Dr. Evan Harris (Oxford, West and Abingdon) (LD): I had got as far as the letter “l” in “law”. I was saying that the Sex Discrimination Act 1975, uniquely in British discrimination law history, went further than European comparators—directives—in protecting rights against discrimination. It was the product of the last liberal Home Secretary that we have had, from any party: the late Roy Jenkins. The 1975 Act provided for a bar to discrimination on the grounds of sex or gender in relation not only to employment and vocational training, but to education, housing and the supply of goods and services. The sky has not fallen in on this country because of those protections.

As the Minister has acknowledged, many of us feel—certainly everyone in the Liberal Democrat party feels this, because it is our party policy, and many people in the Labour party feel it, too—that those sorts of protection should be available to other groups of people, and not only to people who would otherwise be discriminated against on the ground of gender. I will quote from paragraph 98 of the initial report of the Joint Committee on Human Rights on the draft Bill, although sadly nothing has changed since the draft Bill in this respect. The report states:

“It seemed to us that it would be strange to make such discrimination unlawful in one field covered by the 1975 Act but to continue to permit it in other fields covered by the same Act. This prompted us to consider whether discrimination against people on the ground that they have undergone, are undergoing or plan to undergo sex reassignment therapy would constitute unlawful discrimination on the ground of sex in the fields of education, housing and the supply of goods and services.”

It is not clear whether British courts would take the same view as the European Court of Justice did in the case of P v. S and Cornwall county council, when it judged that it was hard to separate one’s status as a transsexual pre or post-surgery—in the process of transitioning—from sex itself.

After consideration, the Joint Committee stated, in paragraph 99, that it did not feel “sufficiently confident” that it could rely on that achieving the desired result, so it asked the Government for their view on

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“the desirability of extending the legal protection against such discrimination under the 1975 Act from employment and vocational training to education, housing and the supply of goods and services.”

It explained that the Government said that it was not a high priority and that the most pressing need was

“to amend the law in relation to employment and vocational training in order to comply with Community law.”

That is like saying, “The only thing that we will consider to be a top priority is what we are forced to do”, rather than considering the merits of tackling the problems of discrimination.

We have already heard from the Minister that there is discrimination against people in this area. I believe that to be unacceptable, and I would have hoped that a Government that thought that it was unacceptable would legislate to prevent it, particularly considering that the issue is so closely related to sex and gender, an area in which the Government, and the Labour party, for the past 28 years, have felt that discrimination is inappropriate.

Paragraph 100 states that the Government told the Joint Committee that they

“did not consider that there was any evidence of a pressing need to protect transsexual people against discrimination in other fields.”

I find that astonishing because it is clear that there is a problem. The Committee did not accept the Government’s approach. It states:

“The evidence provided by our correspondents shows that there is a significant amount of discrimination against transsexual people in the supply of goods and services, particularly pubs and clubs, and in housing, where homeless people may be left without access to a hostel because the people in charge of hostels for men and women respectively refuse to take in people on account of their status as transsexuals. This is borne out by other anecdotal evidence.”

It was of the view that there is a pressing need to protect transsexual people against discrimination in areas other than employment and vocational training.

Mr. Tim Boswell (Daventry) (Con): Perhaps my intervention will preclude the need for me to make a speech on the matter. Would the hon. Gentleman agree that in cases such as the hostel situation that he cites, if a person is transgendered and has assumed the gender of a woman for all purposes in law, discrimination against her would apply if no provision were made for her as a woman?

Dr. Harris: No. If she were not allowed in a woman’s hostel, it would not be because she is a woman. She cannot get the protection of the Sex Discrimination Act on the basis of her gender. She would have to argue that she is being discriminated against not as a woman—and the comparator would not be the rights that men get—but because she is a transsexual. British law does not cover that situation. The hon. Gentleman gave a useful example, which shows the distinction between the two forms of discrimination.

I share the view of the Joint Committee that

“there is a risk that the legislation in its present form might give rise to a violation of the right to be free of discrimination on the ground of status in the enjoyment of Convention rights, under ECHR Article 14. Gender reassignment affects a person’s status, and the relationship with status will be still clearer when a person can obtain a gender recognition certificate with legal effects.”

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That makes the point that after the passage of the Bill the Government are more liable to be subject to a successful action on that basis. The Joint Committee also says that

“the supply of goods and services, housing and education fall within the ambit of the rights under ECHR Article 8 and Article 2 of Protocol No. 1. Discrimination in those fields on the ground of gender reassignment may therefore engage the right to be free of discrimination under Article 14, taken together with those rights.”

That is a restatement of what I said earlier, and is the clear view of the Joint Committee.

It is not satisfactory that the Government, who have plenty of time to think about the issue, do not consider it a pressing need. Even though we do not have an amendment before us today, there will be a need to examine the matter at a later stage. I shall leave the Government to make their response, and I shall respond to that response—rather like the Joint Committee—when I speak at the end of the debate, but I would like the Under-Secretary to explain whether he feels that the Government will be able to resist claims made under articles 14, 8, and 2 of protocol 1. Is his confidence in that, and the legal advice that he has received, affected by the passage of this legislation, where the status is provided for formally by the Bill?

It is disappointing that the Government are proceeding so slowly on these matters. There have been moves supported by all parties for an embracing equality Act that would solve such problems once and for all. I would like to use this opportunity to lobby the Under-Secretary on that issue. He will not have to sit through proceedings such as these if he avails himself of the opportunity to take what he knows is the right step, which is to ensure once and for all that we provide protections, and the bodies required to police them, in a satisfactory way.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): Once a person has recognition of their acquired gender, he or she will be protected against discrimination on the basis of that acquired gender, in the same way as any other person of that gender is protected. The entirety of the Sex Discrimination Act 1975, as it applies to men and women, will apply. That protection on the basis of gender or sex extends to the provision of goods, facilities and services as well as employment. There is the separate issue of protection from discrimination on the basis of gender reassignment. Discrimination against a male-to-female transsexual person may occur either on the basis of being a woman, or on the basis of being a transsexual person.

Protection from the second variety of discrimination already exists in the realm of employment and vocational training. It flows from the equal treatment directive and the decision of the European Court of Justice in P v. S and Cornwall county council, to which the hon. Member for Oxford, West and Abingdon (Dr. Harris) referred. In that case, it was decided that, in European Union law, sex discrimination included discrimination on the basis of gender reassignment. Certain exceptions apply to the

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existing protection, but schedule 6 removes most of them for individuals who have recognition in the acquired gender.

