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Lord Carlile of Berriew: My Lords, we have sympathy with the aims of the noble Baroness. It is vital that in the process—and at the right stage—the views of the family, if it has views on the matter, should be taken into account in an assessment of whether the person who makes the application is appropriate for a certificate.
It is to be noted that one test under Clause 2—indeed, the primary test under Clause 2(1)(a)—is that the panel must be satisfied that the applicant has, or has had, gender dysphoria. One would assume that if a proper medical and psychological process is carried out, an assessment of the views of the family will be part of the evidence-gathering of that process. By the time the case reaches the panel, there will have been detailed psychological and psychiatric assessments—as already happens in all such cases.
Further, what the noble Baroness asks for is already provided under the Bill in appropriate cases. Clause 3(6)(c)—Clause 3 being entitled, "Evidence"—states that an application must include
- "any other information or evidence which the Panel which is to determine the application may require".
The hearing before the panel is too late for the evidence for which the noble Baroness provides in her amendment to be considered. In making its decision, the panel must decide on the four criteria set out in Clause 2(1). In a few cases, the family may remain implacably opposed at that stage. Nevertheless, if those criteria are satisfied, the determination of legal status must be made; that is a requirement placed on the panel.
What I have said, in a rather long-winded way, is that the Bill already provides for the process that the noble Baroness has in mind in the disciplines that are applied to each applicant before they ever reach the panel. I therefore suggest that, although I agree with the spirit behind the amendment, it is superfluous.
The Lord Bishop of Winchester: My Lords, I welcome the fact that the noble Baroness, Lady Buscombe, has retabled the amendments. Notwithstanding the points made in Grand Committee by both the Minister and the noble Lord, Lord Carlile, and what the noble Lord just said—I have read Hansard and listened carefully to him now—it is important that in the second line of the first paragraph of the amendment, we now have the word, "may", not "must". I welcome that change.
It is still important that written in the Bill should be the clear encouragement to the panel, even at what the noble Lord, Lord Carlile, is right to say is a late stage, to take seriously the concerns of the spouse, partner or children, and for them to know that they are being taken seriously. The panel should be required to take them seriously, and they should have the opportunity to be heard.
It is not simply a matter of a family being, as the noble Lord, Lord Carlile, suggested, implacably opposed. That puts the whole matter in far too adversarial a context. It is entirely possible and, to my knowledge, sometimes the case, that there is profound concern and anxiety about the mental, spiritual or physical well-being of the person—who may indeed be well down or through the process of gender change; or of that of the children, spouse or relatives; or of both intermingling.
It is worth noting that the amendment does not suggest that the panel must do what it is asked by those to whom the amendment would give the right to offer advice—to whom the panel would be asked to listen. It states that the panel should have "due regard". As I understand it, that phrase makes entirely clear that it must take note of, but need not be bound by, that advice. It means that it must listen to what is being said to it; not that it must agree with it or, in the end, that its decisions must be bound by it.
That seems to me both proper in itself and—to take another element in the amendment—because I take the noble Baroness to be testing, I believe extremely importantly, whether in the Bill the Government really are committed to what she correctly reported as the Minister's tough line in Grand Committee. To the extent that I as a lay person in these matters can read the human rights legislation—in Grand Committee I pointed to some parts of it that were quoted by the Court of Human Rights in the Goodwin case—it requires all concerned to be engaged in a balancing act, or a holding intention, of one right and another.
I was surprised, even shocked, by the Minister's tough line because as a layman in this regard it seemed to me deeply questionable. It is extremely important that this should be explored both in this matter and others. If the Government are prepared to note this tension between rights and duties in the matter of sport, and I judge them to be doing so correctly, they also need to be seen to be doing so for their own good, let alone for straight justice, in relation to children—in other legislation, the rights of children are said to be paramount—spouses, partners and the proper concerns of the churches and faiths, which are
reflected in a series of amendments to the Bill. I am grateful that the noble Baroness, Lady Buscombe, has brought these amendments back in this slightly revised form. I will listen to the Minister with great interest. From her discussions with the Minister, she has whetted my appetite and I hope that he may have something of real interest and significance to say.Finally, I, too, am required to be in two places at once. I made my apologies to the Minister earlier and I apologise to your Lordships' House now. There is a point beyond which I shall have to attend an unavoidable engagement in a church in my diocese this evening.
Baroness O'Cathain: My Lords, I am very pleased to be able to support my noble friend's amendment. One of the obvious gaping holes exposed during Grand Committee was that the gender recognition process gave no right to the family of a transsexual to have any say. I said that this emphasised that the Bill was about the rights of transsexuals and nobody else. Whispers have told me that there is likely to be some movement from the Government on this.
I hope that this bodes well for some other concerns we have about the Bill. I do not intend to rehearse all the arguments again. Suffice it to say that it seems unthinkable that a wife and children of a man—or indeed the husband and children of a woman—who went forward for gender recognition would be denied a say. I refer back to the story I read earlier about the terrible pain endured by the family of the transsexual man who thankfully changed his mind before it was too late. It was clearly tortuous for all of them, not just for the man involved. It is right that at the very least people in that situation should be allowed to put their views before the gender recognition panel.
