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It seems to me that in logic the amendment to the birth certificate of an individual who is judged to have changed gender should be dated on the date on which that event occurs. It seems to me fundamentally wrong that it should be dated at the date of birth of the individual. This Bill, of course, legislates otherwise. That persuades me all the more strongly that there should be on grounds of public interest a general right to know that the register of births has been amended. The register of births is itself a public document. It is a document of record, of fact. It seems to me that it should not be allowed, or required, that an amendment to it should be secret.
Amendment No. 114 would amend Clause 21 and would provide a public interest defence for a person who discloses information in addition to that listed in subsection (4). Again, it seems to me that there is a public interest issue here. We should not penalise a person who comes across information in the way described in Amendment No. 114 and who then realises that in his view it is in the public interest that it should be disclosed. We should provide a defence for him to do that and he should not be penalised for it. It should be for a court to decide whether it was a genuine belief that it was in the public interest which caused him to disclose. We went around this matter very briefly in Grand Committee when I was unable to be present. I believe that the Minister did not go very deeply into the arguments against these amendments at that stage. I beg to move.
Lord Elton: My Lords, I support the point that my noble friend made. A certificate which does not in any way reveal the fact that it is different from the one issued at birth is mendacious. It is making a false statement in law. It is extraordinary that we should be asked to do that. If I am wrong I apologise, but if I am right I am adamant.
Lord Chan: My Lords, the information is important particularly if there has been a change in gender from the medical viewpoint. Let us take the example of a person who says that he is male and is in fact female from the point of view of the chromosomes. We know
Therefore, as regards health the original birth certificate should be produced because it will determine whether we are dealing with a man or a woman. There is a transfusion reaction which arises particularly when a woman has had one or two children. I accept that this reaction to female blood is exceedingly rare. But it has been recorded in the United Kingdom in about 50 cases. On medical grounds there is a need for a person who has received a gender recognition certificate to disclose what their sex was at birth.
Lord Goodhart: My Lords, despite the fact that the noble Lord, Lord Tebbit, almost supported my recent amendment, I am unable to support his. In this case it is important that people who are transsexuals should be entitled to privacy. It is a condition which attracts a good deal of hostility. In many cases there will be a fairly large circle of the transsexual's friends and family who will know anyway. No doubt it will be a matter of general knowledge. But it is not desirable that the ability to find out facts of this kind should be increased.
I am particularly concerned about Amendment No. 114, which adds another defence to prosecution for disclosure under Clause 21. It seems to me that it is plainly right that people who come by information about transsexuals in the course of their official business should not be allowed to make disclosures of it except in clearly controlled circumstances. I do not consider that a subjective belief that disclosure is in the public interest would be a satisfactory ground for exemption from the criminal penalties.
Lord Campbell of Alloway: My Lords, I am not happy with the amendment, and was about to say so, for the reasons given by the noble Lord, Lord Goodhart, concerning the protection of privacy. He put it so much better than I could have done. However, I am particularly worried about a gender recognition register being open to certain sections of the press, which could well, apart from the medical considerations, use it for wholly improper purposes with total impunity as a public document. I am worried about the amendment.
The Earl of Erroll: My Lords, we legislate against many things that we dislike, such as racial discrimination and discrimination of many other kinds, but we have not tried to rewrite the fact of what people arethat is, we have not tried to redefine people as being something else. It concerns me that we are trying to turn matters of fact into something else. One cannot legislate to change history, but that is the effect of what we are doing. Once we start down that path, what else shall we redefine retrospectively?
Baroness Hollis of Heigham: My Lords, these amendments were spoken to in Committee by the noble Baroness, Lady O'Cathain. Essentially, they state that other people should be entitled to know about a person's change of gender, that all new birth certificates should be marked to indicate that a change in gender has taken place, and that the gender recognition register should be open to public inspection. In addition, Amendment No. 114 states that that information can be disclosed if the person disclosing it believes it to be in the public interest to do so.
Perhaps I may quickly respond to the precise point raised by the noble Lord, Lord Chan. Guidance will explain to transsexual people the medical risk that he mentionedI am pleased that he did soand it will state that they must make the risk known when presenting to hospital. The same protection applies to a person who is, say, allergic to penicillin. However, if the noble Lord feels that that is not a sufficiently full answer, we shall be happy to engage in correspondence with him on how to provide the medical protection that we all agree is necessary in those situations.
Lord Swinfen: My Lords, perhaps the noble Baroness will be kind enough to give way. She is saying that the person who has changed gender should advise the hospital. But what is the position if people are taken into hospital unconscious and are unable to advise those who are looking after them or if they have a mental problem which, again, means that they are not in a position to give such advice?
Baroness Hollis of Heigham: My Lords, the situation may be no different from that of someone who is at risk of being allergic to penicillin but is not able to disclose that information. However, as I said, because this is a very precise point and because I very much respect the concerns raised by the noble Lord, Lord Chan, on this matter, we shall try to give a general assurance through guidance. I am happy to follow up this matter to make it more robust as obviously no one wants the type of situation anticipated by the noble Lord, Lord Swinfen, to arise. However, it is not unknown, in a whole range of circumstances, for medical practitioners not to know about a problem that a patient may have if he is unconscious or has a severe mental health difficulty. Established protocols exist to deal with that situation.
The Earl of Erroll: My Lords, I do not believe that that was the point raised by the noble Lord, Lord Chan. It is not the people who have changed gender who will be at risk; the point is that they will pose a risk by giving blood to a third party. They may give blood and wish to conceal their gender change, thereby putting a third party, who knows nothing about it, at risk. If it were the other way round, I would not have a problem.
Perhaps I may return to the core of the amendments of the noble Lord, Lord Tebbit, and the argument put forward in Committee by the noble Baroness, Lady O'Cathain. The argument was that there can be a public interest, if a person so believes it, in being able to find out, disclose, and claim a public interest defence as regards someone having changed their gender. If we do that I do not know where we stop on the line between privacy and outing. It could end up like the pursuit of witchcraft. I have thought about the amendment and I believe that it cannot hold.
It would allow any person to disclose that protected information on his or her own understanding of the public interest. Any parent might think that it was in the public interest for other parents to know about a teacher in a school; any landlord or neighbour might think that it was in the public interest for other neighbours, tenants or residents to know; any employer who knew that an employee was transsexual might think it was in the public interest for other employees to know that; the secretary of any voluntary society might believe that it was in the public interest for any member of that society to know. I am sure that any tabloid newspaper would believe that it was, if not in the public interest, of public interest for everyone to know.
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