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Lord Tebbit: My Lords, I am most grateful to the noble Lord for giving way. I think that I would be able to follow him even more closely were he to say how he defines "sex" and "gender". It seems to me that he is using the words in a rather muddled fashion.
Lord Turnberg: My Lords, what I am suggesting is that sexual determination does not necessarily coincide with gender determination. Sex plays a part but it is not the whole part. Sex is determined by one particular set of genes whereas gender is determined by a whole host of genes together with other factors.
Lord Tebbit: My Lords, I am most grateful to the noble Lord but that is not the point. I understood that to be the case that he was making but what he has not told me is what is his definition of the words "sex" and "gender".
Lord Turnberg: My Lords, that can mean a variety of things. The noble Lord is talking about a person's sex. That you may define biologically if you so wish—that is determined by" and Y chromosomes—but even that is not distinct. Some people are born with two"s and a Y. In any event it is not as clear cut as the noble Lord suggests.
I am talking now about the people who have gone through the process and have decided at long last after a long struggle that they are another sex than the one they had at birth. When they accept the need to
change, it takes enormous courage. It is not a trivial pursuit. Then they have to go through an elaborate and searching set of procedures over a prolonged period of time. That, again, is not trivial. These are the people we are talking about who have made enormous sacrifices. I can see absolutely no reason why such individuals, having already made an irrevocable decision, should be deprived of the status and rights that this Bill would allow them. I am afraid that I cannot support the noble Lord's amendments.
Lord Carlile of Berriew: My Lords, what a pleasure it is to follow the noble Lord, Lord Turnberg, who stated his position so clearly—a position that I think helps many Members of this House to understand the issues in this Bill. At this early stage of our debates this afternoon I apologise in advance—as I already have to the noble Lord, Lord Filkin—for my unavoidable absence after about six o'clock this evening.
I thank the Government for the very intensive, high quality and continuing level of consultation that has taken place since the Committee stage of the Bill. It is entirely unreasonable to complain about the short time that has passed. I believe that we have all had plenty of time to consider this Bill over the months since we knew it was going to be introduced. Compared with many Bills there has been a predictable type of correspondence at a predictable level which has not overwhelmed us. I believe that we have had plenty of time for consultation.
I invite the Government to adhere to a now almost classical adage. I hope that I shall be forgiven for using a few words of Latin: Et timeo Tebbitos et dona ferentes. I am perfectly prepared to translate for the noble Lord if he would like me to.
The noble Baroness, Lady O'Cathain, spoke with her usual persuasiveness, candour and conscientious approach to what she really believes. She is wholly opposed to the Bill, as is the noble Lord, Lord Tebbit. They have made that clear on numerous occasions. Understandably from their viewpoint, they would wish to find a way of wrecking the Bill at any stage including the present one. One accepts that that is a conscientiously held view.
However, I say to the noble Baroness that what she has said was not fair to the legal profession. The anecdote she used illustrated the danger of using carefully chosen anecdotes which misrepresent what occurs in the very real and difficult world of those who make the extraordinary decision to have gender reassignment. The idea that it is made over a short time is completely unrealistic.
I have the advantage shared by one or two other Members of the House in having been a lay member of the General Medical Council for 10 years. A number of other Members of this House have been professional and academic members of the General Medical Council in its old, unwieldy, massive and thankfully now over-and-done-with form.
The Conduct Committee of the General Medical Council, of which I was an active member for five years, would take an extremely dim view, I am sure, of
any doctor or group of doctors who did not start from the viewpoint, as they always do, of trying to discourage people who are interested in the possibility of gender reassignment from going through that process. The psychological profiling and the social as well as medical care that is given to people who go through the process starts from the viewpoint that it is all extremely painful, literally; that it involves enormous adjustments to one's body and one's life and that one should have it done only if absolutely certain. It is a process which lasts not one minute less than a few years. They have to live in their acquired gender for a period of two years at least. That is enshrined in the proposed legislation.
Baroness O'Cathain: My Lords, I thank the noble Lord for his comments about the approach I have taken to the Bill. There is a slight misunderstanding here which I would like to clear up. It is not necessary to have the gender assignment process to get to the stage in the Bill where one obtains a gender recognition certificate. It is not necessarily true that in cases where there have been problems, as I have indicated, they would be the result of the operation or the gender assignment process. There a great deal of difficulty arises. If people say that they have always felt that they wanted to be man and that they will live as such for two years, they can then go to the gender recognition panel and say, "I am a man, please give me recognition. That is the way I feel". That is my understanding of the matter.
2.15 p.m.
Lord Carlile of Berriew: My Lords, with respect to the noble Baroness, she should re-read the Bill because that is not what it says. It is an extremely difficult process which includes two years of living in the acquired gender to obtain a gender recognition certificate. One of the requirements of the Bill is that the tribunal which hears the case should be satisfied that there is a permanent intention to live in the acquired gender.
I am saying that there are guarantees in the medical and legal processes that protect members of families from a temporary whim. The ways in which the human mind works, even within the bounds of what is generally called "normality", are extraordinary and unpredictable. As I say, the protection is built in. I am sure that the General Medical Council would take a very severe view of any doctor practising in this area who did not use the utmost care.
One should not forget that if a person undergoes severe and detailed psychological treatment or, even more to the point, major surgery without the proper procedures being gone through by the medical profession, the perpetrators of the changes would be committing very serious criminal offences for which undoubtedly they should be convicted by criminal courts. We say to the Government that this is an issue about which they should stand firm and hold to the purpose of defining gender as a matter of law.
