The noble Lord said: My Lords, this is a re-run of our discussions in Committee and, bearing in mind the rules of the House, there is no need for it to delay us long. There is a major defect in the Bill in its confusion over sex and gender. Is the Bill about a change of sex or a change of gender? In the words of the noble Lord, Lord Filkin:

“The Government do not base their argument that there is a simple or conclusive medical definition on whether a person is of one gender or one sex or another”. — [Official Report, 13/1/04; col. GC5.]

That is a view that many people outside this building would find remarkable. He has made it plain that even when the biological evidence — which is not a single test, but three tests, those of chromosomes, genitalia and gonads — points conclusively to a person being of one sex he, like Lord Justice Thorpe, would allow the one subjective test of what a person thinks, perhaps as a result of a psychological disorder, to decide whether he or she should be regarded as male or female. The overriding test would be the subjective one as opposed to the objective one.

Then, in a masterly and concise summary of the Government’s position, at the same column he went on to say:

“I do not wish, partly out of ignorance but partly because I do not think that it is central to our debate, to engage in the great medical diversity on this matter”.

At heart, the Government’s view is that this is a legal issue. I notice a nod from one of the lawyers in the House. It does not make sense to say that a person’s sex is decided by the law, as opposed to biology. However, I am always willing to offer a way out. I am willing to give the noble Lord, Lord Filkin, the benefit of the doubt and to offer him the chance to use the word “sex”, rather than the word “gender” in the Bill. I hope that he will now do what he would not do in Committee and will tell noble Lords what he thinks to be the difference between the two, why he regards the word “sex” as inappropriate and why he prefers the use of the word “gender”.

In order to try and help him, I have also tabled a new amendment, Amendment No. 128, which adds to the clarity of the Bill by offering clear definitions of gender and sex. This will improve the Bill, whatever other amendments the House chooses to make. I would be happy to add to the definition of gender in the amendment that I have tabled, Amendment No. 128 — I shall direct the attention of noble Lords to it. I have suggested that in the definitions clause we should add that:

“’Sex’ means the biological categorisation as male or female by virtue of chromosomes, genitalia and gonads.

“’Gender’ means the social and cultural categorisation as male or female by virtue of personal choice or lifestyle”.

29 Jan 2004 : Column 358

I would be happy to add, “or by legal decision”, if that made the lawyers more comfortable.

There is no necessity to argue that case any further and I shall be extremely interested to hear whether the noble Lord, Lord Filkin, has had any further thoughts about it.

I think it may be helpful to him if I say, before I sit down, that at a later stage on Report I shall try as regards some other amendment — I am not yet sure which — to raise the question of how the Armed Forces will deal with the question of transsexuals who wish to join the Armed Forces and present themselves with a certificate of their re-registration of birth. I know that that will have been heard outside this Chamber and that it will give the noble Lord an opportunity to make a comment on it later. I beg to move.

Baroness O’Cathain: My Lords, this is the first time that I rise to speak on Report. I am distressed that the minimum allowable time between Committee and Report has been applied to the Bill. There were a number of difficult issues raised in Committee, which really demanded much more discussion, dialogue with officials and consultation than has been possible — except for a meeting, for which I was very grateful, that I had with the Minister yesterday evening. In no way do I wish to appear churlish, but I suggest that consideration should be given to those of us who do not have hordes of officials to support us and who, as in my case, could be involved with another Bill at the same time. It is in the interests of the House that greater thought should be given to the logistics and practicalities involved in ensuring that such complex legislation is thoroughly considered on its passage through this House.

Baroness Farrington of Ribbleton: My Lords, it may be of help to the noble Baroness, Lady O’Cathain, for me to comment that my understanding is that the timing of Bills is a matter that is discussed through the usual channels. Her Front Bench will have been involved in those discussions. I am sure that those concerned will take note of the point that she has raised.

Baroness O’Cathain: My Lords, I thank the noble Baroness for those remarks. It is really for poor, humble, little Back-Benchers who do not have the resources to deal with these matters that I made the point.

Baroness Farrington of Ribbleton: My Lords, the noble Baroness stretches my imagination to breaking point by describing herself as a poor little Back-Bencher.

Lord Marlesford: My Lords, I echo what my noble friend says. I attended some of the Committee sessions and it was a Bill that, for all kinds of reasons, revealed

29 Jan 2004 : Column 359

the defects of considering legislation in Committee. That makes the point that my noble friend has brought to our attention more relevant.

Baroness O’Cathain: My Lords, having made that point, and after thanking the Minister for accepting it, I shall move on.

I support my noble friend Lord Tebbit in his amendment. He needs no assistance from me, because he is doing a masterful job, as he did in Committee. He has the advantage of having truth and logic on his side because the basic proposition of the Bill is mistaken. A man cannot become a woman. A woman cannot become a man. He also has the advantage of being able to point to considerable disagreement among the medical profession world-wide. I have made the point before that we normally legislate only when we are sure about the science and when we can be sure that what we are doing is the best thing for the people affected. Psychiatrists and psychologists are far from being of one mind that attempting to change sex is the best solution.

The Minister will probably say that the European Court of Human Rights compels us to legislate in this way. But it causes one to ask whether, if Europe required us to legislate that sheep could become goats and goats sheep, we would do it. Is there no point at which common sense would override and the Government would say, “No, that is simply too much. Enough is enough”?

Amendments Nos. 1 to 4 and 6 to 11 in the name of the noble Lord, Lord Tebbit, and his proposed Amendment No. 132 to the Title have the virtue of at least making it plain on the face of the Bill that we are not just saying that a person can change his or her gender in law under this Bill but rather his or her sex.

Amendment No. 128 gives a succinct explanation of the difference between gender and sex. As has been pointed out, sex is a clear biological categorisation. Save in a tiny number of cases worldwide, doctors have absolutely no difficulty in determining a person’s sex by reference to physical indicators. Gender, on the other hand, is really a modern invention. It conveys the idea of a fluid, changeable view of your own sexual identity that is governed not by any physical, medical or biological criteria but solely by perceptions — your own and those of other people.

I have said before and say again that I feel genuine compassion for those who struggle with their sexual identity. The overwhelming feeling of being trapped in the wrong body must be just awful. However, sex change is not the only solution. During our debates there has been little consideration of the possibility that a person who feels this way might overcome it by reconciling with reality. Transsexual rights groups obviously promote the idea that a sex change is the answer, but others disagree, especially the families who get left behind.

