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Many people may experience separate and isolated periods of depression at traumatic times of their life-for example because of divorce, bereavement or redundancy. These do not necessarily arise from an underlying condition. I do not believe that it would be right to protect a person from discrimination on the basis of their having experienced two periods of depression, however substantial each one may have been, simply because they occurred within a period of five years. Changing the definition of "long term" just for depression, as this amendment proposes, would be unfair to other disabled people and would cause uncertainty, as there is no clear dividing line between depression and some other mental illnesses. The majority of disabled people do not have special provisions enabling them to meet the long-term condition of the definition, but they will have to show that the effects of their impairment have lasted, or are likely to last for at least 12 months.
Given the provision already in Schedule 1, I consider it unnecessary to make the addition put forward in this amendment. In any case, to do so would fundamentally alter the way in which the long-term element of the definition in the Bill operates. On that basis, I ask the noble Baroness to withdraw the amendment.
Baroness Warsi: I thank the Minister for her response. This was a probing amendment, and at this stage I am content to withdraw it. I beg leave to withdraw the amendment.
Amendment 9 had been retabled as Amendment 57B.
Clause 7 : Gender reassignment
The Lord Bishop of Chichester: I move this amendment in the name of my right reverend friend the Bishop of Chester, who apologises that he cannot be in his place and asks me to speak on his behalf. The very large postbag that I and my colleagues have received from individuals and organisations about this matter has focused in the main on the need for faith communities to be protected in respect of particular protected characteristics for reasons that touch central aspects of the life of those communities, which should themselves be protected.
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That focus is understandable, but this amendment has a different purpose. It asks that transgendering or transgendered people, claiming the legal protection of this Bill, would need to be or have been under the supervision of a qualified medical practitioner, which is the present situation. The promoters of this amendment certainly do not object to the inclusion of gender reassignment as a protected characteristic. I know from my own experience as a priest and pastor that those who suffer from gender dysphoria are in a particularly vulnerable position in society, which in many cases can be quite acute. To find oneself in a gender which one believes and experiences to be a false characterisation, possessing physical characteristics that one does not recognise as one's own, is a situation that most of us would find hard to imagine.
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There are some within and without different faith communities who doubt the possibility of genuine gender reassignment. Views vary within and between the churches and other communities on this matter and its implications for such matters as ordination or marriage. Some of my colleagues-including, so he tells me, my right reverend friend in whose stead I stand-would be willing in principle to ordain such a person or to solemnise their marriage in their new gender. Others would not, but we would all recognise the uncertainties and ambiguities which lead different people to different conclusions.
Although some scientific and legal aspects of the situation remain unclear, I hope that all noble Lords will share a sense of care and compassion for those in this situation. This amendment is not, however, about our individual attitudes or beliefs on the matter but about the rights of citizens to fair treatment and respect for their personal identity. Of course, one of the most headline-catching aspects of gender reassignment is the question of the surgery which forms part of some, although not all, cases. Normally, medical surgery removes diseased or dead tissue. Transgendering surgery removes what would otherwise present as healthy tissue, but of course that "otherwise" is absolutely critical. That is the problem, and it leads some people to question the authenticity of the condition of gender dysphoria-or, at least, the recourse to radical surgery in order to address it.
The Bill refers to people who are proposing to undergo, are undergoing or have undergone a process of gender reassignment, but to what does that "process" refer? It might seem to imply a formal process, overseen by the medical profession, but paragraph 64 of the Explanatory Notes states that the clause changes the existing requirements,
What, then, is the process that is envisaged? Are we talking merely about self-certification that one is in the process of reassigning one's gender? That is what the Explanatory Notes say, and to many of us that seems to carry the notion of individual rights too far, because it detaches them too much from the rights of others and the ultimate good of the wider community.
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There are obvious practical problems with the clause. Does wider society not have the right to require that somebody in these circumstances, if they are to claim the legal protection which society can afford, should be under the supervision of a medical practitioner? That would guard against potential abuse of the provisions and give clear guidance to the courts concerning who is or is not potentially protected by the Bill.
To be under medical supervision would not require that any particular medical procedures have been carried out or are in prospect. People can, after all, undergo gender reassignment without surgical intervention. Nor would people need legally to reassign their gender in order to come under the protection of the Bill; they would simply need the supportive supervision of a medical practitioner, and to have got to that point in the process before claiming the formal protection of this law. To accept this amendment would not, of course, justify discriminatory behaviour towards those who are not under medical supervision, but it would mean that the formal support of the law could be claimed only by those whose sense of compulsion to reassign their gender had a degree of recognition and support by the medical profession.
I finish on a more general point that may be the most fundamental of all. The Bill appears to reduce gender identity to a matter of personal and individual choice. If so, are there wider problems beyond the specific and specialised issue of transgendering in such a move? We often dwell in our debates on the social consequence of family breakdown and the general confusion over human relationships in our society, and it is usually the children who suffer most, as the recent Second Reading debate on the Child Poverty Bill made plain once again.
