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Lord Campbell of Alloway: My Lords, I support my noble friend. I do not pretend to know much about sex changes; I really came here to support Amendments Nos. 99 to 101 and to support the exception of religious bodies. However, I have listened to the argument and knowing, as I say, not very much about sex changes, it seems to me that we cannot be concerned with whether people are nasty or litigious or whether they receive advice from distinguished international lawyers. I was rather upset at the way in which my noble friend Lord Carlile put his objections, but that is beside the point. What matters is not the way in which objections are put or exactly the way in which the case is put for the amendment, but what the legislation actually entails. That is what I find difficult to understand.
I have never seen a statute quite in this form before. The Bill says "becomes for all purposes", and it is not limited to the purposes of the Act. I do not understand what all the purposes are if they are other than the purposes of the Act. If they are other than the purposes of the Act, why are they dealt with in the statute? I hope that I am not being tiresome, but I feel that this is a curious way in which to legislate. I listened to my noble friend's argument, and it seemed to me to make total sense. If one casts aside irrelevant considerations about the quality of the persons that we are talking about, which is really nothing to do with the Bill, I suggest with respect that the amendment should be accepted.
Lord Filkin: My Lords, I sought to set out in Committee that the Bill's basic principle is that the
issue of a gender recognition certificate by the judicial panel would mean that a person's gender becomes for all purposes in law the acquired gender. That is in truth the absolute heart of the Bill; in essence, after the process of inquiry and testing, which we have discussed at length today, when or if the panel comes to that conclusion that the tests set out in the Bill have been met, the person's gender in law becomes for all purposes the gender as granted by the Act. That is the central thrust of the Bill.Clause 9 allows for relative simplicity in the Bill itself. It contains a general proposition about the effects of the issue of a full gender recognition certificate and hence avoids the need to spell out each and every instance in law for which gender is relevant. Why does that matter? It matters because, pretty obviously, we have been legislating for hundreds of years with reference to gender. There are literally thousands and thousands of references to gender in legislation.
There is nothing malign here. In a sense, this is the reverse of our previous debate about marriage. The intent of the Bill is that if gender has been changed and a person is recognised in law as a woman as a result of the process, they are a woman for all legal purposes relevant in other legislation.
Lord Campbell of Alloway: My Lords, does the Minister mean for all purposes recognised by law?
Lord Filkin: My Lords, I do exactly, yes. That may be of some slight comfort. For example, because there is reference to pensions and benefits within the Bill, it is clear and transparent that the Bill would apply to pensions and benefits. However, if we passed the amendment, it would mean that the Bill would not apply to all the other thousands of situations in which gender was recognised and which had a relevance in law. That would mean legal chaos, which I do not believe was the intent of the noble Baroness, Lady O'Cathain, with this amendment. Her amendment at heart goes into issues that we shall discuss later relating to the social or religious situations in which it is or is not legitimate to discriminate. Without prejudging those issues, we shall come to them; it is important that we test them.
Lord Monson: My Lords, the Minister said that if the Bill became law a man who changed his sex would become a woman for all legal purposes. Is it not the case that the Bill provides that he will not be entitled, if he becomes a woman, to start drawing his pension at the age of 60? So it is not really for all legal purposes.
Lord Filkin: No, my Lords, not so. He would become entitled to draw his pension at the age at which a woman can, so it is an exact parity. We have sought to make that clear because it seems to us that there should be an absolutely clear, black and white position. It works both for and against people, but it follows the gender.
I turn to the question of the noble Baroness, Lady O'Cathain, about what other countries do. All the other members of the Council of Europe, not the European Union, with the exception of Ireland and Albania—we found one more—already have a recognition system in place. Not all countries have passed legalisation to enable gender recognition to occur. Some rely on the courts or on administrative processes. Our laws and constitutional arrangements quite properly require us to legislate to require recognition of the acquired gender.
We touched on the question of whether we are gold-plating. The European Court of Human Rights made it quite clear that the recognition of a change of gender meant recognition of a new gender in law. The court specifically mentioned the areas of birth registration, access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. We can ensure compliance with international obligations only by ensuring that a person has recognition for all purposes. To avoid doubt, even if we did not have that obligation, we would want, as a position of policy, to be consistent on this. I shall say no more on that.
