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Baroness Hamwee: I do not believe that the Minister dealt with my question about charging, but I do not blame him for that.
Lord Rooker: No, I can do—at least, I did have a note on that, although I seem to have lost it. We retain an open position on the work under the statement of development principles. It may be that there will be an element of charging, but no final decision has been taken. I am sorry that I do not have an answer to the noble Baroness's question.
Baroness Hamwee: I am grateful to the Minister, and hope that the open mind comes to the right decision.
At this point, I do not want to go through the Minister's comments in detail. I do not want to impugn the Government's good faith in pursuing the issue—and I take the Minister's point about the difficulties regarding outline permissions. Some people refer to them as "trophy architects". However, that strongly suggests to me that Clause 39 should not remain in the Bill and that Section 92 of the 1990 Act should not be subject to abolition when the Secretary of State decides, unless the matter has progressed very considerably by the next stage in the Bill.
The Bill began its passage in October 2002, and I cannot remember how long before the Bill the Green Paper was published. Of course, I do not for a moment object to consultation; it is absolutely essential to hold consultation with everybody who is concerned. However, it would be quite wrong for the House to be asked to agree to take a very substantial step in the absence of something much closer to a conclusion about what will be put in place. We shall put that to the House next time, unless there is a lot of progress before then. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 113J to 113M not moved.]
Baroness Farrington of Ribbleton: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Gender Recognition Bill [HL]
1.50 p.m.
Lord Tebbit moved Amendment No. 1:
- Page 1, line 3, leave out "gender" and insert "sex"
The noble Lord said: My Lords, this is a re-run of our discussions in Committee and, bearing in mind the rules of the House, there is no need for it to delay us long. There is a major defect in the Bill in its confusion over sex and gender. Is the Bill about a change of sex or a change of gender? In the words of the noble Lord, Lord Filkin:
- "The Government do not base their argument that there is a simple or conclusive medical definition on whether a person is of one gender or one sex or another".—[Official Report, 13/1/04; col. GC5.]
That is a view that many people outside this building would find remarkable. He has made it plain that even when the biological evidence—which is not a single test, but three tests, those of chromosomes, genitalia and gonads—points conclusively to a person being of one sex he, like Lord Justice Thorpe, would allow the one subjective test of what a person thinks, perhaps as a result of a psychological disorder, to decide whether he or she should be regarded as male or female. The overriding test would be the subjective one as opposed to the objective one.
Then, in a masterly and concise summary of the Government's position, at the same column he went on to say:
- "I do not wish, partly out of ignorance but partly because I do not think that it is central to our debate, to engage in the great medical diversity on this matter".
In order to try and help him, I have also tabled a new amendment, Amendment No. 128, which adds to the clarity of the Bill by offering clear definitions of gender and sex. This will improve the Bill, whatever other amendments the House chooses to make. I would be happy to add to the definition of gender in the amendment that I have tabled, Amendment No. 128—I shall direct the attention of noble Lords to it. I have suggested that in the definitions clause we should add that:
- "'Sex' means the biological categorisation as male or female by virtue of chromosomes, genitalia and gonads.
- "'Gender' means the social and cultural categorisation as male or female by virtue of personal choice or lifestyle".
There is no necessity to argue that case any further and I shall be extremely interested to hear whether the noble Lord, Lord Filkin, has had any further thoughts about it.
I think it may be helpful to him if I say, before I sit down, that at a later stage I shall try as regards some other amendment—I am not yet sure which—to raise the question of how the Armed Forces will deal with the question of transsexuals who wish to join the Armed Forces and present themselves with a certificate of their re-registration of birth. I know that that will have been heard outside this Chamber and that it will give the noble Lord an opportunity to make a comment on it later. I beg to move.
Baroness O'Cathain: My Lords, this is the first time that I rise to speak on Report. I am distressed that the minimum allowable time between Committee and Report has been applied to the Bill. There were a number of difficult issues raised in Committee, which really demanded much more discussion, dialogue with officials and consultation than has been possible—except for a meeting, for which I was very grateful, that I had with the Minister yesterday evening. In no way do I wish to appear churlish, but I suggest that consideration should be given to those of us who do not have hordes of officials to support us and who, as in my case, could be involved with another Bill at the same time. It is in the interests of the House that greater thought should be given to the logistics and practicalities involved in ensuring that such complex legislation is thoroughly considered on its passage through this House.
Baroness Farrington of Ribbleton: My Lords, it may be of help to the noble Baroness, Lady O'Cathain, for me to comment that my understanding is that the timing of Bills is a matter that is discussed through the usual channels. Her Front Bench will have been involved in those discussions. I am sure that those concerned will take note of the point that she has raised.
Baroness O'Cathain: My Lords, I thank the noble Baroness for those remarks. It is really for poor, humble, little Back-Benchers who do not have the resources to deal with these matters that I made the point.
Baroness Farrington of Ribbleton: My Lords, the noble Baroness stretches my imagination to breaking point by describing herself as a poor little Back-Bencher.
Lord Marlesford: My Lords, I echo what my noble friend says. I attended some of the Committee sittings and it was a Bill that, for all kinds of reasons, revealed
the defects of considering legislation in Committee. That makes the point that my noble friend has brought to our attention more relevant.
