Gender Recognition Bill: House of Lords Report Stage (Day 2)

3 Feb 2004 : Column 616

Gender Recognition Bill [HL]

7.4 p.m.

Lord Filkin: My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Filkin.)

On Question, Motion agreed to.

Schedule 4 [Effect on marriage]:

Lord Tebbit moved Amendment No. 86:

Page 26, line 4, at end insert—

”( ) Notwithstanding any other provisions of the Gender Recognition Act 2004, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other.”

The noble Lord said: My Lords, I expect to be told that the amendment is in conflict with the European Court ruling, but I do not believe that it is.  In aid of that view I shall quote the finding of the court which the noble Lord, Lord Filkin, mentioned on 13 January in Grand Committee:

“’The court had found under Article 8 of the Convention that a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual’”.—[Official Report, 13/1/04; col. GC 5.]

3 Feb 2004 : Column 617

I believe that those last words are the most important.

The amendment states that:

“Notwithstanding any other provisions of the Gender Recognition Act 2004, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other”.

It is slightly badly drafted and it would be better if it said, “and each possessing genitalia”.  I leave that to one side.

Last week on 29 January, during the first day of Report stage, the noble Lord, Lord Filkin, set out in commendably robust and clear terms the policy of the Government.  I quote:

“We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position”.—[Official Report, 29/1/04; col. 401.]

One may believe that the noble Lord would welcome an amendment that would prohibit marriage between persons of the same sex.  That is a marriage between persons whose chromosomes and sexual organs are of the same sex.  After all, that is the undoubted determinant of biological sex.  I know that some people think that one’s sex is determined by one’s mind, but that is surely no more than a superstition.

I hope that the noble Lord will acquit me of discourtesy—I am sure he will—if I say that his robust rejection of same-sex marriage does not go so far as rejection of same-sex marriage.  In his answer to a Written Question on 19 January he set out his position more openly.  I asked Her Majesty’s Government,

“Whether they intend to legalise marriage between persons each possessing the XX chromosome (or each possessing the XY chromosome) and each possessing the genitalia of the same sex.

The noble Lord replied:

“The Government believe that marriage should only be possible between people of opposite gender in law”.—[Official Report, 19/1/04; col. WA 124.]

There we have the problem.  The Government believe that marriage should only be possible between people of opposite gender in law.  I believe that it should only be possible between people of opposite sex.

The noble Lord may yet have to eat some of his words.  The other day I was reading my birth certificate.  I have brought it into the Chamber this evening.  I know that Government Whips suspect that I might not have had one, but here is the document.  At the bottom, I found something that I had never noticed before.  It states:

“Caution.  Any person who (1) falsifies any of the particulars on this certificate, or (2) uses it as true, knowing it to be false, is liable to prosecution under the Forgery Act 1913 or the Perjury Act 1911”.

I presume that if I were to be overtaken by sexual dysphoria and became possessed of the idea that I was indeed a woman, and secured the agreement of a gender recognition panel to that, I would receive a new certificate.  However, it would be in conflict, quite clearly, with the Forgery Act 1913 or the Perjury Act 1911, in that it would state, contrary to this certificate, that I had been born as a female.  We do get into deep water in these matters, do we not?

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Let us consider the Minister’s proposition from the Written Answer to the Parliamentary Question that I have just recounted.  His answer would mean that two persons, each of whom had given birth to children—and I can think of no better test of whether a person is female than that—and each of whom remains capable of bearing children, could be legally married provided that one has been given a certificate that states that she was born a male, was a male at the time she gave birth, and remained a male.  That is the implication—nay, the meaning—of the Minister’s reply.  What would the noble Lord think should appear on their child’s birth certificate; that his mother was a man?  For sure, that would have to appear on it.

Let me remind the Minister of his Written Answer to another Parliamentary Question of mine on 19 January.  I asked the Government whether they were,

“aware of any cases of persons certified at birth as male who had given birth to children”.—[Official Report, 19/1/04; col. WA 125.]

I have just enunciated the circumstance where somebody who had been certified as male at birth could give birth to children.  Will any such caveat as appeared on my birth certificate will appear on those issued under the Bill?

What of the marriage so disrupted by the person who purports to be the husband and who then gives birth?  Would such an event establish in the minds of the noble Lord’s legal advisers that it was a same-sex marriage?  Would that marriage fall to be annulled under the dictum of the Minister as enunciated in his response last week to Amendment No. 28; that is, that a marriage between persons of the same sex should be annulled?  Or would the noble Lord’s advisers shrug their shoulders and say, “Well, it’s just one of those things, isn’t it?  People giving birth these days might well be women; they might well be men.  Anyway, so long as they are legally female, all is well”.

Even at this late stage, I beg the Government to see the world as it is.  There is something absurd in the proposition that the problems—I accept that they are very real ones—of transsexual people require us to accept that while today the marriage of two people each bearing the chromosomes and the sexual organs of the same sex would be a same-sex marriage and therefore illegal, a piece of paper that declares one of those two people to be of the opposite sex would be permitted by this legislation to make it a legal marriage of opposite sexes.  That cannot make sense.  I beg the noble Lord to consider that matter and to accept the amendment.  I beg to move.

Lord Turnberg: My Lords, I am afraid that I do have a problem with the amendment.  A problem arises from the attempt to base so much on the possession of the X and Y chromosomes and on the external genitalia, not least because there are so many exceptions to the general rule that one can determine a person’s sex by them.  One example is the condition known as Turner’s Syndrome, which affects women, most of who have only one X chromosome.  Is one X enough to count as a woman?  Those who have Turner’s Syndrome certainly are women.  Another is Klinefelter’s Syndrome, which affects men who have two Xs and a Y.  Should they be

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classified as men or women?  They believe that they are men, but they have two Xs.  Genes on other chromosomes also contribute to the sexuality of a person.

One comes then to the possession of the relevant genitalia as the determining factor.  However, there are many examples of babies born with genitalia that are at variance with their chromosomes.  Some of those babies have had some form of surgery that placed them clearly and permanently in one or other gender.  Only in some cases do those genders coincide with their chromosomes.  Some of those people have married on reaching adulthood.  Those couples are of course infertile as, unfortunately, are many other couples, but infertility was never a bar to marriage.  However, the amendment would prevent their marriage on the chromosomal count.

