Gender reassignment

I beg to move amendment 195, in clause 7, page 5, line 25, leave out ‘proposing to undergo’ and insert ‘considering undergoing’.

The Committee will remember that we had a full discussion in Thursday’s debate on the issues affecting persons who are in the process of, or contemplating, transgendering. It is unnecessary and inappropriate to pick up the whole of that discussion, but I said that I had missed out by not moving an amendment on the specific point raised. I have now done that to give the Minister a chance to respond. My hon. Friend for this purpose, the hon. Member for Hornsey and Wood Green, might want to say something on it, too.

The Committee knows—we debated this and it is not an issue between us—that any persons contemplating transgender issues and their future are not in a simple situation. They are a small minority, and that is why they need our support and attention. The decision  might be initiated at an early age, or it might take years to make a decision. It might not, in certain cases, go forward to surgery, medical treatment, the formal process of gender reassignment or the acquisition of legal status in the new gender as set out in the Gender Recognition Act 2004. It is a complex and sensitive picture and almost all individuals will be different.

We are grateful to the Solicitor-General for introducing a more sensitive definition. The amendment simply seeks to tidy up something where the definition could be even better. The difficulty with the words chosen by the Government, which appear in clause 7, are that they require the person at the first stage to be “proposing to undergo” a process of reassignment of their sex. I think that is a little too precise for the circumstances of the case. I vaguely recall the Oxford philosopher, J. L. Austin, who created a new class of what he called “performative utterances”—if someone got up and said, “I name this ship the Queen Elizabeth”, it was difficult to deny that they were actually naming the ship the Queen Elizabeth. It could be that if a person said formally and put it in writing, “I am proposing to undergo a process”, that would be a performative utterance. They would have deemed themselves to be doing so, and they would automatically receive the benefit of protection of the protected characteristics.

In the real world, it is not like that at all. People are ambiguous—they make tentative inquiries, go and see a doctor, talk to a counsellor and start thinking about it. It would be better and more sensible in those cases if the protection, which is rightly intended by the Committee, was extended to those persons whose status is not wholly determined, but are thinking about it. That is why I came up with the phrase “considering undergoing”.

I stress to the Committee that that would not be a test with no evidence. If there was an act of discrimination, the person involved would have to show some evidence that they had been “considering”. They could not make it up afterwards—or rather, they would have to convince a court that they had such evidence. But it would be more informal than saying, “I am proposing to undergo a process.” It would be saying, “I am not quite sure where I am, but I need to think about it. It might transpire in the process of gender reassignment.” It would be a softer but not non-existent test. It is entirely consistent with the advances that we have already made—we are just taking it a stage further.

I say to the Solicitor-General that I have proposed those words because they were the first ones that came into my head—I have no proprietary interest in them. If she can come up with a better way to catch the more nuanced definition of people starting on the process and extending the protection to them—indeed, some of them will really need it—the Committee will be grateful. As I said, I will not stand on the words, but I think the issue is worth considering.

I will not hold up the Committee for long as we discussed the issue the other day. I am grateful to the hon. Member for Daventry for tabling the amendment, which  goes part way to where I was trying to reach, but not the whole way. It is important to introduce the idea of uncertainty and confusion, which populates the transgender world to a far greater extent than the world in which people are settled in their decision to live in one gender or the other. I felt that we had not touched on that complexity or allowed for that confusion, although the amendment goes some way towards that. Paragraph 56 of the explanatory notes states:

“The clause also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman transitioning to being a man and a man transitioning to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.”

The amendment still does not capture those who are not considering a change—those who are confused, but not considering living in or transitioning to another gender—but who may still experience discrimination because they are not physically identifiable as either a man or a woman, whatever their latent state. I think that the amendment still leaves that area somewhat unexplored, but it is certainly better than where we were. I will also be happy if the Minister considers bringing that into the Bill in some form that gives a voice to those who are not covered by reassignment.