It is true that the Bill does not extend the existing anti-discrimination protection for transsexual people to goods, facilities and services. The Government were pressed on that point by the Joint Committee on Human Rights. We made it clear that we will continue the UK’s approach to dealing with discrimination issues in conjunction with our EU partners. A new sex discrimination directive that extends to goods and services was published in November last year and negotiations on it are now under way. As a result of the European Court of Justice decision, the negotiations will consider effects on transsexual people. We want to ensure that the issues raised by the Joint Committee and others are properly considered and that there is consultation not only with the transsexual community but with businesses and other parts of the community, such as religious groups and the voluntary sector.

Lynne Jones (Birmingham, Selly Oak) (Lab): Representatives of the transsexual community were very much involved in the generation of the guidelines when employment regulations were introduced following P v. S and Cornwall county council. At that time, the supply of goods and services was raised. Can my hon. Friend the Minister confirm that nothing in European law prevents the Government from introducing anti-discrimination measures in the Bill?

Mr. Lammy: I know that my hon. Friend did a great deal of work on that piece of equality legislation, which deals with training and employment for transsexual people. She is right in saying that there is nothing to prevent the Government from acting. However, as I indicated, we are in discussion with our partners in Europe. We have a draft directive as of three months ago, and it appears that there will be legislation on the matter. The Government welcome that and believe that it is right to have that dialogue with our European partners, come to a conclusion and then take the matter forward.

Mr. Boswell: Would the Minister also agree that if the issue is discrimination against transsexual people, as opposed to those whose gender has been reassigned, it is important not to create classes of discrimination between persons who are transgender but have not applied for a gender recognition certificate and those who have? Both may have exactly the same medical conditions and, notionally, suffer the same kind of discrimination.

Mr. Lammy: That would rightly be a matter for discussion with our partners in Europe. There may be different views on the matter. Not everyone will apply for the gender recognition certificate. My party is committed to people having equality before the law.

Dr. Harris: Can the Minister give an undertaking that, if it is decided that there will not be such a directive because negotiations fail in Europe, the Government will introduce their own legislation to provide for that under the extension of the provision to the other parts of the 1975 Act?

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Further to the point raised by the hon. Member for Daventry (Mr. Boswell), if our European neighbours require surgery as the basis for the equal treatment directive, will he assure us that that will not be the Government’s approach and that the protections that we have in this country, when we eventually get them, will apply to post-surgical transsexuals who are in transition?

2.45 pm

Mr. Lammy: The hon. Gentleman has much experience of this place. I cannot commit the Government to either of the points that he raises, but I can say that the Government are in discussion with their European partners. We stand square behind equality on such issues. We are pleased to bring forward this legislation, which improves the situation for transsexual people. Our position in discussing with our European partners extensions to the equality regime regarding goods and services is clear, but I cannot commit the Government to when and how that will come to pass. That would predetermine the outcome of these important discussions. However, should we reach that horizon, it is important to realise that transsexual people will have that equality throughout the European Community, and that must be a goal worth striving for.

When a recognition system is in place and we have seen the impact on the treatment of transsexual people in society and the benefit of the discrimination protection on the basis of the acquired sex, we shall be in a much better position to go through the process and to agree an informed and thorough approach with our partners in Europe.

When the Joint Committee commented again on the issue in its second progress report, which was published last month, it said that

“we accept that it might be reasonable to await the outcome of the negotiations for an EC Directive on sex discrimination in the field of goods and services.”

It continued:

“We hope and expect that the Government, when participating in those negotiations, will use its best endeavours to ensure that full account is taken of the need to respect the right of transsexual people to be free of discrimination”.

I can assure the Joint Committee and this Standing Committee that we shall do so.

Dr. Harris: I do not expect to say much more about that schedule, but the Minister did not complete the quote. I wonder whether that was because he read the only bit of the quotation that his officials gave him. It continued

“on the ground that they have undergone, are undergoing or plan to undergo gender reassignment therapy.”

Can the Minister clarify that his failure to read that out was not a sign of policy in that respect?

Mr. Lammy: I have volume 1 of the report in front of me, but I do not have volume 2 to hand, although I can obtain it. There was no attempt to mislead the Committee. I intended to acknowledge only that the

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Government want to move in that direction with respect to our European partners, but we must await the outcome of those deliberations.

Question put and agreed to.

Schedule 6 agreed to.

Clause 15 ordered to stand part of the Bill.

Clause 16 [Peerages etc.]

Richard Younger-Ross (Teignbridge): I promise that I shall be brief. I am concerned that one aspect of clause 16 has not been covered and that discrimination is being allowed to continue for a certain sector of society. I say that not because of any particular regard to protect the rights of the aristocracy, but from the belief that the aristocracy are considered, by some sections of society, as being above society, and that rules that apply to them are then applied below, although I do not accept that position of above and below. Clause 16 reads:

“The fact that a person’s gender has become the acquired gender under this Act … does not affect the descent of any peerage or dignity or title of honour”.

Therefore, could the Minister confirm that if a male who was in line of succession for a title transgendered to a female, that person would still assume the title? Similarly, if the first-born was female and became male, would they still not assume the title? It strikes me that there is a subtle exemption that runs counter to the purposes of the Bill. If the Bill is intended to allow for no discrimination, should the Government not tackle that?

Mr. Lammy: I should perhaps begin by saying to the hon. Gentleman, well spotted. The matter was debated at length in another place and the answer to his question is yes. The clause mirrors the exception made in the Adoption and Children Act 2002. It recognises the unique nature of peerages, dignity and titles of honour in that they descend according to birth. The terms of descent cannot be changed and the expectations of the persons entitled by birth may be defeated if the acquired gender of a sibling were to count in the way that the hon. Gentleman outlined. He will understand that the community of people with peerages and dignities in this country is small, as is the transsexual community, so I do not expect that this exception, which he dislikes, will frequently occur.

Dr. Harris: Will the Minister clarify whether the fundamental problem is that of prima genita? I do not want to go too far down that road but can he, as a Minister in the Department for Constitutional Affairs, clarify whether, among the range of matters considered by his Department, the proposal to scrap that rule will emanate at some point? That would solve the problem to which my hon. Friend the Member for Teignbridge (Richard Younger-Ross) drew attention.

Mr. Lammy: The hon. Gentleman will know that the consultation on House of Lords reform began a short while ago, and his party has no doubt made its views

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known. I do not want to pre-empt the outcome of potential legislation. The matter is technical but is important in another place. Therefore, clause 16 stands as it does.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.