It is possible that the Human Rights Act will come into play. I understand that the European Convention on Human Rights includes a right to fair trial and a right to be heard when a tribunal determines one's rights. I am sure there are some good legal minds who would be able to extend that to encompass the family in relation to the gender recognition panel. A wife whose husband was being changed in law to a woman could make a convincing case that her human rights were being breached if she were denied a right to be heard. Her rights would be very seriously affected by the decision of the panel. I do not believe that the panel should have absolute discretion.
The noble Lord, Lord Carlile, drew our attention to the Bill. It does not make it clear that the family would necessarily be encompassed in that consultation. I welcome the right reverend Prelate's great contribution that due regard has to be taken. I have absolutely no hesitation in congratulating my noble friend on her amendment. I hope that I can welcome the Government's willingness to think again.
3.45 p.m.
Earl Ferrers: My Lords, before the Minister responds, may I say that I very much hope that he will agree to the amendment. It seems almost impossible to
believe that in the case of a man changing to a woman, his wife or children should not at least have access to the gender recognition panel so that they can give their views. The panel does not necessarily have to accept them but at least they ought to be heard. I hope the Minister will agree to the amendment.
Lord Filkin: My Lords, this is probably one of the most interesting and difficult issues we have to address in relation to the Bill, although there is probably some fierce competition for that title. When I talked about toughness in Grand Committee I was not talking about social toughness; I was talking about intellectual toughness. What I meant by that was that, under the statute that we are considering, the panel had a duty to make a decision as to whether the tests had been met to grant a change of legal gender to the applicant. Those three tests have been discussed many times. What I said was tough and difficult—whilst being emotionally sympathetic to the issues we have discussed—was having a process by which a judicial panel was asked to make a decision as to whether a person met those tests for their gender to be recognised and then to decide not to give it because the wife was unhappy. That was the toughness of the issue which we face and which we have been reflecting on in Government to see if nevertheless we can find a way of addressing what one has respect for—the human issues that lie behind that.
I shall now set out our thinking on this. I will also write to participants about this issue because it is important. That will give a little time for us to reflect on it before Third Reading. However, I can at least set out the position. In summary, there is not much problem in principle with allowing wives' and children's views or evidence to be put into the panel. The problem is about whether that should affect the decision of the panel. I am relieved to see the noble Lord, Lord Tebbit, nodding and agreeing with me on the intellectual toughness of that. We have been thinking about finding a way, which is consistent with the tests that the Bill sets out—including dysphoria, permanence, the two-year requirement and so on—of ensuring that the interests of the wife and child are properly considered at a time when it is possible for them to have an effect on the process. To put that at its shortest, we think it hinges around the consideration of permanence. By that I mean the panel has to be convinced that the test is permanent. There is a line of thought that goes that a person who applies for gender change to be recognised and is married and may have children, is in probably the most difficult situation. We want to ensure that that person and their family have fully considered the very painful and difficult implications of what the person wishes to go through throughout that process.
In short, the process of testing for gender dysphoria and treating it—the process set out in the Harry Benjamin International Gender Dysphoria Association standards—emphasises that professionals should discuss all the consequences of a change in gender for the person, their family and their work colleagues. It further says that the therapist should work with a transsexual person
to accept the need to maintain a job, provide for the emotional needs of children, honour a spousal commitment or not to distress a family member as currently having a higher priority than the personal wish for constant cross-gender expression. So, good clinical practice already sets the issues out.The issues should be explored as part of the therapeutic investigation early in the process. That seems right. In a sense, it is too late, two or three years down the line, when the case is with the panel, for that to be dealt with effectively, apart from allowing the family to give supportive evidence that may be relevant to the application to the panel. In many cases, applicants will wish their family to give evidence in that way.
In the guidance that will be given to the panel, we will make it clear that, if an applicant is married and/or has children, it is particularly important to recognise the burden placed on that person by the social situation that they are in and to test whether they have thought through the seriousness of the change that they are making and the effect that it will have on others, as well as themselves. Therefore, if there is guidance to the panel that it is to look for evidence that that has been properly tested, it leaves the door wide open for the applicant to put evidence from the wife and child into the panel's processes. More importantly, it gives a clear signal, at the start of the process, that the applicant will be tested at the end of the process on whether the issues of concern to the family have been properly considered as part of a therapeutic process. That will not be done in order to balance the interests of the family against the application—that cannot happen, for the reasons that I gave—but to see whether there is a greater risk of impermanence because of the social pressures on the applicant as a consequence.
I fear that I have spoken at length, but I hope that I have set out the argument clearly. I will put it in letters to noble Lords. Without completely impossibly corrupting the responsibility of the panel, one can build into the process a mechanism to ensure that the interests of the wife and children are given proper consideration. In any event, any decision by the panel is only an interim one, for a married couple. A divorce cannot take place until the court has considered whether appropriate ancillary relief decisions have been made and the interests of the children recognised. The court process for married applicants also has a check. Unless the court is satisfied that the normal divorce tests of ancillary relief and care for the children are met, the applicant cannot change the interim gender certificate into a permanent one. There are, in a sense, two tests. That allows us to build up a robust process that is fair to the applicant but is also fair to the wife and children.
As the House will have noticed, I speak without looking at my notes. I would welcome the House's liberality and ask it to reflect on the matter. I shall put
it all in writing to the House, so that we can see whether we have found a way through the difficult moral dilemmas that does not corrupt the integrity of the process. I thank the noble Baroness, Lady Buscombe, for her thoughtfulness on the matter, but I ask her to withdraw the amendment, at least at this point, for the reasons that I have given.
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