The noble Lord, Lord Tebbit, seems unable to distinguish sex from gender. I suggest to noble Lords that it is a male, female or ambiguous biological component of humanity whereas gender is the legal status of a person as a man or woman in law. Surely, that is a difference which anybody can understand.
Lord Tebbit: My Lords, I do not know what is the inability which causes the noble Lord not to understand, not to be aware of or to ignore the fact that I have tabled amendments to precisely define the difference between sex and gender. The noble Lord will have heard the exchange I had with the noble Lord, Lord Turnberg, on the subject. How can the noble Lord then say that I seem to believe that they mean the same thing?
Lord Carlile of Berriew: My Lords, the noble Lord has made an attempt to create a distinction, but I do not accept that he makes it. Furthermore, with great respect to the noble Lord—and I mean that because I respect him enormously especially as a parliamentarian—it is the purpose of this legislation to provide for the legal status of a group of people who have been defined by national and international courts, as well as by the usual political process, as requiring not just the protection of these Houses of Parliament, but also definition in law. The clarity of the definition offered in the Bill is considerable. In so far as there is any clarity in the definitions offered by the noble Lord, it is not a clarity that would offer anything to anyone except myself and my learned friends.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I rise to return to this interesting element to our Bill about which we have spoken on a number of occasions. I have even less confidence that there will be a meeting of minds at the end of the debate. I perhaps signalled my dubiety when we spoke about it at Second Reading. Nevertheless, the noble Lord, Lord Tebbit, is entitled to hear the Government's position on these issues even though neither he nor I expect that we will necessarily agree or rejoice in that.
I share some of the pain that the noble Baroness, Lady O'Cathain, feels about parliamentary timetabling. This is one of three Bills that I am currently taking through this House. Two of them are being debated at the same time this afternoon. I find it difficult to be in two places at once and therefore I am being helped in relation to the other Bill. I am told by the Chief Whip's Office that, when it comes to taking any notice of people on timetabling considerations, the government Minister's view is about the last in the queue. That is perhaps for good reasons.
The noble Baroness spoke about the ECHR. She is quite right. As we said previously, we have an obligation—it is one with which we are perfectly comfortable—to adjust our domestic law in order to be compliant with ECHR law. That is not the centrality of our position and, even if there were no ECHR obligation, we believe that it would be right to
act in that way. We consider it right to give legal recognition to the very small number of people in our society who, I believe, currently suffer an injustice. I shall develop that argument later.The noble Baroness is also right to trail the subject of third parties. I hope to be able to say something helpful about that when we reach later amendments. I thank the noble Lord, Lord Carlile, for his kind offer to translate the Latin. However, even my hopeless Latin was just about good enough to give me the gist of his sentence.
I turn to the centrality of this issue. In essence, the Government's view is that a person's sex, as the noble Lord, Lord Turnberg, signalled, is more than his or her chromosomes. I do not want to detain the House for too long on this matter but I believe that the Oxford English Dictionary gives about four separate meanings for the word "sex", none of which is reduced simply to "chromosomes".
There is not a great deal of fruit in spending a lot of time on trying to define the meanings of those words, although there are distinctions between them. The meanings have changed over time and are still changing. The word "sex" now has more of a social and psychological connotation than it would have had 20 or 30 or so years ago. As we all know, language is mobile.
However, the reason that I do not consider this matter to be central to our deliberations or that we should spend a great deal of time debating it is that I suspect it is not the central dividing issue between us. While I accept that chromosomes are one of the primary sexual characteristics, there is also a range of secondary sexual characteristics. Gender identity is also determined by a range of psychological factors.
In Committee, I quoted a little from the judgment of Lord Justice Thorpe in the Court of Appeal on the Bellinger case. With the patience of the House, I shall repeat it because it may have relevance for those who were not present on that occasion. Lord Justice Thorpe said:
- "Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche".
We do not believe that continuing disputes about linguistic terminology is a reason for delay. The Government's position is that there is an injustice for a very small number of people in our society who are absolutely convinced that their real-life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a very thorough, careful, proper and patient process of testing and validation by the state and by medical experts, the state
believes that it is right and fair, as well as in accordance with European law, to adjust that anomaly in the very limited number of circumstances in which it applies. Perhaps I may remind the House that that is relevant. Our best estimates—no one has a final figure—are that probably about one in 17,000 people suffer from gender dysphoria. The fact that there are so few does not mean that as a society or a state we should not be concerned with trying to give them the legal recognition that they believe they are owed.Therefore, the Bill is about legal recognition and it will define a person's sex in law. We consider the arguments about the meaning of the words "sex" and "gender" to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words "sex" and "gender" has changed over time and no doubt will do so in the future. While the meaning of the word "sex" is not the same as that of "gender", the word "sex" is increasingly in use in ways that go beyond a narrow biological definition.
In addition, medical recognition of gender dysphoria has never been wider. The Chief Medical Officer recognises that, and treatment has been available on the National Health Service for many years. A small number of people are convinced that their real-life gender is out of congruence with what is recorded on their birth certificate as their legal status. We believe that, after a process of proper testing and validation, it is right and decent, as well as in accordance with law, to close that discontinuity.
I also say, with courtesy, that, while I respect the differences of opinion, I struggle to see the great mischief or harm in what we are doing in this respect. It seems to me that it is an act of a civilised society and I cannot see the damage that would result to others. By that, I do not seek to provoke those who have put many hours of debate into these issues because I respect their difference of view. However, at this point, I should state my view on this as well. Therefore, with regret, I cannot accede to the amendments proposed by the noble Lord, Lord Tebbit.
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