Clauses 17 and 18 ordered to stand part of the Bill.

Clause 19 [Sport]

Question proposed, That the clause stand part of the Bill.

Lynne Jones: I want to query the necessity of this clause, which was not included in the draft Bill but was inserted at the insistence of certain peers who seem to be living in a fantasy world in relation to allegations of threats that the Bill could jeopardise the way in which sports are governed. For example, one newspaper article referred to the following suggestion:

“The Gender Recognition Bill … has put the entire future of competitive sport in jeopardy”.

The noble Lord who moved the amendment said that there would be plenty of sportspeople who would attempt to use such rules to get an edge.

The idea is that somebody could change their sex at will. A male could apply to become a female and gain an advantage over other women in competitive sport. That really is a fantasy, and I am disappointed that the Government have gone along with such a notion. The clause allows sports bodies to discriminate against transsexual people on the basis of a necessity to secure fair competition or the safety of competitors. Sports bodies already have the power to decide safety matters; if they thought that a boxer would cause himself harm by going into the ring, they could stop him from participating. So, I query the safety aspect of the clause.

There is the idea, based on science fiction, that people change from one to sex to the other at will. The Bill does not allow that. Somebody seeking recognition for the gender that they perceive themselves to have always been in must have lived in that role for two years and received some, if not all, medical treatment for the condition. So, the idea that a man could become a ladies’ champion is an unrealistic and fictional concept because any man treated with feminising hormones is likely to be at a disadvantage to the very fit women that currently compete in sport at the highest level.

It is appropriate for the Minister to respond to the question of why it is necessary to include a clause that allows unnecessary discrimination against transsexual people.

Mr. Boswell: I counsel the Minister not to accept the arguments, however charmingly advanced, of the hon. Member for Birmingham, Selly Oak (Lynne Jones). She is right on the principle, which is that the Bill is of

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general application to legal status, and we should test any derogation from that quite seriously. We recently discussed such a precise point in clause 16.

The hon. Lady has no doubt assiduously read the debates in another place on the matter. My hon. and noble Friends Baroness Buscombe and Lord Moynihan, who share the dubious pleasure of participating with me on our culture, media and sport team, were engaged with some practical problems not dissimilar to the concerns about the practice of religion voiced by my hon. Friend the Member for South-West Bedfordshire (Andrew Selous). I am glad that they persuaded the Minister to introduce an entirely measured and appropriate new clause.

Lynne Jones: Does the hon. Gentleman accept that neither the individual sports governing bodies nor the International Olympic Committee have requested the derogation?

Mr. Boswell: Perhaps not in such terms, but I am well aware from the work that my friends whom I have cited have done that there has been some concern, which they have pursued with the governing bodies to a satisfactory outcome. In parenthesis, the IOC, which was considering the issue parallel to them, has no further observations to make. The Minister may want to include that in his concluding remarks.

I say to the hon. Lady that of course the clause is not a blank cheque for discrimination. I would share her concerns if it were. It ties exclusion to two objective tests that ultimately could be heard by the courts. I think that we all wish that that sort of thing should not get to the courts. The tests are those of fair competition and the safety of competitors. If push came to shove, a governing body would have to justify itself. Basically the problems are, in certain cases, real and have been wrestled with by governing bodies in the past in relation to shot-putters, weightlifters and so on. They do not arise simply in relation to transsexual people, and I do not wish to pretend that they do. I do not think that the debate has been conducted in tabloid terms and I do not intend to change that.

There could be difficulties for some governing bodies in particular areas where there is a clear sex or gender advantage, especially in a minority sport where the governing body would not have huge resources to resist the challenges. The other aspect of the matter is that, where there has been settled practice for dealing with these difficult issues, it has generally worked fairly for all competitors. There is also a duty to competitors not in that position. So, while I understand the difficulties of the issue and where the hon. Lady is coming from, and look forward to the Minister’s response, I do not seek to encourage him to accept the amendment.

3 pm

Mr. Lammy: I accept the arguments made by my hon. Friend the Member for Birmingham, Selly Oak. Clearly, there will not be many transsexual people who play competitive sport. That is partly because there are not many people who play competitive sport at any

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significant level. However, it is also because the transition process, and the treatment that transsexual people undergo, can affect their bodies substantially.

Clause 19 is not, however, premised on the idea that all transsexual people pose a threat to competitive sport. Indeed, it expressly does not apply to transsexual people as a class. It permits a sporting body to restrict the participation of a transsexual person only if it is necessary to ensure fair competition or the safety of other competitors. That means that wherever a transsexual person does not have a competitive advantage, by virtue of having previously been of another gender, a sporting body will not be entitled to exclude that person from competition. The Government do not wish for transsexual people to be unnecessarily excluded from sporting competitions and we do not think that clause 19 creates that scope.

Dr. Harris: Let us consider the example of golf. Many people play golf, including many transsexual people. A transsexual woman may become a member of a golf club and participate not only in her own private games but in competition. Those are generally either handicapped or split into genders, for sporting reasons. In golf clubs, I suspect that the split may also be for cultural reasons. No matter how good that woman is, she may well have a more distant drive, on the basis of greater strength, if that is retained from her previous gender. How does the Minister expect golf clubs, which will probably want to prevent them from participating, to include any transsexual women in such competitions?

Mr. Lammy: From the cuttings that I have read, I know that there is a golfer in that situation. That must be a matter for the sporting body. The hon. Gentleman knows that there is nothing to prevent a sporting body from asking the question and considering the matter in the context of their sport, and that the IOC will shortly publish guidelines to assist sporting bodies in making such determinations. The decision is properly for them. The clause seeks to set out the ambit of fair and safe competition, but any decision imposed to ensure either fair competition or the safety of competitors must be in accordance with the law and justified under article 8.2 of the convention.

Any piece of human rights legislation must balance the rights and interests of one set of people against those of others. Clause 19 does so in the context of sport and, therefore, should remain part of the Bill.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20 ordered to stand part of the Bill.

Clause 21 [Foreign gender change and marriage

Dr. Harris: I beg to move amendment No. 72, in

clause 21, page 8, line 19, leave out from ’(1)’ to ’a’ in line 22.

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The Chairman: With this it will be convenient to discuss amendment No. 73, in

clause 21, page 8, line 42, at end insert—

’(6) Subsections (1) to (5) shall not apply to persons who have had gender recognition under the law of an approved country or territory and who have entered into a foreign post-recognition marriage.’.