All of the above says nothing of the rights of transsexual people to marry, which the Bill would allow, but it simply points out the difficulties in practice of using the criteria that are set out in the amendment.  I cannot support it.

7.15 p.m.

Lord Winston: My Lords, I reluctantly join the debate at this stage of the Bill.  I apologise for not being in the House at Second Reading and for hearing only part of the Committee stage.  However, I feel so strongly about the amendment, as well as about Amendment No. 128, that it is important to put on record the medical facts.

As a practising obstetrician and gynaecologist who as been involved with reproductive medicine and the definition of sex in both animals and humans for the past 30 years in my research, I can only reiterate the comments of my noble friend Lord Turnberg.

The definition of sex is extremely complicated.  It is not just a question of chromosomes.  It is possible of course to have chromosomal sex and it is probable, though by no means certain, that all of us in this Chamber have chromosomes that are either XX or XY.  However, even in the case of Turner’s Syndrome, which my noble friend has just described, it is possible to have an XY mosaic, with some of the cells carrying a Y chromosome and some having a deleted X chromosome.  The variations of that syndrome mean that people may have different degrees of masculinity or femininity.

Most practising doctors in the field would describe sex on six, totally separate, definitions.  Those definitions can be chromosomal but, more importantly, they are genetic.  It emerges that genes on the Y chromosome are not the only genes that define sex.  Although the SRY gene is by far the most common and important, there are genes on chromosome 17, chromosome 11, chromosome 10, chromosome 6 and chromosome 3 that can, in exceptional circumstances, determine sex of various kinds.  Those people can carry on a completely normal life.

Genetic sex is therefore no less important than chromosomal sex, but that is not the end of the story.  There is also hormonal sex.  Some people will produce

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hormones that will tend to feminise them, while others will be masculinised.  That can happen in utero.  Good evidence has emerged from Professor Waters of Monash University in Australia—he is now long retired—that suggests that some people who become transsexuals later in life have been exposed to an abnormal surge of either male or female hormones during pregnancy.  That has caused them to have a different psychological sex from their genital sex.  Psychological sex of course depends on brain function.  That also varies greatly and is probably genetically determined, but so much exploration of that subject is being conducted that is not fully understood.

Genetics is rapidly changing our understanding of where sex is determined.  But to define it simply as genital, hormonal or, as the noble Lord, Lord Tebbit, seeks to do, as gonadal, is a travesty of what really happens.

Let me give one example.  Janice was the most beautiful woman, who came to my unit some time ago.  She was six feet tall, and had been brought up as a woman.  She had very well developed breasts, a perfect physique, and was actually XY.  She did not find that out until she was 20.  Some people with XY dysgenesis believe themselves to be female and relish being female.  Others find that when they are actually male because of their chromosomes, they entirely change their view psychologically.

I should like to make the point made by Robert Jaffe, now retired, a very distinguished endocrinologist.  He says in his chapter on reproductive medicine headed “Disorders of Sexual Development”:

“It is crucial that the clinician who deals with patients with genital ambiguities be sensitive to the emotional as well as the physical needs of the patient.  The patients frequently have a great deal of confusion and anxiety about their sexual roles.  Whereas genetic, gonadal, hormonal, and genital sex may be of prime importance to the physician, the gender identity (that is, how the patient views himself or herself) and the sex of rearing are paramount in determining the patient’s sexual identity”.

Robert Jaffe is effectively saying that there needs to be an understanding of the autonomy of the person concerned because, on the whole, they are the best people to judge how they feel about their sexuality.  That is true of the 200 different mutations which could have affected Janice, my patient.  There are so many different fluctuations in this broad spectrum of sexuality that I urge the House to be very cautious about defining it in terms of chromosomal, genital or any other simple definition.  It simply is not medically just, and I am sure that it would produce bad law.

Lord Lucas: My Lords, I entirely support what the noble Lord, Lord Winston, has just said.  Klinefelter’s syndrome, in particular, seems to be quite common, occurring in one in 1,000 male births.  We are not talking about a collection of extremely rare symptoms but about something which probably affects someone we know.  I do not think there is any way in which we can sensibly define gender as a biological phenomenon.  It is too much a continuum, much as we may like to think that it is separated.  It just does not exist in that way.

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It makes the Minister’s arguments quite attractive to say that someone’s gender is what the law says it is and that is to be accepted.  It will make for an interesting variant on the Scottish play—a man not of woman born—and there can be other explanations once the Bill is passed.  It could perhaps explain what is going on in the words of Colonel Bogey, when it was clear that the Third Reich was populated almost entirely by people afflicted by such symptoms.

The noble Lord knows that I sympathise with the amendment.  What hurt me in the earlier amendments was the tearing apart of a marriage between a genetic man and a genetic woman just because of some legal fiction.  That does offend me.  But allowing a marriage between an emotional or a psychological man and a psychological woman who are apparently, in some aspects of their genetics, both of the same sex, is much more reasonable.  I am happy to go down that route, particularly given the explanation of the noble Lord, Lord Winston.  Tearing apart a real marriage seems much more serious than allowing the sort of marriages that will be allowed if the Bill is passed in its current form.  I will therefore not be supporting the noble Lord, Lord Tebbit, in this amendment.

Earl Ferrers: My Lords, to listen to the noble Lord, Lord Winston, is always a fascination.  His knowledge and experience of these matters go way beyond anything any of us would normally know about or experience.  However, I do not agree with him that sex is quite difficult to decide.  Sex, on the whole, is pretty obvious.  There may be a difficulty in the one thousandth or one millionth case, but on the whole there cannot be a real difficulty because it is obvious, is it not?

Lord Filkin: My Lords, it is novel to have the support of my noble friends Lord Turnberg and Lord Winston and the noble Lord, Lord Lucas, at the same time.  It is also a privilege.  I will speak briefly, because as the noble Lord, Lord Tebbit, and I spoke before we started this stage of the Bill, we have rehearsed these arguments in part before, although I am interested in some of the legal conundrums and challenges he posits for me today.  I will look with interest at what he has said when I study Hansard and reflect on it.

