Dr. Evan Harris (Oxford, West and Abingdon) (LD): I welcome you back to the Chair, Mrs. Roe. I was just setting out the fact that three time periods are involved in the legislation relating to an interim certificate. The third is that between the ending of a marriage by the death of the person’s spouse or by dissolution or annulment other than on the ground mentioned in subsection (1), which relates to the decree of nullity based on the interim gender recognition certificate having been issued, and the seeking of a full gender recognition certificate.

My amendments, along with amendments Nos. 69 and 52, on which I might offer support, although perhaps not to both, would ensure that there are no time limits in any event other than the first. No one is arguing that there should not be some time limit for granting the decree of nullity on the ground that an interim gender recognition certificate has been issued—otherwise, a sword of Damocles would hang over the marriage.

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My amendments, however, support the argument that, thereafter, there is no reason why the person with the interim gender recognition certificate, even though none of the human rights of recognition go with it, should be under a time limit. Since there are no rights accorded, no damage would be done to the Government in extending the period for which someone could hold the certificate.

Lynne Jones (Birmingham, Selly Oak) (Lab): It is true that no specific rights are attached other than the right to have the marriage annulled before applying for a further certificate. However, recipients of such an interim certificate may regard it as having some value, perhaps as a document that at least says that the Government recognise that those recipients have a right to full recognition if their marriage is dissolved. I hope that the Government might consider that aspect. If, for understandable reasons, people do not wish to dissolve their marriage, having the interim gender recognition certificate may be some comfort to them while they remain married to their spouse.

Dr. Harris: I endorse that fully. That is why the amendment, and the others in the group, recognise that someone may be happy to have that interim recognition certificate and go no further. That is why a time limit does not appear to me to be necessary.

The narrower point I was making was that the Government might argue that there should be a time limit because they want to limit some rights to six months. The six-month period would apply to dissolution other than by annulment on the basis of the interim recognition certificate, so there is some reason for that limit. Another six-month limit can also be involved, but I am arguing that there does not appear to be any reason for limits of six months and six months; there is no reason why they could not be longer.

The Government may argue that, 10 years later, the marriage may be dissolved or annulled through normal divorce or annulment proceedings, or by death. An application could be made some time after that for a full recognition certificate. The end of the marriage may happen earlier, but if my amendments were accepted there could be an application 10 years down the line. By then, the person may not intend to continue to live in the new gender. That may or may not be true in any given case, but the same argument might apply to consideration of a full recognition certificate. Unless the Government intend to build in an automatic review after a specific period, it seems illogical to say there must be a short time limit on the grant of an interim recognition certificate, assuming the same tests are applied, because of something that may happen down the line.

Mr. Tim Boswell (Daventry) (Con): The hon. Gentleman is making a compelling argument. As I understand it—I would be grateful if he confirmed that I am correct—he is simply stating that one diagnosis of gender dysphoria and re-assignation, confirmed by a gender recognition panel and the issuing of a certificate, whether full or interim, will continue

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indefinitely because it is assumed that it will not normally be reversed, at least without returning to the panel.

Dr. Harris: Indeed, that is a good summary of the situation. The argument for subsequent action should not apply because the decision will already have been made. Given what I said about discrimination issues this morning, although I do not want to stress this too much, one could argue that it would be unfair on someone who was married—who had to go through that extra stage—to include some additional test, unless it is in the Bill, thereby requiring more time for the panel to make a further judgment on conversion of the interim certificate to a full certificate.

It seems reasonable that there should be one test; otherwise, inequity will be created in the system. I do not feel that I need to say any more: the default situation should be no time limit other than for the purpose of annulling the marriage on the basis of the interim certificate. It is for the Minister to make the case for a time limit of six months, followed by a further six months, in the first instance.

Lynne Jones: On Second Reading, I made the point that the draft Bill did not allow for any expiry time for the interim gender recognition certificate. Having studied the Bill in more detail, I now realise that it is necessary to provide a time limit for the special annulment arrangements that the interim gender recognition certificate provides for. If there is to be that special provision, it should not persist indefinitely because the other spouse would have a sword of Damocles hanging over their head indefinitely.

The specific annulment provision should be time-limited and I now support that proposal. However, I concur with the gist of the argument made by the hon. Member for Oxford, West and Abingdon (Dr. Harris). My amendments Nos. 54, 69 and 52 differ from his specific proposal in that amendment No. 54 would extend the time limit of six months to two years for ending the marriage through the procedures available to anyone when, sadly, a marriage breaks down.

Amendment No. 54 is probing. I do not believe that it is necessary to have any such time limit, although it may be useful for the other partner. However, it should be greater than six months. The marriage can end at any time, but in most cases that we are concerned about—marriages that have subsisted for a long time—it is highly unlikely that the marriage would be dissolved other than to take up the rights given in this legislation, if the couple decided that that was of overriding importance rather than remaining married. That is obviously a difficult decision.

We have spent a lot of time dwelling on the difficulties—the very real difficulties—of those very few people. We started by discussing whether it should be necessary for their marriages to be dissolved at all. Then we discussed the question whether, if those marriages have to be dissolved, the people involved

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should have some retained pension rights that recognise that they are being forced to dissolve the marriage against their will.

