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Baroness Amos: My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Amos.)

On Question, Bill passed, and sent to the Commons.

10 Feb 2004 : Column 1060

Gender Recognition Bill [HL]

4.23 p.m.

Read a third time.

Clause 3 [Evidence]:

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin) moved Amendment No. 1:


    Page 3, line 1, after "by" insert "an order made by"

The noble Lord said: My Lords, on Report, the noble Lord, Lord Goodhart, made a strong case for the power conferred on the Secretary of State in Clause 3(6) to be subject to a degree of formality. The power enables the Secretary of State to specify the further content of the application form. The noble Lord proposed that the power should be exercised only by order, but that such an order need not be subject to a parliamentary procedure. He brought into question the openness of the language of the clause as it stands.

As I signalled, I wanted to reflect on that, and I now propose an amendment to Clause 3(6) so that the content of the application form for gender recognition is now set by order. In that way, we will retain the flexibility which we believe is important, while introducing the formality and transparency of an order-making process. I beg to move.

Lord Goodhart: My Lords, I am obviously most grateful to the Minister for having thought about and accepted the principle behind my argument on Report. I therefore greatly welcome the two amendments in the group.

Baroness Buscombe: My Lords, we also welcome the amendments.

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 2:


    Page 3, line 7, leave out "impose a requirement" and insert "make an order"

On Question, amendment agreed to.

Baroness O'Cathain moved Amendment No. 3:


    Before Clause 19, insert the following new clause—


"RELIGION
(1) A body which exists for the purposes of organised religion may, if subsection (2) is satisfied, prohibit or restrict the participation in its religious activities or ceremonies of persons whose gender has become the acquired gender under this Act.
(2) This subsection is satisfied if the prohibition is necessary to—
(a) comply with the doctrines of the religion, or
(b) avoid offending the religious susceptibilities of a significant number of the religion's followers.
(3) "Religion" means any religion, religious belief or similar philosophical belief.
(4) This section does not affect—
(a) section 19 of the Sex Discrimination Act 1975 (c. 65) (ministers of religion etc.), or

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(b) Article 21 of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) (corresponding provision for Northern Ireland)."

The noble Baroness said: My Lords, for those who have not followed the Gender Recognition Bill during the last five debates on it, I should explain that it allows a man to become a woman or a woman to become a man, even without gender reassignment surgery. It allows a new birth certificate to be issued in the new gender, and creates a criminal offence if the original birth sex is revealed by a person in an official capacity, such as a Church leader. It is a transsexual rights Bill.

My amendment addresses the fact that Churches and religious bodies will face litigation under the Bill. How can I be so sure? Because it has already started. Already the Bill is being used to argue that transsexuals have a legal right to teach in a Sunday school and take part in any form of Church ceremony, such as marriage and worship. Already it is being used to argue that transsexuals have a legal right to take holy communion, which contravenes the teachings of particular Churches now threatened with legal action. At least two Churches have already been threatened with legal action under the Bill, even before it reaches the statute book.

A number of other Churches have been threatened with litigation by transsexuals in recent years. There was even a court case where the pastor and the entire membership of a Baptist church in south Wales were sued because a man who had had a sex-change operation was told that he could not attend a ladies' prayer meeting. Under the current law, the church succeeded in having the case thrown out. There were legal costs even though it won, but the church was not compelled to give a male transsexual the right to attend a ladies' prayer meeting. This Bill changes the legal landscape, however. There is no guarantee that the church would win the case if it came up again. It would certainly be far more costly to defend.

I received a letter yesterday from the noble Lord, Lord Filkin, for which I am grateful, in which he admits that under the Bill Churches can be taken to court over their beliefs. He says that it is the Government's opinion that such litigation "probably" would not succeed on the grounds of sex discrimination. Such litigation puts Churches under huge pressure. Members of the Baptist church to which I referred earlier were advised by their lawyer that defending the action could cost them up to #100,000, all because they would not let a man come to a ladies' prayer meeting.

My amendment is very simple. It is directly based on and mirrors the Government's own amendment—now Clause 19—which gives broad exemptions for sports bodies. The Government are prepared to amend the Bill to protect "fair competition". Can we not do the same to protect, as I suggest in the amendment, the doctrines of religion? The new Clause 19 allows sports bodies to prohibit participation of a person with a gender recognition certificate. What reason could there be for not allowing the Church an equivalent right?

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The amendment simply enshrines existing freedoms. The Government will no doubt say that those freedoms are not under threat. Ministers said the same thing to the sporting bodies, but then they changed their minds. In Grand Committee on 14 January, the noble Lord, Lord Filkin, said:


    "We believe that maintaining competitive parity, or fair and safe competition, is fundamentally important, but we are not convinced that there is a problem".