The constitution of the human race as male and female is fundamental-equal and different. Certainly, the genetic and physiological differences between male and female are far greater than the other protected characteristics. Furthermore, it seems significant that people usually have an awareness of themselves as either male or female. There is no protected characteristic of being neither male nor female, or the androgynous state of being both male and female. Most people have a sense of being or wanting to be one or the other. Would giving legal protection to transgendering or transgender people on their self-certification alone serve further to undermine a proper sense of the differentiation of male and female and, therefore, equality? It is too important an issue for wider society to be regarded merely as a matter of individual decision and self-certification.
These more general concerns undergird the practical considerations that I outlined earlier. Would it not be safer all round-not least in relation to young people,
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Young people are most vulnerable in all this, not least because there are those who may experiment, suffer confusion about sexual identity and orientation, and need every encouragement to seek professional help. This is, at this stage, a probing amendment, designed to clarify what the Government intend in amending the Sex Discrimination Act by removing the requirement for medical supervision. I beg to move.
Baroness Gould of Potternewton: My Lords, I fully understand the sentiment with which this amendment has been moved. I listened carefully to the words of the right reverend Prelate, but I have to oppose the amendment, which would limit-as I think the right reverend Prelate said-discrimination protection only to those transgender people who are receiving medical supervision.
The current provisions reflect the Government's response to the discrimination law review, which stated that the legislation will make it clear that a person is protected,
That has to be right, because many transgender people do not live permanently in their acquired gender. Many do not undergo medical reassignment at all. This may be due to age or health, for example, and not necessarily to choice. However, they nevertheless face significant discrimination and harassment in every aspect of their lives. Surely the Bill is designed to protect people in such situations.
A definition based on the medical process of gender reassignment particularly fails to protect children or young people, who, as the right reverend Prelate rightly said, are the most vulnerable. Their gender identity may be less well developed or self-understood than that of an adult and they are, therefore, unlikely to seek medical supervision relating to gender assignment. While they are going through that process of misunderstanding and sorting out for themselves what their own position is, they may face transphobic discrimination and harassment every day. I cannot believe that it would be right not to make sure that the Bill particularly protects young people in that position. I am afraid that the amendment that has been proposed would prevent such protection for those young people.
Lord Lester of Herne Hill: My Lords, I agree with everything that the noble Baroness, Lady Gould, has just said. I represented a transsexual person in a case in Strasbourg. The amendments to our law sprang out of the enlightened decisions of the European Court of Human Rights about the right to respect for private
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The Explanatory Notes give the following example. They state:
"An unemployed person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully 'passes' as a man without the need for any medical intervention. He would be undergoing gender reassignment for the purposes of the Bill".
Why on earth should such a person be required to show that he was undergoing medical supervision? If that person were discriminated against because of gender reassignment, it is a question of fact whether that was the basis for the less favourable treatment. To say that that person must undergo medical supervision as a condition for enjoying a basic right-the right anchored in Article 8 of the European Convention on Human Rights as well as in our domestic law-would be wholly unacceptable. That is a wholly different matter from how the churches react in their liturgy, dogma, practices and anything else, where I fully respect their right to follow the dictates of their religious beliefs. What we are concentrating on in this amendment is what should be the condition for entitlement for a transgender person who faces discriminatory treatment. For that reason, I strongly oppose the amendment.
Lord Mackay of Clashfern: My Lords, arising out of this amendment, I would like to know what the Government intend by the reference to,
I notice that the Equality and Human Rights Commission objects, in its response to the amendment, to adding the words "under medical supervision", but it says:
"Most transgender people do not live permanently in their acquired gender and many do not undergo medical reassignment at all. This may be due, for example, to their age or health".
It then goes on to talk about younger people. I would like to know what the Government say about this.
I am not clear how Clause 7 will work if the transgender people do not live permanently in their acquired gender. What happens after they stop living in their acquired gender, because the definition in the Bill refers to a person who is,
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I think that that would mean that, if this had happened at one stage in a person's life, it would stay like that for the rest of their life. However, the commission, which knows much more about this than I could ever do, says:
"Most transgender people do not live permanently in their acquired gender".
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Baroness Thornton: My Lords, this amendment would mean that transsexual people would have protection from discrimination because of gender reassignment only if they were under medical supervision. It would change the definition of the protected characteristic back to what it is in the Sex Discrimination Act 1975.
The consultation document on the Government's proposals for the Bill asked whether consultees agreed that we should keep the existing definition of gender reassignment. A majority of those who responded said no and most of them took issue with the reference to medical supervision in the current definition. We therefore decided to amend that definition to make it clear that the reference to gender reassignment being a process taken under medical supervision does not go so far as to require either ongoing medical supervision or gender reassignment surgery. Our intention has never been to limit the protection of discrimination law to transsexual people who undergo such supervision or surgery. Rather, the definition is intended to apply to people who make a commitment over a period of time to live permanently in their non-birth gender, with or without requiring surgical intervention. It might be helpful to the Committee if I explore the definitions more fully.
