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Baroness O'Cathain moved Amendment No. 98:

"(5) A person—
(a) whose gender has become the acquired gender under the Gender Recognition Act 2004, or
(b) who will not consent to the disclosure of any entry relating to him contained in the Gender Recognition Register,
is to be regarded as a person who is undergoing or has undergone gender reassignment for the purposes of subsections (3) and (4).""

The noble Baroness said: My Lords, in moving this amendment I shall also speak to Amendment No. 101 in my name. They are identical except that Amendment No. 98 refers to Great Britain and the other to Northern Ireland.

The purpose of these amendments is to allow a Church to refuse employment to a person who will not consent to the disclosure of an entry relating to them on the gender recognition register. Any employer will say that getting the right person for the job is essential.

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In any business if the right person is employed it goes brilliantly, but if the wrong person is employed it becomes a disaster. It can have a very negative effect on the whole organisation if someone is employed who does not share the basic values, or what we term in business "the ethos of the business".

If that is true in a secular organisation how much more true it is in a religious organisation. In a religious group the staff are bound together by very strong beliefs on fundamental issues and shared values. These are beliefs not about mundane matters such as management style or marketing techniques, but about human nature, right and wrong and the nature of truth.

Churches teaches us that our sex is decided by God. They also teach that your sex is a matter of absolute truth, not personal choice. I ask, how could a Church employ a transsexual who effectively believes that God got his sex wrong? How can they employ a person who, in their eyes, lives a lie by impersonating the opposite sex?

The Government know that it is wrong to force this on religious groups. In 1999 they enshrined the right of religious bodies to refuse to employ transsexuals. This is found in Section 19 of the Sex Discrimination Act. Yet only five years later we are severely limiting the ability of Churches to exercise that right by taking away their right to know the birth sex of the candidate for employment. If a job applicant conceals his or her transsexualism religious employers will have no way of knowing it.

At present they can resolve any doubts they may have by requesting sight of the birth certificate. Either the person will supply it, in which case it will declare their true sex, or they will decline it in which case they can be turned down on the basis of bad faith.

But this Bill takes that option away. It would be pointless to ask for a birth certificate to verify their sex because it will simply confirm the applicant's version as to his or her sex. As a way of establishing a person's true biological sex, birth certificates will in effect become useless.

Of course, the Church can ask a direction question: have you changed sex? Some transsexuals will be honest and answer truthfully, but some will not. They may have a deep- seated urge to conceal their true sex. They may have no compunction at all about saying, "No, I have not changed sex. I have always been what I am now". The Church may then feel that it has no choice but to believe them. It might not emerge that they have been deceived until months or years later.

Why do the Government not seem to care about this possibility? Why do they recognise that it is changing the nature of the relationship between the Church and its potential employees?

I ask the Minister three questions. First, does he understand the dilemma that Churches face through not knowing the true sex of job applicants? Secondly, what is a Church supposed to do about it? Thirdly, does the Minister agree that it would be offensive to

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Churches, mosques or temples or other religious bodies who are employers, to discover that they had unwittingly employed a transsexual?

The human rights barrister, Paul Diamond, issued a legal opinion about this Bill on 26 January. He believes that the Bill may breach the freedom of religion under Article 9 of the European Convention. He put it like this:

    "It is rather like saying to a Muslim school: 'We don't know if the food given to your children has pork in it. Further, you are not allowed to inquire, or check whether this is the case'. Thus the choice for the Muslim is not to eat. Or to say to a Jewish person, that you should become a vegetarian as you cannot secure Kosher meat. The very posing of the question illuminates the clear violation of religious rights".

If we say that we respect people's religious opinions we must take steps to avoid this scenario. This Bill must be amended to protect the existing rights of Church employers. I beg to move.

Lord Filkin: My Lords, the amendments seek to ensure that a person who has acquired a new gender under the Bill or who will not consent to disclosure of their entry in the gender recognition register is covered by the exemptions in Section 19(3) and (4) of the Sex Discrimination Act. Those subsections allow discrimination against those who are undergoing or have undergone gender reassignment in relation to employment, authorisation or qualification for the purposes of an organised religion, provided that this is done to comply with a religious doctrine or to avoid offence to the religious susceptibilities of a significant number of the religion's followers.

I am happy to be able to reassure the noble Baroness and the House that no addition to Section 19 is needed, as the existing provisions already do all that is needed.

Where a person is refused employment, or an authorisation, or qualification, this is unlawful under Section 2A of the Sex Discrimination Act only if it is done,

    "on the ground that the person intends to undergo, is undergoing or has undergone gender reassignment".

Whether or not that is the case is a question of fact for the tribunal, were one to be engaged to decide on the case. What is important to note is that wherever it is found that an organised religion has discriminated on this ground they are entitled in principle to seek to claim the benefit of the exemption in Section 19.

I shall deal with the concerns which underlie this part of the amendments. The amendments suppose that a person who has acquired a new gender under the Bill applies for employment or ordination for the purposes of an organised religion but refuses to consent to the register being consulted. In this situation, if the Church refuses employment or ordination, it is very likely that the discrimination would be held to have been on the ground that the person has undergone gender reassignment. The Church will therefore be entitled to seek to rely on the relevant part of Section 19.

The Church will succeed under Section 19 only if it can show that the restrictions imposed satisfy the tests laid down in Section 19. In other words, the Church will have to show that the restrictions were imposed to

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comply with a religious doctrine or to avoid offending the religious susceptibilities of a significant number of the religion's followers, which is, I think, the thrust of the noble Baroness's amendment. The fact that the Church had not seen the gender recognition register would not prevent it from seeking to rely on this examination.

Amendment No. 99 seeks to insert into the Bill an exemption covering ordination and appointment. We have already said in Grand Committee that the question of whether the Church may discriminate against transsexual people in these respects is one that must be answered in the context of our EU obligations and specifically the Equal Treatment Directive that must be implemented by October 2005. We have clearly also signalled that we would be happy to continue discussions with the Church about that issue.

Baroness O'Cathain: My Lords, I thank the noble Lord for giving way, but we are not talking about Amendment No. 99, which is the amendment of the right reverend Prelate the Bishop of Winchester and is not grouped with my amendments. Unfortunately, the right reverend Prelate is not present.

Lord Filkin: My Lords, I apologise. I will say no more on that. Amendments Nos. 100 and 102 would add a new Section 33—

Noble Lords: Oh!

Baroness O'Cathain: My Lords, I am sorry to do this to the noble Lord especially when he has been so gracious as to wish me a happy birthday, for which I thank him. The actual amendments I am speaking to are Amendments Nos. 98 and 101. They are very narrow ones and are identical. Amendment No. 98 applies to Great Britain and Amendment No. 101 applies to Northern Ireland.

Lord Filkin: My Lords, I am most grateful to the noble Baroness for her help. I shall seek to find any relationship to Amendment No. 101 in my notes.

8.30 p.m.

Baroness O'Cathain: My Lords, perhaps I can help the Minister. I do not think it matters because both amendments refer to the same point. Amendment No. 98 applies to Great Britain and Amendment No. 101 to Northern Ireland, but the wording is identical.

Lord Filkin: My Lords, yet again the noble Baroness has fooled me. Clearly, I have answered the point and I shall say no more.

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