At heart, the noble Lord knows that we will not agree because the system for recognition under the Bill in the acquired gender is not to be based on chromosomes or genitalia.  It has been set on the tests that are set out on the face of the Bill, the three measures which we have debated time after time.  Those do not turn on the genitalia or the exact chromosomes, nor should they, as my noble friends Lord Winston and Lord Turnberg have made clear so powerfully as part of their expert advice to us from their medical practice.

Sex and gender are not determined purely by chromosomes.  Recognition, therefore, cannot depend purely on chromosomes.  Similarly, having or lacking the right genitalia is not the nub of the Bill, and surgery

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should not be a precondition either.  The noble Lord, Lord Tebbit, was with me on the last point, and I respect him for that.

The appropriate test is whether a person has taken decisive tests to live fully in the acquired gender and there is clear evidence of gender dysphoria after a proper process of inspection and testing over a number of years.  We do not intend to compel transsexual people to undergo surgery, even though most wish to do so.  The principle of legal recognition in the acquired gender will, subsequent to the issue of a gender recognition certificate, become the acquired gender for all purposes in law, as we have said before.

The amendment would have us define a person’s gender in law in one way but define the person’s gender for the purposes of marriage in another way.  That goes against the central purpose of the Bill.

Marriage in our society is a status for two parties of the opposite gender in law.  The Bill retains that principle, hence the basic nature of marriage as an institution.  The amendment would mean that a person who had been recognised by the state as being of a changed gender in law after the process we have discussed would not be able to marry.  That would not be compliant with our ECHR obligations and would also, I believe, be wrong in principle for reasons we have debated many times.

I am grateful for the clarity that my noble friends Lord Turnberg and Lord Winston brought to the complexity of the issues.  When I was younger, I tended to think that the world was rather simple.  As one becomes older, one learns that the world is more complex; it is clearly more complex medically, whereas I perhaps focused on its greater social complexity.  By and large, I have found that that complexity enriches life rather than diminishes it.

With regard to what the noble Earl, Lord Ferrers, said, we are talking about only 5,000 people in Britain.  That is why this is such a unique and specific set of circumstances.  This is one of the smallest minorities in our society, yet the evidence we have had prior to the Bill and during our debates shows that for that very small minority this issue is very significant.  I think we have an obligation in justice to help them live their life as they believe it to be.  Therefore, while I have a lot of respect for the unflinching opposition of the noble Lord, Lord Tebbit, to the Bill, we will not be able to support the amendment for these reasons, and I hope he will not press it.

Lord Tebbit: My Lords, I thank the Minister for his reply.  Let me make it absolutely plain that I would not be party to any legislation that forced a transsexual person to undergo surgical mutilation in order to benefit from the provisions of the Bill, if it becomes an Act of Parliament.  That would be quite wrong and quite outrageous.

I am enormously flattered that this evening the Government had to bring in the heavy mob, in the shape of the noble Lord, Lord Winston, as well as the light cavalry in the shape of the noble Lord,

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Lord Turnberg—light cavalry is a formidable weapon when it is used effectively.  Let us not forget that it can even undo heavy cavalry.

Both noble Lords perhaps suffered from the disadvantage of not having read every word of the proceedings at earlier stages of the Bill, although I would not wish to sentence either of them to that, as it comes under the heading of cruel and unjust punishment.  I have never maintained that there is a single test of sex.  In this amendment, I propose a triple test.  The noble Lord, Lord Winston, said that that is not satisfactory.  I am terribly tempted to ask him—particularly as I know that under the rules of the House he cannot speak again—exactly how he would set about defining sex.  I acknowledge that he said that it is extremely difficult.

It is a wonder to me that the human race has got on quite well for so long without the benefit of all this doubt about the matter.  We have had marriage for centuries, for thousands of years, and we have always had an understanding—initially informally but gradually more formally and eventually legislatively—that marriage is possible only between people of opposite sexes.  Now the noble Lord, Lord Winston, tells us that it is almost impossible to distinguish whether people are of opposite sexes.  It would seem to indicate that we have been making a massive mistake of some kind for thousands of years.  I do not accept that that is so.  He is over-elaborate in his cautions.  We may be in danger of damaging society, and the institution of marriage, because of these doubts that spring from our better understanding of the fact that no simple theory of the structure of life is adequate.

There is a legal requirement to differentiate between the sexes.  We should not throw aside all common sense and experience, and rest everything upon the judgment of a couple of medical practitioners and, even worse, registered psychologists, particularly when in recent weeks we have seen just how fallible expert opinion may be.  We all revere expert opinion.  We all revered the opinion of the medical expert on whose expert evidence many women were unjustly sentenced to gaol for murder.  We would be wise to ask whether we should uncritically accept expert advice or whether we should accept common sense advice.  If we had accepted the common sense view, those women would not have been sentenced to gaol.  They were sentenced to gaol by a medical expert.  In future we shall rest our conclusion upon whether a couple may marry upon just such expert opinion.  I would rather rest upon common sense.  It is something that we have done in this country for a very long time.  It is why we have juries.  It is why we do not always trust judges, who are very expert, to come to the right conclusion unless they are assisted by juries.

The choice here is between what some people think and what all of us can see.  We should chose what all of us can see.

Lord Elton: My Lords, before the noble Lord sits down, will he explain to me a point that is probably clear to others?  He has said that we should not rely

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upon expert witnesses, but who, except an expert witness can tell us whether a particular person answers to one or other of the descriptions in his amendment?

Lord Tebbit: My Lords, the descriptions are not terribly difficult.  Two-thirds of them would be obvious if the marriage ceremony were to take place in a nudist encampment.  The other one, the definition of the chromosomes, is not terribly expert.  It ought to be within the ability and experience of an A-level student in biology, although with the degradation in standards in schools and universities it would probably now take a master’s degree.

I wish to test the opinion of the House.

7.35 p.m.

On Question, Whether the said amendment (No. 86) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 121.

