Monday 23 February 2004

Gender Recognition Bill

Mr. Robert Key (Salisbury) I intend to vote in favour of the Bill. It is the sort of legislation that political parties do not like, but that Governments have to face. It is certainly not the sort of issue that any party would put in its manifesto before a general election nor campaign on with any zeal or the expectation of reaping electoral rewards.

The Bill began its course through Parliament in another place and, on Second Reading there, Ministers justified it on the grounds of constitutional reform, social inclusion and developing a culture of rights. Last of all, they admitted that the Bill had been influenced by judgments of the European Court of Human Rights, which has ruled that a system recognising transsexual people in their acquired gender must exist and that transsexual people must be granted their rights under article 8 of the European convention on human rights—the right to respect for private life—and under article 12 on the right to marry. The Law Lords in this country judged in the case of Bellinger that the law must be changed so that transsexual people have the right to marry in their acquired gender.

The Government have therefore been forced to introduce the Bill, which was not in the Queen's Speech, but I make no complaint about that. Indeed, I welcome it. This is very difficult legislative territory and Members on both sides are on their own in deciding how to cast their votes. The Whips will tread on this piece of law at their peril.

A great deal of time during the Bill's passage through the other place was spent discussing sex and religion. However, I have read the debates and spoken in the past few days to a number of transsexual people, and I am in absolutely no doubt that the most important reason for supporting the Bill is because it is about justice. It is about the justice denied to a very small minority of people down the ages, the justice denied because of taboo, prejudice and incomprehension and the justice denied because business managers and Cabinets can always find less controversial and more pressing matters to deal with. Now, that injustice is finally being confronted by the rule of law.

I go back a long way when it comes to issues of minority rights. When I was a student at university, the then Member of Parliament for Hampstead, Ben Whitaker, ran something called the Minority Rights Group and I read his reports avidly. As my hon. Friend the Member for Daventry (Mr. Boswell) said, the influence of constituents will always be important in our decisions.

A member of a Christian transgender group to whom I spoke only yesterday wished me to stress the fact that, as far as she is concerned, same-sex marriage is not on, that civil partnerships are equitable and that most transsexuals get by nicely until something goes wrong, but that by far the most important issue is the simple justice at stake here. I beg the House to remember that we are not arguing about angels dancing on the heads of pins. We are debating run-of-the-mill, everyday issues such as motor insurance. A person born a male, registered as a male at birth, currently remains a male legally even though she has, in fact, changed gender. If she has a car accident, she risks prosecution for driving without insurance and for fraud. She will also be forced to reveal her gender history to officials who are complete strangers. This is humiliation up with which you, Mr. Deputy Speaker, or I would not put.

Much reference has been made to pensions, which is an extremely important issue. I draw the House's attention to schedule 5. It deals not only with pensions but with state benefits, which are also at stake. It refers to the widowed mother's allowance, the widow's pension, the widowed parent's allowance, long-term incapacity benefit, the category A retirement pension and so on. The explanatory notes provided by the Department for that schedule are very revealing. Paragraph 112 on page 19 says:

" In summary, these provisions ensure that a transsexual person who has been granted a full gender recognition certificate will be entitled to the state benefits which are appropriate to his or her acquired gender, and will no longer be entitled to a benefit or pension which is payable only to someone of his or her birth gender."

I hope that my hon. Friends will pay great attention in Committee to paragraph 113. It says that

"the Department is of the view that if there is any interference with the Article 8 rights of a transsexual person as a result of these provisions it is minimal, justified as a means of according full recognition to transsexual people in their acquired gender, and a proportionate means of obtaining that end."

In other words, it is the Department's view that it is all right to have diminished pensions and to cut state benefits if transsexuals have their certificates because their object surely was to obtain their certificates. It is important that the Government listen to the view of Parliament and not just to the views of Department when it comes to these issues.

Clause 11 and schedule 4 raise important issues for all the Christian Churches and for other religions. Without going into the theology that might be more appropriate for Committee, let me say that I smiled quite broadly when the bishops lined up to vote against those Lords Temporal who thought themselves more religious than our Fathers in God. I am neither a theologian nor a clinician but, as a practicing member of the Church of England, I take very seriously the teaching of Christian Churches on this issue. I have with me the excellent Church of England report on "Some issues in human sexuality" that was published last year with the authority of the Archbishops of York and Canterbury. I have read the report—as you can see, Mr. Deputy Speaker, it is quite well thumbed—and the good news is that we cannot blame the Bible. Paragraph 7.3.2. of the report says that

" there is general acceptance that there are no biblical texts that can be seen as addressing transsexualism as such".