Let me quote from an account of the struggle faced by a family when a husband became obsessed by the idea of becoming a woman. The wife tells how selfish

29 Jan 2004 : Column 360

he became, including spending the family budget on makeup and beauty treatments for himself. Mercifully, he changed his mind after being challenged by a sermon. The wife says:

“We had 2 weeks of battling and anguish, and he clearly was in turmoil, but it did make him realise that he had a family that cared for him and wanted the best for him. He decided to stay and change, realising that he was about to destroy everything he had worked so hard for over thirty plus years … The thought of what could have been leaves me cold. If he had been encouraged by others, or legislation to pursue his own way, he would have left six devastated lives in his wake”.

Clearly, that family could all have saved themselves a lot of grief if they had just gone along with him. There would have been a form of resolution if the wife had been willing to pretend to be his lesbian lover, as he wanted. But they could not. They did not believe it was true that a man could become a woman. They could have avoided conflict by abandoning their absolute beliefs about sex and gender, but it was unthinkable for them to do so.

This Bill abandons absolute beliefs about sex and gender. In so doing it makes it more difficult for people who are not willing to do so. I hope that by having this debate again on the basic mechanism employed by the Bill, the Minister will again address his mind to the impact this Bill will have on third parties.

I believe we may hear that some consideration is to be given to wives and children in the gender recognition process. This is a concession which has to be welcomed warmly, but the Bill itself is wholly misconceived. I remind the House again of the words of that tortured wife who believed that if legislation had encouraged her husband to believe that he could change his sex,

“he would have left six devastated lives in his wake”.

2 p.m.

Lord Turnberg: My Lords, I must first apologise to your Lordships for not being able to be present during the earlier stages of the Bill. I regret that but I say in mitigation that I have read every word of those debates in great detail and very carefully. Therefore, I hope that noble Lords will forgive my intervening in this set of amendments. I should express my interest as a retired physician and retired professor of medicine, but in neither capacity have I been involved in the care of transsexual people, so to that extent I am neutral.

In earlier debates and today the noble Lord, Lord Tebbit, made a robust case for the belief that a person’s sex is determined at birth by the genes on their chromosomes and that it is these which determine the development of those characteristics which we recognise as male or female — sexual organs and other characteristics. It all seems so straightforward and black and white, but unfortunately that is not quite the whole picture. One’s sex is only a part of one’s gender. It is an important and essential part but not the only part as it is now clear that genes, although having a strong influence on a person’s inherited characteristics, are not the only determinant. We now know that genes determine only the likely trajectory of development and not the final picture. In the case of a

29 Jan 2004 : Column 361

person’s gender that is certainly the case. For example, hormonal makeup, psychological development and probably some features of brain structure do not necessarily follow a specific set of genes. Indeed, other genes on other chromosomes all play a role in determining sexual characteristics, and this says nothing of the role of environmental factors which we cannot ignore.

In the case of the genes on the X and Y chromosome it is, of course, undeniable that they are extremely strong determinants of gender, but even there we know that there is an infinite variation in the degree of masculinity and femininity which an individual displays. The point here is that in a very small minority of individuals it is clear to them and often to others that the X and Y genes which determine their perceived sex at birth are quite out of sync with everything that they feel and know about themselves now. That is determined by a whole host of genetic and non-genetic factors. Therefore, I am not convinced by the noble Lord’s arguments for these amendments; namely, that the X and Y chromosome are the final arbiters.

The Bill has nothing to do with whether such individuals should or should not change their gender — they have already made their decision and gone ahead and done it — it is about whether, having done it, they can be recognised in law. These are people who have suffered torments about their identity for years until they are convinced that they are expected to behave in one gender when they know in their hearts that they are another.

Lord Tebbit: My Lords, I am most grateful to the noble Lord for giving way. I think that I would be able to follow him even more closely were he to say how he defines “sex” and “gender”. It seems to me that he is using the words in a rather muddled fashion.

Lord Turnberg: My Lords, what I am suggesting is that sexual determination does not necessarily coincide with gender determination. Sex plays a part but it is not the whole part. Sex is determined by one particular set of genes whereas gender is determined by a whole host of genes together with other factors.

Lord Tebbit: My Lords, I am most grateful to the noble Lord but that is not the point. I understood that to be the case that he was making but what he has not told me is what is his definition of the words “sex” and “gender”.

Lord Turnberg: My Lords, that can mean a variety of things. The noble Lord is talking about a person’s sex. That you may define biologically if you so wish — that is determined by X and Y chromosomes — but even that is not distinct. Some people are born with two Xs and a Y. In any event it is not as clear cut as the noble Lord suggests.

I am talking now about the people who have gone through the process and have decided at long last after a long struggle that they are another sex than the one they had at birth. When they accept the need to

29 Jan 2004 : Column 362

change, it takes enormous courage. It is not a trivial pursuit. Then they have to go through an elaborate and searching set of procedures over a prolonged period of time. That, again, is not trivial. These are the people we are talking about who have made enormous sacrifices. I can see absolutely no reason why such individuals, having already made an irrevocable decision, should be deprived of the status and rights that this Bill would allow them. I am afraid that I cannot support the noble Lord’s amendments.

Lord Carlile of Berriew: My Lords, what a pleasure it is to follow the noble Lord, Lord Turnberg, who stated his position so clearly — a position that I think helps many Members of this House to understand the issues in this Bill. At this early stage of our debates this afternoon I apologise in advance — as I already have to the noble Lord, Lord Filkin — for my unavoidable absence after about six o’clock this evening.

I thank the Government for the very intensive, high quality and continuing level of consultation that has taken place since the Committee stage of the Bill. It is entirely unreasonable to complain about the short time that has passed. I believe that we have all had plenty of time to consider this Bill over the months since we knew it was going to be introduced. Compared with many Bills there has been a predictable type of correspondence at a predictable level which has not overwhelmed us. I believe that we have had plenty of time for consultation.

I invite the Government to adhere to a now almost classical adage. I hope that I shall be forgiven for using a few words of Latin: Et timeo Tebbitos et dona ferentes. I am perfectly prepared to translate for the noble Lord if he would like me to.