Then he said:


    "The Bill will not give transsexual people the general right to participate in sport in the acquired gender".—[Official Report, 14/1/04; col. GC 121-122.]

He changed his mind and we now have an amendment protecting sports bodies. It gives sports bodies reassurance and greater legal certainty. That is all my amendment seeks—reassurance and greater legal certainty. If sporting competition is "fundamentally important" are not the beliefs of religious bodies equally fundamentally important?

My amendment will deter hostile litigation against religious bodies which, as we all know, often survive on a shoestring. People do not put money into the collection plate to pay lawyers. All my amendment seeks to do is to allow people of faith to worship God and conduct their own religious activities according to their own faith. Their faith teaches them that one's sex is fixed at birth and cannot be changed. That perfectly reasonable belief is very common among religious people and, indeed, among the general public as evidenced by the hundreds of letters that have been written to support the thinking behind this amendment. There are thousands of people out there who are genuinely worried about this.

The question is, should you be sued in the secular courts merely because of your beliefs and the way you worship God?

It is important to emphasise that my amendment does not affect the principle of the Bill in any way. It does not even address the fact that Church ministers face a potential criminal record and a fine of #5,000 if they tell another clergyman in their own Church that the woman in the congregation is really a man. All the amendment does is give reassurance and protection for some of the existing freedoms of religious bodies.

Churches are private bodies; they make their own rules of membership. Any private body can exclude people for all sorts of reasons. The problem is that the new legal situation under this Bill has the capacity to open up the affairs of a Church to the scrutiny of the secular courts in a way which would not apply to other private associations or groups.

It is clear from the wording of my amendment that if no offence is caused, then there is no issue. The amendment is permissive; it does not compel a Church to do anything. As a matter of fact most Churches will welcome a transsexual visiting their services to hear the Gospel. It is only where there is offence that they should be entitled to protection.

It is also clear that non-religious activities are not covered. Purely secular activities of a religious body do not come into it. The amendment is concerned only

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with religious activities or ceremonies, such as marriage, Communion, baptism or teaching in a Sunday school.

I believe that Churches have similarities with political parties. Like a political party, they would be nothing without freedom of association. As I understand it, the Labour Party insists that all its employees are card-carrying members of the Labour Party, and quite right too. Like a political party, the Churches maintain internal discipline. Those who reject the fundamental tenets of the organisation through words or deeds can be asked to leave. That is already the case, but that is now put in jeopardy by the Bill. Churches are private bodies but their internal affairs can be opened up to hostile litigation by the particular combination of legal rights which will result from the Bill.

A person who assumes a new sex has new human rights, thanks to the Goodwin case. Section 6 of the Human Rights Act means that you can argue that a Church is subject to these rights as a public authority in its exercise of some public functions. The transsexual also has sex discrimination rights in his or her new gender. Finally, transsexuals have rights under this Bill. But the Church, on the receiving end of litigation over marriage or membership, only has one set of rights—human rights. That is three against one.

The Bill is a completely new departure in UK law. It declares that a man must be treated as a woman "for all purposes" in law. It is illegal to discriminate on the basis of sex in the provision of goods and services. This presents absolutely no problems for Churches at the moment, but it will after this Bill.

In the south Wales case, a husband and father of three used sex discrimination law to argue that he had the legal right to join the ladies' prayer meeting. What would be the outcome of that case now? One of the Churches currently being threatened under this Bill is being told it must provide Holy Communion to a transsexual. Again, sex discrimination law is cited in addition to human rights, but also mentioned in this letter from the solicitor is the fact that this Bill is being considered in Parliament and will become an Act, thereby reinforcing the point I made about three sets of rights. Surely these are matters that should be left to the Church and not to secular courts.

We all have—at least some of us have—disagreements with our Church. I dearly wish that I could have been married in Church but because I married a divorcee I was not allowed to do so. If I go to the Roman Catholic Church I do not take Communion; I take it in the Anglican Church because the Roman Catholic Church makes its own rules which I respect. The Government may claim that my amendment is unnecessary, but there can be no doubt that the law will develop. Laws have a habit of developing, as we well know. Churches will be threatened; this may cost them dearly in terms of time, stress and finance—even if they win. My amendment seeks to enshrine the long-standing right of the Church to order its own religious activities and ceremonies.

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If a church, synagogue, mosque or temple does not want to conduct the marriage of a transsexual, it can refuse. If a Welsh chapel wants to insist that its ladies' prayer meeting is only for biological women, then it can do so without fear of litigation. Thirdly, a church can decide who can teach in a Sunday school or youth meetings without being sued. That is the effect of my amendment.

The Government believe that it is possible under this Bill for a transsexual to sue an Anglican minister over a refusal to conduct a marriage. That is why it has provided a conscience clause for Anglican clergy, but there is no conscience clause for other Churches or for the non-Christian faiths.

