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Baroness O'Cathain: My Lords, I thank the Minister, in particular for his gracious handling of the amendment. He said that my amendment is unnecessary because Section 19 already allows the Church to refuse to employ any transsexual whether or not they have a gender recognition certificate.

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The point is that Section 19 should cover all transsexuals. That needs to be made explicit on the face of the Bill to avoid Churches having to foot the bill for litigation on this point. We also need to avoid rogue court rulings. Schedule 6 states that a person with a gender recognition certificate is not a transsexual for the purposes of Section 7A of the Sex Discrimination Act. We do not want an employment tribunal reading that across and saying that the same applies to Section 19. That is the purpose of my amendment. Although I would love to say that the Minister has given me great comfort, I fear that he thinks that Section 19 would be adequate; I fear that it will not be.

Lord Filkin: My Lords, before the noble Baroness sits down perhaps I may say that I shall study yet again what she has said to see if there is any further engagement we can have on this before Third Reading to identify whether there is a significant difference between us on policy or law, or whether we have not been clear enough about the nature of the issues.

Baroness O'Cathain: My Lords, I am grateful to the Minister. Certainly, I shall take him up on his offer. Therefore, I have great pleasure in begging leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Bishop of Southwell moved Amendment No. 99:


    Page 35, line 9, at end insert—


"In section 19 (ministers of religion etc), insert at the end—
"(5) Without prejudice to subsections (3) and (4) above, in relation to discrimination falling within section 2A, this Part does not apply to any thing done for the purpose of an organised religion in relation to—
(a) the provision of training for ministry or service;
(b) the conferring of any such authorisation or qualification as is referred to in section 13(1) in relation to carrying on ministry or service;
(c) the appointment to any office or post involving ministry or service;
in the context of that religion if it satisfied the requirements of subsection (6).
(6) The requirements specified in subsection (5)(c) are that the thing in question was done—
(a) on the grounds of the doctrines of the religion or strongly held religious convictions held by a significant number of the religion's followers; or
(b) in compliance with the normal rules or practices of the religion applying generally to persons seeking training, an authorisation or qualification to minister or serve in that religion;
or that, in view of the doctrines, religious convictions or other rules or practices referred to in paragraph (a), the person concerned failed to satisfy a requirement for the relevant matter referred to in subsection (5) or the person doing the thing in question was not satisfied, and in the circumstances it was reasonable for him not to be satisfied, that that person met the requirement.
(7) In subsections (5) and (6) above, any reference to the doing of any thing includes a reference to declining or omitting to do any thing.""

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The right reverend Prelate said: My Lords, in the unavoidable absence of my noble friend the right reverend Prelate the Bishop of Winchester, I rise to move Amendment No. 99 standing in his name. In substance it is identical to the amendment he moved in Grand Committee and reflects concerns which he raised at Second Reading.

The amendment is intended to safeguard members of churches and other faith communities against the risk of liability under the Sex Discrimination Act 1975 when they act on the basis of doctrines of their religion or the strongly held convictions of a significant number of the followers of their religion in relation to selection and training for ordained or recognised, authorised work or service.

I emphasise that the amendment does not seek a blanket exemption to discriminate in matters of employment, let alone membership. We shall come to those issues later where, indeed, the Church of England seeks no such exemption. Our concern is with public representative office, which ordination—and perhaps a limited number of other roles—conveys, and where we believe a genuine and determining occupational requirement could be demonstrated.

On a number of occasions during the passage of the Bill, reference has been made to the need to balance the proper rights of transsexual people with the proper rights of other parties. Section 13 of the Human Rights Act requires courts involved in determining human rights to have particular regard to the exercise by the religious organisation of the convention right to freedom of thought, conscience and religion.

As we move into a more overtly multicultural and multiracial Britain, the need to recognise and respect the reasonable rights of minorities will become progressively more evident in a whole range of issues. The case for appropriate safeguards in this matter was recognised by the Minister when he spoke in Grand Committee. He acknowledged that as well as providing rights for transsexual people, the Bill protects the rights and freedoms of others where appropriate. The Minister went on to say that these protections would be best provided not in the Bill itself but in the regulations that will need to be introduced to give effect to the equal treatment directive, which must be implemented by the United Kingdom by October 2005.

I can see the case for dealing with all these matters together in the round, in the totality of the situation, as the Minister put it in Committee. Will the Minister confirm that the Government recognise the potential rights of religious communities and minorities in relation to the appointment of transsexual people to representative public office or equivalent roles? Whether this is dealt with in the Bill, as the amendment proposes, or in regulations is of secondary concern.

We would prefer it to be in the Bill, both as a guarantee of this recognition, but also because, as things stand, there is likely to be a gap between the passing into law of the Bill—the Minister mentioned April 2005—and the new regulations, which must come in by October 2005. As I understand it, there will

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be no legal protection for Churches and religious groups in that gap, which is a cause of considerable concern. If the matter is to be dealt with by regulations, can the Minister assure the House that the gap between the enactment of the Bill and the regulations will be kept to a minimum? Might it even be the case that the equal treatment directive could be implemented in two stages, the first dealing with transsexual and other areas relating to sexual discrimination legislation? Perhaps that might be considered.

Let me be clear. This amendment has a limited, but vital scope. I seek the Minister's assurance that the strictly limited concerns that are outlined here are shared by the Government and will be recognised by appropriate action without any avoidable delay. I beg to move.