The noble Baroness, Lady O’Cathain, spoke with her usual persuasiveness, candour and conscientious approach to what she really believes. She is wholly opposed to the Bill as is the noble Lord, Lord Tebbit. They have made that clear on numerous occasions. Understandably from their viewpoint, they would wish to find a way of wrecking the Bill at any stage including the present one. One accepts that that is a conscientiously held view.

However, I say to the noble Baroness that what she has said was not fair to the legal profession. The anecdote she used illustrated the danger of using carefully chosen anecdotes which misrepresent what occurs in the very real and difficult world of those who make the extraordinary decision to have gender reassignment. The idea that it is made over a short time is completely unrealistic.

I have the advantage shared by one or two other Members of the House in having been a lay member of the General Medical Council for 10 years. A number of other Members of this House have been professional and academic members of the General Medical Council in its old, unwieldy, massive and thankfully now over-and-done-with form.

The Conduct Committee of the General Medical Council, of which I was an active member for five years, would take an extremely dim view, I am sure, of

29 Jan 2004 : Column 363

any doctor or group of doctors who did not start from the viewpoint, as they always do, of trying to discourage people who are interested in the possibility of gender reassignment from going through that process. The psychological profiling and the social as well as medical care that is given to people who go through the process starts from the viewpoint that it is all extremely painful, literally; that it involves enormous adjustments to one’s body and one’s life and that one should have it done only if absolutely certain. It is a process which lasts not one minute less than a few years. They have to live in their acquired gender for a period of two years at least. That is enshrined in the proposed legislation.

Baroness O’Cathain: My Lords, I thank the noble Lord for his comments about the approach I have taken to the Bill. There is a slight misunderstanding here which I would like to clear up. It is not necessary to have the gender assignment process to get to the stage in the Bill where one obtains a gender recognition certificate. It is not necessarily true that in cases where there have been problems, as I have indicated, they would be the result of the operation or the gender assignment process. There a great deal of difficulty arises. If people say that they have always felt that they wanted to be man and that they will live as such for two years, they can then go to the gender recognition panel and say, “I am a man, please give me recognition. That is the way I feel”. That is my understanding of the matter.

2.15 p.m.

Lord Carlile of Berriew: My Lords, with respect to the noble Baroness, she should re-read the Bill because that is not what it says. It is an extremely difficult process which includes two years of living in the acquired gender to obtain a gender recognition certificate. One of the requirements of the Bill is that the tribunal which hears the case should be satisfied that there is a permanent intention to live in the acquired gender.

I am saying that there are guarantees in the medical and legal processes that protect members of families from a temporary whim. The ways in which the human mind works, even within the bounds of what is generally called “normality”, are extraordinary and unpredictable. As I say, the protection is built in. I am sure that the General Medical Council would take a very severe view of any doctor practising in this area who did not use the utmost care.

One should not forget that if a person undergoes severe and detailed psychological treatment or, even more to the point, major surgery without the proper procedures being gone through by the medical profession, the perpetrators of the changes would be committing very serious criminal offences for which undoubtedly they should be convicted by criminal courts. We say to the Government that this is an issue about which they should stand firm and hold to the purpose of defining gender as a matter of law.

29 Jan 2004 : Column 364

The noble Lord, Lord Tebbit, seems unable to distinguish sex from gender. I suggest to noble Lords that it is a male, female or ambiguous biological component of humanity whereas gender is the legal status of a person as a man or woman in law. Surely, that is a difference which anybody can understand.

Lord Tebbit: My Lords, I do not know what is the inability which causes the noble Lord not to understand, not to be aware of or to ignore the fact that I have tabled amendments to precisely define the difference between sex and gender. The noble Lord will have heard the exchange I had with the noble Lord, Lord Turnberg, on the subject. How can the noble Lord then say that I seem to believe that they mean the same thing?

Lord Carlile of Berriew: My Lords, the noble Lord has made an attempt to create a distinction, but I do not accept that he makes it. Furthermore, with great respect to the noble Lord — and I mean that because I respect him enormously especially as a parliamentarian — it is the purpose of this legislation to provide for the legal status of a group of people who have been defined by national and international courts, as well as by the usual political process, as requiring not just the protection of these Houses of Parliament, but also definition in law. The clarity of the definition offered in the Bill is considerable. In so far as there is any clarity in the definitions offered by the noble Lord, it is not a clarity that would offer anything to anyone except myself and my learned friends.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I rise to return to this interesting element to our Bill about which we have spoken on a number of occasions. I have even less confidence that there will be a meeting of minds at the end of the debate. I perhaps signalled my dubiety when we spoke about it at Second Reading. Nevertheless, the noble Lord, Lord Tebbit, is entitled to hear the Government’s position on these issues even though neither he nor I expect that we will necessarily agree or rejoice in that.

I share some of the pain that the noble Baroness, Lady O’Cathain, feels about parliamentary timetabling. This is one of three Bills that I am currently taking through this House. Two of them are being debated at the same time this afternoon. I find it difficult to be in two places at once and therefore I am being helped in relation to the other Bill. I am told by the Chief Whip’s Office that, when it comes to taking any notice of people on timetabling considerations, the government Minister’s view is about the last in the queue. That is perhaps for good reasons.

The noble Baroness spoke about the ECHR. She is quite right. As we said previously, we have an obligation — it is one with which we are perfectly comfortable — to adjust our domestic law in order to be compliant with ECHR law. That is not the centrality of our position and, even if there were no ECHR obligation, we believe that it would be right to

29 Jan 2004 : Column 365

act in that way. We consider it right to give legal recognition to the very small number of people in our society who, I believe, currently suffer an injustice. I shall develop that argument later.

The noble Baroness is also right to trail the subject of third parties. I hope to be able to say something helpful about that when we reach later amendments. I thank the noble Lord, Lord Carlile, for his kind offer to translate the Latin. However, even my hopeless Latin was just about good enough to give me the gist of his sentence.

I turn to the centrality of this issue. In essence, the Government’s view is that a person’s sex, as the noble Lord, Lord Turnberg, signalled, is more than his or her chromosomes. I do not want to detain the House for too long on this matter but I believe that the Oxford English Dictionary gives about four separate meanings for the word “sex”, none of which is reduced simply to “chromosomes”.