We have not managed to get the Government to move on those two issues, so we come to this proposal, which would be very helpful to such couples. It would mean that the person who had their gender dysphoria corrected and was living in their acquired—what they would regard as their correct—gender possessed at least some official recognition of their new civil status. However, if they chose to remain married, they would not be entitled to take up their full rights. None the less, such a document may have great significance for and be of great value to that individual.

Should, sadly, the marriage end because the non-transgendered spouse dies, there should be no time limit involved. If, for example, somebody was living with a partner who was terminally ill, but it was not clear when they were going to die, what dilemma would that person face in a time-limited situation? They would have to make a decision on whether to dissolve their marriage, which they do not want to do, lest their spouse survive beyond the six-month or the two-year period.

I ask the Government seriously to consider the amendments. Although I have suggested a period of two years, that is a compromise over ending marriages other than by the special annulment procedure. Having thought through the arguments, I cannot see any point in having any time limit on the interim certificate, other than in respect of the specific issue of the special annulment procedure. I hope that the Government respond positively to the ideas that have been put forward.

Mr. Boswell: I have considerable sympathy with the points that have been made and I do not need to rehearse them.

This aspect was once described as putting a pistol to the head of people who already have a very difficult decision to make. I am sure that the Minister does not want to do that and that he wants people to have a reasonable time for consideration. It will be obvious to anyone who has studied the amendments carefully—not for the first time in the Committee I have misplaced my amendment paper, but I hope I have not mislaid my thoughts about them—that there should be reasonable thinking time for people to consider whether to take this dramatic step.

I will listen with interest to the Minister, but I take it that the argument for having a time limit at all is that he does not want such a situation to continue indefinitely. I echo the point that I have already made in an intervention, which is that the diagnosis is, in a sense, indelible, unquestionable and almost irreversible, except at the behest of an application by a party for further diagnosis or a reversal, as it were, which is not likely in my view. Therefore, in theory, there should be no bounds on the interim certificate. It is, in one sense, a useless document, unless and until it is used as the vehicle for obtaining an annulment.

I will make two points on the issue of the choice of time. My thinking is coincident with, if not expressed in the same way as, that of the hon. Member for

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Birmingham, Selly Oak (Lynne Jones). Two years is a reasonable waiting period. My thinking was simply drawn by analogy with the requirement for two years of living in the acquired gender before the issue of a certificate in normal circumstances. The Minister may want to ponder on that.

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The second, supporting reason is that it is likely that we will know where we are with civil partnerships within the two-year period and it will make the transition less objectionable and difficult for those caught up in it.

I would like to make two wider points now rather than speak on clause stand part. I am mindful of the constraints of the amendment. I sympathise again with the comments of the hon. Lady on the validity of certificates. At this point, or by ingenuity, at another point, the Minister may wish to say whether interim certificates have any validity other than as a vehicle for obtaining an annulment. If the diagnosis exists, the Committee may wish to consider issues related to discrimination legislation or other private rights.

If one likes legislation, one often walks along the Corridor thinking of things that one has not thought of before. In this case, polygamy is the final point that I throw out to the Minister on which I have no conclusion. [Interruption.] I see the Under-Secretary of State for Work and Pensions responding to that point. That is because she and I had some interesting discussions about it on the State Pension Credit Bill.

The clause refers to the death of one spouse during the two-year period, and that is the typical western pattern. I do not seek to open a debate on the matter now, but the Minister knows from our exchanges on pension credits that we must acknowledge the facts about polygamy. The issue is about UK certificates and how they work, but I would appreciate the assurance of the Minister with responsibility for constitutional affairs that there will be no difficulty with them.

It has not been the practice of this Committee, but when one raises an issue such as polygamy, it is easy to caricature it and say that it is all games. Sadly, something that may seem notional or even fanciful can be the real experience of an individual. The last thing that we want to do is make life difficult for them. The purpose behind the amendments and the thinking that has informed members of all parties is that we do not want to put people in a position where they have to make agonising choices in a hurry. The agony may be prolonged if the process is open-ended, but we should give people a reasonable degree of thinking time before they have to come to such difficult decisions.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I begin by welcoming you again to the Chair, Mrs. Roe, as we continue to consider complex, interesting and important issues. Since the amendments were tabled, we have considered further time limits on interim certificates, and I have spoken with Press for Change and my hon. Friend the Member for Birmingham, Selly Oak.

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I must set out why we have proposed such measures and why we would need some convincing reasons to change our position. With time limits there are two separate issues. What time limit should there be on using an interim certificate to annul an existing marriage? There should be a time limit, and the interim certificate creates a sort of uncertainty. It allows the marriage to be ended and it should not therefore retain that power indefinitely. That, in a sense, is the conundrum. For the transsexual in an existing marriage, there is an issue about when the discussions and decisions will go on in that family. The Government have had a long discussion about the result for that family if they are, ultimately, successful with the gender recognition panel in a same-sex marriage, and it is our view that it is most likely that that discussion will go on prior to the application to the gender recognition panel.

I would have thought that those people who have been in an existing relationship would all go through the fast-track procedure. hon. Members will know that we amended the Bill in the House of Lords to extend the period in which fast-track applications can take place to two years. I have talked about civil partnerships, but that will cover any gap between the commencement of the Bill and the civil partnerships legislation. Those couples will go through the fast-track procedure. They will certainly have time to think about the implications. It is likely that, by the time that they get their interim certificate, they will be able to move forward, because they will presumably have accepted that they wish to annul their marriage and get the full gender recognition certificate. That was the Government’s thinking.

