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The Lord Bishop of Chester: I shall just touch on a point that I made earlier. I am broadly in favour of the Bill and am among a minority, perhaps, of Christians and church people who are willing to go with the Bill and recognise that it is a way in which to deal with a genuine issue. However, this specific point is a matter not of tabloid headlines but of same-sex marriage, or something that is seen as same-sex marriage.

In the Minister's earlier remarks, the implication was that there was not a legal requirement on the Government not to insist on surgery. He said that other European countries did insist on surgery, so that is not part of the legal drive behind the Bill. I fully recognise and understand that—so why, given this debate, can the Government not at least give consideration to our arguments? They do not have to do so on the basis of the wrecking amendments or tabloid desires of the noble Lord, Lord Tebbit, on which I take no view. Instead, they might do so after listening to those who are sympathetic to the Bill but believe that, if someone is going to be able to marry in the acquired gender, having changed sex—to use the words of the noble Lord, Lord Goodhart—one should

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properly expect there to be surgery. That picks up on the point made by the noble Lord, Lord Cobbold. Given the legal possibility that has been admitted, are the Government at least open to that variation on their present position?

Lord Filkin: I shall seek to respond more straightforwardly to the question from the noble Lord, Lord Tebbit, and also to respond to the comments of the right reverend Prelate. It follows from my previous remarks that the circumstances described by the noble Lord, Lord Tebbit, are possible. That is what I said previously. Not everyone who goes through a gender change recognition process will have to have surgery. There could be circumstances in which it is inadvisable and inappropriate to force the issue. It therefore follows that the person, having had his gender change recognised, would have a full legal right to marry. The circumstances that the noble Lord describes could occur in that situation.

Lord Carlile of Berriew: Is not the right to marry a legal right—that is, the right of someone who is defined in law as a man to marry someone who is defined in law as a woman? Is not the Bill simply seeking to clarify what the law is to enable that legal contract to be entered into where one or both of the parties have suffered from gender dysphoria and obtained a certificate under Clause 2?

Lord Filkin: The noble Lord, Lord Carlile, is exactly right. It is a point that I have made on a number of occasions. It is a process whereby, after a proper inquiry, the state gives recognition to the fact that gender change can and should take place. The gender has changed and therefore that person is entitled to marry in his new legal gender. That is the long and the short of it.

As for the noble Lord's second question about what a doctor would decide, I do not know and I do not intend to speculate on it. Many people in this society—not thousands, but many—have a physiology that is more complex than the norm. However, I do not think speculation on the matter will take us anywhere. That is the best answer I can give to that inquiry.

I think that we will return to the issue raised by the right reverend Prelate. We will undoubtedly reflect on it.

Earl Ferrers: The noble Lord, Lord Carlile, said that marriage is the right for a man to marry a woman. The Minister is saying that if there has been a gender change, that person has changed from being a man to being a woman. However, that is not necessarily so if their sex is actually the same.

Lord Tebbit: We have had a most interesting debate. I think it has illuminated in admirable fashion both the Bill and the difficulties that arise from it—between those of us who think that sex is not a lifestyle choice that we make for ourselves, but a choice that is made above and beyond us and is inherent in our biological nature. Sex, some of us think, is not a psychological

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phenomenon. I suspect that gender may, at least in the mind of the Bill's supporters, be a psychological and mental and fashion phenomenon.

I do not have the impression that the Minister and his colleagues will accept any of my amendments—it is odd how these impressions sometimes come upon one gradually. Therefore, in order to stay within the limits of the understandings on how this Grand Committee should work, and to leave myself a little scope for Report stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 11 not moved.]

Clause 1 agreed to.

Schedule 1 [Gender Recognition Panels]:

5 p.m.

Baroness Buscombe moved Amendment No. 12:

Page 13, line 5, leave out "Lord Chancellor" and insert "Secretary of State for the Home Department"

The noble Baroness said: In speaking to Amendment No. 12, I wish to speak also to Amendment No. 13. These amendments are designed to probe the Government regarding to whom they intend the responsibilities set out in paragraphs 1 and 2 of Schedule 1 to go if the position of Lord Chancellor is abolished.