Dr. Harris: The amendments are partially intended to probe what the Government are trying to do with the clause. Amendment No. 72 would leave out subsection (1), which states:

“A person’s gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom.”

It would also remove the word “accordingly” in subsection (2) to make the rest of the provision sensible without subsection (1).

My concern is that subsection (1) closes down any option for mutual arrangements to be agreed between Britain and other countries. If the Government were to negotiate a mutual recognition arrangement, which I understand has not been ruled out, it would be necessary for the provision not to exist; otherwise, such arrangements would be rendered useless by inclusion of the subsection.

For example, let us say that we were happy with the rigour of the procedures in Belgium and were more than willing to recognise its transsexuals as people to whom we would give recognition in this country. There could be a mutual recognition arrangement with the Belgians whereby a Belgian who is staying here for some time and wants recognition would not have to follow the clause 1 approach and apply for a gender recognition certificate. It would be fine simply to accept the Belgian recognition in law.

Subsection (1) would preclude that, regardless of the marital status of the person concerned. I hope that the Minister will clarify, first, whether that is his understanding of the provision, and, secondly, whether he believes that to be a problem or whether he believes that there can never be any mutual recognition that would preclude someone from going through the formal stages set out in earlier clauses, which are onerous in respect of evidence, medical reports and so on but which make exception for approved countries. People from the list of approved countries are not required to provide the evidence in clause 3 but are required to make application. People moving around European countries that have satisfactory arrangements should not have to apply for recognition in every country in which they live.

There is a separate issue concerning marriage in relation to amendment No. 73. That amendment would add a new subsection (6), which states that subsections (1) to (5)—or (1) to (4), if the previous amendment is by some miracle accepted by the Government—shall not apply to persons who have gender recognition under the law of an approved country or territory and who have entered into a foreign post-recognition marriage. The term “approved country” or “territory” comes under the same definition that is provided in clause 2.

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It is important to go through subsections (2) to (5) because they are not easy to grasp conceptually. Subsection (2) states that a person is

“not to be regarded as being married by reason of having entered into a foreign post-recognition marriage.”

That in itself, without the further provisions, would be rather disappointing to a transsexual coming from abroad who has entered into a foreign post-recognition marriage. Subsection (3) goes on to say:

“But if a full gender recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as void on the ground that (at the time it was entered into) the parties to it were not respectively male or female.”

It is a nice concession to make for people from other European countries that we shall deign to recognise their marriage when they get a full gender recognition certificate.

Subsection (4) states:

“However, subsection (3) does not apply to a foreign post-recognition marriage if a party to it has entered into a later (valid) marriage before the issue of the full gender recognition certificate.”

That is all a bit bizarre. Subsection (5) states:

“For the purposes of this section a person has entered into a foreign post-recognition marriage if (and only if)—

(a) the person has entered into a marriage in accordance with the law of a country or territory outside the United Kingdom,

(b) before the marriage was entered into the person had changed gender under the law of that or any other country or territory outside the United Kingdom,

(c) the other party to the marriage was not of the gender to which the person had changed under the law of that country or territory, and

(d) by virtue of subsection (1) the person’s gender was not regarded as having changed under the law of any part of the United Kingdom.”

It is not entirely clear to me what those provisions are designed to do, but it seems that they should not apply to any country whose procedures we recognise. There should be nothing wrong with a foreign post-recognition marriage when we recognise the procedures of that country as valid.

I am not sure whether the Government are worried about having to recognise same-sex marriages from abroad when one of the people concerned is a transsexual. It does not seem that the provisions are needed to deal with that. The amendment is designed to probe why the Government have had to contort themselves, when there might be provision for a country or territory whose systems we approve of—as provided for in another clause—in which case the provisions would not be necessary.

Lynne Jones: We had some debate on this matter when considering clause 1. I expressed the view that the Government ought to be seeking reciprocal arrangements with countries whose procedures on such matters were as rigorous as ours. I remain of that view. Amendment No. 73 is one way round that problem, and I hope that the Government might consider it. If it is not satisfactory, I hope that they will draft their own amendments on the issue.

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3.15 pm

I would also like to raise the issue of how we treat such marriages at present.

I have a note from Nicholas Blake, QC, of Matrix chambers, who has expressed concerns about the effect of the legislation on custom and practice. I am told that the rules on recognition of foreign marriages, both in common law and by statute, refer to the validity in the law of the place of domicile or intended permanent residence of the party concerned. For example, foreign transsexual marriages have been recognised by the authorities in this country for such purposes as immigration and tax.

Clause 21 would be inconsistent with European Community law and is therefore futile. The example is given of a Dutch transsexual who is married to a Malay man in Holland, and who seeks to come to the UK for employment. That person would have the right to bring in the spouse as a family member under regulation 1612/68; the UK would have to defer to Dutch law as to whether the marriage was valid. Any non-recognition for the purpose of a visa, residence permit, tax or social security would be incompatible with European Community law on the grounds of, first, an obstacle to enjoyment of rights of free movement, and secondly, discrimination in the recognition of foreign marriages and subordinating all marriages to domestic law. I am told that in such a state of affairs it is clear from KB(ECJ) that UK law is void and must be disapplied by national courts.

I appreciate that the point that I have raised is a new one for the Minister, but I ask the Government to consider the issue.

Mr. Boswell: I have not previously sought to speak in this debate, but stimulated by comments made by the hon. Members for Oxford, West and Abingdon and for Birmingham, Selly Oak, I have found a potential pitfall. In fairness to the Minister, these are issues to take away and think about.

In addition to endorsing the need for the Minister to provide understanding in response to the probing amendments and the comments made on legal opinion, I ask him to consider subsection (3), which relates to the odd concept of not recognising a foreign post-recognition marriage—or regarding it is as void—but regarding it as valid on the issuing of a certificate. The Government could be caught between two stools. It would be difficult, as the hon. Lady said, for them not to accept certificates at all because of common law. However, if they said, “You have to have a gender recognition certificate and you also have to have a British marriage certificate that brings you up to date in consequence of the issue of your gender recognition certificate”, that would be a coherent position.

From my understanding, the clause means that we will not accept the validity of a foreign post-recognition marriage unless and until a British gender recognition certificate has been issued, which may be available on the strength of a foreign gender recognition certificate. My problem is in construing the proposal in subsection (3) with the general

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provision in clause 9(2), in which it says that the general rule about a person’s gender becoming the acquired gender,

“does not affect things done, or events occurring, before the certificate is issued”.