Division No. 3

CONTENTS

Ashcroft, L.
Attlee, E.
Brookeborough, V.
Brougham and Vaux, L.
Byford, B.
Carlisle of Bucklow, L.
Cope of Berkeley, L.
Dixon, L.
Erroll, E.
Ferrers, E. [Teller]
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Home, E.
Hooper, B.
Jopling, L.
Kimball, L.
Knight of Collingtree, B.
Lindsay, E.
Lofthouse of Pontefract, L.
Luke, L.
Lyell, L.
Maginnis of Drumglass, L.
Mancroft, L.
Marlesford, L.
Miller of Hendon, B.
Montrose, D.
Northesk, E.
O’Cathain, B. [Teller]
Palmer, L.
Plummer of St. Marylebone, L.
Roberts of Conwy, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Shaw of Northstead, L.
Soulsby of Swaffham Prior, L.
Southwell, Bp.
Stoddart of Swindon, L.
Strange, B.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gwydir, L.
Ullswater, V.
Vinson, L.

NOT-CONTENTS

Acton, L.
Addington, L.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Barker, B.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carlile of Berriew, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Freyberg, L.
Fyfe of Fairfield, L.
Gale, B.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Hamwee, B.
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Jones, L.
Judd, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lockwood, B.
Lucas, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Maddock, B.
Mallalieu, B.
Mar and Kellie, E.
Massey of Darwen, B.
Merlyn-Rees, L.
Miller of Chilthorne Domer, B.
Nicol, B.
Oakeshott of Seagrove Bay, L.
Oxford, Bp.
Parekh, L.
Patel, L.
Pendry, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Roper, L.
Russell-Johnston, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sharp of Guildford, B.
Simon, V.
Smith of Clifton, L.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Triesman, L.
Turnberg, L.
Wallace of Saltaire, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wigoder, L.
Winston, L.
Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

3 Feb 2004 : Column 625

7.45 p.m.

Lord Filkin moved Amendment No. 87:

Page 26, line 5, leave out from beginning to first “gender” in line 6 and insert “A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person’s”

The noble Lord said: My Lords, I seek to be relatively crisp because this is not the first time that the Government have moved an amendment having sought to listen and respond to points made at earlier stages of a Bill.

Ministers of the Church of England and the Church in Wales are legally obliged to solemnise the marriages of parishioners.  The Bill therefore provides a conscience clause so that ministers are freed from their legal obligation if one of the parties to the marriage has been recognised in the acquired gender.  Although the relevant minister may not wish to solemnise the marriage, there are plenty of other opportunities for a person to get married and not be debarred of their legal rights.

There is wide support for the principle of a conscience clause, including from the transsexual community.  Similar provision exists, for example, in relation to a person who seeks to remarry after having been divorced.

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There was considerable discussion on this issue in Grand Committee.  I accept the difficulty posed by the present version of the provision.  If the person seeking to marry does not, or refuses to, tell the minister, a minister will not be in a position to know that a person has changed gender.  Information about a person’s change of gender is, for good reason, protected under the Bill.

We have listened to the arguments and consider that it is sensible to amend the schedule so that it provides protection for the conscience of a minister both where he or she knows that a person wishing to be married has been recognised in the acquired gender and where he or she has a reasonable belief that this is the case.

Were the noble Lord, Lord Chan, present, I would speak to his amendment in a little more detail.  However, the succinct response regarding why we consider his amendment is inappropriate is that it is perfectly possible for an unreasonable belief to be held sincerely by a person.  The noble Lord’s amendment would therefore, if accepted, open up an injustice.

As I have said, we are open to addressing the concerns of the clergy regarding being able to act on their consciences on the matter.  I have met with representatives of the Church of England and my officials have worked with them to formulate an acceptable form of words.  I understand that the Church in Wales has examined the new wording of the schedule and is content with it.

This is the first opportunity to pay tribute to someone else who has been a redoubtable adversary of the Government on this Bill.  If I am being polite, that means that I have not agreed with every word that the noble Baroness, Lady O’Cathain, has said.  However, I recognise the passion and sincerity with which she has argued her case.  Therefore, it is fitting to recognise that today is her birthday.  I beg to move.

The Lord Bishop of Worcester: My Lords, I have not been able to participate in earlier discussions on the Bill.  However, I consider that it is important to place one reflection on record.  In doing so I pay tribute to both Ministers and staff in the relevant departments who have engaged in very careful and thorough discussions with staff of the Church of England and with bishops about this matter.  I do not wish my remarks to be pressed to the point of a vote on the amendment, but I wish to place on record that I and many others feel considerable discomfort at those regrettably frequent occasions when we come to the House as agents of the country’s religious communities and ask for our consciences to be protected from a proposed law.

We need to recognise that the clause, which is an attempt to balance some difficult matters, makes it possible for a person who will have been through a nightmarish life experience to endure the suspicion and then rejection of their request to marry.  Some of the stories that have come our way and some of the people I know, who are the subjects of the Bill, are asking no more than that they should be protected from being suspected, inquired into and perhaps gossiped about.  The clause, for all its right protection

3 Feb 2004 : Column 627

of the consciences of some clergy, actually troubles the consciences of many others of us by what it puts certain people through in their request to be married.

I am not pressing the matter to a vote and I respect the attempts that the Government have made to produce a form of words which is acceptable.  I also accept that if there is no conscience clause in the Bill there will be far stronger opposition to it than would otherwise be the case.  However, I would not feel that I have done my job in the Chamber if I did not place on record the discomfort of a considerable number of people, when religious communities ask for their consciences to be protected from what society’s conscience has come to think is right.

On Question, amendment agreed to.

[Amendment No. 88, as an amendment to Amendment No. 87, not moved.]

[Amendment No. 89 not moved.]

Lord Filkin moved Amendment No. 90:

Page 26, leave out lines 8 to 10 and insert—

(2) A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person’s gender has become the acquired gender under that Act.”“

On Question, amendment agreed to.

[Amendments Nos. 91 and 91A, as amendments to Amendment No. 90, not moved.]

On Question, Amendment No. 90 agreed to.