There is some concern that we might leave people uncertain if we were to issue an interim certificate that was not time-limited. We believe that the maximum of six months allowed at present between the issue of an interim certificate and the commencement of proceedings for dissolution is reasonable. I reiterate that we accept that a couple who are faced with the prospect of ending their marriage may have to put a number of practical arrangements in place. However, picking up the point made by the hon. Member for Daventry, the only purpose of the interim certificate is to allow the marriage to be dissolved.

We expect that a couple who have been together for some time will have had those discussions a long time before they make that application, succeed in that application and get the interim certificate. If a couple need to take time to discuss the issues further or to make practical arrangements, they should probably take it before the initial application is made. As I have said, the Government have extended the fast-track application to two years to allow them to do that.

That is how the Government have sought to deal with the mischief that has, quite properly, been outlined by my hon. Friend the Member for Birmingham, Selly Oak and the hon. Member for Oxford, West and Abingdon. We are sensitive to the point, but in considering whether to extend that time limit, we are concerned about the uncertainty factor.

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Lynne Jones: I do not think that anybody in the Room disagrees with the point that my hon. Friend made. Indeed, those who have spoken to the amendments have all made exactly that point. The question is whether the purpose of the interim gender recognition certificate is purely to allow the annulment, or whether it could have a wider purpose that would not lead to any administrative or other consequential problems. It is that point that I think that all those who have spoken to the amendments wish the Government to address.

Mr. Lammy: We return to the point that the Government’s intention was that the interim certificate would have a functionary purpose for someone who would have their marriage annulled and move on to full gender recognition. My hon. Friend will know because we have talked about this—I know the position of Press for Change—that there is the question of whether the interim certificate could have some other purpose beyond that. The Government would have to consider carefully what that other purpose would be.

There are three contexts in relation to those with existing marriages. There are those who will have been together for some time—we talked about this on Tuesday—who will look into the future, look at what the Government propose in relation to civil partnerships and consider the implications for their finances and other things, which we have discussed at length. They might have been together for 30 or 40 years. They might say, “Actually, this isn’t for me.” We have to allow for that. That is perfectly reasonable. There will also be those who say, “This is very much for me. We have talked about it. We have looked at the issues. We will go on to get our interim certificate to annul our marriage and move on to the situation in which the acquired gender is recognised.” That is why we are introducing the legislation. We hope that couples will feel able to do that. The third option will involve couples going their separate ways.

Mr. Shaun Woodward (St. Helens, South) (Lab): It is important to correct an assumption that might be creeping in. I know that the Minister does not remotely intend this. The idea that a couple will consider the certificate and say, “Well, this is for me,” or “This isn’t for me”, is nonsense. We are talking about people who are being forced into a terrible choice, and we are putting it on them to have to make that choice. They are choosing between their civil and human rights and their marriage.

We must be extremely careful about going down the road of thinking in a certain way, and that is what worries me a little about why the Government are in the position in which they find themselves. I challenge the Minister to get his officials to find someone who is transgendered who would fit the image that he describes and would say, “This isn’t for me,” or “This is for me.” I do not think that such a person exists.

Mr. Lammy: I hope that my hon. Friend will forgive me if my language is not as clear as it could be. I simply put the argument as I did because of the discussions that we have had both here and in the House of Lords

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about same-sex relationships and the fact of the dissolution of a marriage. Very difficult, real choices will be involved and there will be couples who decide that the arrangement is not for them. If my language is not as clear or diplomatic as it could be, I ask my hon. Friend, with his great experience in this area, to forgive me.

Lynne Jones: I urge my hon. Friend to consider the position of some of these people. I have an e-mail from Judy Aldridge, who was the “I” in the case of Goodwin and “I”, which went to Strasbourg. She says:

“Did you know but on the 11th of next month it will be fifteen years since I started my journey to Strasbourg?”

She has been involved in campaigning for the rights of transsexual people for 30 years. People who have fought for many years to get their rights recognised may have to face the decision, having won their case, of whether to say, “No, this isn’t for me”, because the Government are asking them to choose between their right to retain their partnership and their right to achieve their civil status. Notwithstanding the six months for the annulment, I ask my hon. Friend seriously to consider whether the interim certificate could be given greater status. I remind him of my point about a situation in which one partner in a marriage is terminally ill, and the dilemma that that could pose if the time limit were imposed.

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Mr. Lammy: My hon. Friend gives an example and she makes her points well, but she will understand that when considering the legislation and the few people involved, the Government have to be clear about the overall benefit and purpose of the legislation. We have had discussions here and in the House of Lords about these hard choices, but the Government’s position is clear. We shall continue to think carefully about these issues but, as I said earlier, the arguments and concern about uncertainty mean that that is as much of an indication as I wish to give today.

Dr. Harris: Before the Minister finishes—I had the impression that he was moving towards the end—could he explain the justification, not for the first time limit of six months, which none of us opposes, as the hon. Member for Birmingham, Selly Oak said, but for the time limit thereafter of six months for taking action to convert the interim certificate into a full gender recognition certificate. Why six months? Why not three months, two years or no limit? The Minister has not addressed the key question that the amendments are designed to probe.

