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Lord Filkin: I am grateful to the noble Lord for his comments. I did not personally lick all 300 stamps; they were licked in the Department for Culture, Media and Sport, as one might expect. Nevertheless, it would assist me if he would let me have some of the documentation to which he refers. I am advised that there was a careful process of consultation, so that would assist me and him and the Committee.
Turning to the noble Lord's question, clearly some sporting bodies are private bodies. However, he is right that there are circumstances in which some sporting bodies could be treated as public bodies and, therefore, could come within the ambit of the ECHR and a challenge under Article 8 that they are potentially infringing private life. However, that is not the end of the issue. Our firm position is that a sporting body would be able, in the interests of competitive parity, to discriminate against transsexuals in that situation. That will be a defence and rebuttal. However, we shall come to that in more detail tomorrow.
Lord Tebbit: How would anyone know that they were dealing with a transsexual, since it will be forbidden under pain of criminal sanctions for anyone to refer to the fact that that person has a false birth certificate?
Lord Filkin: This is really straying quite a long way away from the immediate issue. However, the argument would run that, because it is legitimate for sporting bodies to uphold competitive parity, it is legitimate for them to make such inquiries as are appropriate to ensure that a person is physiologically appropriate to undertake that competition. However, I urge the Committee that I have been more courteous than I should have been in going into this detail at this point. I do not wish to excite further debate on the matter.
The noble Lord, Lord Cobbold, asked a good question; he asked whether we were confident that the provisions would not open the door to same-sex marriage. We are confident because there is a process that seeks carefully to give judgment to whether it is legitimate for the state to recognise a change of gender. When that change of gender has taken place, it makes
it possible for the person whose gender has been changed and has been recognised by the state to marry. That is why we are firm on that position.
The Lord Bishop of Winchester: I am grateful to the Minister for giving way. The question asked by the noble Lord, Lord Cobbold, was admirably brief, and I envy his ability to ask such brief questions. However, the Minister's response effectively means that, if the state says that dawn is dusk and blue is brown, something becomes whatever it then becomes. That is the logic of the Minister's answer to the noble Lord, Lord Cobbold.
Lord Filkin: No, not so. I said that the state was entitled, as the Bill proposes, to have a process that allows for there to be a recognition in law that it is possible for a person's gender to be assigned and changed. The process is not a flippant one without evidence; it is not saying that the sunset is green rather than red. It depends on the tests set out in the Bill being met and tested by the panel. We believe them to be the right tests, and the appropriate tests, for so doing. Therefore, we believe that the state is absolutely right to legislate in this respect.
Lord Cobbold: I am sorry to interrupt the Minister again, but it seems to me that there is a possibility of fraudulent application to go through the process in order to achieve a same-sex marriage.
Lord Filkin: The noble Lord must be right in this matter, but there is a possibility of fraud in most areas of public life. However, one would expect the process that the panel was going through would be designed to reduce the likelihood of that, because there has to be a diagnosis and evidence. Clearly, there is a possibility of fraud in other aspects of marriage law. It is perfectly possible for someone to marry someone in a registry office, for perverse reasons if they wish to, by claiming that they are X rather than Y. However, let us leave that to one side. The fundamental point is that there is a process, which is as strong as it can be, to reduce that risk.
The noble Earl, Lord Ferrers, referred to my remarks on medical unanimity. What I was saying in essence was that the fact that there is not total medical unanimity on the issue is not a reason for not legislating in this respect. I sought to give reasons for that, which were bolstered and buttressed by the view of the ECHR and the Court of Appeal in this country. It is essentially a process whereby the state recognises the change of gender.
