| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Filkin: I thank the noble Baroness, Lady Buscombe, for a thoughtful, probing amendment. The criteria for recognition of gender change, of which the two-year period is one, are not in a sense set by government as a set of hurdles to be leapt over. Their purpose is to try to ensure that before there is a process—which is essentially a judicial process—of recognition on the part of the state that a person's gender should be changed, it is right, proper and necessary that we are as certain as we can be that that is not a whim, a short-term preference or something that could be regretted later. Clearly, a range of measures are involved including the diagnosis of gender dysphoria and evidence of the commitment to want to live in the relevant gender in the future.
However, I believe that it seems right to many—it certainly seems so to the Government—that one would certainly expect a person who was genuinely committed to wanting to live in that new gender for the rest of their life to demonstrate the reality of that by living that gender in the here and now. It is not like opting for a change of clothes; it is a matter of believing at heart that there is something incongruous in one's birth gender and wanting to bring into alignment as far as one can the totality of one's life. The matter should not be interpreted as the Government saying, "You must live this life". Transsexuals who believe passionately that they want to be fully recognised will already be in this position. They will be living their lives in the way that I have described. They will have acted in that way in the totality of their lives. All the panel is doing is checking to see that there is evidence of that. I cannot fully second-guess how exactly it will inspect that process. However, I would expect it to undertake that process seriously to check that the relevant criteria had been complied with. The test in the legislation exists for a purpose; it is not a minor issue.
That is the essence of the matter that we are discussing. It is a necessary part of ensuring that before a decision is taken by the panel, the person has demonstrated their fundamental commitment to the very major change that they want to undertake. We are talking about two changes. I refer to the change that the person has signalled they want to make socially, which they can do without the state doing anything at all. Many transsexuals do that and have done so for many years. They change their dress, how they are addressed and how they behave. However, we are not talking about that change but the change that occurs when the state recognises the justification for giving
legal recognition to a change of gender. Therefore, I do not think that the two-year test is in any sense burdensome or unfortunate, if I may put it that way.
The Lord Bishop of Winchester: I hope that I may come to the help of the Minister for a change. There is one more point that he could have added. My understanding is that this is something to do with the Benjamin protocols or the Benjamin rules or whatever and that consultants working in this field are responsible and follow that kind of code and will themselves supervise the matter in a thoroughly responsible way.
I confess that I had not thought before about the point raised by the noble Baroness, Lady Buscombe, regarding whether the process can or cannot be carried out. Clearly, adjustments will have to be made in a range of directions. From meetings with those concerned my understanding is that these matters are pursued in a responsible manner, particularly on the part of those responsible for the medical supervision and the decisions that are being made.
Lord Carlile of Berriew: I make much the same point. My information, which I have acquired over a number of years from those involved in treating people suffering from gender dysphoria, is that precisely the criteria that are set out in Clause 2(1)(b) are applied in gender reassignment clinics as a prerequisite to surgical treatment. Therefore, for a change, the test in law will be similar to the medical test that is applied. Would that we had so many consistencies between the law and medicine, for example, in the law of provocation for diminished responsibility in relation to homicide. However, we do not have that consistency and the law and medicine frequently have to apply quite different criteria. In this case they will be the same and that is useful.
The noble Baroness, Lady Buscombe, raised the very important question of children and how people are to conduct themselves during the two-year period. My understanding of the way in which the medical profession that specialises in gender dysphoria—for example, at Charing Cross—works is that it does not apply a set of rules as such. For example, the party who is in fact the mother in the household does not give up all domestic duties because the children might think that they constitute a mother's role. It is a continuum but one in which there is an evolving element. The word "lived" is broad enough to satisfy the test regarding the interests of the children. If one takes into account the background medical evidence contained in the Bill, the measure is sensible, practical and consistent with what has been done for a long time.