Mr. Lammy: As I have said, the Government have to settle on a position. We do not want uncertainty around the decision to annul the marriage to go on for longer than six months. That is why we took that position.

Dr. Harris: I think that there has been a misunderstanding. There are at least two six-month periods in the Bill. Six months is, in effect, provided for in subsection (1). Once someone gets the interim

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certificate, they have six months in which to make use of it to get a decree of nullity. However, I draw the Minister’s attention to subsection (2), which states:

“If an interim gender recognition certificate has been issued to a person”,

there is a period of six months in which time the marriage can be annulled for another reason, or six months for the person’s spouse to die, if I may put it like that. Then there is another six months in subsection (3) after the date that the marriage is dissolved in which to apply for a full gender recognition certificate. It is those periods that we are questioning. We understand the Government’s position on the initial six months in subsection (1).

Mr. Lammy: Forgive me. There is a second issue to which the hon. Gentleman rightly refers; that is, the possibility of using the interim certificate to proceed to a full certificate when the marriage ends by some means other than annulment on the basis of the interim certificate itself. At present, the Bill provides that a person who has an interim certificate may proceed to apply for a full certificate only if the marriage ends within six months of the issue of the interim certificate. Again, we considered the matter further but were convinced that, balancing all the issues, the time limit is appropriate. Once the marriage has ended, the interim certificate is a ground for issue of the full certificate; that is, recognition in the acquired gender. It is the issue of the full certificate, not the interim certificate, which provides recognition in the acquired gender. If a person has a valid interim certificate, and is able to demonstrate that their existing marriage has ended, the panel has no discretion over the issue of a full certificate. We believe that placing a time limit on the interim certificate is a reasonable safeguard and that it protects the integrity of the panel’s decision.

Mr. Boswell: Will the Minister consider the position of a person who had an interim certificate, but because of some family disagreement or because they were unable to make up their mind, did not make use of it in the time period? It would be open to them to apply for another certificate. Presumably, they could tender exactly the same evidence to the gender recognition panel as they had done before. The panel would decide either to grant a full certificate—if the marriage had come to an end, which is hardly relevant in this case—or to issue a further interim certificate. Will he confirm that that would happen? That might be a clumsy and expensive procedure, but it would presumably be a way out if a person were unable to make a decision beforehand.

Mr. Lammy: Yes, I think that that probably would happen on the current arrangements. As I have said, we hear the arguments, but, if we are to make a change, we must be sure that we get it right.

Lynne Jones: There is an exception to the point made by the hon. Member for Daventry. That is that those who are eligible for the fast-track procedure would have to go through the whole process again and submit a greater volume of evidence. That might be

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difficult, because many of those people will have had their surgery or gone through the medical process many years previously and may not have the necessary documentation.

I am pleased that the Government extended the fast-track procedure to two years by amendment in the House of Lords; none the less the Minister has not explained why the six-month time limit is necessary in the case of the ending of the marriage through procedures that are available to anybody—other than the special annulment process or death. I still cannot see any reason why the interim certificate should not be valid for such cases.

Mr. Lammy: I think that I said to my hon. Friend that in considering the issue, perhaps the Government looked at the number of people involved and the few existing marriages. Therefore, one gets into hypothetical scenarios about the issue. My hon. Friend can come back to us if she believes that there are live examples that we have not considered.

Dr. Harris: I have two points, but will make only one in this intervention. I will seek to catch the Minister’s eye to make a further intervention before he finishes.

In the text that he read, which, I accept, starts to address the point of the amendments, he referred to six months being, in the Government’s opinion, “a reasonable safeguard”. Those are his words. Will he say what it is a reasonable safeguard against?

Mr. Lammy: I have said as much as I can to the hon. Gentleman. I talked about the period that we think is reasonable and about uncertainty. The Government came to a decision, but have been concerned to listen to the arguments. That is why I met Press for Change last week. I do not think that I can say much more on the issue, except that, of course, we will continue to consider it.

Dr. Harris: Let me give the Minister a specific example.

A person seeks to use the fast-track procedure in the confidence that the Civil Partnerships Bill will deliver satisfactory arrangements on financial security and status. That must be done in two years. The Civil Partnerships Bill does not emerge in two years from enactment, or its powers are not clear, or it becomes clear that the Civil Partnerships Bill will not give the couple the financial status and preservation that they want. They might want to continue with the interim recognition certificate, since have it, and not proceed to divorce on any grounds. Why should they not be able to do so in those circumstances?

Mr. Lammy: That goes back to my initial point, which is that the Government hope to introduce civil partnerships legislation shortly, so the hon. Gentleman is at least pre-judging its outcome. Given the context, people will be able to consider what is available to them, consider their personal circumstances, and make a decision on that basis. Even though I see that the hon. Gentleman is not entirely satisfied with what I have to say, there is no more to add at this stage.

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Dr. Harris: In a sense, this debate has been a little disappointing because although I was not privy to the conversations that the Minister had with Press for Change, there were rumours that the Government were considering making concessions. I hope that it is not too late, and in that spirit I will respond to the issues that have been raised. I invite the hon. Members for Birmingham, Selly Oak and for Daventry to intervene if they do not agree with my position, but I think there has been a commonality of view.