The noble Baroness also asked whether people who refuse to call a gender-changed man by the changed gender would be open to action. No, they would not, unless they had information about the person's gender history in an official capacity and they disclosed it otherwise than is allowed for by Clause 21.
We shall come to some of the other issues later on in our discussions and I hope that the noble Baroness will withdraw at this point.
5.30 p.m.
The Earl of Erroll: My Lords, before the Minister sits down will he say whether, if a man changed his gender at 60, to claim a pension early, and then changed it back at 65, it would be regarded as fraud?
Lord Filkin: My Lords, if a man changed his gender to a woman at 60 he would not be able to change it back to a man at 65, unless the tests set in law by the gender recognition panel were met. As we have signalled in previous discussions on this very small proportion of cases, the panel would look very closely at whether the tests were met: that there was gender dysphoria and a permanent intention and that they had lived in the changed gender for two years. It would be fraud if, as a result of that process, it came to light that evidence that he had given to the panel as part of the first application had been dishonest. In theory, the fact that he had applied to change back would not automatically mean that there was fraud. It would depend upon whether he had given fraudulent information to the panel.
Lord Marlesford: My Lords, would the Minister have been able to accept my noble friend's amendment
if she had used the words of my noble friend Lord Campbell; that is, "all purposes in law"? Would he have found that satisfactory?
Baroness O'Cathain: My Lords, I would like to thank practically everyone who took part in this debate. I shall start by referring to what the noble Lord, Lord Carlile, said. Frankly, he wholly misrepresented what I said. I did quote the names because I said they were litigious. I also said that one should not think that some people are litigious for the right reasons at times. I never said anything about the people who had litigated. I said that, like in the rest of the population, there are some nasty, vexatious, and all the rest of it, people. I definitely said that. Then I was accused of having a mind cast of bronze. He said that I would never be moved. I think that that is most unfair. I hope that the noble Lord, Lord Carlile, will reflect on what he said. If he knows anything at all about me, he knows that I am very ready to listen to arguments and that I do change my mind—it is, they say, a woman's privilege, although I do not back that. The reality is that I do listen to the strength of the arguments. The opinion of Lord Carlile, as expressed in your Lordships' House tonight, is that I am absolutely immovable—that I get hold of one set of ideas and am not prepared to budge. That is quite wrong.
I say to the noble Lord, Lord Carlile, that third party interests are involved. I refer to litigation that has been instituted against religious bodies, which I shall discuss on later amendments. The Christian Institute is being sued. There seems to be no compassion in the noble Lord's mind regarding those who have been sued by transsexuals. It occurs to me that perhaps the only people we are worried about are transsexuals. We want to be sympathetic towards transsexuals and we want them to be embraced by the whole of society. We want them to be content as they have obviously undergone a huge amount of trauma. I do not want to say that transsexuals experience mental problems as I shall be taken to task on that, but I appreciate that they experience unease and lack calmness. We want to try to avoid that situation. I am the first to say that we accept that these people are genuinely worried about their situation and that we must do what we can for them.
I return to the amendment. I thank my noble friend Lord Campbell of Alloway and particularly my noble friend Lord Elton for standing up for me. I also thank my noble friend Lord Marlesford. I should also like to thank the Minister very much. We had a bit of a canter round this course yesterday afternoon. I gave him notice of the points that I intended to make with regard to the practice in various countries. It is interesting to know that there are only two countries in the Council of Europe, Ireland and Albania, that do not have a system in place vis-a-vis gender recognition and that they would approach the matter on a case-by-case basis. I have a lot to do with one of those countries but nothing to do with the other. I can see the merit in that approach.
I am still very concerned. I shall read everything that was said. I was slightly knocked off course by the first contribution to the debate after I sat down. Therefore, I am not perhaps doing justice to what the Minister said. However, I shall read what he said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 and 52 not moved.]
[Amendments Nos. 53 and 54 not moved.]
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