There is not a great deal of fruit in spending a lot of time on trying to define the meanings of those words, although there are distinctions between them. The meanings have changed over time and are still changing. The word “sex” now has more of a social and psychological connotation than it would have had 20 or 30 or so years ago. As we all know, language is mobile.

However, the reason that I do not consider this matter to be central to our deliberations or that we should spend a great deal of time debating it is that I suspect it is not the central dividing issue between us. While I accept that chromosomes are one of the primary sexual characteristics, there is also a range of secondary sexual characteristics. Gender identity is also determined by a range of psychological factors.

In Committee, I quoted a little from the judgment of Lord Justice Thorpe in the Court of Appeal on the Bellinger case. With the patience of the House, I shall repeat it because it may have relevance for those who were not present on that occasion. Lord Justice Thorpe said:

“Can the legal definition of what constitutes a female person be determined by only three of the criteria which medical experts apply? Are judges entitled to leave out of account psychological factors? For me the answers do not depend on scientific certainty as to whether or not there are areas of brain development differentiating the male from the female. In my opinion the test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche”.

I believe that there is eminent sense in that and the Government consider it to be good advice to us in our deliberations.

We do not believe that continuing disputes about linguistic terminology is a reason for delay. The Government’s position is that there is an injustice for a very small number of people in our society who are absolutely convinced that their real-life gender, as they believe it, is out of congruence with what is recorded on their birth certificate. After a very thorough, careful, proper and patient process of testing and validation by the state and by medical experts, the state

29 Jan 2004 : Column 366

believes that it is right and fair, as well as in accordance with European law, to adjust that anomaly in the very limited number of circumstances in which it applies. Perhaps I may remind the House that that is relevant. On best estimates — no one has a final figure — are that probably about one in 17,000 people suffer from gender dysphoria. The fact that there are so few does not mean that as a society or a state we should not be concerned with trying to give them the legal recognition that they believe they are owed.

Therefore, the Bill is about legal recognition and it will define a person’s sex in law. We consider the arguments about the meaning of the words “sex” and “gender” to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words “sex” and “gender” has changed over time and no doubt will do so in the future. While the meaning of the word “sex” is not the same as that of “gender”, the word “sex” is increasingly in use in ways that go beyond a narrow biological definition.

In addition, medical recognition of gender dysphoria has never been wider. The Chief Medical Officer recognises that, and treatment has been available on the National Health Service for many years. A small number of people are convinced that their real-life gender is out of congruence with what is recorded on their birth certificate as their legal status. We believe that, after a process of proper testing and validation, it is right and decent, as well as in accordance with law, to close that discontinuity.

I also say, with courtesy, that, while I respect the differences of opinion, I struggle to see the great mischief or harm in what we are doing in this respect. It seems to me that it is an act of a civilised society and I cannot see the damage that would result to others. By that, I do not seek to provoke those who have put many hours of debate into these issues because I respect their difference of view. However, at this point, I should state my view on this as well. Therefore, with regret, I cannot accede to the amendments proposed by the noble Lord, Lord Tebbit.

Lord Tebbit: My Lords, I am, of course, disappointed but not unduly surprised by what the Minister said. He tempts me to enter into a Second Reading debate. It is a temptation that I shall resist manfully. As we proceed through some of the other amendments, he may see more clearly my objection to the Bill — not least the objection that it would require officials to certify something which was simply not true.

On the subject of the way in which the business is managed, which has received some criticism today, I should say that I am extremely grateful to the Government Whips’ Office for moving out of this group Amendment No. 86, which I did not believe belonged there. We can deal with it later. Therefore, I am grateful for that.

I understand the dilemma facing the noble Lord, Lord Filkin, who is expected to be in two places at once. It is a very difficult situation. I can only offer him

29 Jan 2004 : Column 367

the possibility of the judgment of Solomon as one way out, although I do not think that he will be particularly keen to take it.

The Minister seemed to introduce a new concept, which I believe we might call “linguistic relativism”. It seems to have led him to the conclusion that we should legislate using words whose meanings we do not understand and which mean different things to different people. I do not believe that that is a good way in which to legislate. If we use a word in legislation, we should be prepared to state its meaning clearly and unequivocally and say how it differs from the meaning of other similar words which might be used as a substitute for it in legislation.

The noble Lord, Lord Turnberg, suggested that I might not understand the relationship between the words “sex” and “gender”. However, sadly, when it came to the point, he could not define either of those words, which he used quite freely, nor say what he meant by them. Again, if I may say so, it seems to me that that is a lacuna in his argument.

I was brought up in a profession which, like that of the noble Lord, places human life in the hands of its practitioners. However, it was one in which we were expected to know precisely and absolutely the meaning of the words that we were using because, if we did not, it would prejudice life. Recently we have seen in the medical profession one or two spectacular cases where doctors did not understand the meaning of the words “left” and “right”, let alone anything else, and thereby prejudiced life.

The noble Lord, Lord Carlile, says that to substitute the word “sex” for “gender” would wreck the Bill. It must be a very delicate Bill if it would be wrecked by substituting a word that we can not define with another word that we can not define — but which says pretty much the same thing anyway. That does not seem to have the savour of a wrecking amendment. I find the matter profoundly unsatisfactory. Of course, I am a realist and we need to move on with the debate on other amendments. I do not propose to divide the House on this amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 11 not moved.]

2.30 p.m.

Schedule 1 [Gender Recognition Panels]:

Lord Chan moved Amendment No. 12:

Page 13, line 11, leave out “or chartered psychologists” and insert “recognised as currently practising in the field of gender dysphoria in the United Kingdom, or who have an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service”

The noble Lord said: My Lords, I rise to speak to Amendment No. 12 and all of the other amendments in my name — Amendments Nos. 13, 15, 16, 20, 22 and 23. In Grand Committee I did not speak on the composition of the gender recognition panels, because

29 Jan 2004 : Column 368

I was researching the requisite qualifications of the medical members proposed in Schedule 1. Therefore I shall dwell first on Amendment No. 12.

Clearly, the role of medical members of the panel is to determine the validity of applications, in particular the clinical diagnosis of the applicant. Gender dysphoria, as the Minister said, is accepted as a medical condition by the Chief Medical Officer of England and patients are entitled to treatment on the National Health Service.