All three of us recognise the purpose of having an initial six-month period because of the sword of Damocles effect. We do not disagree with the first stretch of the Minister’s contribution. The issues relate to the other two time periods, and I will deal with them in reverse order. The Minister said that if a marriage had ended for another reason, by death or by the annulment implied in subsection (1), and the interim certificate were granted to enable its conversion into a full certificate after the marriage end, six months would be reasonable as well, given the similar Sword of Damocles effect. The purpose of the certificate is to allow immediate conversion at the point of the marriage.

I accept that there might be a reason for the six-month period. However, the Minister has not addressed the period mentioned in subsection (2)(a), which states a period of six months for a dissolution or annulment by other means once an interim gender recognition certificate has been issued. There does not seem to be the same Sword of Damocles effect, because if the person does not intend to use the certificate—the Bill does not force them—to annul the marriage through the decree of annulment based on the certificate having been issued, there is no pressure on the relationship.

The hon. Member for Birmingham, Selly Oak gave a good example of a circumstance in which someone is very ill or terminally ill but the illness does not result in death within six months. What do they do?

The Minister and the Government have not addressed the middle time period. I hope that the Minister has an open mind. He said that he intends to use the interim recognition certificate to allow only annulment because that is its point. We all agree that that is its original usage, but some people in a very difficult position who have had sympathy but no change out of the Government might find more comfort with a different usage. Therefore, the Government need to justify why they are sticking with the original intention to issue the interim certificate only for rapid dissolution of the marriage and a switch to a full recognition certificate.

A considerable number of the 150 to 200 married couples are not happy about having to end their marriages. The only reason that they do not apply for a full recognition certificate is that marriage issue. If they feel that the interim certificate gives them some form of status—even if it does not have any legality attached to it, which is a separate issue—why not allow them to have one? Those people’s problems have had little acknowledgement from the Government.

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The Minister said that he thought that a six-month period—that is, the later six-month period, not the one that we all agree on—was a reasonable safeguard, but not what it was a reasonable safeguard against. The Government should consider allowing people to hold the interim certificate for a longer or, indeed, an indefinite period. They have not provided any reason why that is not be possible.

Mr. Boswell: In the spirit of the hon. Gentleman’s interventions this morning, does he not agree that, given the genesis of the whole business, pre-existing marriages should be considered as special cases? The same issues will probably not recur in subsequent marriages. Unlike my arguments this morning, I have sympathy with him in this prudential case. At the risk of complicating matters by introducing a fourth loop into the qualifications or the algorithm, will Ministers consider whether, in the case of pre-existing marriages, that arrangement could continue, if not indefinitely, then at least for longer than is anticipated?

Dr. Harris: That would at least be something. We are talking about people who are married as of now. It is hard to envisage the same problem arising in future. I would be happy for a concession to be limited to those people. That would not be a legislative difficulty because we could state that the marriage must have taken place before the enactment of the Bill. Indeed, it could be timed to correspond with European judgments and so on.

In respect of the second period of six months for the dissolution or annulment of marriage on other grounds, the default is that people need not be rushed into that, even though they hold an interim certificate. The Government have to show reason—that is, explain what the reasonable safeguard is against—before not allowing that to happen. Those people are not getting a good deal.

There is broad agreement between the hon. Members for Daventry and for Birmingham, Selly Oak and myself: the matter should be pursued. I hope that the Minister will allow us to do that at a later date, although we are running out of stages in which we can attempt that. At the very least, we must ask him to write to us, setting out why the request that we have made should not pertain, and what he thinks the current wording is a reasonable safeguard against. I hope he will do that. A quick letter might be enough to advise us how much comfort we can take when we discuss the matter on Report. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 [Errors in certificates]

Mr. Boswell: I beg to move amendment No. 12, in

clause 6, page 4, line 21, at end add

’and may not charge for the issue of a corrected certificate if the need arose because of official error’.

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The Chairman: With this we may discuss amendment No. 13, in

clause 7, page 4, line 27, leave out ’an’ and insert ’a reasonable’.

Mr. Boswell: I sense that we now move on to easier territory conceptually, and I hope that I can be commensurately brief. Clauses 6 and 7 are practical nuts-and-bolts issues concerning the issue of certificates.

Amendment No. 12 can be dispatched immediately. It is hardly conceivable that the Ministers will object to its principle. If an official makes a mistake in implementing a gender recognition certificate, it is unreasonable to charge the recipient for the issue of that certificate. Considering that principle led me to have wider thoughts about the nature of errors that might occur in certificates, such as simple copying errors or something more radical. I suspect that some might relate to the transcription of names.

Not much has been said about what will appear on the gender recognition certificate. For example, someone christened Fred who has changed gender and is now a woman, might want to appear as Freda or whatever on the gender recognition certificate. The name by itself is a potential source of error. That brings me to a slightly wider question.

There is extensive provision in the schedules, which we need not bother with now, for compilation of the gender recognition registry. If an error is made, whether official or non-official—perhaps something is filed inaccurately with the registrar, for example—will there be an audit trail through the whole process of initial birth registration, the error-laden register and the final gender recognition certificate that makes the correction? That may be of concern, not least because we will want to consider the ability to trace people’s identity in an unequivocal way.