The Government now accept—according to the letter sent from the Minister to me—that other denominations can also be sued, but helpfully he suggests that such legal action could be resisted, using human rights arguments. In other words, they are left to their fate and the mercy of lawyers, not to mention the cost. I have also to point out that the Minister finds himself in conflict with the former Home Secretary Mr Jack Straw, who was unequivocal that Churches act as public authorities when they conduct a marriage. I refer to Hansard of 20 May 1998, col. 1017.

The Minister said that we can take a more optimistic view. Instead of leaving it to chance, surely it is our duty to give the Churches the reassurance they need on the face of the Bill.

When the European Convention on Human Rights was devised in 1952 it did not contain a section on transsexual marriage rights. The European Court confirmed that in 1998, but only four years later it reversed its position. In 2002, the Goodwin case said that transsexuals have a right to marry in their assumed gender. It would satisfy the Goodwin judgment if the Bill provided only civil marriages for transsexuals, but the Government have gone much further, in effect giving the right to religious marriages for transsexuals.

Some Churches may be content to take part in this and that is fine. But many—and I would suggest most—would not be content. Yet the ground is laid for litigation against them if they refuse. The UK courts may take a more interventionist view on these issues than the court at Strasbourg.

One government argument against protecting Churches is that there is no need to do so because the transsexuals would not want to force such issues. But that ignores the fact that there is hostility against religious groups, which is sometimes manifested in litigation.

The Government recently brought in new employment regulations to outlaw discrimination on the grounds of sexual orientation. Protections were provided for religious groups, yet even these limited protections are now being challenged in the courts. The Government are having to defend the rights of religious groups against hostile litigation. Surely, they must accept that this Bill creates scope for more of the same.

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The Minister says in his letter to me that he cannot guarantee that religious bodies will not face litigation. That is exactly the point. He is admitting that the Churches can be hauled through the secular courts over these issues. It really is appalling—and I say that advisedly—that the Government, it seems, are not prepared to do anything about it.

My amendment provides reassurances and protection for Christian Churches and those of other faiths. I beg to move.

4.30 p.m.

The Lord Bishop of Worcester: My Lords, I hesitate to contest an amendment moved with such evident religious conviction, but I found the noble Baroness's speech confusing at a number of points. I am not clear whether the Church, which I serve, is in her mind a private or a public authority. I am clear that it is a public authority not simply because it is, by law, established but because, to quote an example she gave, the right to exclude a person from the Holy Communion is governed by canon law, which in this country is the law of the land. So it is not clear to me that at least the Church that is served and represented by people who sit on these Benches could ever claim to be a private authority with the rights of private authorities.

Secondly, it is not at all clear to me what is meant by "a Church". Does it mean a vicar in a local parish? Does it mean a bishop in a diocese? That confines my attentions only to the Church of England. What will count as "a Church" which has these rights?

What is included in the expression "religious activities or ceremonies"? Let me offer a hypothetical situation. I decide that it would be good to celebrate the patronal festival of St James, the patronal festival of Hartlebury, with a pageant on the village green. There is present at this event, which includes the singing of hymns and the saying of prayers, someone who is known to be a transgender person and a group of people start a disturbance. As I happen to be a person who dislikes conflict—and I ask noble Lords to believe that—I conclude that it would be better to ask the transgender person to leave than to confront the people making the disturbance. It seems to me that when then challenged by the transgender person, I can say that the religious susceptibilities of the significant number of my religion's followers have been offended and it was on that basis that I acted, even though I myself would have acted purely out of timidity and not out of conviction.

Is that really the road down which we as a society wish to travel? Do we really wish to deny people the protection that we should be offering them from such behaviour and do we wish thereby, in fact and implicitly, to encourage such behaviour? I ask that those who are troubled by this matter recognise that there is a serious balancing consideration. We are talking about a relatively small group of people who have usually been on a personal journey of a nightmarish kind to the point at which they have decided to undertake the most radical life-change that any of us could imagine.

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I believe that we, as a Parliament, should be protecting such people from the kind of behaviour to which I have referred. We should also be protecting them from the arbitrary exercise of judgments by people who may or may not be qualified, except in the fact that they have a strong religious conviction, from taking the action that they take. I believe that the inclusion of the amendment introduces huge confusions as to what is a religion, what is a ceremony, what is a private body, what is a public body and what it is that we really want to protect people from.

So far—and some of us have questions even about this—we have sought only to offer the limited protection of those people who would otherwise be in jeopardy of litigation in respect of the exercise of their public office at particular public moments. That, I think, introduces a wholesale opportunity to discriminate and expose people to extremely dangerous situations. I hope that the House will reject the noble Baroness's amendment.


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