Lord Filkin: My Lords, noble Lords will be relieved that I will not speak at great length on this, but not because the issues are not important. We have already signalled our position. Amendment No. 99 seeks to insert into the Bill an exemption covering ordination appointments. We have already said at 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, specifically the equal treatment directive, which must be implemented by October 2005.

I hope, and I have some confidence, that it has been pretty clear from how we have handled this Bill so far that where it is possible to accommodate the profoundly held beliefs of religious organisations, without infringing the human rights of transsexuals, we have been open to discussions and efforts to do so. I make that clear, with that caveat, without that being a total blank cheque, that we will continue those discussions in the nature of the equal treatment directive.

In so far as the present position in law is concerned, office holders are not covered under the existing employment protection that is accorded to transsexual people. This will change with the implementation of the equal treatment directive, but this Bill will itself make no change to the existing position. That is why we have said before, and we say again today, that the discussions that have taken place with the Church will continue in preparation for that implementation. I hope that the right reverend Prelate will feel minded to withdraw his amendment.

The Lord Bishop of Southwell: My Lords, I am grateful to the Minister, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness O'Cathain moved Amendment No. 100:


    Page 35, line 9, at end insert—


"After section 33 (exception for political parties), insert—
"33A EXCEPTION FOR RELIGIOUS BODIES
(1) This section applies to a body which—
(a) exists for the purposes of organised religion, or
(b) has as its main object the promotion of religion.

3 Feb 2004 : Column 641


(2) Sections 29(1) and 30 shall not be construed as rendering unlawful—
(a) the restriction of membership of any such body to persons who do not fall within subsection (3) (disregarding any minor exceptions), or
(b) the provision of benefits, facilities or services only to persons who do not fall within subsection (3) (disregarding any minor exceptions),
if the limitation is imposed to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.
(3) This subsection applies to persons—
(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 them contained in the Gender Recognition Register.""

The noble Baroness said: My Lords, I rise to speak to Amendments Nos. 100, 102 and 108. Again, we have a situation like the last two amendments that I moved. Amendments Nos. 100 and 102 are identical: Amendment No. 100 applies to Great Britain and Amendment No. 102 to Northern Ireland.

The purpose of Amendments Nos. 100 and 102 is to prevent litigation under the Sex Discrimination Act, which forces religious bodies to allow those with gender recognition certificates into membership or to use the facilities provided. The purpose of Amendment No. 108 is to query why the Government are willing to give wide exemptions to sporting bodies, but are reluctant to make concessions for religious groups. The grouping is a bit crazy, but I hope that it will be all right.

Amendments Nos. 100 and 102 deal with what one might call the "Bill Parry scenario". Mr Parry has been mentioned several times, at Second Reading, in Grand Committee and on the first day of Report. He was a Congregationalist minister, a husband and the father of three. A few years ago, he decided to change sex. He started attending the Maesteg Christian Centre. The Church believed that it was morally wrong to try to change sex, but, for two years, he attended none the less.

Mr Parry would not accept the Church's teaching on transsexualism, and matters came to a head when the Church refused to allow him to attend the ladies' prayer meeting and would not let him use the ladies' toilet. Mr Parry is an activist and has used the law more than once against people who would not treat him as a woman. In July 2000, he won a 6,000 out-of-court settlement with a college. He claimed that it had discriminated against him, as he was on its beauty therapy course. Three months later, he forced the Welsh equivalent of the Women's Institute to change its membership policy. So, it was no surprise when, in 2002, he sued Maesteg Christian Centre over access to the ladies' fellowship and use of the ladies' toilet.

The Church engaged a barrister and successfully resisted Mr Parry's legal action, but the judge expressed strong sympathy with Mr Parry and criticised the Church. Even though the Church won the action, the judge ordered it to pay some of its legal

3 Feb 2004 : Column 642

costs. Sadly, if the Bill had been in force, the judge might have found a way of giving Mr Parry what he wanted. There is plenty of scope for that in the Bill. The Bill says that a man who holds a gender recognition certificate is to be treated in law as a woman. Clause 9 says that he is a woman for all purposes. That means that he is entitled to sue for discrimination as a woman under the Sex Discrimination Act.

The Government are creating a new legal landscape, in which the sort of action pursued by Mr Parry could succeed. After all, what legal justification could a Church have for refusing to allow a woman to use the women's toilets? Even if a legal action failed, Churches would have to put up with the distress and might even have to foot the bill. We must put protections against that into the Bill.

Amendment No. 108 simply gives me the opportunity to point out the inconsistency between the Government's treatment of sports bodies and their treatment of religious bodies. I feel sure that the Minister will have had a sense of deja vu, when he saw the wording of Amendment No. 108. As noble Lords will have noticed, it mirrors closely the wording of government Amendment No. 107, exempting sporting bodies.

The Government are willing to make broad, far-reaching exemptions for sports bodies. I support that, and I think that it is brilliant. However, they have not yet brought forth anything similar for religious bodies. The Minister will say that Churches can already discriminate and that there is no need for the amendment. I would nearly bet on that. However, in Grand Committee on 14 January, he said that there was no need for amendments to protect sport; then, he changed his mind. I ask him gently to change his mind about protecting religious bodies. I beg to move.


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