In clinical practice consultant psychiatrists validate the diagnosis of gender dysphoria. As it is a specialised area of medical expertise only a limited number of consultant psychiatrists are recognised as specialists in gender dysphoria. I have taken the liberty of excluding chartered psychologists, because in current practice they do not diagnose independently people with gender dysphoria. Clinical psychologists are technically members of the medical profession. Diagnosis of that medical condition are made by consultant psychiatrists, who may use the services of a chartered psychologist to determine the psychological profile of the patient.

When considering something as important and, literally, life changing as an application for gender reassignment and for a gender recognition certificate that overrides and cancels a person’s birth certificate, I am convinced, as I hope other noble Lords are, that the expertise of the gender recognition panel must be of the highest professional proficiency. Therefore, Amendment No. 12 is designed to identify registered medical practitioners who are currently practising in the field of gender dysphoria in the United Kingdom, or consultant psychiatrists in the National Health Service who are registered with the General Medical Council.

In Amendment No. 13 I ask for two medical members to be appointed to all gender recognition panels. My reason was influenced by the current re-examination called for by the Attorney-General of all criminal cases involving more than one sudden infant death in a family, where a medical expert has been used by the prosecution. A similar situation has arisen in the past week in the case of the United Kingdom’s best known expert on trans-sexualism, who is a consultant psychiatrist at Charing Cross Hospital, and is being investigated by the GMC after claims by a dozen patients that he put their health at risk — according to an article in the Guardian on 20 January. I quote:

“Consultant psychiatrist Russell Reid, a specialist in gender identity disorders, allegedly breached standards of care by prescribing patients with sex changing hormones and referring them for genital surgery without adequately assessing them”.

The standards by which Dr Reid should have conducted his practice have been recognised by other consultant psychiatrists in the field, who say that the guidelines they use are set by the Harry Benjamin Gender Dysphoria Association, based in Minneapolis. The guidance states, the article continues,

“that patients should have been living in their desired gender role for at least three months before prescribed hormones, or had at least three months of psychotherapy. Patients should also undergo

29 Jan 2004 : Column 369

a minimum of 12 months’ hormone therapy and live in the desired gender for the same period before referral for gender change surgery”.

Therefore, as other noble Lords and the Minister have mentioned, it is a long process and a decision that the person wanting to change his or her gender has to consider very carefully. Regarding that problem of medical experts, we see that the recommendation in Schedule 1 states that there should be just one medical practitioner as a member of a panel. That position is no longer tenable because of the difficulties that arise from expert witnesses with a medical background. In view of such allegations it would be best practice to have two medical members on a gender recognition panel.

Amendment No. 15 arises from the need to be sure that applicants for gender recognition certificates have been convinced that their condition is permanent. The period of two years in which the applicant has lived in his or her acquired gender needs to be verified to avoid complaints such as those levelled against Dr Reid. The GMC is investigating allegations that the patients did not have enough time to change their minds about their preferred gender. Although all transsexuals consult their GPs, who refer them to consultant psychiatrists, the nature of their condition may lead some to change their minds about gender reassignment. I hope that all transsexuals have the support of their families and partners when they apply for a gender recognition certificate. To establish that support, the transsexual person should obtain confirmation from two qualified witnesses — naturally one would think of doctors, but they could also include close family members and partners — to verify that the person has indeed been living in the chosen gender for two years.

That leads me on to Amendment No. 20 which deals with evidence: evidence which makes it clear that any applicant for a gender recognition certificate should have been under the care of a registered medical practitioner practising in the field of gender dysphoria or a consultant psychiatrist specialising in gender dysphoria.

I have not come across the names of non-medical practitioners who currently practise in the area of gender dysphoria. It is therefore appropriate that the Bill specifies the qualifications of medical practitioners who are recognised and whose reports are the evidence needed by the gender recognition panel. After all, we have identified that gender dysphoria is a medical condition recognised by the Chief Medical Officer, so it is only appropriate that medical evidence is produced from reports by medical practitioners.

I tabled Amendment No. 16 because it is true that the majority of applicants have undergone sex reassignment surgery because of the two years which has been given for them to be convinced that they would live in the gender of their choice. Sex reassignment surgery is a sign that the applicant is convinced that it will be a permanent change. From experience of transsexuals in Australia, New Zealand

29 Jan 2004 : Column 370

and parts of the United States, there should be no doubt that such an individual should be given a gender recognition certificate.

Of course there will be some transsexuals who on medical grounds of serious life-threatening diseases are unable to undergo sex reassignment surgery. Those cases can be judged on individual merit by the gender recognition panel.

Another reason in favour of the amendment that requires applicants to have undergone sex reassignment surgery has been the regular reports of the rape and murder of transsexuals that I have read. They have taken place in Australia and in this country. The view I have gained is that most such tragedies affect transsexuals who have not undergone sex-change surgery. When an individual has undergone sex-change surgery, there is no reason to deny her or him a gender recognition certificate.

Finally, I tabled Amendments Nos. 22 and 23 so that objective evidence is obtained of the applicant’s determination to live in the preferred gender. These amendments should also help to exclude applicants who are not qualified to obtain a gender recognition certificate. I beg to move.

Baroness Finlay of Llandaff: My Lords, I apologise to the House that I have been unable actively to participate until this stage. I want simply to reinforce most strongly the points made by the noble Lord, Lord Chan, particularly that of protecting the patients and the medical member of the panel. The wording of the Bill strikes me as containing a small wording conflict in that it includes clinical psychologists as medical rather than clinical members of the panel. That might have been a more accurate description. But the importance of being trained in this very small and highly specialised area, dealing with people who are undertaking complex decisions — the rigors of which were eloquently outlined by the noble Lord, Lord Carlile — indicates that Amendment No. 13 in particular is crucial to protect all involved in the process.

2.45 p.m.

Lord Turnberg: I want specifically to address the amendment moved by the noble Lord, Lord Chan, which introduces the need for surgical intervention. I can well understand the noble Lord’s desire to be absolutely convinced that the people who wish to be given a gender recognition certificate should have demonstrated beyond doubt that they are sufficiently determined by having surgery to change their gender. But I am afraid I cannot accept that as being a mandatory procedure.