A person may have been married post-recognition in a foreign jurisdiction. That may not have been accepted as a valid marriage in Britain until the certificate was issued, but anything done after that would presumably be regarded as valid. The difficulty for the Minister, which follows the hon. Lady’s point, is over rights under British law that might attach to the marriage, albeit carried out in a foreign country—EU or otherwise—which the Government sought not to recognise. For example, under social security or equal treatment law, the Government might be constrained to treat a marriage concluded abroad as valid, but in effect they are saying, in a slightly shaky way, “Well, we didn’t think it was valid to start with, but now we have got the certificate we are prepared to accept it.”

There is the potential for a loss of rights to the parties to the marriage due to non-recognition during that interim period. I do not know whether that is a material difficulty; I am not absolutely sure whether it is exactly the same point that the hon. Lady obtained from learned advice; however, the comments have exposed the difficulties in that area, and Ministers may need to reflect a little more before reaching a final conclusion.

Dr. Harris: I offer an alternative form of words to the amendment, which summarises what the hon. Gentleman and the hon. Member for Birmingham, Selly Oak said. If the Minister could respond to it in the same debate I would be very grateful. An alternative subsection (6) would state:

“This section does not apply to a marriage that would have been recognised as valid by any rule of law before the coming into force of this Act.”

I have seen that form of words in legislation before. It would deal with the points about European law and fairness raised respectively by the hon. Members for Birmingham, Selly Oak and for Daventry.

Mr. Lammy: We have already had detailed discussion of the issues in the context of clause 1, as has been mentioned. In reality, gender recognition is not an area in which there are standardised criteria across the world. Different countries apply different standards of recognition—hence we have sought to create a process that takes account of those variances and allows the UK to deal differently with applicants from those countries that have criteria that are at least as rigorous as our own.

I understand the view that a person who has recognition from an approved country should not have to apply for recognition in the UK, but have it by virtue of recognition overseas. Before I set out why we require the person to make an application before recognition, I should clarify that the application is straightforward. All that the person is required to provide is evidence of their recognition overseas. We are talking about people who probably wish to live and work in the UK, and the application can be completed well before the person gets to this country.

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In discussing the issue, it is important that we consider the practicalities of subsection (6). Recognition may be an amended birth certificate, as in Austria, Belgium or France; or a new civil status certificate, as in Germany or Italy. The person does not have to produce new medical evidence, so there are no new hoops to jump through. If the country is on the approved list, we will be satisfied that the criteria are at least as rigorous as our own. There is nothing to prevent a person who is travelling to, or coming to live and work in the UK, from applying for recognition in the UK before he or she arrives. So, for the Government and the integrity of the legislation, the solution in the Bill provides a high level of certainty. It provides for the issue of a UK gender recognition certificate and hence a precise point at which the person has recognition in the UK.

Although gender recognition certificates will not be used as an identity document by most transsexual people, as by its very nature it reveals a very private fact, we understand that some people will choose to use it in that way—especially if the alternative is to use a foreign birth certificate, which may be alien to any person to whom they show the documents.

One other consideration has been that some countries allow same-sex marriages and that, therefore, a person could be recognised in the acquired gender and married to a person of the same gender. That person will still be of the original gender and, as far as the UK is concerned, their marriage will be an opposite-sex marriage. On recognition of the acquired gender in the UK, however, the marriage would become a same-sex marriage under UK law. If we recognised the acquired gender of those with recognition overseas without an additional application, we would be faced with the creation of a small category of same-sex marriages recognised by UK law. UK law does not recognise any same-sex marriages at present. The requirement for an application allows the UK to ensure that it does not begin to recognise same-sex marriages contracted overseas.

Andrew Selous (South-West Bedfordshire) (Con): I am interested in the Minister’s words “at present”. Is it the Government’s intention to head towards same-sex marriages at some point?

Mr. Lammy: We have had much debate on this. I do not know how many times I have used the term “civil partnership”. The Government’s position in this area is clear.

The complex problem of overseas marriages illustrates the difficulties raised by private international law in relation to the issues that we are discussing. We believe that the process that we have designed in the Bill minimises the difficulties through a straightforward application process, without placing any undue burden on transsexual people who already have recognition of their acquired gender overseas.

Lynne Jones: Will the Minister clarify whether the passage of this legislation will affect the rights of a couple who are legally married in one of their countries of origin, and who are resident in this country, or living

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here for a while? Would such a couple be required to have that relationship recognised for other purposes, such as tax and immigration? Would they have to apply for a gender recognition certificate?

Mr. Lammy: The issue that my hon. Friend raises, and the quotation that she refers to from Nicholas Blake, QC, are things that I want the Department to consider fully. I will reply to her in a letter, if she can provide me with the full text of that summary. I acknowledge that the issue is serious, and I want to get to the bottom of it.

Mr. Boswell: The Minister has just made a perfectly appropriate response to the hon. Lady. Will he also, for the purpose of the Bill, commit himself to reflect—I ask no more than that—on whether it may be possible to give some kind of retrospective validity to Acts made in relation to the foreign marriage when the marriage is recognised by the issuing of a British gender recognition certificate?

Mr. Lammy: The issue that the hon. Gentleman raises is connected. In endeavouring to get to the bottom of the contribution made by my hon. Friend the Member for Birmingham, Selly Oak, that is certainly something that we will want to consider.

Dr. Harris: Subsection (3) has more in it than I had thought. When the Minister started talking about same-sex marriages, I began to wonder what subsection (3) is really trying to say. It states:

“if a … recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as … void on the ground that (at the time … it was entered into) the parties to it were not respectively male and female.”

Does that mean in the eyes of British law, because they were not in possession of a British certificate?

Mr. Boswell: That is correct.

Dr. Harris: The hon. Gentleman says that he thinks that that is correct. Or, is it because it was a same-sex marriage and therefore the parties were not respectively male and female, even though that was allowed by that foreign country? Or, is subsection (3) just trying to extract the idea that non-same-sex marriages are okay after the full recognition certificate is issued? The wording is ambiguous in the context of the Minister talking about same-sex marriages and I would be grateful for clarification.

Mr. Lammy: Subsection (3) states that foreign post-recognition marriages will be recognised if the person who already has legal recognition in the acquired gender in another country or territory gains recognition in the acquired gender in the UK. Such recognition will apply only where the parties to the marriage are then of an opposite sex. So, we have to deal with both points. We must make it clear—and qualifications continue throughout subsection (5)—that recognition must be under UK law and that it must be an opposite-sex marriage. That is why there is a need for qualifications.

