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Lord Tebbit: My Lords, I am grateful to the Minister. Of course, the noble Lord correctly says that we are not changing the law on sex discrimination. But what he omits to say is that in the past there has never been any dispute as to the sex of persons. We now have a situation where there will be a group of persons who will claim a sex which a number of other people will say is not their sex. That is where the new problem arises without having changed the law on discrimination between male and female.

Lord Filkin: My Lords, I thank the noble Lord, Lord Tebbit, for his intervention. I also mark the resolute way in which he has argued his corner throughout the Bill. The short answer is that the Bill does nothing to change the law about discrimination against people as transsexuals. We are talking about discrimination against them as transsexuals rather than discrimination against them on account of their sex. If the noble Lord is patient with me, I shall seek—

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. The Minister has said several times that this does not change the law on sex discrimination. But that is not quite right, is it? It changes it in the employment field. The point is that the amendment does not touch employment. It does that by embracing the employment provisions of the Sex Discrimination Act for transsexuals.

Lord Filkin: My Lords, at earlier stages, I signalled that employment was different and that it was a specific area. I acknowledge the point made by the noble Lord, Lord Lester, in that respect. In fact, if I had only waited: the present protection exists only in the realm of employment and vocational training. The moral of that is that it is always better to use one's speaking notes than to speak off the cuff.

It does not extend to participation in religious activities. In effect, it means that the freedom for religious organisations to discriminate against transsexuals sought by this amendment already exists. Many will say that it should not, but that is not what we are debating. In fact, the ability to discriminate is there in law already.

The Bill ensures that, as a consequence of recognition, a person is protected under sex discrimination law in the acquired gender. However, religious organisations, as in the many examples given, will not be discriminating against a person who has

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changed gender on grounds of his or her sex, but on the grounds that he or she is a transsexual person. We do not believe—we are strong in our view that sex discrimination law will restrict the freedom of religious organisations in this matter.

The noble Baroness suggested that differential treatment of transsexual people might be considered to be sex discrimination. This is on the basis that, for example, a female-to-male transsexual person with a gender recognition certificate would be allowed to use the ladies' toilet facilities, but a male-to-female transsexual person would not. I find it difficult to see that a church would wish the female-to-male transsexual person to use the ladies' toilet, but that is the noble Baroness's assumption. Even if that were the scenario, we do not think that the courts would accept that that was discrimination on the grounds of sex. The courts have demonstrated that they are not prepared to stretch provisions about sex discrimination in order to prohibit action, which is in fact discrimination on a ground other than sex. That would be the case here. What is described is clearly discrimination on the basis of the individual having changed gender.

Before I move on to the specifics of other issues that were raised, perhaps I may respond explicitly to the points made by the noble Lord, Lord Clarke of Hampstead, and the right reverend Prelate the Bishop of Winchester. Previously, I have given undertakings that as part of the Government's process of looking at the application of the shaping of EU legislation and its application into domestic law, we will continue with our close discussions. I repeat that.

We would be happy to talk with the Churches about the implementation of the legislation when it is passed. The Churches will understand that, as I have signalled previously, that is not to sign a blank cheque, but it is within the broad policy framework that we have signalled. I think that is understood, so I am pleased to give that reassurance.

I was asked about the sport exemption, which does not exclude transsexual people as a class. It refers only to those people who have a competitive advantage or where there would be a threat to the safety of others. Religious organisations, unlike sporting bodies in this context, are not public bodies and, hence, the Human Rights Act does not apply to them in this way. I could say more, but perhaps we have said it at previous stages.

In short, nothing in the Bill—with the exception of which the noble Lord, Lord Lester, has reminded me—changes the law on discrimination. It is possible that future law may address those issues, and we shall be pleased to work with the Churches and the faith communities to explore them. We have been pleased to make some significant movement on the Bill in order to address the areas in which we feel there is a just case for the Churches to be listened to. But at the heart of the Bill is the concept of giving legal recognition to a very small number of people who for much of their lives have felt a fundamental discontinuity in their lives. After a proper process of testing, we believe that

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it is right that the state should give them that legal recognition. I therefore ask the House to reject the amendment.

The Lord Bishop of Winchester: My Lords, before the Minister sits down, will he respond to the question from the Cross Benches about the position of a postulant for the Roman Catholic priesthood?

Lord Filkin: My Lords, I apologise for not having done so previously. If I recollect correctly, the noble Lord, Lord Monson, asked the question. The position is that in the circumstances to which the noble Lord referred, the Roman Catholic Church would be totally at liberty to refuse ordination and would not be open to an action.