Amendment No. 13 would require the Secretary of State to charge a reasonable fee. The Under-Secretary will know better than I do, because he is a lawyer and I am not, that Ministers and officials are always obliged to be reasonable, and I am sure that they try to be so. I am pleased that the Under-Secretary for the Department for Work and Pensions, with her legal knowledge, is nodding. I do not mind that thought. Occasionally, I am led to quote from “The Judge Over Your Shoulder”, which, if not my Bible, is at least something that I read from time to time.

In the spirit of the debate, the Under-Secretary for the Department for Constitutional Affairs will wish to be fair and sensible about the fees that will be charged. Briefings that we received from Press for Change and others indicate that a fee in what one might call the normal case would be £700. I do not ask the Under-Secretary to give a precise figure now, but he could help the Committee by giving some idea of the charges that are likely to be involved.

Mr. Lammy: I did not hear the hon. Gentleman properly. Did he say £700?

Mr. Boswell: My understanding, which is subject to correction, is that the ballpark figure for an application to a gender recognition panel would be in

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the order of £700. I am not sure whether that is right. I would be grateful if the Under-Secretary could clarify it.

Clearly, there will be several charges. It occurred to me since I drafted the amendment that there will be a charge for the panel—goodness knows, they are professional people who are perfectly entitled to charge out their time at the proper rate—but possibly also for the certificate itself, which is not part of the panel’s deliberation. There is an interesting question about the charges that would be required if both an interim certificate is issued and a full gender recognition certificate after the administrative process that we have just discussed, and if there is court determination of annulment. Those are important issues.

We would all agree that fees are entirely proper but that they should not be unconscionable. They should be proportionate and affordable so that people in modest circumstances, including retired people in long-standing relationships, can meet the cost.

I did have two other points to raise, but they have collapsed into one. The Under-Secretary may want to say a little—I am conscious that he is receiving assistance—about the transition from interim to full certificate, about persons who reapply, in which case the evidence is already in place, and about the fast track.

I do not wish to press this point with intensity. The Under-Secretary may also want to say something about the provision for a non-refundable fee. I fully understand that we do not want to encourage frivolous applications or applications that have not been fully considered. That is not in the spirit of the proposals, nor do I anticipate that such applications are likely. I accept that it is proper to charge a fee to reflect the costs of the procedure. However, I can imagine problems of hardship if things are taken literally.

If there were administrative shortages, which I do not anticipate, or some other reason why the matter could not be determined within a reasonable period, and people had to sit around for three years waiting for the official process to take place—I am not saying that they will, and I hope to goodness that they will not—it would be entirely reasonable to say, “Look, I’ve paid up front. When is my problem going to be resolved?” There could also be cases in which the evidence, including professional certification, which had been obtained at great cost, went missing and had to be reprovided.

The Under-Secretary might want to consider that. Sadly, there could be cases in which an applicant makes an application in good faith and the evidence is tabled but the applicant dies before it is considered by the panel. I feel slightly less intensely about that for applicants who withdraw applications, but we could have a range of hardship cases.

I am sure that the Under-Secretary will not want to give the Committee the impression that he has any wish to bear down on people more than is necessary to meet the costs of the operation. It will help to have an idea of roughly what he anticipates those costs will be. It will also help if we have an understanding across the

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Committee that fees could be waived in hardship cases. In that way, we would help people whose circumstances are difficult enough not to feel that they are being treated unfairly by the administration process and the law.

Mr. Lammy: The purpose of clause 6 is to make it possible for the person or the Secretary of State to apply for a correction to the gender recognition certificate. Clause 7(2) allows the Secretary of State to prescribe, by an order that is subject to the negative procedure, the level of fees that should be charged for making applications to the gender recognition panel. Applications for corrected gender recognition certificates would be included in such an order. Clause 7(2) also provides that the order may prescribe circumstances in which no fee will be payable and it seems entirely reasonable that if an incorrect certificate has been issued due to official error, the applicant should not have to pay for a corrected replacement.

It is unnecessary to amend the Bill, as I am sure the hon. Gentleman will understand, because we can achieve the desired outcome by ensuring that the fees order covers the situation. I commend that alternative solution and give an assurance that the statutory instrument will cater for the eventuality in question.

On amendment No. 13, clause 7 allows the Secretary of State, after consultation with Scottish Ministers and the Department of Finance and Personnel in Northern Ireland, to determine the level of fees that should be charged for making applications to the gender recognition panel. It is quite normal for people to pay for a range of services, including passports, birth and marriage certificates, driving licences and applications within the civil courts. I am afraid that it is too early to say what rate of fees would be appropriate, but we are looking, among other things, at the cost of processing an application and levels of fees for comparable applications in other areas. I am pleased to say categorically that the fees will be nowhere near £700.

3.30 pm

As part of our consideration of the level of fees we shall consider whether there should be appropriate exemptions and in what circumstances. The Government are alive to the concerns of the transsexual community and others that a future, less progressive Government could increase the fee to an extent that made legal recognition a practical impossibility. We are also mindful of our legal obligation under the European convention on human rights to ensure access to justice. I wanted to put that on the record.