Baroness O'Cathain: My Lords, having made that point, and after thanking the Minister for accepting it, I shall move on.
I support my noble friend Lord Tebbit in his amendment. He needs no assistance from me, because he is doing a masterful job, as he did in Committee. He has the advantage of having truth and logic on his side because the basic proposition of the Bill is mistaken. A man cannot become a woman. A woman cannot become a man. He also has the advantage of being able to point to considerable disagreement among the medical profession world-wide. I have made the point before that we normally legislate only when we are sure about the science and when we can be sure that what we are doing is the best thing for the people affected. Psychiatrists and psychologists are far from being of one mind that attempting to change sex is the best solution.
The Minister will probably say that the European Court of Human Rights compels us to legislate in this way. But it causes one to ask whether, if Europe required us to legislate that sheep could become goats and goats sheep, we would do it. Is there no point at which common sense would override and the Government would say, "No, that is simply too much. Enough is enough"?
Amendments Nos. 1 to 4 and 6 to 11 in the name of the noble Lord, Lord Tebbit, and his proposed Amendment No. 132 to the Title have the virtue of at least making it plain on the face of the Bill that we are not just saying that a person can change his or her gender in law under this Bill but rather his or her sex.
Amendment No. 128 gives a succinct explanation of the difference between gender and sex. As has been pointed out, sex is a clear biological categorisation. Save in a tiny number of cases worldwide, doctors have absolutely no difficulty in determining a person's sex by reference to physical indicators. Gender, on the other hand, is really a modern invention. It conveys the idea of a fluid, changeable view of your own sexual identity that is governed not by any physical, medical or biological criteria but solely by perceptions—your own and those of other people.
I have said before and say again that I feel genuine compassion for those who struggle with their sexual identity. The overwhelming feeling of being trapped in the wrong body must be just awful. However, sex change is not the only solution. During our debates there has been little consideration of the possibility that a person who feels this way might overcome it by reconciling with reality. Transsexual rights groups obviously promote the idea that a sex change is the answer, but others disagree, especially the families who get left behind.
Let me quote from an account of the struggle faced by a family when a husband became obsessed by the idea of becoming a woman. The wife tells how selfish
he became, including spending the family budget on makeup and beauty treatments for himself. Mercifully, he changed his mind after being challenged by a sermon. The wife says:
- "We had 2 weeks of battling and anguish, and he clearly was in turmoil, but it did make him realise that he had a family that cared for him and wanted the best for him. He decided to stay and change, realising that he was about to destroy everything he had worked so hard for over thirty plus years . . . The thought of what could have been leaves me cold. If he had been encouraged by others, or legislation to pursue his own way, he would have left six devastated lives in his wake".
This Bill abandons absolute beliefs about sex and gender. In so doing it makes it more difficult for people who are not willing to do so. I hope that by having this debate again on the basic mechanism employed by the Bill, the Minister will again address his mind to the impact this Bill will have on third parties.
I believe we may hear that some consideration is to be given to wives and children in the gender recognition process. This is a concession which has to be welcomed warmly, but the Bill itself is wholly misconceived. I remind the House again of the words of that tortured wife who believed that if legislation had encouraged her husband to believe that he could change his sex,
- "he would have left six devastated lives in his wake".
2 p.m.
Lord Turnberg: My Lords, I must first apologise to your Lordships for not being able to be present during the earlier stages of the Bill. I regret that but I say in mitigation that I have read every word of those debates in great detail and very carefully. Therefore, I hope that noble Lords will forgive my intervening in this set of amendments. I should express my interest as a retired physician and retired professor of medicine, but in neither capacity have I been involved in the care of transsexual people, so to that extent I am neutral.
In earlier debates and today the noble Lord, Lord Tebbit, made a robust case for the belief that a person's sex is determined at birth by the genes on their chromosomes and that it is these which determine the development of those characteristics which we recognise as male or female—sexual organs and other characteristics. It all seems so straightforward and black and white, but unfortunately that is not quite the whole picture. One's sex is only a part of one's gender. It is an important and essential part but not the only part as it is now clear that genes, although having a strong influence on a person's inherited characteristics, are not the only determinant. We now know that genes determine only the likely trajectory of development and not the final picture. In the case of a
person's gender that is certainly the case. For example, hormonal makeup, psychological development and probably some features of brain structure do not necessarily follow a specific set of genes. Indeed, other genes on other chromosomes all play a role in determining sexual characteristics, and this says nothing of the role of environmental factors which we cannot ignore.In the case of the genes on the" and Y chromosome it is, of course, undeniable that they are extremely strong determinants of gender, but even there we know that there is an infinite variation in the degree of masculinity and femininity which an individual displays. The point here is that in a very small minority of individuals it is clear to them and often to others that the" and Y genes which determine their perceived sex at birth are quite out of sync with everything that they feel and know about themselves now. That is determined by a whole host of genetic and non-genetic factors. Therefore, I am not convinced by the noble Lord's arguments for these amendments; namely, that the" and Y chromosomes are the final arbiters.
The Bill has nothing to do with whether such individuals should or should not change their gender—they have already made their decision and gone ahead and done it—it is about whether, having done it, they can be recognised in law. These are people who have suffered torments about their identity for years until they are convinced that they are expected to behave in one gender when they know in their hearts that they are another.
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