Baroness O'Cathain: My Lords, I thank the noble Lords who have spoken on the Bill, particularly those who have supported me, and I thank the Minister for his reply.

I reiterate that my amendment in no way changes the principle of the Bill. It certainly does not attempt to be intolerant. I fear that those who suggest that it will lead to mob rule have not understood where I am coming from. Perhaps I have not made it clear enough. However, I was rather surprised by some of the reaction. I shall not deal with all the points that have been raised, but I should reply to some that were made by noble Lords who object to the Bill.

First, I believe that the scenario suggested by the right reverend Prelate the Bishop of Worcester about the patronal festival of St James is unlikely to be covered by this amendment. I feel that the right reverend Prelate should not distract from the purpose of the amendment, which is to provide reassurance and greater legal certainty for the Church. We should concern ourselves with the rights of all religions, both Christian denominations and others, and should protect their freedom to decide what they do in their own churches.

I turn to the comments made by the noble Lord, Lord Lester. His points could be covered by my statement that the Bill is all about balancing rights. I believe that this amendment is necessary to balance the rights of Churches against those of transsexuals. That is not to say that I have anything against transsexuals. I am extremely supportive of the compassionate feeling for them. It is always difficult to be the odd one out. I have known about being the odd one out, though not to such an extent. We can all feel isolated in certain circumstances. Transsexuals can feel isolated, and it is right that we should give them every support. However, it is right that those people who have strong beliefs should also be given support.

The Bill provides some protection for religious people who believe that your true sex is the sex that you were born with. On issue, a male transsexual is always a man and a female transsexual is always a woman. But the Minister's point that in terms of marriage any church minister or Muslim minister can be protected is not covered by the Bill—only ministers of the Church of England and the Church of Wales are covered.

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The Government did not deny that church ministers could be sued if they refused to conduct such marriages, and that is why they seek the inclusion of a conscience clause. I want to strike a balance here. If provision is made for ministers of the Churches of England and Wales, why not for Roman Catholics, Baptists, for other non-conformist Christian denominations, for those of the Jewish and Muslim faiths and all others? The Government now admit that other religious groups could be sued, a point I made earlier. I take the view that other Churches and non-Christian faiths need the protections given to the Churches of England and Wales.

A recent Law Lords ruling found that a church marriage performs a governmental function. When people get married in church, the Church is acting in place of the state and is therefore open to challenge under human rights legislation. What we are considering today is no academic debate. Instead of a legal argument in your Lordships' House, under the Bill there will be costly legal arguments in the courts. A vote for my amendment is a vote to defend our existing religious freedoms from hostile and expensive litigation.

Before the Bill was even printed, several Churches had been threatened. I referred to one court case when moving my amendment. A man sued a Church citing sex discrimination legislation. I ask: is access to a ladies' prayer meeting to be defined as "goods and services" under the terms of the sex discrimination Acts? Let us not forget that some of the people who will receive, as they want, gender recognition certificates, rendering their original birth certificates null and void except in the case of the police and criminal prosecution bodies—they have the right to use the original documents—need not have had gender reassignment surgery. It is rather feeble to say that if a male transsexual becomes a woman, he may use the ladies' lavatory and not cause distress. I put it at its simplest.

The Bill is being used as a means to threaten legal action against Churches. The fundamental question is: are Churches to be protected? The Minister has said no. The Government are prepared to protect sporting bodies, but not Churches. I welcome the Minister's reiteration that there will be ongoing discussion and debate about the Bill, but the Bill will leave this House tonight. What influence will we have? We are not actually "Top of the Pops" for the people down the corridor.

This Bill enables a battery of legal rights to be deployed against a Church. A secular court will be able to adjudicate on the most precious belief; that of religious belief. The Government say that the Bill is necessary to protect the rights of 5,000 transsexual people. I say again that we all understand their difficulties and we want to see them treated with the utmost compassion. But what about compassion for the millions of people who do not want their most precious religious beliefs trampled upon by the courts?

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To those who say that they speak for society by supporting the Bill as originally published, I say, look at the postbags of many Members of your Lordships' House. They show the real concern felt among the general public about the issue of religious liberty. To those who approve of the Bill, I say that my amendment does not affect the principle here, it merely gives to Churches the same freedoms which the Government have already given to sporting bodies. I urge noble Lords to vote to protect religious freedoms and I wish to test the opinion of the House.

5.34 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 144; Not-Contents, 149.


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