Of course many will have had surgery, but it is worth remembering just what this type of surgery entails. In a woman who wishes to be regarded as a man, it would involve the removal of the uterus and the ovaries, probably a bilateral mastectomy, and possibly plastic surgery to construct a phallus. In a man, it would involve removal of the penis and testes, with the possible construction of a vagina.

29 Jan 2004 : Column 371

I am sorry to be so graphic, but I want to emphasise that these sorts of operations are not undertaken lightly. And as with all operations, they are not without risk. Most individuals are likely to be fearful and others may simply not be fit. The fact that most do go through with all this is a testament to their determination, but to insist that they all do so seems quite unnecessarily cruel. To demand surgery to confirm a diagnosis of dysphoria also seems perverse: we do not insist in law on surgery to make any other sort of diagnosis — cancer and the like. I am afraid I cannot support that particular amendment.

Perhaps I may be forgiven for returning to the dilemma of the noble Lord, Lord Tebbit, over sex and gender. The sex of an individual may be defined entirely in biological terms as possession of X or Y, or both, genes. It cannot be defined in terms of other sexual characteristics such as external genitalia because they do not always coincide at birth with the chromosomal determinates. Some babies at birth are difficult or impossible to sex. So if we are to be entirely clear, it is the chromosomal features only.

When we come to gender, this is the state that can be defined only in terms of possession of multiple factors which take into account the physical and psychological make-up of an individual, which can be defined and which make up the totality of that individual.

Baroness O’Cathain: One does not have to support the Bill to support these amendments, which impose a much more rigorous standard of testing on those who wish to go forward for gender recognition. There is evidence that there are people who have been rail-roaded through sex-change operations without any consideration of the alternative. The noble Lord, Lord Turnberg, has just given us a graphic description of what is involved in all this. I touched on the subject when I spoke to the amendment tabled by my noble friend Lord Tebbit and I shall return to the point when I move my Amendment No. 19.

It is an obvious failing that the Bill as drafted contains no requirements of psychiatric evidence. It could be that there are severe psychiatric reasons why such a change should not be made. Yet such evidence could be excluded. The panel may never see it and I do not believe that that is right. Furthermore, these amendments would create a system of assessment which was left open to abuse. By selecting the right medical expert and learning to say the right thing at the right time, transsexuals could quite easily pass the test laid down by the Bill at present.

I read recently that there are websites which teach transsexuals the right things to say when being interviewed by medical professionals. They advise them, basically, on how to cheat; on how to present the classic symptoms of gender dysphoria in order to get the operation they feel they want. I have no doubt that with the growth of cyberspace there will soon be websites advising on the best way to get a gender recognition certificate. We must take steps to limit the scope of that kind of abuse.

29 Jan 2004 : Column 372

A more rigorous regime is all the more necessary because the medical profession itself seems to be in turmoil over the appropriate standards to be applied in these cases. Some medical professionals working in this area feel that some of their colleagues are less than rigorous in assessing people. Indeed, the noble Lord, Lord Chan, has given us a description of one such case. Perhaps some professionals feel that their duty is simply to give the patient what he or she wants. I suggest that that is a dangerous approach to take. Not only is it a dangerous approach, but it is an enormous step to take.

Sadly there is plenty of evidence that people regret having a sex change. Only today my attention was drawn to a television programme broadcast in September of last year on ABC, the Australian broadcasting network. It was called “Boy Interrupted” and was about Alan Finch who, with the support of health professionals, had sex-change surgery at the age of 19. He now says,

“Anatomically, I was never a woman … Everything was fake about it from top to toe”.

At age 31 he decided to change back to his biological sex.

There are many unresolved issues and many uncertainties about the whole process. That goes back to the points that I made at Second Reading and in Grand Committee. Today, just as an aside, we have another uncertainty: the noble Lord, Lord Chan, and the noble Baroness, Lady Finlay, suddenly made me realise that as a lay person I did not have the definitions clear in my mind. I would like confirmation that a medical doctor is a member of the medical profession, but that a consultant clinical psychologist is not a member of the medical profession. Is a consultant clinical psychologist a member of the health profession? There are health professionals as well as medical professionals. It is just so complicated.

In the Bill the least we can do to try to make matters less complicated is to ensure that the medical assessment through which applicants go is thorough and genuine and not just a rubber-stamping of their current wishes.

Lord Tebbit: I thank the noble Lord, Lord Turnberg, for his post-mortem comments on amendments that have already been debated. Turning to the present matter — Amendment No. 12 in the name of the noble Lord, Lord Chan — it seems to me that the extra precautions that he would insert as regards additional members of panels and matters of that kind, are thoroughly sensible and reasonable. But, like the noble Lord, Lord Turnberg, I hesitate to follow him on the subject of Amendment No. 16. He said that it would indicate whether a person had been willing to undergo the sex reassignment surgery, which I prefer to call sexual mutilation. In parenthesis, we Westerners criticise primitive tribes for their sexual mutilation practices, but perhaps those people should read the Bill and consider this kind of matter.

29 Jan 2004 : Column 373

The noble Lord, Lord Chan, said that a person would have to be convinced that he or she really was a transsexual. Yes, but that conviction could come about through a serious psychological disorder. I do not believe that it would be appropriate to persuade people who were suffering from a severe psychological disorder, which may perhaps be temporary or which certainly may not be completely permanent, that to achieve the objective which their disorder told them to follow, they should be subjected to irreversible surgery. That would be going too far. I go along with the noble Lord, Lord Chan, on all the amendments in this group, barring Amendment No. 16. I believe that that amendment goes too far and that it would be unduly cruel to people for whom we all have very great sympathy in their dilemma.

Lord Filkin: Before the moment passes, I celebrate the fact that the noble Lord, Lord Tebbit, and I agree on one point. That is a comfort to me, if not to him.

The problem with these amendments is that while I respect the objectives behind them in terms of trying to ensure that there is a credible process, they tend to add to the complexity and they tend to focus on the process rather than on the outcome. By doing that, they attempt to fetter the discretion of the panel. I shall return to why I believe that the panel needs to carry the burden that we, as legislators, will impose on it, rather than us over-specifying the mechanisms by which it is to fulfil those duties.