As a consequence of those key issues and given that other court fees are set by order, subject to the negative procedure, the Government introduced an amendment on Report in another place to provide that the fees for an application to the gender recognition panel should be set in the same way. I believe that that provides the safeguard that the hon. Gentleman is seeking in his amendment. I do not believe that the

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amendment is necessary. Parliament will have a future opportunity to assess whether the fee prescribed by the Secretary of State is reasonable.

Mr. Boswell: I make that about one all. The Minister made some slightly barbed comments and perhaps he knows something that I do not. I would like to share with people in and outside the Committee the possibility of a change of Government. For some reason, he seemed to be under the misapprehension that they might be less progressive than the present Government.

On the other side, the Criminal Records Bureau does not provide an entirely happy precedent for such situations, but that is private grief for the Minister and perhaps some of his colleagues in other Departments so I will not go on about that.

It must be sensible and the spirit of the whole Committee suggests that it would be reasonable, with proper understanding of the difficulties involved, to meet those concerns. The Minister has made a real attempt to do so and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7 ordered to stand part of the Bill.

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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Andrew Selous: I am not talking about the transsexual community, but about the rest of our constituents, who might go into a public changing area. That is different from the example of toilets. In a public changing area, there are showers and people walk around fully naked in the normal course of events as they go to have a shower or change in a communal area. That is an issue that has not been addressed and needs to be thought about. I use it by way of example and do not want to dwell on it. In fact, we will come to it later when discussing new clause 6. If any members of the Committee or the Under-Secretary can reassure me, I would be delighted. I have not received any reassurance, or heard any proper arguments against what I am saying.

The last example that I shall cite, on which I also do not want to dwell at length because we will come to it in a later series of amendments, is that of religious bodies in general. I mean religious bodies of all faiths, as well as all denominations of Christianity, the Free-ers and the established churches. There is a genuine fear that vexatious litigation could arise out of clause 9(1). hon. Members may be aware of a recent case in south Wales, in which Diane Parry sued the local Baptist church, which won the case. The judge said at the time that he believed that Diane Parry would have won had the Bill been in force. I ask the Minister on what basis he can say that Diane Parry would not win her case if the Bill were enacted? I will ask that question again when we discuss other amendments.

The question was asked by the right hon. Member for Swansea, East (Donald Anderson) on Second Reading and I do not believe that he was fully satisfied with the Minister’s answer. I know of two current legal cases involving other churches. It may be part of the law of unintended consequences, but I am sure that it is not what the Government intend. Press for Change is concerned about the matter and do not want religious bodies to come up against such vexatious litigation, which will waste a lot of time. I do not believe that that is what the Government want; Ministers should know that there are not only real worries but that legal cases are being prepared.

Mr. Boswell: I am grateful to my hon. Friend for giving way and for having acknowledged that it would not be in the interests of the transsexual community, or its wish, for such vexatious litigation to be pursued.

To clarify matters, will my hon. Friend tell me whether, in his understanding, the problem with the legislation would be specific to faith communities? Does he believe that faith communities might be targeted by vexatious persons seeking to make a point and that in fact the legislation would be of general application, although in practice it might end up a considerable threat to the churches and other faith communities?

Andrew Selous: I think that all faiths are worried about aspects of the Bill. I gave three different examples: blood transfusions; gender-specific changing areas; and religious bodies. The religious bodies have genuine and serious concerns, which they feel are not adequately addressed in the Bill as drafted.

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Dr. Harris: I am interested in what the hon. Gentleman says. I know that many people share his anxieties and it is right that we debate them. I would be grateful if he briefly expanded on his reference to Second Reading, as he did not set out the facts of the case. If he will clarify the issue, it will help us to judge the validity of his argument.

Andrew Selous: My knowledge of the case is that Diane Parry was a man; her adopted gender is that of a lady. She attended a church in Wales and was insistent on certain rights within that church that were thought to be pastorally insensitive in respect of other members of the congregation. It is a delicate matter relating to a private area of life and it is not for us to judge how any church or faith should conduct their services or the life of the church. The whole thing led to great distress on the part of the congregation and it resulted in an extensive and lengthy court case. There are at least two other cases that are under way.

Dr. Harris: We may come to this in relation to discrimination, but if it was an issue of employment or vocational training, it is probably already covered. If Diane Parry was seeking the right to worship in the church, if anything that is a goods and services issue, and I do not understand the suggestion that she would have a case even after the Bill becomes law—sadly. I am still a little uncertain about the relevance of the case. I hope that, if the hon. Gentleman thinks that there will be a whole series of such cases, we will be able to get further details when we discuss discrimination.

Andrew Selous: There are further cases. The relevance of the case is the fact that Churches are not wealthy organisations. They have got other things to do; they do not want to spend their time in the courts. People who go to church and put money in the collection plate on a Sunday do not want it to disappear in expensive lawyers’ fees—even if the Church wins the case, as it was able to in this instance. There is real doubt about whether it would have won the case if the Bill had been law. The case is valid and serious.

I want to respond to a point raised by the hon. Member for Birmingham, Selly Oak. I do not think that she is correct about the use of public changing facilities. I am informed that issues have arisen and caused concern in relation to gender-specific changing areas.