Let me make it absolutely clear that we are opposed to the abolition of the office of Lord Chancellor. We believe that it is extraordinary for the Government to continue to add to the list of the duties of the noble and learned Lord through legislation. Surely it would be sensible now to make it clear on the face of the Bill precisely who in the Government's view should be performing these duties. Have the Government made up their mind on that matter? I beg to move.

Lord Filkin: I am now enlightened about why the Home Secretary came into the Bill which exercised me briefly at lunchtime.

The short answer is that, as the noble Baroness, Lady Buscombe, knows, we have signalled our intention to legislate to remove the functions of the Lord Chancellor while also legislating to ensure that we uphold and promote judicial independence. The Bill refers to the Lord Chancellor at this stage through a process of parliamentary drafting purity as subsequently a Bill will be introduced in this House to make recommendations on how the role of the Lord Chancellor will be changed. That Bill will then adjust this Bill accordingly.

I refer to the probing amendment regarding the Home Secretary. Clearly the appointments to the gender recognition panels and of presidents and vice-presidents will be judicial appointments. Therefore, they will be made by the Lord Chancellor as part of his function and office for as long as it exists. We shall have to wait with bated breath until the constitutional Bill is introduced, which will set out the specifics of how those functions will be dealt with in the future. However, it will be no great shock if I refer to the

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judicial appointments commission as we have already signalled that in the consultation papers. But for the here and now the Lord Chancellor will make these appointments until such time as legislation changes that.

Baroness Buscombe: I thank the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Schedule 1 agreed to.

Clause 2 [Determination of applications]:

Baroness Buscombe moved Amendment No. 14:

Page 1, line 22, leave out paragraph (b).

The noble Baroness said: The Bill states that an applicant to a gender recognition panel must have,

"lived in the acquired gender throughout the period of two years ending with the date on which the application is made".

I should be grateful if the Minister would explain precisely what that will entail. How strictly will an individual have to abide by that requirement before they are issued with a full gender recognition certificate? For example, where there are small children involved who may not be old enough to understand the process which their father or mother is going through, would the applicant be allowed flexibility in the extent to which they live in their acquired gender for the sake of the child?

Would a pre-certificate applicant be expected to change in the changing rooms of their birth or acquired gender? What evidence would be sufficient to prove that an applicant had not fulfilled the criteria of living in the acquired gender for two years? How have the Government come up with this arbitrary period of two years? Is it based on advice from specialists? Are there any circumstances, apart from for the purpose of the fast-track scheme, in which an exception could be made?

I take this opportunity to thank the Minister for writing to me in response to the questions that I raised at Second Reading. In his letter of 5 January 2004 the Minister referred specifically to rights and freedoms of others. That is a point to which I also referred at Second Reading. At Second Reading I made the point:

"Whose human rights take precedence? How does one judge in individual circumstances what is balanced and proportionate?".—[Official Report, 18/12/03; col. 1292.]

There is no question that through the two-year period the individual will have to operate with a great deal of sensitivity but at the same time live to the extent required by the panel in order to meet the criteria required to obtain a gender recognition certificate. I wish to quote from the Minister's letter to me of 5 January. The letter stated:

"As I stated in my opening speech, however, this Bill does not bring transsexual people into existence, it just gives them legal recognition. This is particularly important to bear in mind in relation to the specific contexts that you mentioned, such as sports changing facilities. Transsexual people already use changing rooms as they go through the various stages of transition before fully assuming their acquired gender. Typically, rather than trying to attract attention to themselves, transsexual people are keen to

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live their lives in a discreet and ordinary way. Most transsexual people are aware of public sensitivities and take care to avoid causing alarm or offence".

However, during the passage of this Bill we need to understand to what extent these individuals are able to carry out their daily lives in a discreet way but at the same time meet the criteria required in order to satisfy the panel that they have lived according to those criteria. Much impinges upon the word "lived" in the Bill. I beg to move.

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