I can see the point made by the hon. Member for Daventry; it does arise—he already made that point in our debate last week. I am incredibly impressed. Having read Professor Austin myself—he was a positive jurisprudentialist—I can tell the hon. Gentleman that his one reference to Professor Austin makes it clear that he got a lot more out of studying the professor than I ever did, despite many years of application. However, I am not sure that the amendment would help. If it would, we would of course consider it.

After working as hard as we could on the right definitions for clause 7, we concluded that the phrase “proposing to undergo” provides the best practical coverage. It gives a degree of certainty and more sureness, which the term “considering undergoing” does not. A person can have lots of ways of thinking about their gender. At what point that amounts to “considering undergoing” a gender reassignment is pretty unclear. However, “proposing” suggests a more definite decision point, at which the person’s protected characteristic would immediately come into being. There are a lot of ways in which that can be manifested—for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away.

Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That, too, would mean that they were protected. If an employer is notified of that proposal, they will have a clear obligation not to discriminate against them. If anything, a good employer would help them. However, without a clear decision even to propose to do that, it is difficult to see how, practically, an employer will know that the assistance is necessary.

If what is going on is an internal cogitation, with no external manifestation, it is difficult to see how this can work practically. We want to ensure that people start their personal journey—

The problem is the other way around. Often, one can have an external manifestation without an internal decision being made. The fundamental point that we have made in both these debates is that we need to find a way to cover people who, for example, may cross-dress. It is therefore obvious that they may be a target for discrimination, and indeed harassment in certain circumstances. They may not necessarily have made a decision or, in respect of harassment and discrimination outside employment, they may be too young—below the age of Gillick competence or Fraser competence—to be legally able to start or to propose externally that they should undergo gender reassignment. There is still a fundamental difference between our positions.

No. The hon. Gentleman has that completely on its head, to be frank. No one is too young to cogitate about their gender identity. The consequences of doing so may be very different. We are not, as he seems perpetually to be stuck on, talking about the medical model of gender reassignment, on which some people may well be too young to be responsible enough to decide. This is not gender reassignment on a medical model. He really needs to come off that tramline and look at this for what it is. It concerns a personal journey and moving a gender identity away from birth sex. I am sure that that is as capable of being done by a young person as by an older person, and it is indeed likely to have manifestations. Those manifestations are the things that will indicate that some sort of process is in place.

If a person makes the proposal—it is a proposal, not a decision where someone says, “I will do it and never turn back”—that they may move along that pathway, at that point, and at that point only, does it become practical to protect someone. Someone who is having internal concerns about themselves is not manifesting it in any way that can be acknowledged and protected by any external person. As soon as there is a manifestation—as I have said already, and we discussed this last week too—the duty not to discriminate comes in.

I would like the Minister to elucidate on the situation in which someone is not considering living in another gender, but the external manifestation leaves them looking indeterminate. How would they get protection if they were to be discriminated against for being unable to be identified as male or female?

It would depend upon the definition in clause 7. If she feels that such people are neglected, I should point out that nothing in the amendment would help them. We are talking about an amendment changing the definition of when someone triggers this particular protection, not extending the definition within clause 7, so we can focus on the remarks made by the hon. Member for Daventry.

As I have said already, if we thought the hon. Gentleman’s proposals would help, we would consider them further. However, we do not, for the reason I have outlined, which is that there has to be a practical way to trigger protection against discrimination. Let us remember the perception element. If people manifest what is thought to be a tendency to move towards the opposite sex—away  from their sex identity—they might be perceived to be within the definition under the provision. They will therefore have protection when they make those manifestations on the basis of perception. Any behaviour that may be a precursor to an individual proposing to undergo gender reassignment may be covered by perception, so anyone who has gender diaspora and experiments with transvestitism before starting the process of living full-time or even from time to time in what they see as becoming their acquired gender will be protected.