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This is clearly a developing area. At present, there are no universally applied international standards for gender recognition. No doubt we will gradually move towards such shared standards. At that point, we will have to reconsider the provisions for people who received recognition overseas. Perhaps we will be able to set up robust reciprocal arrangements with, for example, other EU states. For now, we believe that the approach that I have outlined best tackles the complexities raised by overseas gender recognition. With that explanation, I hope that the hon. Gentleman will withdraw his amendments.

Dr. Harris: It has been an interesting debate. First it is appropriate to deal with the point raised by the hon. Member for Birmingham, Selly Oak. I am grateful to her not only for having read but for having found the briefing that we were both given by the QC from Matrix chambers. I endorse what she said.

I am grateful that the Minister has offered to consider whether some marriages that would now be recognised as valid—and, therefore, some rights retained in European law—might not be recognised as a consequence of the clause, or any part of the Bill, if it is not amended. If he intends to write to me on the subject, I would be grateful if he would do so well before Report, and if he would send that letter to all Committee members. They would find it useful.

On amendment No. 73, I think that I now understand the complex structure of the clause. I apologise to the Committee for not having understood it earlier, although I have been talked through it on a number of occasions by people who, I think, do understand it. It is a complex way of putting the point. It appears that clause 21(3) is qualified by subsection (5)(c). The former states that, where the

“full gender recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as being void”—

which it previously was by virtue of subsections (1) and (2)—

“on the ground that (at the time when it was entered into) the parties to it were not respectively male and female”.

That is qualified by subsection (5)(c), which says that

“the other party to the marriage was not of the gender to which the person had changed under the law of that country or territory”.

I think that that is clear.

We still have the difficulty, however, of whether the Minister is right to say that we cannot recognise even foreign same-sex marriages legally. I wonder whether the Minister can clarify that by an intervention. I have seen social security Bills that contain clauses dealing with polygamous marriages and marriages of people to a partner under the age of consent, which we would not regard as valid here. I do not want to open a debate about those marriages, but is he saying that same-sex marriages are a class apart even from those situations, in that they can never be recognised? He used the same language, which is that we would be creating a small set of marriages that we cannot tolerate creating. It seems that that goes a little further than we have gone

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about those other practices that happen overseas but do not happen here. I hope that the Minister will be able to help.

Mr. Lammy: The Government’s position is that no same-sex marriages have been recognised here. There is no authority on the subject. The position under English private international law is unclear. If something were to come to our attention of which we were previously unaware, I would bring it to the hon. Gentleman’s attention. However, our position is that foreign same-sex marriages are not recognised in the UK.

Dr. Harris: I am grateful to the Minister for clarifying that he does not know of any such marriages that are currently recognised, even though we recognise polygamous marriages and marriages to people under the age of consent that have happened lawfully abroad.

The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): In some social security legislation we recognise the impact of validly contracted polygamous marriages, in which people come from countries where polygamous marriages are allowed, for the purpose of applying social security rules about benefits for married people. However, we do not recognise the marriage—if the hon. Gentleman sees the distinction that I am trying to make.

Dr. Harris: I see the distinction and it might be dealt with by the amendment proposed by Nicholas Blake, QC, in respect of rights not being lost by virtue of the introduction of the legislation. It would provide for something similar to what the Under-Secretary has described—recognising what flows from the marriage, if not the marriage itself. I am grateful to her, as I looked in her direction when I mentioned social security. I note that she is not dealing—nor should I expect her—with the issue that I raised about marriages between people, one of who is, or both are, under the age of consent.

The Minister with responsibilities for constitution affairs says that he does not think that any same-sex marriages are recognised and that it is the intention of the clause, and in particular subsection (5)(c), to ensure that that remains the case.

Angela Watkinson (Upminster) (Con): Would the hon. Gentleman agree that, in effect, there would be a form of same-sex marriage in this country if one partner in an existing marriage were to undergo gender reassignment and acquire a new gender but not seek a gender recognition certificate? In those circumstances the marriage would remain legal and, to the eyes of the world, they would be two people of the same gender living together in marriage, but it would not be recognised in law.

Dr. Harris: That is right. I am not a lawyer and I am dubious about using Latin, so I do not know whether it is a de facto same-sex relationship—

Maria Eagle: Doctors use Latin all the time.

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Dr. Harris: This one did not; this one missed those parts of the course because of by-elections, which is probably why I am doing this and not practising.

The point is that the relationship is not recognised as a same-sex marriage because without the gender recognition certificate the transgender status is not recognised for the purpose of marriage and the marriage has to be dissolved.

The points that the hon. Lady raises are important because people’s understanding of what happens is different from the law. I will not prolong the matter; it is important to wait for the Minister’s promised response in writing, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clause 22 [Prohibition on disclosure of information]

Mr. Boswell: I beg to move amendment No. 21, in

clause 22, page 9, line 3, leave out ’in an official capacity’.

I am conscious that time is increasingly precious and I am anxious that the serious issues in the amendment should be debated. The Minister and other members of the Committee will have noticed that the amendments are essentially probing, but it is important for Ministers to reply to them.

Given the sensitivity expressed many times about the transsexual community and the release of information, the last thing that anyone in Committee wants is the wanton abuse or publication of information about the transsexual person’s application or gender history that would cause them distress. Against that, there are the public duties, including crime prevention and child protection, which must be properly dispatched. It is that balance—to use the Minister’s phrase—that we are analysing again.

If we were to agree to the amendment, it would formally preclude the release of any protected information by any person to any other person, regardless of whether it was acquired in an official capacity. There was a good deal of discussion in the debates in another place about Ministers not becoming over-officious and seeking to regulate gossip. If Ministers are taking that approach, it is a fairly healthy if not always characteristic one. Clearly, even if we privately felt that something was better not said, we would not necessarily wish to pass a law or to take the full weight of the law against someone who said something in a casual moment. It is regrettable when people gossip about personal matters, but we should not necessarily pass laws to stop it.

I would be grateful if Ministers would clarify whether they are taking that position. Perhaps they would also say whether any changes to the general laws or obligations in respect of confidentiality and privacy may come about that would bind us all as citizens rather than binding only those in a specific and official capacity. That is my first concern on the matter.