The noble Earl raised the other point, which we shall no doubt come to later in the Committee, on why we have the privacy enforcement. Essentially, it is out of compassion for the person who wishes to live their life in future in the gender which they believe is fundamentally the truth for them. They do not want to have it constantly exposed by administrative processes that they were once seen as having a different gender. That does not relate to someone who knew the person before their gender change was recognised. If they as a
matter of record and fact knew that person before the gender change took place, there is nothing in the Bill that means that they are acting illegally in saying so. The provision is there essentially to prevent inquiry into the records in a way that makes that person constantly have to redisclose their former gender.I hope that I have covered all the points that were made in the rather long debate on the first grouping.
4.45 p.m.
Lord Tebbit: I shall briefly take up some of the points that have been made, including some of the points that the Minister made, most reasonably and courteously as ever, but at times somewhat defensively. When someone says that they have no intention of getting into an argument about a subject, it always implies that they feel that the ground beneath their feet is somewhat slippery, at the very least. The noble Lord said that he did not want to get into an argument about chromosomes, but it is our chromosomes that decide our sex. This Bill is about deciding people's sex, so how can one not get into an argument about chromosomes, unless one simply wants to slide away from it because the point is indefensible?
The noble Lord, Lord Carlile, observed that marriage is not collapsing elsewhere in Europe. Well, no, of course it is not—and I did not say that it was. I would not say that the Palace of Westminster was collapsing merely on the first evidence of dry rot in its foundations. However, a process goes on. We would not expect the Bill to cause the collapse of the institution of marriage within five or 10 or 20 years. These matters are slow in their effect, and we are very foolish indeed, when we are dealing with enduring institutions that have had a life of many thousands of years, to think that, merely because a Law Lord or some parliamentarians throw a bomb or introduce an infection into that institution, it will instantaneously collapse.
The noble Lords, Lord Goodhart and Lord Carlile, talked about my amendments being wrecking amendments, but they do so because of their view of the Bill, not because of the nature of the amendments. The noble Lord, Lord Goodhart, observed on Second Reading that,
- "there is a group of people who while, biologically . . . are of one sex, are socially and in other respects . . . of a different sex".
- "should be treated in relation to the sex to which they socially belong".—[Official Report, 18/12/03; col. 1315.]
This Bill is primarily a Bill that pits social concepts against biological facts. That is why it is such an objectionable Bill. If I may say so to the right reverend Prelate the Bishop of Winchester, I was not being merely semantic about sex and gender. This Bill is about the difference between sex and gender. Sex is a biological fact; gender is, to a very large extent, a wish, a social pose, or whatever. That is at the heart of the argument.
I should like the Minister to reply clearly and simply to a couple of clear and simple questions. The first relates to Amendment No. 78. Will he confirm that the Bill as it is now drafted would allow people with genitalia of the same sex to marry? I hope that I have read the Bill correctly. I believe that I am entitled to ask him if that is a proper construction to put on the Bill. If that is so, does he regard that as being same-sex marriage or only same-gender marriage? Perhaps that is the delicate difference that he would like to draw—that because the two parties think that they are of different sexes, it is not a same-sex marriage, although they are physically identically equipped.
Perhaps indelicately, I suggested that if such a marriage took place in a nudist colony, it would be seen as a same-sex marriage. Let me put another point to the Minister. Let us suppose that, tragically, that couple then had a motor car accident and were both killed. At the post-mortem, would doctors conducting the post-mortem conclude that one was a male and one a female, or would they conclude that they were both of the same sex? That is at the heart of the arguments of this Bill and these amendments.
Lord Filkin: I would feel more pleased to respond to the noble Lord, Lord Tebbit, if I felt that the implication of his question was that he would be in accord with the Bill if it was a matter of a man who wished to have his profound belief that he needed a gender change to a woman, and who would therefore have surgery as part of that process, as would usually be the case. That is the implication that I would wish to draw from his question, although I do not believe that it is the case. If it is not the case, I wonder what the thrust of the question is. I say this with great courtesy, because in Grand Committee one does not need to get too formal on these issues, that the thrust of his question has all the nature of a bait for a tabloid headline. It places the discussion of these issues almost at a schoolboy level.
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