There are those who believe that human beings are either male or female because of their God-given biology and that nothing a surgeon can do can alter that fact. They say that sex reassignment surgery can never make a man a woman or vice versa, but is it fair to blame God in this way?

Others believe, as I do, that the existence of gender dysphoria is a consequence of the fact that we live in a fallen world and that it is right for us to take action to correct the consequences of our fallen state when God has given us the means for us to work out how to do it. My wife and I did not blame God when our first child died after a few days, more than 30 years ago. We did not blame anyone. We sought to find out what had happened, and whether it would happen again. We entered the world of genetics. We were told that he had a random, one in 8,000 genetic abnormality—a chromosome 13 partial monosomy. We assessed the risk; we took advice; and we now have three wonderful adult children all earning an honest living.

I had always taken my sex and the sex of others for granted. It all seemed so obvious, but it is not. Perhaps the most enlightening debate in the other place, where the Bill started, took place on 3 February when an amendment to schedule 4 sought to prohibit marriage between two persons each possessing XX chromosomes or each possessing XY chromosomes, or each possessing genitalia appropriate to the same sex. After all, it was argued that that is the undoubted determinant of biological sex, but it is not. What about Turner's syndrome, which affects women with only one X chromosome? Is one X chromosome enough to count as a woman? What of Klinefelter's syndrome, which affects men who have two Xs and a Y? Should they be classified as men or women? They believe that they are men.

Lord Turnberg also reminded their Lordships that many babies are

" born with genitalia that are at variance with their chromosomes."

Many of them have surgery to place them firmly in one gender or the other. If those genders do not coincide with their chromosomes and if those people marry and try to have children, they will sadly be infertile.

As the hon. Member for Birmingham, Selly Oak (Lynne Jones) pointed out earlier, Lord Winston reminded us that

" even in the case of Turner's Syndrome . . . it is possible to have an XY mosaic, with some of the cells carrying a Y chromosome and some having a deleted X chromosome."

Therefore, such people

"may have varying degrees of masculinity or femininity."

He also said that most geneticists would

"describe sex on six, totally separate, definitions."

They can be chromosomal, but they are also genetic. He pointed out 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 determine sex of various kinds. Those people can carry on a completely normal life."

I am indebted to Shaun Fountain, of the Salisbury Fertility Centre, for taking time out from yesterday's Ireland versus Wales rugby match to explain to me about 46 XX males, who lack a single Y chromosome, and about 46 XY females, who have testicles but no uterus because of androgen insensitivity, and cannot respond to testosterone. So in addition to genetic sex and chromosomal sex, there is hormonal sex. Some people produce hormones that will tend to feminise them, while others will be masculinised. That can happen in utero. Serious medical evidence exists that some people who become transsexuals in later life have been exposed to an abnormal surge of either male or female hormones during pregnancy, which has caused them to have a psychological sex that is different from their genital sex.

As Lord Winston told the other place, we should be very cautious about defining sex in terms of chromosomal, genital or any other simple definition. He said:

" It simply is not medically just, and I am sure that it would produce bad law".—[Official Report, House of Lords, 3 February 2004; Vol. 657, c. 620.]

That is why the Government are right to establish in this Bill a system to recognise acquired gender in law, through the determination of an application for a gender recognition certificate. The original birth certificate will not be destroyed, but superseded. We are dealing here with the most intimate secrets of a human being. I will take some convincing that the Bill should be amended to allow access to those secrets by any other person—by right, and against the will of the person concerned—in any circumstances other than those described in clause 22. In fact, I have my doubts about some of those circumstances.

In recent weeks there has been correspondence about human gender in the columns of The Tablet. I end with the remarkable contribution of Dr. Bernard Ratigan, of Loughborough university, who is a psychoanalytic psychotherapist. On 7 February, he wrote:

" Simply put, we are all both male and female, and the 'physiological indicators' are only the surface markers but they are not the whole story. Given the vicissitudes of pre-natal and post-partum physical (and then psychological) development, the more experience I gain in the field of gender dysphoria the more I wonder at the mystery of human gender development. It is a triumph of nature that so many of us are secure in our gender and surprising, given the profound pressure to gender conformity, that so few suffer from gender dysphorias".

In conclusion, I can do no better than echo the words of my noble Friend Baroness Buscombe, who said that because the Bill's measures involve some important principles of law, we must proceed with caution. That will be achieved in Committee. Indeed, as the Bill proceeds through all its stages, it is important that we approach the many issues with care—and with compassion for those for whom the measures are intended.