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Clause 8
Appeals etc.
Question proposed, That the clause stand part of the Bill.
Mr. Boswell: I have two points to make—one general, the other narrow.
My general point is to check my understanding with the Minister. The clause provides for appeals on a point of law against the outcome of the gender recognition panel's deliberations, and that is at least an advance on the Government's thinking in relation to immigration procedures, but we must not go into that territory this afternoon. The basic point is that if there is an argument about the facts or determination on the facts, there would be no appeal and the applicant would have to reapply and perhaps provide supplementary evidence to the panel. I just want confirmation of that.
My second point, which is very small—the Minister will defer to my lack of formal legal knowledge—concerns the reference in clause 8(1) to
''the High Court or Court of Session''.
The Court of Session is a Scottish court and we are legislating for the United Kingdom. The High Court, typically, covers England and Wales. As we are legislating also for Northern Ireland, can the Minister confirm that the reference in the clause to ''the High Court'' embraces Northern Ireland and that we are covering the whole of the United Kingdom as he and I intend?
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Mr. Lammy: In response to the last question, yes, that is the intention; in response to the first, yes, the applicant will be able to reapply.
Question put and agreed to.
Clause 8 ordered to stand part of the Bill.
Clause 9
General
Mr. Boswell: I beg to move amendment No. 18, in
clause 9, page 5, line 16, after 'purposes', insert
'including legislation relating to discrimination'.
The Chairman: With this it will be convenient to discuss amendment No. 44, in
clause 9, page 5, line 16, after 'purposes', insert 'defined by this Act'.
Mr. Boswell: In a sense, this is the most important clause in the Bill. We have been dealing with the machinery for determining how we lead up to this and we now come to the change of legal gender and status. In one sense, I have no difficulty with that. I know that one of my hon. Friends has, and I want to listen to his arguments on the matter very carefully. I also need to hear from the Minister how it will operate in practice.
First of all, I need to make a point that may pave the way for later discussions. The main concern of the Bill is legal status: the right to a private life, which is found in article 8 of the convention, and the right to marry. Those rights are secured by the Bill, as is the related issue of discrimination. The explanatory notes state that a person having been born a male
''would, in law, become a woman for all purposes.''
The notes go on to say:
''She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.''
The first part of my amendment is designed to confirm that the legal changes are what philosophers would call ontological in relation to the status of a person as a man or woman, and are recognised by their gender recognition certificate, which would function as a birth certificate for them in their acquired gender and relate to the important issues of their ability to marry and not to be discriminated against in their new gender.
It is entirely consistent with my position on the Bill that I have no problem with those concepts, but the amendments would enable us to go a little wider. Ministers should explain the other legal purposes that might be involved and what might be excluded—we shall examine that when discussing subsequent clauses and the ''small print'' that limits the broad condition.
My hon. Friend the Member for South-West Bedfordshire (Andrew Selous) will obviously want to speak on the matter. I know that concern has been expressed, particularly in faith communities. We shall want to discuss whether the rights in the Bill, including safeguards for ministers of religion, are sufficient, or whether there will be unanticipated consequences. The group of amendments deals with discrimination. I am
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happy for the Minister to respond in those terms. I may want to make wider points about the drafting of the clause in the next group.
Andrew Selous (South-West Bedfordshire) (Con): Amendment No. 44 would clarify exactly what rights are established by the Bill for transsexuals, and for many other organisations. It seeks to balance the legitimate and proper rights that the Bill will give to transsexuals with the rights of others, because I believe that they will be very severely and, in some cases, very negatively impacted by the Bill's proposals.
I will illustrate my points by taking three different examples. If we look carefully, we will see that whereas ''gender'' is used in just about every other area of the Bill, ''sex'' is distinctly used twice in subsection (1). In another place, Professor Lord Chan, a professor of medicine, drew attention to the serious issues surrounding the transfusion of blood. Certain people can be adversely affected by the transfusion of female blood. He said:
''Let us take the example of a person who says that he is male and is in fact female from the point of view of the chromosomes. We know of a rare but dangerous syndrome of people who have been transfused with blood from women and there is a transfusion reaction.''
