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Lord Evans of Temple Guiting moved Amendment No. 107:

After Clause 18, insert the following new clause—

"SPORT
(1) A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection (2) is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act.
(2) This subsection is satisfied if the prohibition or restriction is necessary to secure—
(a) fair competition, or
(b) the safety of competitors,
at the event or events.
(3) "Sport" means a sport, game or other activity of a competitive nature.
(4) A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport.
(5) This section does not affect—
(a) section 44 of the Sex Discrimination Act 1975 (c. 65) (exception from Parts 2 to 4 of that Act for acts related to sport), or
(b) Article 45 of the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) (corresponding provision for Northern Ireland)."

The noble Lord said: My Lords, the question of sport pre-occupied us for some time in Committee. The Government have introduced an amendment which we hope will solve the legitimate problems raised at that time.

We said in Grand Committee that the Gender Recognition Bill must not lead to a situation in which competition, or the safety of other competitors, is compromised.

We have been of the view that the existing legal framework of the Sex Discrimination Act and Human Rights Act combined provides sporting bodies with the necessary flexibility to deal with the issues raised by transsexual competitors. However, during the debate in Grand Committee I said that we would consider the issue further. Since then, the issue has been discussed between my department—the Department for Constitutional Affairs—the Department for Culture, Media and Sport and UK Sport.

This is a complex area of law. The Government believe that by making express provision in the Bill, sporting bodies will be placed in a better position to formulate clear and lasting frameworks for dealing with the issues raised by transsexual sports people. As your Lordships may know, the International Olympic Committee is also presently looking at the issues raised by transsexual competitors. I understand that it is due to issue guidelines shortly. We will need to ensure that the provisions for sport in the Gender Recognition Bill do not pose a problem for sporting bodies that wish to use the IOC guidelines in the future. The provisions may therefore need to be revisited once the guidelines have been issued. I beg to move.

Baroness Buscombe: My Lords, as I understand the Minister is aware, my noble friend Lord Moynihan is

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in Norway today meeting officials from the Norwegian sports anti-doping agency. From these Benches we would like to express our support for the Government's conversion to our case—a case that my noble friend put forcefully both at Second Reading and in Grand Committee—to exempt competitive sport in the Bill. It now takes a privileged place alongside the monarchy and hereditary Peers.

As it stands, the amendment recognises the strength of argument made by my noble friend and supported in principle by the noble Lord, Lord Goodhart, in Grand Committee to allow governing bodies of sport to continue to determine their criteria for classification, thus preserving fair competition and protecting the safety of competitors, particularly in contact sports. In so doing, the Government are joining us in responding to the representations made to that effect by the Central Council for Physical Recreation, the Sports Council and many governing bodies of sport.

We also support the Government's intention to keep open the possibility of a further amendment during the Bill's proceedings in another place. At the end of this month the International Olympic Committee will be meeting, inter alia, to consider the issue of gender classification. It is possible that its findings may allow Parliament to improve on the wording suggested this evening.

My noble friend Lord Moynihan and I appreciate the sensitivity with which this important issue for sport has been approached by the Minister and his officials since the subject was extensively debated during Second Reading and again in Grand Committee. We thank the Government for listening and are pleased to lend our support to the proposed amendment.

Lord Goodhart: My Lords, we welcome the amendment. It follows the solution for which I expressed a preference when speaking in Grand Committee. We think it is a sensible step for the Government to have taken; it deals with a serious and important problem. We are happy to support it.

On Question, amendment agreed to.

[Amendment No. 108 not moved.]

Clause 19 [Scottish gender-specific offences]:

[Amendments No. 109 not moved.]