This clause defines what is meant by gender reassignment and a transsexual person. The definition is central to how the provisions relating to discrimination because of gender reassignment will work. Transsexual people have a gender identity that does not correspond with their physical identity and this can cause great distress. People with this condition who decide to adopt the opposite gender to the one assigned at birth are known as transsexual people. Those individuals who attempt to reconcile their gender and physical identity undergo the process known as gender reassignment. That is the process being referred to. It is not a medical process; it is a process that they go through. They permanently make a transition to a new sex opposite to their birth sex. Reassignment can range from changing name, title, clothing and appearance to undergoing hormone treatment and surgery. This transition from one gender to another can mark the person out as different and that can give rise to discrimination.
I hope that that has explained the process. It is a personal matter for each individual. It is a commitment that they have made to living for the rest of their lives in a gender opposite to their birth gender. That is the process that we have been referring to.
Lord Mackay of Clashfern: I am grateful for that explanation. I still find it difficult to understand how this is a process. It sounds like a decision, rather than a process in the way that the noble Baroness described. She has repeated more than once that it is a decision to live permanently in the opposite sexual situation, whereas
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"Most transgender people do not live permanently in their acquired gender".
Therefore, it is not a permanent matter. If the process is to reach a permanent decision, that does not happen in the majority of cases that this clause seeks to protect.
Baroness Thornton: The point that is being made in the Bill is that discrimination takes place against people who are transsexual. That is what we need to focus on.
Lord Lester of Herne Hill: Would I be right in saying that "process" refers to the course of conduct that leads someone who is not going to stay in their birth gender to transfer to the other gender? The process is the way in which that happens over time. It does not matter for the purpose of discrimination law whether they are discriminated against because they intend the change to be permanent. Is it not the case that what matters is whether they are discriminated against because of their gender reassignment? Therefore, we should not get hung up about "permanent" or "impermanent". Even if you did not live in your gender identity for ever, it would not matter; what matters is the unfair treatment of someone who is going through that process.
Baroness Thornton: The noble Lord has explained it much better than I did. That is exactly the point that I was trying to make. However, the definition in Clause 7-
Baroness O'Cathain: Perhaps I may ask for clarification. I thank the Minister for giving way. The first thing that she said about the process concerned wearing the clothes of the different gender, behaving in that way, probably getting their hair cut very short and things like that. Some people then decide that they do not much care for that and go back, because it is not permanent. Where are we then? Are these transgender people or are they not? I ask because the Minister said that the process starts with wearing different clothes and goes through to gender reassignment.
Baroness Thornton: The point I was making is that that is the range of things that could happen for a transsexual person. However, Clause 7 does not cover transvestites or others who choose temporarily to adopt the appearance of the opposite gender. While we do not condone anyone being treated badly because of the way in which they present themselves, it would not be appropriate to provide people who present themselves temporarily as of a gender other than their birth gender with the same protection against discrimination that is available to a person with gender dysphoria, who is somebody who has been assigned one gender at birth, but believes that they are of another gender. That is the point-it is what happens to that person that the Bill attempts to address.
Baroness O'Cathain: Perhaps I may pursue this. I promise that it will not be for long. We received a document from the Equality and Human Rights Commission. The noble Baroness, Lady Gould, quoted from it. Paragraph 27 states:
"Most transgender people do not live permanently in their acquired gender and many do not undergo medical reassignment at all".
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That means that they are at the beginning of what the Minister described as the process running from clothing through to gender reassignment. I do not know where we are on this, and who is covered and who is not.
Baroness Thornton: The noble Lord, Lord Lester, and I have explained that we are attempting to protect people who are undergoing this process from the discrimination that we know they suffer. I want to reassure the Committee that we are not altering the requirements of the Gender Recognition Act 2004. This was the cause of some confusion at Second Reading for the right reverend Prelate. The Act provides people with legal recognition of their acquired gender. Part of the requirement to obtain a gender recognition certificate is that an individual will have to provide to the gender recognition panel evidence of a secure diagnosis of gender dysphoria. This will be in the form of two medical reports, one of which must be from a registered medical practitioner practising in the field of gender dysphoria or a chartered psychologist practising in that field. The second report must also be from a registered medical practitioner, who may or may not practise in that field. With those reassurances, I hope that the right reverend Prelate will withdraw his amendment.
The Lord Bishop of Chichester: My Lords, I am grateful to the Minister and to all noble Lords who have contributed to the debate. Far be it from me to attribute confusion to the noble and learned Lord, Lord Mackay, but I share his confusion. It seems that there is a muddle about whether we are talking about a floating situation or a question of genuine gender dysphoria, which is a medically recognised condition in which people are trapped in a gender other than that which they consider their own. We as a community must do more work to understand what we are talking about.
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