He continues,
''it has been recorded in the United Kingdom in about 50 cases. On medical grounds there is a need for a person who has received a gender recognition certificate to disclose what their sex was at birth.'' —[Official Report, House of Lords, 29 January 2004; Vol. 657, c. 413-414.]
If we take subsection (1) literally, as I see it, it will not be possible for the National Blood Service or a hospital to find out the original birth sex, or chromosomal identity, of the person giving blood. If a person gets an adverse reaction because of that, serious legal cases will result. That is an extremely important point. It may happen only in a minority of cases, but we have discussed several issues that may occur only in a minority of cases and we must consider it.
Dr. Harris: I am interested in the example. Certainly, one can suffer an acute reaction because of an antibody found in the blood of some women who have been through pregnancy. Would one solution to the hypothetical problem not be to ask the donor under medical confidence whether they have been pregnant, as one is asked, controversially, about one's sexuality? I do not believe that the Bill prevents that being inquired into during that procedure if it is felt medically necessary—of which I am not certain. Perhaps we should be exploring that rather than undermining the clause.
Andrew Selous: I am not sure that the amendment seeks to undermine the clause; rather it seeks its precise meaning. The hon. Gentleman makes the sensible point that there are other issues, such as what would happen if the person did not give a full and accurate answer to the question of sexuality. If we are discussing receiving an adverse reaction from a blood transfusion, the National Blood Service and hospitals need to ascertain a definitive answer to such questions.
Lynne Jones: Will the hon. Gentleman give way?
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Andrew Selous: No; I shall continue, if I may, and return to the hon. Lady.
3.45 pm
I wish to move on to a second example, which I want to treat sensitively and not in any way trivialise or sensationalise. Let us consider the case of gender-specific changing areas in public baths or swimming pools, which many of us have in our constituencies. I tabled new clause 6 and hope that we reach it later, so I will not talk about the issue at length. As I read clause 6, it makes no provision for the managers of public swimming pools to have the power to set up arrangements in a way that will not cause gross offence. Taking the example of somebody who has a gender recognition certificate—[Interruption.] The Under-Secretary of State for Work and Pensions seems to mock me, but I ask her to hear me out, because I think that the issue will be of concern to many people.
Let us take the case of somebody who becomes a legal female as a result of the Bill, but has had no sex-reassignment surgery. That person is in the public changing areas of the local public swimming pool and there are women and young girls—daughters with their mothers—in that area. As I read the Bill, the management of that public swimming pool will not be able to do anything about that. I see hon. Members shaking their heads. If they give me clarification and reassurance on the issue, I will be delighted.
Maria Eagle: The hon. Gentleman appears to be suggesting that transsexual people are just exhibitionists who want to cause offence. Frankly, that is ridiculous.
Andrew Selous: Absolutely not; I resent that suggestion. I am not talking about anybody trying to give offence.
Lynne Jones: Will the hon. Gentleman give way?
Andrew Selous: Let me respond to the Minister's point.
The fact is that public baths and swimming pools in this country have public changing areas. I think that the presence of somebody who is legally a woman but has not had any sex-reassignment surgery in an area where there are young girls and their mothers is a serious issue that the Bill does not address. Frankly, I think that our constituents will think that as well.
Lynne Jones: There is legislation on the statute book relating to anti-discrimination against transsexuals in employment. When we drafted that, the same issues were raised about whether a transsexual person should be required to use, for want of anything else, the disabled persons' toilet in their place of work. That was ruled out and it would now be regarded as discriminatory. Since that legislation was introduced, there have been no problems with it. I concur with my hon. Friend the Under-Secretary that the scenario that the hon. Gentleman raised is ridiculous and anathema to the transsexual community.
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