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My second concern is with the definition in clause 22(3) of the official capacities in which persons may acquire protected information. The Minister may have had a chance to reflect on something that I mentioned in our earlier discussions on marriage, or he may want more time to reflect. For the purposes of the Bill, clergy, whether in the Church of England or the Church in Wales, are not seen to be acting in an official capacity because they perform not a public function but a private religious function. I am not absolutely clear whether they have duties of confidentiality and, if they do, exactly how such duties bind them or relate to other duties that apply to other ministers or leaders of religions or faith communities.

It is not always clear whether Members of Parliament act in an official capacity; we should never be obsessed by that in this place. We are not officials or holders of public office. Mr. Speaker may have a position as a public office holder but we do not. I do not suggest for a moment that we should abuse anything that comes our way. I am sure that we are all familiar with the general duties of confidentiality in our work as constituency Members, but it would be useful to clarify how they work.

The third point is rather different. It is about the release of information in subsection (2) that

“concerns the person’s gender before it becomes the acquired gender.”

I hope that the hon. Member for Oxford, West and Abingdon will give me a brownie point for taking notice of one of his colleagues. The hon. Member for Winchester (Mr. Oaten) made an interesting and important point in his contribution on Second Reading when he said that it is possible to leak information in different ways. It is not necessary to be explicit and ask, “Did you know that this person has had a gender change?” in order to allow such information to reach the public domain; it could happen by accident. We are all aware that it is possible to breach confidences inadvertently and, to some extent, guard against it, but such a breach can occur because the policies of an organisation are not particularly sensitive to such issues.

I have not checked the record, but I believe that the example of the hon. Member for Winchester was about an academic certificate. That is a typical case. Let us say that Miss Freda Bloggs had undergone gender reassignment and received a certificate. She had been at a university 30 years before and had occasion to go back for an academic certificate. Not only would she no doubt have been registered in her previous name and gender—Mr. Fred Bloggs—but, if she held a public post, particular given the way that people use window envelopes, that would involve a public display of her gender history. That is something that no one, least of all academic authorities, would wish to encourage—indeed I am sure that they would wish to avoid it. Ministers should discuss with people who might have an interest in the issue, who are not necessarily defined as acting in “an official capacity” under the terms of the clause, whether something must be done.

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I am thinking whether it might be possible to agree with the main purveyors of this sort of historic information that there should be a code of practice to which they should adhere. Perhaps a transgender person who had received a certificate would be able to draw their attention to the provisions of the code of practice and encourage them to take the necessary steps to avoid personal details being disclosed. For example, in the case that I cited, a university could be persuaded to modify academic certificates to accommodate the change of name and gender so that that way of inadvertently disclosing someone’s history would be closed.

These are tentative but important thoughts. None of us on the Committee would want anyone to abuse information that they obtain. Some information may come contingently in conversation, and I would hope that people would not abuse it anyway, although it would be useful if the Minister were to clarify whether there are duties or restraints on the use of that information. Some information may come formally in an official capacity, and it would be useful if the Minister could define that capacity and how far it goes. Some of it might fall into the public domain because of the insensitive use of past information, even when tendered in good faith. The Minister needs to consider whether reasonable understandings can be found, as have operated historically for public services such as driving licences, which could be applied and made available to people not strictly acting as public officials so that they could play their part in making the situation acceptable for all involved.

Dr. Harris: The hon. Gentleman raised the example of a Member of Parliament and I will be interested to hear the Minister’s response, but—I hope he will forgive me if I am repeating him—he also raised the question of a minister of religion or other person. The Government were partially relying on the view that for an action under the Human Rights Act to succeed against a minister of religion or his equivalent outside the established Church, it would have to be shown that the minister was a public authority or held a public office. We also debated the fact that that would be inappropriate and, I understood, prohibited under clause 22 for such a person to disclose that information. There seems to be a conflict or contradiction between those two positions and, since I do not know the answer, I would be grateful if the Minister could provide clarification and reassurance that the position that he and I want is provided for under clause 22.

Mr. Lammy: The Bill contains protections for the privacy of transsexual people, and those protections prevent harm to the transsexual person or to their family and friends from the disclosure of information by those who have received it in an official capacity. As the information in question is sensitive personal information, disclosure without the consent of the person in question must be restricted. Otherwise, we

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would fail to respect the person’s right to respect for private life under article 8 of the European convention on human rights.

Clause 22 has an important limit, and the amendment addresses that limit. Not only does it enumerate a list of exceptions that allow disclosure when that is justified in terms of public policy, it extends only to information that is required in an official capacity. The amendment seeks to expand clause 22 to cover all information, even that acquired in a private capacity. There are numerous examples of legislative prohibitions that apply to official or public bodies and individuals acting in an official capacity, but not in the private sphere. Data protection legislation is one example. That does not mean that the conduct is right when it occurs in the private sphere and wrong in the official sphere. Rather, it confirms that the law has limits and that those limits are imposed in law due to considerations of liberty and practicality.

The state should not, for the most part, seek to interfere in the content of conversations that take place between friends and neighbours in coffee shops and living rooms. Clause 22 does not seek to intrude into the private sphere.

A prohibition that extended—

3.51 pm

Sitting suspended for a Division in the House.

4.7 pm

On resuming—

Mr. Lammy: These limits are imposed in law due to considerations of liberty and practicality. The state should not, for the most part, seek to interfere in the content of conversations that take place between friends and neighbours in coffee shops and living rooms. Clause 22 does not seek to intrude into the private sphere, and that must be right.

A prohibition that extended into the private sphere would be almost impossible to police, as the hon. Member for Daventry suggested, and it would be difficult to gather enough evidence for a trial. It would not be proper for the state to start poking into the content of conversations between individuals acting in a personal capacity. That would require a type of law enforcement that, rightly, makes us anxious. It is only proper to acknowledge that the law has limits beyond which ethics alone must suffice.

What clause 22 does ensure, however, is that public officials and, more broadly, individuals who are required to protect information in an official capacity will be acting unlawfully if they share that information with others outside the exemptions in the clause. We cannot suddenly bring to a halt all rumour and gossip about transsexual people, but we can help to ensure that people who have acquired information officially do not take part in or initiate such rumour or gossip. With that, I hope that the hon. Gentleman will withdraw the amendment.

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Mr. Boswell: I appreciate that we are under a time constraint, but the Minister has not answered in full some of the points that I made about the possibility, for example, of information coming out as a result of the activities of third parties, even when acting in good faith. They may bear a little more thought; perhaps he could produce a scheme or even advice for interested parties in this area. However, I think it better not to press him at the moment but to invite him to reconsider and to read carefully the transcript of our debate. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Boswell: I beg to move amendment No. 22, in

clause 22, page 9, line 15, leave out

’or of a voluntary organisation’.