[Amendments Nos. 92 and 93 not moved.]

Schedule 5 [Benefits and pensions]:

[Amendments Nos. 94 and 95 not moved.]

Lord Carlile of Berriew moved Amendment No. 96:

Page 29, line 20, at end insert—

“(2A) But sub-paragraphs (1) and (2) do not apply to a person who was born not less than 50 years before the appointed day and who is a woman immediately before the certificate is issued, and the rights of that person to a Category A retirement pension are to be decided as if the certificate had not been issued.”

The noble Lord said: My Lords, my noble friend Lord Goodhart and I and all other noble Lords who have discussed the matter are grateful to the noble Baroness, Lady Hollis.  She has been at great pains to try to explain to me and to others that the amendment is unnecessary.  I think—and when I say “I think” it is my fault, not hers—that she has pointed out to me that no female to male transsexual will be disadvantaged in terms of his pension as a result of obtaining a gender recognition certificate; or, at least they will not be disadvantaged financially if they fall within a certain age group.  That is the subject of the amendment.

The issue was drawn to my attention by Mark Rees, a female to male transsexual who is well known because he brought one of the cases that went to the European Court and because he wrote an excellent autobiography about his experiences as a person who has had to endure the whole process and live with it for many years.  He wrote to me to point out that people of his age—that is, people who are now at the age

3 Feb 2004 : Column 628

when, had they remained of female legal status, they would have retired or would have been about to retire and receive their pension—find themselves potentially disadvantaged.  It is a simple point.  The Bill helpfully gives them the status of the gender which they have acquired once they obtain the certificate.  A female to male transsexual, therefore, receives a pension at 65.  A male to female transsexual receives a pension at 60.  In legal terms that is as it should be.  But there is an anomaly.

A person like Mr Rees will have gone through the process of law, which included going to the European Court of Human Rights; of lobbying, including a Private Member’s Bill, which I presented in another place with the assistance of Mr Rees many years ago; and various other experiences that led him to the conclusion that he was never going to acquire the legal status of a man, which he is pleased to see that the Bill will give him.  Of course he openly welcomes the Bill, almost without reservation.  But it took a long time to reach the present position and successive governments made it clear to him that he was not going to reach it.  So, he was entitled to assume that he would receive a pension at 60.  There are possibly a dozen people who fall into that anomalous group.  I suggest to your Lordships that we need to be sure that those people will not be disadvantaged in any way.  We need to be sure that, even if they do not make themselves available for work because of their reasonable expectation of what was going to happen to them regarding their pensions, they will not find themselves disadvantaged.

Amendment No. 96, for which I do not claim anything except simplicity, is an attempt to put that issue in simple terms and to find a solution for it.  I strongly suspect that the comments we will hear from the noble Baroness, Lady Hollis, in response to this short debate will be a little more complex than the amendment.  When she responds I should be grateful if she would make it absolutely clear—since it may become a Pepper v Hart point—that there is no risk of the people to whom I refer being disadvantaged in any way.  If there is a risk, surely the way to deal with it is by an amendment such as this, which would remove all doubt.  I beg to move.

Lord Monson: My Lords, when we debated the Bill last week the noble Lord, Lord Filkin, made it clear that once an individual changed sex or acquired a different gender—however one puts it—they would henceforth be entitled to all the advantages and disadvantages, fiscal or otherwise, associated with that newly acquired gender.  The amendment would allow a woman who has legally become a man to have his cake and eat it to some extent.

I thought from what the noble Lord, Lord Filkin, said last week that that was contrary to the Government’s purpose, but the noble Lord, Lord Carlile, suggests otherwise.  He suggests that his amendment sets out in clearer form what the Government intended all along.  That totally puzzles me because it seems inconsistent with what the Government have said.  If someone who

3 Feb 2004 : Column 629

has become a man draws his state pension at 60, he is not being treated the same as all other men who have been men all the time.

Moreover, the right of women to receive the state pension five years earlier than men is an unjustifiable anomaly, as I believe all political parties now agree.  I stand open to correction, but I believe the anomaly is being phased out over a period of years and not before time.  In a sense, therefore, the amendment is retrograde.

If I am mistaken and that is what the Government intended all along, there is little I can do about it, but I should be grateful for an explanation from the Government Front Bench.

8 p.m.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, the amendment focuses on the state pension provision.  The noble Lord, Lord Carlile, supported by the noble Lord, Lord Goodhart, proposes that some individuals who gain a gender recognition certificate should receive their state pension according to their acquired gender but that others should be given special status and receive their state pension according to their birth gender.  Like the noble Lord, Lord Monson, I believe that that runs entirely counter to the principle of the Bill.

Last Thursday, your Lordships’ House decided that the marriage will end if one partner changes gender and wants to obtain a full gender recognition certificate.  The amendment could not fit in with that decision.  The marriage comes to an end and the consequence is that each partner must now be treated as an individual in his or her respective gender.

Let me focus on the fundamental difficulties which I believe are raised by the amendment, which is to allow category A pension provisions—the basic £77 state pension—for female to male transsexual people over the age of 50.  The noble Lords feel that because such people have made financial preparations for retirement based on the expectation that they would be retiring at the age appropriate for women, we should respect and honour that by virtue of the amendment.

I want to make four brief points because the noble Lord, Lord Monson, anticipated most of my argument.  First, if female to male transsexual people over 50 who gain legal recognition of their acquired gender retain entitlement to the category A pension—the basic £77 state pension—as though they were still women, that clearly discriminates against those legal males who have not changed gender but would like the same right.  We would be creating a special group of men who would be treated differently because of the fact they were once women, despite the fact that they want to be recognised as men.  That is unfair and could, I am led to believe, be open to legal challenge.  Obviously, I would defer to the weight of legal opinion on the Bench.

