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The Lord Bishop of Winchester: I am grateful to the Minister for giving way. I intervene in case I can save him from going on further. I wonder whether part of the point would be met by my proposal to alter the word "must" in the first paragraph of the amendment. If one took out the word "must" and inserted instead something such as "should offer opportunity", which was part of the original form of words introduced by the noble Baroness, Lady Buscombe, then I believe it is most likely that in almost every case all those concerned would react as the Minister describes. This is something that we know about and of which we have been part. Whatever its cost to the person concerned and to ourselves, we know where we are.

I believe that for some people it is basic justice that they should have opportunity. They may responsibly take that opportunity and I suggest that they do so. I say that while recognising that the noble Lord, Lord Goodhart, pointed out that the various expressions have been explored previously. I believe that those issues would have been explored in any responsible medical practice.

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However, there is still a possibility of a residue that needs to be considered not only regarding the effects on the spouse and children but, as I said a little while ago, also on the person concerned. Therefore, I wonder whether one might have to labour less if one was considering the words "should give opportunity" rather than the word "must" in the first paragraph of the noble Baroness's amendment.

6 p.m.

Lord Filkin: I wish that I could make the right reverend Prelate happy and my life easier by saying "yes" in response to that, but perhaps I may explain why I cannot do so. The tough answer is that the right which the panel will decide whether or not there is evidence in the application to grant is not a right that can be balanced. The state can seek to mitigate it but it cannot say, "Well, because the wife does or does not feel strongly, this is an issue that we can take into account". I believe that that is the nub of the matter.

Secondly, perhaps I may give an illustration of the issue in practice. One can speculate on what a child would feel in some of these situations. He would feel confusion, concern and no doubt embarrassment at some stages but, above all, an anxiety, a hope and a wish that his father, for example, would continue to love and care for him. What evidence could he give that a panel would expect? If he was of tender years, the child could not be put in the position of being asked, "Do you agree or not that your father could change?" That would be completely invidious. On the other hand, if the child was of mature years, in a sense, I believe that it would be otiose.

As for the wife, one can imagine the complexity and distress in the marital relationship. It is impressive how, despite that distress and pressure, many transsexual couples still retain a close bond between each other and an affection and compassion. In many cases, although not all, they retain an interest in retaining the relationship. That will sometimes be the case but sometimes it will not. Often, the situation will be far more confused and somewhere in the middle. But what is the panel meant to do about that? The wife may say, "I think it is true and right and he should have his gender changed", in which case it is otiose, or she may say, "I am ever so upset about this. This has put my life into complete turmoil". The panel would say, "We understand that but it does not have a direct bearing on the issue". That is the sadness of the matter but it is the reality.

In mitigation, I shall make one or two points. First, if the applicant wishes to submit evidence from his or her spouse or child, he may do so. However, for the reasons that I have given, I believe that it is unlikely to be relevant.

Secondly—a point touched on by other noble Lords earlier in the debate on this group of amendments—as the Committee knows, the gender recognition panel merely gives an interim gender recognition certificate to an applicant who is married. For reasons that we shall come to shortly, before that is turned into a full

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gender recognition certificate, the applicant must go before a divorce court and obtain a divorce consequent on that. Therefore, procedurally, if the couple have doubts or concerns, they have an opportunity to consider further before they finally trigger the divorce.

As I indicated, we are optimistic of bringing before Parliament imminently a Bill on civil partnerships. While, for reasons that are clear, that will not offer a marriage, it will still offer the opportunity for a couple, if they so wish, to have a legal status put round their relationship through a civil partnership.

Lord Moynihan: Will the Minister kindly give way? Does he accept that many transsexuals find it odious that the interim certification process is proposed in the Bill? If he is aware of that, what is his response to those people?

Lord Filkin: I suggest that we discuss that issue when we come to the amendment on marriage, which, if we travel hopefully, we shall reach later this evening.

I turn to the proposed amendments to Schedule 3. I should make clear that the original birth records—

The Lord Bishop of Chester: Perhaps I may return to the point that I made about a single parent. I accept the points made by the Minister concerning a husband or a wife but, in relation to Amendment No. 23, I specifically raised the question of a single parent with children. As things stand, there is no reference in the Bill to consideration being given to the rights and needs of children. I should like to know whether under Clause 3(6)(c) the panel, which can ask for other information or evidence, would have the right to inquire about the effects upon children? It seems to me that there is an obligation to ensure that the rights and needs of children are given some clear standing, notwithstanding that the Bill primarily concerns the rights of the adult where a single parent has dependent children.

I fully accept that, without doubt, the situation will be difficult and tense in all kinds of ways throughout the process. But surely that is no reason to leave open the possibility that the rights of children will simply be ignored. One could imagine a single parent going through the process without the children knowing what was happening. That is rather difficult to envisage but it seems to be allowed here. Does not the Bill need a provision whereby the rights of dependent children—this is especially apt where there is only one parent—are taken into account by those who adjudicate on the matter?

Lord Carlile of Berriew: I beg forgiveness for intervening so soon after an earlier intervention. However, does the Minister agree that some noble Lords in this Committee are overlooking the reality of what happens during the two-year plus period before an application goes before the gender recognition panel? The reality is that, in the clinics that deal with these cases, an exhaustive inquiry is made, including family inquiries. In some cases, family therapy, although, heaven forfend, not compulsory psychiatric treatment, is given so that by the time the case reaches

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the tribunal, every possible inquiry will have been made. Does the Minister agree that, in some families—perhaps not in the majority but in some—the process will have lifted the burden from the family rather than imposed a new one?

Lord Filkin: Not for the first time, I am grateful for the expertise and clarity of the noble Lord, Lord Carlile, on these issues. He describes the situation exactly. As I sought to indicate earlier in my response, this is not a sudden occurrence; it is the climax of a long process of change, development and testing in exactly the way that the noble Lord, Lord Carlile, signalled. As part of that process, one would expect that the rights of the children would be inquired into.

Clearly, in the situation that we are describing, as part of that process, the doctors and the psychiatrists are evaluating whether the individual—say, a single parent—is genuinely committed to the change of gender. They ask, "Have you really thought it through? Are you aware of the implications? Is this something that you wish to live with permanently for the rest of your life?" Therefore, as part of those inquiries, it is perfectly right and proper to ask, "And what about the effect on your child? How are you going to care for your child? How does your child see all of this? Have you thought it all through? Have you lived it all through in practice?"

Baroness O'Cathain: Perhaps the noble Lord will give way on that point. If that does not happen during the two-year period, in effect the children and close family members of the transsexual will have absolutely no rights under the Bill. I believe that we need clarity on that point. The Bill concerns only the rights of transsexuals.

Lord Filkin: As I indicated earlier, essentially the focus of the Bill concerns how we fulfil what we think of as our legal and moral obligations to implement a process that recognises a reality for a limited number of people. Children have rights and protections under other legislation—for example, the social services child protection Acts—and, clearly, if the issue of children's care and welfare arises in these circumstances, then there is a right and a duty to intervene.

I turn to the amendment proposed to Schedule 3. The original birth records will not be destroyed. The Bill does not rewrite history. The original birth records will remain in existence and will be available to any person who has the relevant birth details. Therefore, a child or grandchild will be able to search for, and obtain a copy of, the original birth record entry. The Bill requires no amendment to ensure that result and I am glad to be able to confirm that.

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