The panel must be satisfied that the criteria set out in the Bill have been met. That is its job. First, it has to be convinced that the person has or has had gender dysphoria. I shall not speak at length about the process of diagnosing and treating gender dysphoria. The noble Lord, Lord Carlile, spoke about that earlier and we may have spoken about it also in Committee. In essence, it is not a sudden process; it takes many years. It requires an initial diagnosis which is likely to involve psychotherapy, psychological tests and other medical tests. That is followed by a process of real life experience, so that before further medical treatments are given, the reality of the person’s conviction is tested in the fierce crucible of living out in the real world in the gender that they believe to be true for them.

After that process has been under way for a good period of time and if it is appropriate after a further assessment process, hormone treatment can be undertaken. Subsequently — again if it is appropriate and advisable — there can be surgery. I shall not go into detail; the process is available from a number of sources, and I stress how necessarily cautious and lengthy it should be and needs to be.

Clearly, the test of gender dysphoria has to be carried out by a specialist. A person working in the area of gender dysphoria will have to make the critical judgment of whether a person has gender dysphoria as a precondition of an application to succeed. Amendments Nos. 20 and 22 provide that there must be two diagnoses of gender dysphoria, one from a registered medical practitioner and one from a consultant psychiatrist. We do not see the need for that. The panel will not simply take the diagnosis of

29 Jan 2004 : Column 374

gender dysphoria from anyone at large. It will have a list of people who work in the area of gender dysphoria, which will be drawn up in conjunction with the professional bodies to ensure that evidence comes from reliable sources. If there is any doubt in the minds of the members of the panel they will make further inquiries. Therefore, the burden is on the panel to be satisfied that the diagnosis of gender dysphoria is one on which they can lean and if in doubt they should not do so.

Next, the person must prove that he or she has lived in the acquired gender for at least two years and provide medical evidence of treatment that has been received. That evidence will be considered by the panel. So a person will have a diagnosis of gender dysphoria from a specialist and evidence of living in the acquired gender for at least two years. A person must provide evidence of medical treatment and will have to convince the panel that he or she intends to live permanently in the acquired gender. That is a proper and substantial process of testing.

Amendment No. 15 would add that a person must have lived successfully in the acquired gender. I do not know what weight to put on that, but it also adds that two witnesses must attest to the fact that the person has lived for at least two years in the acquired gender.

Quite rightly, the approach taken by the Bill is that the panel has to satisfy itself that an applicant has lived in the acquired gender for the past two years. It leaves open the evidential requirements, which is how one should treat judicial panels. They should be at liberty to decide what evidence they believe will satisfy them; if they are not satisfied they should ask for further evidence; and if they are still not satisfied they should refuse the application. We do not need to specify exactly how they go about their business. The panel will be chaired by a circuit judge. Such people are not unaware of proper process.

The panel must satisfy itself that an applicant has lived in the acquired gender for the past two years, not two witnesses. The applicant can submit further evidence if he or she wishes; or the applicant can be required to do so if the panel is not satisfied.

Finally, the amendment also requires that the two witnesses attest to the applicant’s assertion that he or she intends to live permanently in the acquired gender. Again, we think that it is the job of the panel to take what tests, measures, evidence or inquiries it thinks appropriate to meet that test. It is not a good use of our time to seek to fetter the discretion or specify the processes by which a judicial panel should meet the burden the legislation imposes on it.

If, on the sum of the evidence, the panel is convinced that an applicant has taken decisive steps to live permanently in the acquired gender, has or has had gender dysphoria, and has demonstrated a commitment to live in the acquired gender, only then will it give a certificate. If it is not satisfied, it will not do so, nor should it.

29 Jan 2004 : Column 375

Amendment No. 16 seeks to add an additional criterion: that a person must have first undergone reassignment surgery. I do not wish to add much. A number of noble Lords have said why they believe that that is wrong. I start with an explanation. Most people who have gender dysphoria undoubtedly wish to have surgery. The individual wishes to bring his or her bodily state into alignment with that person’s profound belief. Most will have done so. To require those persons to do so is wrong for all the reasons given by the noble Lord, Lord Tebbit, and others. One should not force that process on people as a necessary test.

Some people may be too old to be able to cope with the rigours of surgery. It would be wrong to deny them legal recognition if the three tests in the Bill were met. Let me not labour that point.

I turn the argument round the other way. It does not mean that the process is any the less severe. Clearly a person who has gone through the horrors of surgical realignment in this way does in a sense demonstrate how severe his or her conviction is that there is a problem which needs to be remedied. I signalled in Committee that where a person has not had surgery I would expect the panel to be more alert in inquiring whether there were sufficient evidence of commitment to a permanent change. That is not the same as saying that a person who has not had surgery should not be recognised. It is to say that the panel would want to inquire why the person had not had surgery. If it was because at heart there was doubt in the person’s mind about whether he or she was going to make a committed and permanent change the panel would not grant a gender certificate. I do not think that we are at risk in this respect. The panel is likely to want to inquire more in such circumstances.

3 p.m.

Baroness O’Cathain: My Lords, I thank the Minister for giving way. That is my point. If a person goes to a gender recognition panel, the individual can have in mind the fact that he or she wants to change gender but does not want to undertake surgery for all the reasons that have been explained. That person can convince the panel yet be in a situation where he or she was going to cheat. I am sorry, but that is the reality. When I made the point earlier, the noble Lord, Lord Carlile, chided me.

One of my great concerns about the Bill is that an individual can have a gender recognition certificate without having surgery. It depends on how determined that person is in his or her own mind about the belief that he or she is of the opposite sex. I find that very distressing.

Lord Filkin: My Lords, I do not want to labour the point because we have given these issues considerable attention in Committee and today.

Such people who do not have surgery are few. There are usually good reasons for them not having done so. If the panel is not convinced that those persons are

29 Jan 2004 : Column 376

committed to living in a permanent state it will not grant them a gender certificate. However, to turn it the other way, for the state almost to say that unless people go through a process of bodily mutilation they will not have a legal recognition is wrong. I regret that we shall not agree on that issue.

I turn next to the composition of the panel. The medical member is not there to make a diagnosis. The diagnosis is to be provided by the person practising in the field of gender dysphoria. The medical member is on the panel to ensure that the medical evidence is properly understood and can be inspected or further inquires made if appropriate. The panel will be working with a list of medical practitioners and chartered psychologists who practise in the field of gender dysphoria.