Again very briefly, the amendment would omit the reference to “voluntary organisations” as persons who obtain something in an official capacity. My immediate reason for raising the issue was that I was not quite clear what a voluntary organisation was in relation to the Bill. The issue is an organisational one. If the two Ministers and I decided to form a coalition on some matter, would we be a voluntary organisation? Conversely, could I form one with the hon. Members for Birmingham, Selly Oak and for Oxford, West and Abingdon or my hon. Friend the Member for South-West Bedfordshire? What is a voluntary organisation? It is an interesting and philosophical question that we shall not wish to debate at length, although, as the Under-Secretary may know, I have had a long association with the voluntary sector during my time here, and before. It is hugely important, and I do not wish to be derogatory to that sector.

I need to stress two points. Whatever the Minister may have said about acting in the public capacity, faith bodies, which have concerned us a certain amount in the Committee, would seem to be voluntary organisations. There are difficulties—to return to the matter without debating it further—in relation to the material that it is appropriate for them to share. It is implicit in the clause, and in the Minister’s response during the previous debate, that consent and discretion in the use of information, even where consent is given, is appropriate. We accept that, but such bodies would seem to be caught by it. The Minister may wish to confirm that.

My final point concerns proportionality. I know the civil service well. I have a daughter who is an active member of the civil service, and I served in that capacity, albeit briefly, when I was a special adviser. I respect the good staff procedures of the civil service and the efforts it makes to manage information appropriately. I am not going into the question of spin issues; I am simply talking about the fact that it has a tradition of proper discretion, classification and confidentiality. The Minister will be aware that voluntary organisations do not have that sort of back-up. They probably do not have such a clear doctrine, or the same resources. It has not been unknown—sadly this is also true in the civil service on occasion—

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for a piece of paper to be stapled to another piece of paper and inadvertently released. We would not wish that to happen, and that is clearly not what the clause is designed to deal with.

My point of substance is that in any prosecutions that are brought as a result of clause 22 we must remember the relative scale of the organisation involved, its access to administrative resources and the effort that has been made to act within the spirit of the clause, as well as the liability for any offence concerned. Of course, it will be very serious for the individual if information is released, and I certainly would not wish to condone anyone doing that wantonly or for malicious purpose. I do not think that the Minister will want to caricature what I say as meaning that.

There are degrees of culpability in such matters. There is at least some understanding to be had of a voluntary organisation that is not heavily staffed or resourced, and may have never come across a case like this before. I hope that that will be borne in mind during any prosecutions or proceedings brought under the clause. The last thing we want is for information to be leaked inappropriately. The second last thing we want is for people to feel that they are being persecuted because they have acted in good faith but may have got it slightly wrong.

Mr. Lammy: We would regard a voluntary organisation as being any organisation, other than a public or local authority, whose activities are carried out on a not-for-profit basis. A church, therefore, would be an example of that. We believe that it is incredibly important that voluntary organisations are covered by clause 22. A person who works on a helpline for a charity, for example, may acquire information about a person’s gender history. Clearly, such a person should be subject to clause 22 in the same way as a civil servant or an employer, and should not be able to disclose the acquired information freely. Voluntary organisations often carry out sensitive functions and, therefore, will come across what the Bill defines as protected information. Such information may be acquired at a time when the person to whom it relates is in a vulnerable position—when calling a helpline, for example. We firmly believe that voluntary organisations should come under the remit of the clause.

4.15 pm

The voluntary organisations that will most frequently come across such information will be those representing the transsexual community. They are already careful about the privacy of their members, and they will not view the clause as an undue burden.

Subsection (4) provides that no offence is committed if the disclosure is made with the consent of the individual to whom the information relates, or if it does not enable them to be identified. If a support group needed to present information about a member to someone else—for example, if it were discussing with a Department the problems faced by the

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transsexual community—it could obtain that member’s consent, or it could anonymise the information.

I hear what the hon. Member for Daventry says about the nature of voluntary organisations. It was helpful of him to put that on the Hansard record, and I endorse that. I am sure that it will be borne in mind, should a prosecution be made under this clause.

Mr. Boswell: I am grateful to the Minister. I think that he and I agree on the scope and nature of voluntary organisations, and that they should behave in a professional and proper manner. I am sure that no one would wish to construe this useful and constructive debate as being otherwise. In the light of the Minister’s response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Jones: I beg to move amendment No. 51, in

clause 22, page 9, line 31, at end insert

’where prior application for disclosure has been made to the court or tribunal, the court has ruled that such disclosure is relevant and reasonable.’.

Subsection (4) details the circumstances in which it would be permissible to disclose protected information. Paragraph (e) states that disclosure is permissible if it is

“for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal”.

Amendment No. 51 is a probing amendment, through which I seek reassurance from the Minister that disclosure would be permissible only if it were relevant and reasonable. For example, would it be permissible for a case against an individual to be posted as “Jane Smith, formerly known as Peter Smith”? That may well be appropriate in some circumstances. I am sure that we can all envisage circumstances in which it would be appropriate to disclose the actions of an individual before gender recognition or a name change, but they must be relevant to the proceedings. Quite simply, that is the purpose of the amendment.

I appreciate that subsection (7) outlines the provision under subsection (5), but, as I am not legally trained, it is not clear to me whether that covers the concerns that are addressed in the amendment.

Mr. Lammy: We do not wish to allow people to get around the prohibition against disclosure simply by ensuring that it takes place in court. That is why the exception that we are discussing has been carefully drafted. It does not provide that disclosure made in the course of proceedings before a court or tribunal is lawful. It is narrower than that: disclosure must be “for the purposes of” such proceedings.

If a disclosure is made that is not relevant, even if it is done in the course of proceedings, it will not be covered by the existing exception, and would therefore be unlawful. Persons making the disclosure would be subject to prosecution and would face a maximum fine

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of £5,000. They would not be able to use the exception in their defence. The exception was conceived to cover various situations, such as those involving people who have subsequently changed gender or who incurred a debt or committed a crime before they changed gender. In such circumstances, disclosure of the pre

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Gender Recognition Bill: Standing Committee A (sixth sitting)

Index

Debate

Gender Recognition Bill [Lords]

Standing Committee A

Tuesday 16 March 2004

(Afternoon)

[Mrs. Marion Roe in the Chair]

Gender Recognition Bill [Lords]