Lord Moynihan: I should be grateful for the Minister's help on a matter concerning the world of sport that impacts directly on my noble friend's amendment. In the Minister's view what would be the reaction of a gender recognition panel to a sportsman competing in a sport who then recognised that he would have to stop competing as a male for two years in order to persuade the panel that under the condition of gender dysphoria he had been a woman for two
years? However, during those two years he had not been able to compete as a woman because he had not been recognised as a woman and did not have the relevant certificate. Would he lose the opportunity during those two years to compete internationally as a sportsman?Is it the Minister's understanding that, should this Bill be enacted, the gender recognition panel would look favourably on the specific circumstances of an individual sportsman who had genuine gender dysphoria who wished to continue to participate in competitive sport as a man throughout that two-year period until the point at which he receives the certificate and then competes as a woman? Or is it the Minister's interpretation that during that two-year period the sportsman could not compete internationally or at national level?
Lord Filkin: I have no idea what the gender recognition panel would decide in such a case. I believe that it would consider the totality of the situation rather than regard such a narrow or exceptional set of circumstances as the issues on which the whole matter turned.
Lord Moynihan: I was expecting the Minister on behalf of the Government to say a definite no in response to that question. I point out yet again that unless there is clarity on the matter the proposal to exempt competitive sport is stronger than it was before I rose to my feet to speak.
5.15 p.m.
Baroness Buscombe: I thank the Minister for his response to my questions. I also thank the right reverend Prelate the Bishop of Winchester and the noble Lord, Lord Carlile, for their helpful contributions. This has been an important and helpful debate to clarify the issues, but on behalf of my noble friend I remain concerned about sports issues. The Minister may have recognised that I shall leave those issues to be argued in large part by my noble friend. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 to 17 not moved.]
Baroness Buscombe moved Amendment No. 18:
- Page 2, line 13, at end insert—
The noble Baroness said: In speaking to Amendment No. 18, I wish to refer also to Amendment No. 19. Clause 2(4) gives the Government power to draw up a list of countries that are "approved" for the purpose of changing gender. This route of obtaining a gender recognition certificate could be an extremely popular one for transsexuals who are nationals of other countries, or those who moved overseas in order to be recognised in their
Amendment No. 18 is tabled on the advice of the Delegated Powers and Regulatory Reform Committee's third report that the negative procedure in the Bill as it stands is an insufficient level of parliamentary scrutiny, and that the affirmative procedure would be more appropriate.
Alternatively, Amendment No. 19 requires the Secretary of State to publish a document and lay it before both Houses of Parliament detailing the criteria he will use to determine whether a country is "approved". Would, for example, the safety of any medical procedures or practices be a consideration? Can the Minister give examples of those countries that it is likely would be "approved" and those that would not be "approved", and the reasons for this? I beg to move.
Lord Goodhart: Amendments Nos. 108 and 110, in the names of my noble friend Lord Carlile of Berriew and myself, are grouped with Amendments Nos. 18 and 19. Amendments Nos. 108 and 110 reach exactly the same result as Amendment No. 18 ensuring that the affirmative resolution procedure, rather than the negative resolution procedure, is used for any order designating an approved country under Clause 2. We prefer that course to Amendment No. 19, which seems to us an unsatisfactory alternative.
The Delegated Powers and Regulatory Reform Committee pointed out in paragraph 5 of its report that,
"(5) No order may be made under subsection (4) unless a draft thereof has been laid before and approved by both Houses of Parliament."
"the power is not limited on the face of the bill to prescribing"
those countries,
"that have criteria equivalent to our own".
The report goes on to state:
"Should the policy change in the future, the power might be used for prescribing also other countries, thus extending the cases in which an application could succeed without the need to satisfy the Panel about the specific matters in clause 2(1)(a) to (d) . . . In view of this, we conclude that the negative procedure does not provide an appropriate level of Parliamentary scrutiny for a power of such potential significance in the context of the bill. We recommend that the affirmative procedure should apply".
Speaking for myself, it seems to me that the committee's recommendation on that subject is absolutely right.
Next Section
Back to Table of Contents
Lords Hansard Home Page