With regard to there being several on the panel, few practitioners could be described as working in the field of gender dysphoria. Putting two on the panel would have significant disadvantages. It would also mean that they would frequently be seeking to make judgments on their own clinic or clinical work which, again, is clearly judicially flawed and, therefore, there would be further practical problems. So they are there to inquire into the medical evidence not to make the diagnosis.

On the interesting point about members of the medical profession raised by the noble Baroness, Lady Finlay, clinical psychiatrists are covered in Clause 3 under the term “registered medical practitioner”. Chartered psychologists are members of the British Psychological Society, a professional body with which we shall work in developing the process. Having said that, I shall look further at what the noble Baroness said. If I have missed the point and dropped the ball, I shall come back to her before Third Reading.

I am sorry to have spoken at length but it is an important group of issues. I hope that I have stated clearly the Government’s position.

Lord Chan: My Lords, I thank the Minister for that reply and all noble Lords who spoke. I accept that surgery is the end point and should convince anyone that the applicant is genuine. I concede that it would be difficult to make it a ground on which to provide a certificate. That would be seen to be cruel.

However, with regard to evidence and diagnosis, as I sought to outline, there are suspicions that within the medical profession medical opinions are given which may be extreme and not necessarily balanced because the medical practitioner is convinced of a certain point. With two medical members on the panel that issue would not arise.

Whether or not we like it, the ultimate issue is the diagnosis — being convinced — particularly if the applicant has not had surgery and there are other issues to consider. I admit that I am not familiar with the process and legal composition of a panel but that was the main purpose underlying Amendment No. 13. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

29 Jan 2004 : Column 377

Lord Chan moved Amendment No. 13:

Page 14, line 7, leave out “one medical member” and insert “two medical members including —

(i) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, and
(ii) a registered medical practitioner recognised as currently practising in the field of gender dysphoria in the United Kingdom, who has an entry in the specialist register held by the General Medical Council which confers their eligibility to practise as a consultant psychiatrist within the National Health Service.”

The noble Lord said: My Lords, I beg to move.

On Question, amendment negatived.

Clause 2 [Determination of applications]:

[Amendments Nos. 14 to 18 not moved.]

Baroness O’Cathain moved Amendment No. 19:

Page 2, line 10, at end insert —

“(4) The panel must reject an application under section 1(1) if the panel has issued a gender recognition certificate to the applicant on two previous occasions.”

The noble Baroness said: My Lords, I tabled an amendment in Grand Committee which raised the issue of whether a person can go through the gender recognition procedure a second time in order to return to his or her biological sex. The Minister may remember that in Grand Committee on 14 January I moved a similar amendment. In dealing with Clause 9 I said that,

“many people change their minds and revert to their real gender, or oscillate between the two”. — [Official Report, 14/1/04; col. GC64.]

I quoted the Government as being behind that statement. The Minister cited a percentage figure of 1 per cent. Of course 1 per cent does not square with “many”. I have since discovered that the source of the “many people” quotation was from page 5, paragraph 5.1 of the Home Office report of the Interdepartmental Working Group on Transsexual People published in April.

One does not have to look hard to find examples of people who wish they had never changed. The Sunday Telegraph Magazine of 15 November 2003 reported the case of a person called Claudia, who deeply regrets his decision to have reconstructive surgery and assume the identity of a woman. He said:

“I changed for all the wrong reasons, and then it was too late … I was seen for 45 minutes by a psychiatrist in private practice, and I believe I was railroaded into thinking that an irreversible operation was the only solution. It made me feel they were just in it for my money”.

He went on to say:

“I feel like this sex change has just made me into some kind of freak. I’m not a real woman, I am a sex-change”.

That is tragic. It is a side of the transsexualism debate that seems to be swept under the carpet, although I notice, as has been said already, that the Guardian of 20 January 2004 reported that the UK’s best known “expert” in transsexualism is being investigated by the General Medical Council after claims that he sent patients for sex-change surgery without adequately assessing them. The Sunday

29 Jan 2004 : Column 378

Telegraph Magazine stated that the same person was involved, while running a private practice as well as working in the National Health Service,

“in controversy over the condition known as body dysmorphic disorder, (BDD), where sufferers can experience a desperate urge to rid themselves of a limb”.

Dr Russell Reid was one of the psychiatrists who referred two patients with BDD to a surgeon for leg amputations. The article continues,

“’When I first heard of people wanting amputations it seemed bizarre in the extreme,’ he said in a television documentary at the time, ’but then I thought, ’I see transsexuals and they want healthy parts of their body removed in order to adjust to their idealised body image,’ and so I think that was the connection for me. I saw that people wanted to have their limbs off with equally as much degree of obsession and need.’

But to what degree should doctors be acquiescent to the ’obsessions’ and ’needs’ of patients?”

It appears that the sex-change proponents have created all the running on this issue, yet there are genuine deep concerns by professionals which do not seem to be considered. The same article in the Sunday Telegraph Magazine referred to:

“Dr Fiona Mason, a forensic psychiatrist with an expertise in gender issues, is seriously concerned about the practices of some private clinics dealing with transsexualism”.

She said:

“’I can’t imagine assessing anyone suffering from a serious disorder in under three hours. It can take three years to assess patients with complex problems. The trouble with some private clinics is that the patients are just given hormones after an hour-long appointment, which can have an irreversible effect on the body.’

Some critics are even going as far as to say that psychiatrists have not, in fact, ’discovered’ transsexuals but created them. That is, that once ’transsexual’ and ’gender-identity disorder’ (GID) become common currency more people began interpreting their experience in these terms. Specialists working in gender-identity clinics made similar complaints about their patients as early as the mid-1970s”.

Clearly, there will be some people who will go through gender recognition only to want to change back again.

In Grand Committee, the Minister assured me that the Bill already provides for that. However, it must be said that it is not clear on the face of the Bill. I know he will tell me that we must not put words into the Bill that do not need to be there, but we should have some reassurance, if only for people like Claudia, that it is possible to go back to your true sex in law, even if the surgery is not reversible.

My amendment would make it clear that reversal is possible at the same time as limiting a person to only two changes. That would allow a person to change his sex to

Primary links

Secondary

Search

Related links

Navigation

Donations

PFC supported by

Syndicate

Gender Recognition Bill: House of Lords Report Stage (Day 1)

Index

Debate

Gender Recognition Bill [HL]