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Lord Goodhart: We have had substantial debate on the issue and I am grateful to all noble Lords who have taken part—in particular to those who have supported the amendments, notably the right reverend prelate the Bishop of Winchester, the noble and learned Lord, Lord Cameron of Lochbroom and my noble friend Lord Phillips of Sudbury.
I shall not repeat the arguments—they have gone backwards and forwards. The only matter which was not raised and needs briefly to be discussed is that of the benefit and pension issues, of which no other Member than the noble Baroness, Lady Hollis, has spoken. Schedule 5 is relatively simple on the face of it, but I suspect that there are anomalies that will arise, even if the Bill is enacted as it now stands, in relation to matters that are not under state benefits, but really matters of contract such as occupational pensions, insurance policies, and so on. They may have to be worked out. I am also not convinced that it is beyond the wit of the Department for Work and Pensions to come up with answers to the problems relating, for instance, to GMPs and the difference between contracted-out and non contracted-out pensions. I would certainly welcome a letter from the Minister on that issue.
The issue is important and thus deserves a hearing in the Chamber, so I shall bring it back for debate on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 27 to 30 not moved.]
Schedule 2 [Interim certificates: marriage]:
[Amendments Nos. 31 to 39 not moved.]
Clause 6 [Errors in certificates]:
Lord Tebbit moved Amendment No. 41:
- Page 4, line 7, leave out from first "person," to "for" in line 8 and insert "an application may be made"
The noble Lord said: I sometimes wish that the Committee would not proceed quite so quickly. I have some sympathy with the Minister when things move on suddenly and unexpectedly and he is desperately scrambling for his notes, which is an experience that many of us have.
Amendment No. 41 concerns errors in certificates. Essentially, it should not only be the person or the Secretary of State who make the application, but any other person who has good reason so to do. Clause 6(2) would then read:
- "Where a sex recognition certificate has been issued to a person, an application may be made for a corrected certificate on the ground that the certificate which has been issued contains an error".
That seems to be a fairly common-sense provision. I do not see why the application should be restricted only to the Secretary of State and the applicant. I beg to move.
Lord Filkin: As a Minister, one wonders sometimes whether one sees problems where there are none. Nevertheless, let me explain why we are minded to resist the amendment.
The purpose of Clause 6 is to make it possible for a person or for the Secretary of State to apply for a correction to a gender recognition certificate.
A correction will be made in the gender recognition register if an error is subsequently discovered in the original birth record, an error has been made in the gender recognition certificate supplied by the gender recognition panel or if an error has been made in copying details into the register.
The types of corrections envisaged are in relation to the spelling of a person's name or the date on which a certificate was issued. Given the nature of the corrections that will be made, it is appropriate that only the applicant or the Secretary of State have the power to apply for a correction. So, for example, if the spelling of a name is wrong, the applicant will apply. If the certificate has been issued with the wrong date, the Secretary of State may apply.
If the scope of those who may apply is changed so that it is unlimited, the prospect of inappropriate applications is raised. Someone may seek to challenge the reasons on which the certificate was issued in the first place. The Bill makes no provision for such a challenge—and rightly so. The purpose of the Bill is to allow transsexual people access to basic human rights. Although rights must be balanced with responsibilities, we do not believe that in this case it is for others to restrict access to those rights.
Having said that, I shall be interested to hear from the noble Lord, Lord Tebbit, if he wishes to advance further arguments for changing the documentation that could not be adequately addressed by either a third party speaking to the applicant or the Secretary of State and drawing it to their attention. If the noble Lord would, I should be pleased to make sure my ears were open to reflect on that issue.
Lord Tebbit: I am most grateful to the noble Lord. It is quite clear from what he says that this is essentially a bureaucratic provision—perhaps I may put it in that sense. There is a detail that is wrong and can be corrected. I had in mind that there are persons perhaps outside—the other interested parties such as the children, for example, of a person who has had a certificate made. It may have been falsely made for some reason—perhaps, for example, to enable two persons of the same sex to enter into a marriage. One may have falsely argued his or her way through the process and been issued with a certificate in order to conduct a same-sex marriage. I recognise that in the lawyer's view it would not legally be a same-sex marriage.
That was the kind of thing that I had in mind. Clearly, that is not the sort of issue for which the provision was intended. Therefore, it would be best for me to withdraw the amendment at this stage and to give further thought about whether I might devise something which may answer the problem or possibility that I saw, as opposed to the purpose of this provision, which the noble Lord has so clearly explained. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Baroness O'Cathain moved Amendment No. 42:
- After Clause 6, insert the following new clause—
The noble Baroness said: The amendment would insert a new clause that deals with the reversal procedure. The problem is well documented of the many people who have gone through the process of gender recognition and who have come to the decision that they want to reverse the situation. They may do that for all sorts of reasons—because they have been badly advised; because they have come to their senses, as they would say themselves; or because they recognise that a very big mistake has been made. After all our discussions today, I suspect that the full import of what they had decided to do hit them afterwards, when they realised the implications for their extended
Some medical advisers say that it is not possible to reverse the procedure—and I am looking straight at the noble Lord, Lord Chan, and wondering what he feels about it. However, in actual fact it does arise and has arisen. There are two cases in Australia at the moment in which people who have had gender recognition or gender change are actually suing the state for wrongful advice.
Surely the Government must acknowledge that that represents a hole in the Bill. If they do not acknowledge it, I am sure that we could give supporting evidence to the fact that it is a very difficult situation. If they do acknowledge that there is a hole in the Bill that can be covered by an additional clause, surely they must agree that it needs to be dealt with. If they agree that it needs to be dealt with, I wonder what the Minister's view would be on the process of how to deal with it.
The other part of the amendment is based on the sure case for saying that, if a gender recognition certificate has been issued and the person is no longer of the gender into which he or she was born, there must be some block on their being able to change their minds again and again, so they do not go chopping and changing at whim. I suggest that, under the amendment, we should agree that they can change, but change only once.
In the United States, apparently, there is recognition that this reverse process is necessary, and there is a limit to the number of times that the gender can be changed—and that limit is three. I suspect that that is really not acceptable, and certainly it is not acceptable to me. I beg to move.
Lord Filkin: I shall seek to be brief. Acquiring a new gender is a long, difficult and painful process. It involves a lot of medical advice and a lot of trauma with family relationships. We do not expect individuals to want to change back, having met the medical criteria and been through the minimum of two years' waiting. Having said that, the noble Baroness is right in saying that a very small proportion of people—perhaps 1 per cent—have asked to go back.
The position is in essence exactly as I hinted to her yesterday. The procedure as set out in the Bill allows an applicant who wants to reverse to apply. All that I would say about that—and I would emphasise this even more strongly in the case of her even more hypothetical situation of a person who wanted to change three times—is that one duty of the panel is to be convinced that the person is committed to a permanent change of gender.
Therefore, the panel will be looking at that intent, no doubt with even more care when a person seeks to change gender and—how shall I put this—with very great attention indeed if someone came before it three times. The panel requires to be satisfied on that issue. It has a complete discretion in law, which the Bill will
"REVERSAL OF APPLICATION PROCESS
(1) Where a successful applicant subsequently changes his or her mind, or decides a mistake has been made, and wishes to resume his or her original birth gender, a further application must be made to the Gender Recognition Panel for the issue of a further gender recognition certificate in the resumed gender.
(2) The Panel may grant the application on the same basis as the provisions set out in sections 1 to 5.
(3) Only one reversal of an original decision made by the Panel may be permitted."
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