it is not medically possible to move from one group to the other categorisation.
However, in recognising that, it is important to identify its implications for competitive sport. It is a characteristic of gender dysphoria for the person moving from male to female to wish to be in the body
of a female and thus to undergo the operations, as well as the treatments that would be of assistance when moving from one gender to another under the Bill. While one can be sensitive to that, I hope that the Minister will be conscious of the fact that that has widespread implications for competitive sport and for governing bodies. They will need to recognise that someone with a certificate who, for understandable reasons, under the proposed legislation does not have the surgical procedures will be able to present himself with the full weight of the law and—I repeat—becomes for all purposes the acquired gender of the person to compete in that classification.I pick up on a comment made by the noble Lord, Lord Carlile. He asked why no one else has recognised the issue and made exemptions. I accept immediately that the noble Lord was not referring to sport at that point. Let us take one of the pre-eminent parts of the world in competitive sport. I refer to Sydney from where our rugby players have just returned. The New South Wales Parliament Act was passed in 1996. It specifically recognised the strength of some of the points that I have made on this set of amendments and will be making on subsequent ones, when it exempted sport. It made an exception to Part 3A and division 4 of that Act. It stated:
- "Nothing in this part renders unlawful the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies".
Over 100 amendments have been tabled for this stage of the Bill and I believe that there are over 100 compelling arguments why competitive sports should be exempted. I have just made the first two of those arguments that I intend to develop under different sets of amendments, keeping closely in line with the advice given to us by the noble Lord, Lord Carlile.
However, I urge the Minister to reflect, first, on the public nature of many sports' governing bodies and I accept, if nothing else, that that is an open matter. It is a critical, important and unresolved issue that a range of cases has thrown up. Even if it is unresolved, we can address the matter on the face of the Bill.
Secondly, if a person's gender becomes the acquired gender for all purposes, including sport, recreation and competitive sport, there is very real concern that that would have to take pre-eminence over any rules and regulations of governing bodies in accepting classification, however sensitive we are to gender dysphoria; and I believe that we should be sensitive to the condition of gender dysphoria.
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