Gender Recognition

Part of the debate – in the House of Commons am 1:47 pm ar 6 Rhagfyr 2023.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Kemi Badenoch Kemi Badenoch Minister of State (Housing, Communities and Local Government), Minister of State (Foreign, Commonwealth and Development Office), Minister for Women and Equalities, Secretary of State for Business and Trade, President of the Board of Trade, Minister for Women and Equalities 1:47, 6 Rhagfyr 2023

It is this Government’s policy that the UK does not recognise self-identification for the purpose of obtaining a gender recognition certificate. However, the Government are determined that everyone should be able to live their lives free from unfair discrimination. We are proud to have passed the Marriage (Same Sex Couples) Act 2013 and Turing’s law. We also introduced a modernised and affordable gender-recognition process, while recognising the need to maintain checks and balances.

Today, we are laying an order to update the list of approved overseas countries and territories for parliamentary approval. That is provided for under section 1(1)(b) of the Gender Recognition Act 2004 and follows previous periodic updates. This is long overdue. The list of approved overseas countries and territories was last updated in 2011. A commitment was made to keep the list under review, so this is a further step in implementing our response to the Gender Recognition Act consultation.

We are doing this because some countries and territories on the list have made changes to their systems and would not now be considered to have similarly rigorous systems as the UK’s. Inadvertently allowing self-ID for obtaining GRCs is not Government policy. It should not be possible for a person who does not satisfy the criteria for UK legal gender recognition to use the overseas route to do so. We also need to ensure parity with UK applicants: it would not be fair for the overseas route to be based on less rigorous evidential requirements. That would damage the integrity and credibility of the process in the Gender Recognition Act.

We have finalised details of overseas countries and territories to be removed and added to the list laid today via an affirmative statutory instrument. We have undertaken thorough checks in collaboration with the Foreign, Commonwealth and Development Office to verify our understanding of each overseas system in question and measure it against the UK’s standard route to obtain gender recognition.

My officials and I formally engaged with colleagues and Ministers from devolved Governments in advance of laying this statutory instrument. The Government are committed to ensuring that this outcome of the 2020 Gender Recognition Act consultation is followed through and upheld, and the overseas list will be updated via statutory instrument more regularly in future.

This work is important because of the complex interactions between the Gender Recognition Act and the Equality Act 2010. The complexity of the legal situation was reinforced by the judgment in December 2022 by Lady Haldane in the judicial review brought by For Women Scotland, upheld on appeal last month by the Inner House of the Court of Session, which effectively stated that a gender recognition certificate changes a person’s sex for the purposes of the protections conferred by the Equality Act. Labour’s Gender Recognition Act 2004 and Equality Act 2010 did not envisage that the words “sex” and “gender” would be used as differently as they are today. That is having an impact on all policy that draws on those Acts, including on tackling conversion practices and guidance for gender-questioning children.

To that end, I am exploring how we can rectify these issues across the board and provide legal certainty. That will reduce the tensions that have emerged as a result of the confusion around the terms “sex” and “gender”, first by ensuring that we are evidence-led in the approach we take—for example, when considering appropriate treatment of children on the NHS, we should be fully informed by the final report from the Cass review, which is due early next year; given the complexity of this area, the review is understandably taking longer than originally expected—secondly, by ensuring consistency in how we implement policy across the board; and thirdly, by exploring whether we need more clarity in law. For example, the Equality and Human Rights Commission has recommended that we clarify the definition of sex in the Equality Act, while ensuring that any further proposed legislation fully takes into account the complexity of issues.

We should not leave ordinary people to suffer unintended consequences because we in Parliament are shy of dealing with difficult issues. I commend this statement to the House.