The Earl of Mar and Kellie moved Amendment No. 110:

Page 7, line 25, leave out subsections (2) and (3) and insert—

"(2) The following are relevant gender-specific offences for the purpose of subsection (1) above—
(a) section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.th39) (intercourse with a girl under 16);
(b) section 11 of the Criminal Law (Consolidation) (Scotland) Act 1995 (trading in prostitution and brothel keeping);
(c) section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 (homosexual offences);
(d) section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (non-consensual sexual acts);

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(e) section 313 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (persons providing care services: sexual offences);
(f) any offence under section 294 of the Criminal Procedure (Scotland) Act 1995 (c. 46) (attempt at crime);
(g) rape;
(h) sodomy;
(i) clandestine injury to a woman;
(j) abduction of a woman or girl with intent to rape;
(k) assault with intent to rape or ravish;
(l) attempting to commit any of the offences set out in the above paragraphs.
(3) The Scottish Ministers may by order make provision for modifying the terms of subsection (2)."

The noble Earl said: My Lords, here is something simpler. Amendments Nos. 110 and 126 have been inspired by the Law Society of Scotland in a further attempt to ensure that the Scottish gender-specific legislation is identified in the Bill. This matter remains as relevant as it was in Grand Committee. The Minister rejected a similar amendment in the fear that at present the list might not be all-inclusive and that future legislation might be needed to add to the list. I remain sufficiently unconvinced to have tabled this amendment. Clarity is an important attribute in legislation.

The Minister is bringing forward an amendment to apply the concept of gender-specific offences to all three legal jurisdictions of the United Kingdom. Therefore, I look forward to hearing from the Minister the implications of his amendment for Clause 19. I beg to move.

9.30 p.m.

Baroness Buscombe: My Lords, I support these amendments. Noble Lords may recall that I proposed similar amendments in Grand Committee, although I sought to amend the wording slightly in the sense that I felt that the list was not entirely adequate. However, I see no harm in having some such list with some expression on the face of the Bill that the list is not exclusive. I believe that having some form of clarity is a good idea.

Lord Evans of Temple Guiting: My Lords, Amendment No. 110 seeks to insert a list of gender-specific offences into Clause 19 in place of the general definition of gender-specific sex offences that the clause contains at present. The amendment and Clause 19 as presently drafted have the same purpose. The disagreement here is about means and not ends. The problem with using a list—the means proposed by the amendment—is that, if further offences were created or if the definition of existing offences were changed to include or exclude a gender-specific element, the list would require amendment. Although the amendment, taken together with Amendment No. 126, provides for changes in the list, the virtue of using a definition of gender-specific sex offences is still that the need for future amendments is avoided.

Government Amendment No. 131 also relates to Clause 19. At present, Clause 19 extends only to Scotland. However, the law on sex offences in Northern

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Ireland remains, to a large extent and in the same way as Scots law, gender specific. As a consequence, the Gender Recognition Bill as drafted will have a disabling impact on the law on sex offences in Northern Ireland—particularly on rape—unless it is amended in a similar fashion to that in Scotland.

It was originally felt that a temporary lacuna in the law in Northern Ireland might be acceptable, given that a review of Northern Ireland law was in progress and that subsequent legislation would be expected to remove gender-specific crimes from the body of law on sex offences. However, given the straightforward nature of the amendment that will plug the gap in Northern Ireland in the interim period before the new law on sex offences is ready, the Government believe that it is appropriate to take action.

Therefore, I am proposing Amendment No. 131 to adjust the extent of Clause 19 so that it applies throughout the United Kingdom. Although the Sexual Offences Act applying to England and Wales uses gender-neutral terms, this amendment will ensure that no residual problem arises in England and Wales. The Sewel Motion in the Scottish Parliament will take place this Thursday, 5 February.

I have set out the Government's views on Amendments Nos. 110 and 126. In any case, if the House accepts Amendment No. 131, the list in Amendment No. 110 will be out of date. I would argue that the extent of Clause 19 should be expanded as proposed. In addition, especially in the light of the fact that any list in Clause 19 would have to cover all the criminal jurisdictions in the UK, I would argue that the present definition in Clause 19 provides the better legislative solution.

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