Secondly, if female to male transsexual people over 50 are to be treated for state pension purposes as remaining in their birth gender, it would be legally difficult not to

3 Feb 2004 : Column 630

treat the opposite group of transsexuals—in fact the majority; those who are male to female—in their birth gender for pension purposes also.  They, too, presumably on the noble Lord’s argument, have been planning their financial retirement as though they were going to retire at 65 while in their new gender they would be entitled to claim their basic state pension at 60.  I emphasise that 80 per cent—three-quarters or more—of transsexual people move from male to female.  In other words, if we are to be fair across the category of transsexual people, three-quarters would be disadvantaged for the one-quarter who might on this account gain.  Obviously, one cannot distinguish only female to male; I would argue that one would have to distinguish similarly male to female.  I do not believe that that would be reasonable.

The third point, in practical terms, is the financial situation mentioned by the noble Lord, Lord Carlile.  Whether someone is male or female between the ages of 60, his or her financial situation can be virtually identical.  Anyone over the age of 60—male or female—subject to income, is entitled to an income-related benefit which is pension credit.  It used to be called MIG.  That is important.  It is worth £102 to the individual however much towards that £102 he or she brings in the form of basic state pension.  In other words, if as a female she has a basic state pension in her own right of £50, £60, £70 or £77, MIG—pension credit—would top it up to £102.  But if as a male by either birth or by acquired gender he does not yet have an entitlement to the basic state pension, he none the less, subject to income, can also get pension credit of £102.  Therefore, in practice a female to male transsexual, a male to female transsexual, a birth male and a birth female will all receive the same sum of money between the ages of 60 to 65, subject to income, of £102 a week, whether there had been a change of gender or not.

Finally, from 2010 we begin to equalise the retirement basic state pension age for both men and women alike.  Not only will we be reducing financial difference in terms of eligibility for basic state pension between men and women, we will be reducing legal entitlement too,

I have made four points.  First, that it is not fair to men in their birth gender if some men in their new acquired gender have a different entitlement.  Secondly, in all logic one would have to extend the same principle to male to female transsexuals and therefore the majority of transsexuals could lose financially in this package if one takes the argument of the noble Lord.  Thirdly, eligibility for income-related benefits is the same irrespective of gender acquired or at birth between the ages of 60 and 65.  Finally, we are equalising gender state retirement ages.  I hope that with those four brief points, the noble Lord, Lord Carlile, will feel able to withdraw his amendment.

Lord Carlile of Berriew: My Lords, I am grateful to the Minister for her response.  Had we achieved equalisation of pension ages—a laudable aim which I and my party support—I would not be moving the amendment.  I recognise the validity of that point—we just have not got there yet.

3 Feb 2004 : Column 631

The points on discrimination and legitimate expectation illustrate the dilemma we are in.  We have a conflict between two concepts.  On the one hand, we have the legitimate expectation in the example I gave of Mr Rees who was led by the Government, particularly by their hostility until recently into recognising he was a man, to expect that he would receive his pension not subject to income measurement at the age of 60.  On the other hand, others might conceivably claim that they were discriminated against for the reasons the noble Baroness gave.

I do not accept for one moment that what has been said is a satisfactory answer for that very small number of people because a non-income-related benefit will be replaced by an income-related benefit in some cases.  Among that small group, there will be people who have occupational pensions who will without doubt be losers.  I find that unsatisfactory.

Having said that, in recent days I have spoken to and corresponded with people who are in this position.  We all recognise that the Bill is a significant step forward in the law.  It would be inappropriate to divide the House over the issue, but it is appropriate to register disappointment at the outcome of this short debate.  I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 [Sex discrimination]:

Lord Goodhart moved Amendment No. 97:

Page 34, line 30, at end insert—

“1A In section 2A (discrimination on the grounds of gender reassignment)—
(a) for paragraphs (a), (b) and (c) of subsection (1) substitute “any provision of Parts 2 or 3”; and
(b) in subsection (1), insert at the end “or intends to acquire or has acquired a gender recognition certificate under the Gender Recognition Act 2004.”“

The noble Lord said: My Lords, the Sex Discrimination (Gender Reassignment) Regulations 1999 introduced a number of new sections into the Sex Discrimination Act 1975.  Their purpose was to extend the protection of the 1975 Act to transsexual people undergoing gender reassignment or who had undergone or intended to undergo it.  The new sections did not extend the protection of transsexuals to the full width of the Act.

Section 2A, introduced by the 1999 regulations, extended the Sex Discrimination Act to cover transsexual people in relation to discrimination over employment under Part II of the Act, but did not extend protection against discrimination to the provision of goods and services under Part III.

Amendment No. 97 serves two purposes.  First, it extends the rights of people undergoing or having undergone gender reassignment by forbidding discrimination in the provision of goods and services.  Secondly, it recognises that male and female transsexual people will be entitled to the protection of the Sex Discrimination Act in their legal status as women.  But discrimination may be specifically against male-to-female transsexuals and not against women generally; so there is a lacuna.

3 Feb 2004 : Column 632

We see no adequate reason why the anti-discrimination legislation should be limited to discrimination in employment under Part II of the 1975 Act and not to discrimination in the provisions of goods and services under Part III of the Act.

The amendment’s second purpose is to extend the protection expressly to transsexual people who have acquired, or intend to acquire, a gender recognition certificate.  Gender reassignment, as defined in subsection (3) of Section 2A of the 1975 Act, involves medical treatment.  That can, of course, be surgery, but it could also be hormone treatment without surgery.  The majority of people who seek or obtain a gender recognition certificate will, as part of the process, undergo medical treatment of some kind, but it is not in fact a requirement of the Gender Recognition Bill that they should do so.

It seems pointless for a person who has obtained a gender recognition certificate to have to produce evidence of medical treatment to be able to bring a complaint about discrimination when the very existence of the certificate shows that they are people who are intended to be protected.  The absence of any specific reference to people who have received gender recognition certificates may cause particular difficulties where the applicant has changed gender under the law of an approved foreign country and evidence of medical treatment would have to be obtained from abroad, which might present difficulties and perhaps involve the translation of documents.

Not only should the existing protection be extended to include Part III as well as Part II of the 1975 Act, but it should also involve a specific reference in Section 2A to those who have obtained gender recognition certificates, as well as to those who have undergone or may intend to undergo gender reassignment.  I beg to move.