Maria Eagle: The only difference that the Bill could make to a case such as the one that the hon. Gentleman mentioned—I still do not quite understand the facts as he put them—is in respect of whether the applicant in the case was recognised legally as a woman. Is he really arguing that in some instances somebody who has a gender recognition certificate following the enactment of the Bill should not be recognised as a woman?

Andrew Selous: No, I am not arguing that. The Minister tries to put the case too simply. When it comes to the conduct of religious activity, all members of religious bodies sometimes have to accept the discipline and pastoral guidance of the leaders of those bodies. Diane Parry was unwilling to accept that and

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launched an expensive legal case. Current legal opinion is that she would have won that case had the Bill been law. I have to tell Ministers and members of the Committee that there are massive concerns about the issue. It will not go away and they will find their postbags filling up with letters about it from large numbers of their constituents between now and Third Reading.

Lynne Jones: Will the hon. Gentleman explain what he meant by pastoral practices? I think that the Committee is still in the dark about exactly what it was that this individual was prevented from doing that resulted in litigation. Obviously, it is undesirable to require litigation, but I am intrigued about what she was seeking a remedy for.

Andrew Selous: One of the things that she wanted to do was preach in the church. The pastoral team at the church in south Wales was not happy for her to do so at the time. That should be decided by the local leadership of any church, and it was one of the issues on which she took the Church to court. Some Committee members may seek to belittle the matter, but I can tell them that it is one of real concern. There are cases outstanding in law, and the issue will be increasingly focused on during the next few weeks.

4 pm

Dr. Harris: Some interesting issues have been raised by the hon. Gentleman. Amendment No. 18, tabled by the hon. Member for Daventry, is unnecessary and tautological. I know that he was using it to probe some of the issues, but I think that we shall have interesting debates on amendments Nos. 16 and 17 that will be more productive.

To respond to the hon. Member for South-West Bedfordshire, we will get a chance when debating new clause 6 to deal with changing room issues if we wish to do so. I am happy to leave it until then, and would encourage other hon. Members to do so because it may not be necessary to deal with it now.

The facts set out by the hon. Gentleman on legal cases are important. It seems to me that if preaching in church—I understand that that may be only one of the issues—were employment, it is likely that the Church would be covered by the genuine occupational exemptions under the Sex Discrimination Act 1975. The 1999 regulations cover transpeople, but where there is a religious vocational element, they do not force employers to take on transpeople—nor, indeed, would they force the Catholic Church to have women priests. There is a vocational exemption.

The right to non-discrimination already exists. It is not predicated on the holding of the certificate. That is one issue dealt with by the next group of amendments. One can already access protection against discrimination in employment and vocational training—before the Bill comes into force. One of the worries is that such protection, which has had to be fought for in case law, particularly in the case of P v. S and Cornwall county council, may be felt to be lost, because everything will revolve around a later stage of the transition: the possession of a full certificate.

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I have not read the judgment—I will be happy to do so before Tuesday if there is an opportunity to debate it then—but I do not understand why the judge would say that the possession of a certificate will make a difference to the strength of the case, particularly if it is a question not of employment but of access to worship. I am not an expert in the field, but that might be considered an issue of goods and services. For example, a church may say, “You cannot come in and use our facilities in public worship because of your status.” Churches will be allowed to continue to do that because the Government are not willing to extend to transsexuals, or gay and lesbian people, the rights under the Sex Discrimination Act 1975 and the Race Relations Act 1976, which prevent private and public bodies discriminating on the grounds of racial equality.

The hon. Member for South-West Bedfordshire is entitled to make his point, and I would not criticise him for doing so. When any change in law takes place, it is a worry that there may be litigation, but ’twas ever thus. It is a good thing that people who may wish to discriminate, for good reasons or bad, are forced and advised in advance to consider whether they are wise to do so, and to examine whether they have the protection of the law, regardless of what their conscience dictates. That applies to race relations, where people have strong views, and should apply in the case of discrimination on all grounds.

If we get a chance to discuss discrimination later on, we will be in a position to judge whether the matter is one of serious concern. At the moment, I cannot see how it could be, even from the point of view of those who have raised objections. I do not think that the Bill changes much in respect of litigation in matters of discrimination.

Mr. Lammy: I shall attempt to cool down some Committee members. Understandably, many have been concerned by what has been said.

We have made it clear that the Bill’s basic principle is that the issuing of a gender recognition certificate will mean that a person’s gender becomes, for all purposes in law, the acquired gender. We believe that that takes account of legislation relating to discrimination. For that reason, amendment No. 18 is unnecessary. Clause 9 refers to sex as well as gender. Hence, although discrimination legislation is in terms of sex rather than gender, clause 9 would nevertheless mean that the acquired gender or sex of a person would apply.

I turn to amendment No. 44. The basic principle in clause 9 allows for relative simplicity in the Bill. Clause 9 contains a general proposition about the effect of the issuing of a full gender recognition certificate, and hence avoids the need to spell out each and every instance in law for which gender is relevant. I have no doubt that the hon. Member for South-West Bedfordshire is uncomfortable with the basic principle of the Bill, and his concerns are genuinely felt and</

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Gender Recognition Bill: Standing Committee A (fourth sitting)

Index

Debate

Gender Recognition Bill [Lords]

Standing Committee A

Thursday 11 March 2004

(Afternoon)

[Mrs. Marion Roe in the Chair]

Gender Recognition Bill [Lords]