There does not seem to be a problem about people who are considering reassigning their gender. We have covered the territory directly under the definition and through perception to cover those who are making manifestations or who may be misperceived to be in the process of gender reassignment. We have to cope with the fact that the public are probably not massively well informed and will make relatively simple judgments about people. The individual who is misperceived to be on a journey, when, in fact, they are manifesting something that is not part of a journey, will be protected. We have deliberately cast the definition widely to cover all those who need protection against discrimination. We have no evidence that there is a need for anything wider.

As for whether the perception works in a way that the Minister identifies, Equality Network noted in the Government’s equality impact assessment at paragraph 2.20 her view that protection on the basis of perceived gender reassignment will provide new protection for people who are “considered as being transvestite”. I, like Equality Network, welcome that assertion. However, the concern is that such people might not be adequately protected on the basis of perceived gender reassignment, because relying on that provision would perhaps require proof that the discriminator wrongly perceived the person to be transsexual—proposing reassignment, as the Minister put it—as opposed to knowing or perceiving that they were transvestite, inter-sex or androgyne. If the perception has nothing to do, in the mind of the discriminator, with gender reassignment but relates to whether someone is a transvestite, would that be covered by the perception provision?

I am not sure of the nature of the hon. Gentleman’s argument, because I was sitting down when he began to speak. However, I am happy to help him as best I can, although it is a fairly endless job. The matter of perception rests on whether someone is perceived to come within clause 7. It is as simple as that.

I suppose that it is an indulgence that we end up second-guessing the Minister’s response before we have finished with the amendment. In this case, I did almost precisely that. The Minister understands why we tabled the amendment, and she has been generous about it. In effect, she has put the counter case in that such things are difficult to tie down without a fairly clear evidential test. I accept that, but I hope that I had at least entertained the possibility that any relevant evidence could be considered as part of the process of “considering undergoing”. We are really talking about what would be a test, and as the hon. Member for Oxford, West and Abingdon has reminded the Committee, that is considered not only by the individual, but by the potential discriminator.

I probably have to give ground to the Solicitor-General. The only point that I would stick on with my amendment is that, in a sense, No. 1 for a gender discrimination counsellor or medic consulted by someone who is contemplating the process should be to say, “Sign a chit here, saying you are proposing a process of reassignment and that will protect you, otherwise you might get hit—discriminated against, or whatever.” That could trigger a decision or perceived decision that might not be helpful to the person’s interest.

We are going to have to leave the argument on that side of it, legally, except that the Solicitor-General has introduced some rather interesting additional tests, which go some way towards meeting the concerns of Liberal Democrat Members—clearly not far enough for them, but far enough for me.

My amendment is pinned on a specific issue: is the performative action saying, “I propose to undergo this”? The Solicitor-General has said that that could be one example. If I wrote that I was consulting a specialist about the situation, that would be incontestable. She also said that a number of actions, including cross-gender dressing, behaving in a way that is not consistent with the natal gender or whatever, might be regarded as similar performances and would activate the protections under clause 7. If so—that is obviously her view—we should record that that is the case. That is a welcome advance, because it gives additional protections.

We need to come back to the real-world situation. People with considerable vulnerability may be treated badly in different ways, whether through formal discrimination or not. Often those people who are mistreating them are unfamiliar with such conditions and will not have the appropriate sensitivity. It may well be that the Solicitor-General is right and that we cannot capture all that in the anti-discrimination legislation without stretching the test of what is proposed beyond its normal limits or the possible evidence. However, it is important always to bear in mind that there are people who have such problems and need to be treated properly. Perhaps it cannot be done under anti-discrimination law; certain cases could be a matter of criminal law, if people are hit, threatened or abused, which is not acceptable.

Given the Minister’s assurances and the extension of what might be termed the literal-minded approach to take other factors into account, I am minded to withdraw my amendment on the understanding that the Solicitor-General will continue to review the matter. If she can come up with any better ideas that are a little more pointed but meet such cases, we would be grateful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.