Lord Filkin: My Lords, as will be apparent from the exposition of the noble Lord, Lord Goodhead—

Lord Goodhart: Goodhart.

Lord Filkin: I am so sorry.

Lord Carlile of Berriew: He has a good head as well.

Lord Filkin: He does indeed.  These issues are complicated.  The thrust of our response is not that there are no issues worthy of study here, but that because of their complexity this is not the best place or time to do so and there will be another opportunity relatively shortly.  I shall speak on that in a little more detail.

As the House knows, once gender recognition had been granted, an individual would be able to claim all the rights appropriate to that gender.  The person would therefore have protection in the acquired gender under existing sex discrimination law.  However, fundamentally, this Bill is about legal recognition in the acquired gender and not about the totality of anti-discrimination law.

3 Feb 2004 : Column 633

Anti-discrimination protection for transsexual people as transsexuals already exists in the areas of employment and vocational training.  That has been set out in the Sex Discrimination Act since 1999.  Protection is provided on the basis of intending to undergo, undergoing or having undergone gender reassignment.  There are a number of exceptions relating to genuine occupational qualifications where the circumstances are specified in which discrimination on the grounds of gender reassignment is not unlawful.

Some of the exceptions apply only to a person who intends to undergo or is undergoing gender reassignment and not to a person who has undergone gender reassignment.  However, the Act does not contain a definition of the point at which a person is to be regarded as having undergone gender reassignment.  Therefore, the creation of a new legal status in this Bill gives us the opportunity to provide such a definition.

First, the Bill amends the Sex Discrimination Act so that the genuine occupational qualifications allowing discrimination on the grounds of gender reassignment will not apply in the case of people who have been legally recognised in their acquired gender.  The effect would be that, while there would be occasions when it was legitimate to discriminate against a transsexual man or woman on the grounds of his or her acquired gender, it would no longer be permissible to discriminate against them in employment matters on the grounds that they were previously of another gender, unless the separate exception for organised religions under Section 19 is applicable.

However, a further extension of the protection against discrimination into the realm of goods and services would require an evaluation by the Government of the nature and extent of the problems faced by transsexual people in those areas.  We would need to consider the implications and practicalities of extending the law, including the nature of new burdens on service providers in all sectors, including education, to which the amendment extends, and the necessity for exceptions in any particular circumstances.  And, as has been the case in relation to this Bill, we would also want to have proper consultation with stakeholders and those affected.

We firmly believe that if that is to be done—we have heard the arguments that have been made today—it should be done only once a recognition system is in place and once the impact of recognition in the acquired gender has been evaluated.  That would provide better evidence of the nature of the problems.  For the reasons that I have touched on, we do not think it right suddenly to do so as part of this Bill.

However, I do not believe that that is an argument for unreasonable delay.  On 5 November 2003, the European Commission published a draft directive on sex discrimination in the field of goods and services.  Negotiations on that directive will provide a suitable forum in which discussions can take place with our European partners and the Commission.  Those discussions will provide a far broader, European-wide discussion of the issue, including the possible need for exemptions and legal protection against discrimination.

3 Feb 2004 : Column 634

Taking action in this Bill would risk the possibility of having to revisit the same area of anti-discrimination law once the directive was finalised.  It would be unhelpful if we were to legislate now in haste and then find, as I believe would almost inevitably be the case, in a relatively few years’ time that we had to legislate again because a significant number of burdens were placed on service providers to bring themselves into compliance as a consequence.  If they were required to do so twice, I believe that that would be unreasonable.

Having said all that, we hear the arguments surrounding the issues most clearly.  They will be issues for ongoing study within government and will inform our discussions with the European Commission and the relevant parts of the Council of Ministers on these matters.  We shall look to amass evidence and experience as part of that process.

8.15 p.m.

Lord Goodhart: My Lords, naturally, I am somewhat disappointed by that reply, particularly in relation to the part of the amendment which proposes that there should be a specific reference in subsection (3) of Section 2A not only to those who have undergone or are undergoing gender reassignment but also to those who have obtained a gender recognition certificate.  That seems to me to short-circuit some of the evidence that it would be necessary to produce without in any way taking decisions about the extension of the coverage of the anti-discrimination laws.

However, there is obviously a considerable degree of comfort in the knowledge that the Government are planning to consider this matter in the wider context of the proposed European directive.  In those circumstances, it would obviously be inappropriate for us to push this issue to a Division.  Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness O’Cathain moved Amendment No. 98:

Page 35, line 9, at end insert—

“(5) A person—
(a) whose gender has become the acquired gender under the Gender Recognition Act 2004, or
(b) who will not consent to the disclosure of any entry relating to him contained in the Gender Recognition Register,
is to be regarded as a person who is undergoing or has undergone gender reassignment for the purposes of subsections (3) and (4).”“

The noble Baroness said: My Lords, in moving this amendment I shall also speak to Amendment No. 101 in my name.  They are identical except that Amendment No. 98 refers to Great Britain and the other to Northern Ireland.

The purpose of these amendments is to allow a Church to refuse employment to a person who will not consent to the disclosure of an entry relating to them on the gender recognition register.  Any employer will say that getting the right person for the job is essential.

3 Feb 2004 : Column 635

In any business if the right person is employed it goes brilliantly, but if the wrong person is employed it becomes a disaster.  It can have a very negative effect on the whole organisation if someone is employed who does not share the basic values, or what we term in business “the ethos of the business”.

If that is true in a secular organisation how much more true it is in a religious organisation.  In a religious group the staff are bound together by very strong beliefs on fundamental issues and shared values.  These are beliefs not about mundane matters such as management style or marketing techniques, but about human nature, right and wrong and the nature of truth.

Churches teaches us that our sex is decided by God.  They also teach that your sex is a matter of absolute truth, not personal choice.  I ask, how could a Church employ a transsexual who effectively believes that God got his sex wrong?  How can they employ a person who, in their eyes, lives a lie by impersonating the opposite sex?

