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Lord Goodhart: My Lords, I am sorry to interrupt the noble Baroness, but she gave an example that a parent might wish to tell other parents at a school that one of the teachers was a transsexual. It is regrettable, but I do not believe that that would be an offence under Clause 21, because it might apply only if the parent had acquired that information in an official capacity. If they simply happened to know, that would not be an offence.
Baroness Hollis of Heigham: My Lords, that is not correct. It refers to a person in a public capacity; but the point is that if one opens up records in such a way, then there is no protection against people having access to that knowledge and claiming a public interest defence, should they need to, after spreading the knowledge about. The amendment means that anyone who is a transsexual could not expect or hope to live a life of privacy. If anyone could check any birth certificate and then spread that information, whether they are in a public or private position, because they have access to that relatively freely available information, I do not see how the line between that and fully outing any transsexual can be drawn, because someone will always argue that it is in the public interest of other people to know. I find that impossible
I do not believe that Amendment No. 113 has been spoken to and the right reverend prelate the Bishop of Winchester has not spoken to his amendment either, because he is absent. Having made that argument, I hope that the noble Lord, Lord Tebbit, will not pursue the amendment further, because if he does, the right to privacy, which is currently protected by the restrictions around information on birth certificates and others, would be blown apart by anyone who wished to find out. That would leave no transsexual person comfortable in their right to privacy.
Baroness James of Holland Park: My Lords, before the Minister sits down, I would like to ask a question. I apologise to the House that I did not attend the Grand Committee. We know that certain illnessesincluding those that are dangerous and horribleare passed down through one sex only. The noble Lord, Lord Chan, could confirm that haemophilia is one such condition. Would descendants of a woman with haemophilia, who had changed her sex, have the right to ascertain that fact?
Baroness Hollis of Heigham: My Lords, certainly the immediate children would know, because they would be the offspring of that person. The question is relevant to an amendment to be moved later by the noble Baroness, Lady Buscombe, which says that if someone has the date of birth and the original name of the person they can check that record, thereby obtaining the information on a "need to know" basis for the descendants of that family.
Lord Tebbit: My Lords, this has been an interesting short debate. I am enormously grateful to the noble Lord, Lord Chan, who lit a candle of light in a dark room. He said that whatever the certificate states, whatever the legal status of a person's sex, he or she is still of the sex into which they were born. If someone was born a woman, she is carrying a woman's blood and that is itend of message, complete and absolute. That so conflicts with everything in the Bill, it undercuts the basis of the Bill and all the arguments that have been put about it. He was saying that one's sex is immutable. From my inadequate understanding of these matters, I had always believed that and it is greatly comforting to me to have that assurance from the noble Lord, Lord Chan.
I turn to the arguments that have been made and the talk of "outing" people. The first thing we must understand is that a very strong case indeed must be made that the kind of information that is held by the state should be maintained secret. That conflicts with the very idea of a Freedom of Information Act. It absolutely and completely conflicts with that. I believe that there should be a right to know.
I do not believe therefore that transsexualism is so different from all the others that we must totally reverse our normal ideas on the right to know. In any case, as the noble Lord, Lord Goodhart, said, a large circle of people would know. It will not be made a punishable offence for those who know already to tell others who do not, so the information will spread. In any case, it cannot be kept secret. We are saying that as regards the state the normal ideas and attitudes that are embodied in a Freedom of Information Act should be stood on their head. I do not believe that that is right.
Lord Stoddart of Swindon: My Lords, I am obliged to the noble Lord for giving way. In relation to what he is saying about freedom of information, I am wondering whether we have joined-up government. I understand that the Government are to make it possible for sperm-donor fathers to be named. It seems that we have in the Bill an attempt at concealment while on the other hand there is an attempt to "out" the sperm-donor fathers of children. Does the noble Lord agree that we do not have joined up government?
Baroness Hollis of Heigham: My Lords, perhaps the noble Lord will allow me to intervene. The reason the Government face in two directions at once is because, as everyone in your Lordships House will accept, there are two pieces of legislation. One is the Freedom of Information Act, which is the right to know, and the other is the Data Protection Act, which protects sensitive, personal information. Under freedom of information and the right to know, for example, the noble Lord, Lord Tebbit, has no right to the knowledge of any of our private medical records. That is protected by the Data Protection Act.
I accept that it is a matter of balance. In any walk of life there would be a balance between the right to know and the protection of personal, private information. Given all that we know about people seeking to live with an acquired genderlet alone other people, whether alleged paedophiles or whoeverI believe that people have a right to the protection of their personal information unless and until the need to know falls within very defined categories; I refer, for example, to the investigation and prevention of crime and the matters that were discussed in Committee. That is where the Government have drawn the line. 6 p.m.
The Minister was very dismissive at one stage about the circle of people who had some right to know and who would know. In that she included the offspring. Of course she is completely wrong. What about the case of a marriage that has broken up, where the father has left and, as usual, the mother is left with the children? The father goes away completely, becomes a transsexual and his birth certificate is amended; the children and the mother make no contact with the father; but eventually the offspring track down their parentagemost people want to know about their parentage; they find that they were born to a father, Mr Joe Bloggs; and they find his birth certificate, but it says that he is a woman. Do they have the right to know how that has come about?
Lord Swinfen: My Lords, before my noble friend answers my other noble friend, surely if the offspring are unable to find a birth certificate showing that their father was male, they may believe that they were born out of wedlock and therefore bastards.
Lord Tebbit: My Lords, as I understand it, that particular description of being born out of wedlock is no longer one that we use. It certainly is not true that the offspring will necessarily know of those matters, but it is certainly true that they ought to know of them. Of course, if they go to the registrar and seek a certificate, they will receive a copy that is a false copy. That is the heart of the matter. As I understand it, the registrar would commit an offence if he told an inquirer that it was a false copy. I believe that that makes a very strong case that there should be an obligation on the registrar to disclose. There should be an obligation on the registry not merely to be true, but to be true and open to everyone who inquires about the matter. There should not be two classes of persons: those who have discovered the truth, perhaps through gossip, and those who seek to discover the truth by applying to the registrar, who should be the custodian of the truth.
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