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Lord Swinfen: My Lords, before the Minister sits down, if such an application was necessary, to whom would that application be made? I am not clear on that.
Lord Filkin: My Lords, the Bill specifies that the application would be made to the Secretary of State.
Lord Tebbit: My Lords, I am most grateful to the noble Lord. It seems to me that the nub of it is whether the application should go direct to the panel or to the Secretary of State who, if he thought there was a case to be made, obviously after discussion with the panel, would seek to quash the certificate under the powers in, I think, Clause 8(5). On the basis that he said that he would turn his mind to it, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Applications: supplementary]:
Lord Filkin moved Amendment No. 46.
- Page 4, line 25, leave out from "amount" to "for" in line 27 and insert "prescribed by order made by the Secretary of State unless the application is made in circumstances in which, in accordance with provision made by the order, no fee is payable; and fees of different amounts may be prescribed"
On Question, amendment agreed to.
[Amendments Nos. 47 to 48 not moved.]
Baroness O'Cathain moved Amendment No. 50.
- Page 5, line 13, leave out "all purposes" and insert "the purposes of this Act"
The noble Baroness said: My Lords, I return to this issue of Clause 9 and its blanket assertion that a person who gets a gender recognition certificate changes sex in law "for all purposes". It is notable that the Government chose to call this the Gender Recognition Bill, "gender" being a political term favoured by sociologists who like to think of one's sex as a fluid concept and something which can be changed. "Gender" is the word used to write most of this Bill.
However, in Clause 9 where it really counts, the word used is "sex". In law it is a person's sex that is said to change. In Committee we have had all the arguments about how ludicrous it is to suggest a person can change sex, but the Government are determined to legislate for it. However, it is not yet clear why it is that a person's sex must be changed in law for all purposes. I fear that if we leave this clause in, the law of unintended consequences will occur in spades. Who knows what speculative litigation could be launched by a person with a gender recognition certificate on the basis that he should, for all purposes,
be recognised as a woman? Sadly, some transsexuals seem to be extremely litigious, and very anxious to use the law to try to force other people to accept them in their chosen sex. It may be that they have felt excluded for many years and then, having got what they think they want, wish to parade it. I think it is probably a human failing, but that seems to be the way it happens.The reason we are here with this Bill is that Christine Goodwin insisted on pressing his case all the way to the European Court of Human Rights. Before him we had Rees, Cossey, Sheffield and Horsham all of whom sued all the way up to Strasbourg. The Government believe that they have to conform to the ruling in Strasbourg. Do they need to go so far that, in UK law, for all purposes, a person's sex is changed? Is that the case in all 14 other European Community states, or are we, once more, gold-plating? I need not explain to your Lordships what "gold-plating" means. We seem to have been doing it for ever. I base that statement on all the experience that I had in the agriculture sector many years ago.
Once the Bill becomes an Act, a man really will become a woman in law. On the second day in Grand Committee, I gave the example of the BBC programme:
- "At the moment there is an example in the news of a BBC programme in which a transsexual man was referred to as a man. Press for Change, the transsexual rights group is campaigning for the BBC always to refer to transsexuals in their chosen gender".
- "That is indicative of the Orwellian nightmare that the Bill encourages. Will people who refuse to call a transsexual man a woman routinely face that kind of hostility? Given what we established yesterday"—
- "which is that the Government believe that many people change their minds and revert to their real gender, or oscillate between the two"—
- "how are people to know which gender a person wants to be known as at any particular time? I say again that it is absurd to say that a man can become for all purposes a woman or vice versa".—[Official Report, 14/1/04; col. GC 64.]
There are recorded instances in the United Kingdom of individual transsexuals using legal threats to intimidate people into accepting their change of sex. Only last week, Elizabeth Bellinger, who took his case for recognition as a woman all the way to your Lordships' House threatened legal action against the Christian Institute. The institute published a briefing describing Mr Bellinger as a man, and Mr Bellinger says that that is libellous.
The Government seem to think that all transsexuals are delightful, kind and tolerant. Most people are delightful, kind and tolerant, but we cannot accept that transsexuals are different from any other sector of the population and that there are not some who are nasty, unkind and intolerant. The Bill potentially hands the more aggressive transsexuals a legal stick
with which to beat those who disagree with them. We must do more to limit the scope for vexatious litigation. We must do more to prevent the courts running amok with the legislation, forcing it to new extremes of which, no doubt, the Minister would disapprove.Later at this stage, I shall come back to crucial issues of religious liberty in respect of which clear, unambiguous protections must be put in the Bill. In the mean time, I move the amendment to find out from the Minister the purposes for which a person's sex changes. Why must the provision be so broad? Why must it make an assertion that not only conflicts with common sense but could be used in whole areas of law to force acceptance of a person's sex change on unwilling conscientious objectors? Why cannot Clause 9 say simply that the legal change is only for the purposes specifically enumerated in the Bill, which is, after all, pretty comprehensive? I beg to move.
5.15 p.m.
Lord Carlile of Berriew: My Lords, in making the argument for her amendment, the noble Baroness chose, one assumes, to describe several people known to me as nasty, litigious people.
Lord Carlile of Berriew: My Lords, she used the word "nasty". I remind the noble Baroness, if she will bear with me, of the grotesque unfairness of what she said. Some of the people she cited went to law to obtain precisely that right which, it is to be hoped, this Bill will give them. Some of those people went to law and actually won in the end, but not in their own individual cases. We are talking about only a handful of cases, which resulted in one crucial victory in the European Court of Human Rights.
I invite the noble Baroness, when she responds to the debate, to withdraw what I am afraid is the slur that she has cast upon people such as Goodwin, and Mr Rees, who is very well known to me. I invite her to reflect upon the fact that it is she—and she has used her pronouns in a way that demonstrates it—who cannot accept the legislative purpose of the Bill and that it is colouring her view of those honest people who disagree with her and have fought for their rights.
This is a House, above all, that should support people who are prepared to go through difficult litigation in support of their rights. I have never advised in such a case and I have never appeared in such a case, but I have seen some of the papers in such cases. In every one of those cases, advice has been given by some of the most eminent international lawyers in this country that there was a reasonable prospect of success. The funding of the cases depended upon such advice, and the cases were brought on that basis.
I reject the argument that the noble Baroness makes in favour of her amendment.
Lord Elton: My Lords, I think the noble Lord is slightly mistaken about what my noble friend said. It
was not that these individuals or that the whole of this class were nasty or whatever other adjectives she used, but that they did not differ from the rest of society in the proportion who were either good or bad, in those terms. Therefore, it was not quite the black-tarred brush to which the noble Lord refers.
Lord Carlile of Berriew: My Lords, I am certainly prepared to accept that it may not have been quite the tarred brush to which I referred. Of course I will read the noble Baroness's words with great care. I will be the first to apologise if I have misunderstood either the words or the import of those words, but at the moment, I am afraid, I will take some persuading.
The noble Baroness is missing the whole basis of legislation. Legislation does not change our consciences at all—it merely confers legal status. When it says in the Bill "for all purposes", it means for all legislative purposes. We cannot change the cast of the noble Baroness's mind, if that is the cast she chooses to adopt on this issue. It can be cast in bronze, indestructible. I would not pretend that I could destroy the indestructible cast in her mind on this issue.
Please may we at least have some intellectually sustainable argument on these points? It is my belief—and I regret having to say this, but I feel extremely strongly about the way in which the argument is put—that we have not had intellectual robustness on this point; we have had an amendment presented on an entirely untenable basis.
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