The Government know that it is wrong to force this on religious groups.  In 1999 they enshrined the right of religious bodies to refuse to employ transsexuals.  This is found in Section 19 of the Sex Discrimination Act.  Yet only five years later we are severely limiting the ability of Churches to exercise that right by taking away their right to know the birth sex of the candidate for employment.  If a job applicant conceals his or her transsexualism religious employers will have no way of knowing it.

At present they can resolve any doubts they may have by requesting sight of the birth certificate.  Either the person will supply it, in which case it will declare their true sex, or they will decline it in which case they can be turned down on the basis of bad faith.

But this Bill takes that option away.  It would be pointless to ask for a birth certificate to verify their sex because it will simply confirm the applicant’s version as to his or her sex.  As a way of establishing a person’s true biological sex, birth certificates will in effect become useless.

Of course, the Church can ask a direction question: have you changed sex?  Some transsexuals will be honest and answer truthfully, but some will not.  They may have a deep- seated urge to conceal their true sex.  They may have no compunction at all about saying, “No, I have not changed sex.  I have always been what I am now”.  The Church may then feel that it has no choice but to believe them.  It might not emerge that they have been deceived until months or years later.

Why do the Government not seem to care about this possibility?  Why do they recognise that it is changing the nature of the relationship between the Church and its potential employees?

I ask the Minister three questions.  First, does he understand the dilemma that Churches face through not knowing the true sex of job applicants?  Secondly, what is a Church supposed to do about it?  Thirdly, does the Minister agree that it would be offensive to

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Churches, mosques or temples or other religious bodies who are employers, to discover that they had unwittingly employed a transsexual?

The human rights barrister, Paul Diamond, issued a legal opinion about this Bill on 26 January.  He believes that the Bill may breach the freedom of religion under Article 9 of the European Convention.  He put it like this:

“It is rather like saying to a Muslim school: ’We don’t know if the food given to your children has pork in it.  Further, you are not allowed to inquire, or check whether this is the case’.  Thus the choice for the Muslim is not to eat.  Or to say to a Jewish person, that you should become a vegetarian as you cannot secure Kosher meat.  The very posing of the question illuminates the clear violation of religious rights”.

If we say that we respect people’s religious opinions we must take steps to avoid this scenario.  This Bill must be amended to protect the existing rights of Church employers.  I beg to move.

Lord Filkin: My Lords, the amendments seek to ensure that a person who has acquired a new gender under the Bill or who will not consent to disclosure of their entry in the gender recognition register is covered by the exemptions in Section 19(3) and (4) of the Sex Discrimination Act.  Those subsections allow discrimination against those who are undergoing or have undergone gender reassignment in relation to employment, authorisation or qualification for the purposes of an organised religion, provided that this is done to comply with a religious doctrine or to avoid offence to the religious susceptibilities of a significant number of the religion’s followers.

I am happy to be able to reassure the noble Baroness and the House that no addition to Section 19 is needed, as the existing provisions already do all that is needed.

Where a person is refused employment, or an authorisation, or qualification, this is unlawful under Section 2A of the Sex Discrimination Act only if it is done,

“on the ground that the person intends to undergo, is undergoing or has undergone gender reassignment”.

Whether or not that is the case is a question of fact for the tribunal, were one to be engaged to decide on the case.  What is important to note is that wherever it is found that an organised religion has discriminated on this ground they are entitled in principle to seek to claim the benefit of the exemption in Section 19.

I shall deal with the concerns which underlie this part of the amendments.  The amendments suppose that a person who has acquired a new gender under the Bill applies for employment or ordination for the purposes of an organised religion but refuses to consent to the register being consulted.  In this situation, if the Church refuses employment or ordination, it is very likely that the discrimination would be held to have been on the ground that the person has undergone gender reassignment.  The Church will therefore be entitled to seek to rely on the relevant part of Section 19.

The Church will succeed under Section 19 only if it can show that the restrictions imposed satisfy the tests laid down in Section 19.  In other words, the Church will have to show that the restrictions were imposed to

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comply with a religious doctrine or to avoid offending the religious susceptibilities of a significant number of the religion’s followers, which is, I think, the thrust of the noble Baroness’s amendment.  The fact that the Church had not seen the gender recognition register would not prevent it from seeking to rely on this examination.

Amendment No. 99 seeks to insert into the Bill an exemption covering ordination and appointment.  We have already said in Grand Committee that the question of whether the Church may discriminate against transsexual people in these respects is one that must be answered in the context of our EU obligations and specifically the Equal Treatment Directive that must be implemented by October 2005.  We have clearly also signalled that we would be happy to continue discussions with the Church about that issue.

Baroness O’Cathain: My Lords, I thank the noble Lord for giving way, but we are not talking about Amendment No. 99, which is the amendment of the right reverend Prelate the Bishop of Winchester and is not grouped with my amendments.  Unfortunately, the right reverend Prelate is not present.

Lord Filkin: My Lords, I apologise.  I will say no more on that.  Amendments Nos. 100 and 102 would add a new Section 33—

Noble Lords: Oh!

Baroness O’Cathain: My Lords, I am sorry to do this to the noble Lord especially when he has been so gracious as to wish me a happy birthday, for which I thank him.  The actual amendments I am speaking to are Amendments Nos. 98 and 101.  They are very narrow ones and are identical.  Amendment No. 98 applies to Great Britain and Amendment No. 101 applies to Northern Ireland.

Lord Filkin: My Lords, I am most grateful to the noble Baroness for her help.  I shall seek to find any relationship to Amendment No. 101 in my notes.

8.30 p.m.

Baroness O’Cathain: My Lords, perhaps I can help the Minister.  I do not think it matters because both amendments refer to the same point.  Amendment No. 98 applies to Great Britain and Amendment No. 101 to Northern Ireland, but the wording is identical.

Lord Filkin: My Lords, yet again the noble Baroness has fooled me.  Clearly, I have answered the point and I shall say no more.

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

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

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

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

Amendment, by leave, withdrawn.

The Lord Bishop of Southwell moved Amendment No. 99:

Page 35, line 9, at end insert—

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

3 Feb 2004 : Column 639

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

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

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

On a number of occasions during the passage of the Bill, reference has been made to the need to balance the proper rights of transsexual people with the proper rights of other parties.  Secti