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Gender Recognition Bill [Lords]
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Dr. Harris: The medical report will deal with whether the person has told the family, and the effect on the family. The panel needs to satisfy itself that the applicant has lived in the acquired gender and intends to continue to do so. Would the Minister agree that the assessment of third-party evidence in such a case is based not on relationship by birth but on the quality of the evidence? In other words, it is a question not of who gives the evidence, but of how well they know it. Evidence may come from family members, but it does not have to. If the Minister can agree with that, I shall agree with him.
Mr. Lammy: I agree with that. My point is that the evidence must be relevant. The weight that the panel attaches to that evidence must stand alongside all the other pieces of evidence available to the panel. I have no doubt that the panel will primarily want to be sure that the diagnosis of gender dysphoria has been correct, so that it can go on to establish that that is the permanent state by means of the other tests that I have outlined.
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As I have made clear, the Bill provides scope for family members to provide evidence for individuals applying afresh for recognition in the UK. Obviously, that pertains to applicants making applications from abroad, which the hon. Member for Daventry alluded to in his opening remarks. It may be arguable that evidence from family members should be taken into account if the panel's task were to decide whether it was in the person's best interest to have the acquired gender recognised, but the panels are not involved in making quite so broad a judgment. They are not paternalists who are there to do what is best for an individual. They are there to consider whether applicants pass the tests for legal recognition in their acquired gender.
In any case, I find it hard to imagine how it might serve someone's best interests to be denied recognition in the UK when he or she already has recognition overseas. That recognition would have been granted according to criteria comparable to our own. I hope that I have explained the nature of the role of family members and their proximity to the process, and also made it clear that they can have no veto or bar on the process.
Mr. Boswell: I thank the Minister for his response to a fascinating and difficult debate. I characterise my amendments and my attitude to that line of argument as tentative. The Minister's response was delicate, but I realise that it must be, and that he does not want to fetter the panels in making their decisions. The cardinal issues will be what can be heard in evidence, what is relevant, and the weight that can be given to it. It may be difficult for the Committee to decide that now. Alongside such legal issues is the need to involve the family, and the fact that it may wish to have some measure of ownership of a difficult process. That must be balanced. I shall reflect on what the Minister has told us and the other points that have been made in our debate. I beg to ask leave to withdraw the amendment.
Andrew Selous: I am concerned about the Minister's response. In particular, there seems to be confusion between the ability, or as I would prefer to put it, the right to give evidence, and a bar or veto—
The Chairman: Order. Is the hon. Member about to say that he wants to press his amendment to a Division?
Andrew Selous: No.
Question proposed, That the clause stand part of the Bill.
Dr. Harris: I see the difficulty of the hon. Member for South-West Bedfordshire: he wanted to respond to the Minister's comments, but the hon. Member for Daventry led on that group of amendments and was in charge of whether to withdraw or press his amendment. It is a question of order, and of who can intervene, but the hon. Member for South-West Bedfordshire may be able to catch your eye on clause stand part, Mr. Taylor, and make further points then.
I want to make a separate point on clause stand part, and ask the Minister to expand on subsection (4), which defines ''approved country or territory''. He was invited earlier to do so earlier, and it will be relevant to clause 21. Can he explain how he envisages the concept of the ''approved country or territory'' being developed, how quickly he thinks a list will be made, what consultation he expects to have with affected parties and, beyond the affirmative process—I understand that the affirmative process will apply—what bodies of expertise he expects to consult before producing that list? Why cannot that approved list be given more status, so that people who have had their change of gender recognised by a country whose arrangements we approve do not have to go through the process again?
At the moment, the bizarre position is that some people from European countries who have had their change of gender recognised are able to access certain rights; indeed, the Department for Work and Pensions often recognises that, for example, they are married in their new gender. It seems to me that unless the Minister can use that approved country or territory provision more widely than he currently envisages, there will be some backward movement for some nationals from certain European countries. I hope that I have now explained the position satisfactorily, because I do not wish to hold up the Committee.
Mr. Boswell: I shall respond first to the point made by the hon. Member for Oxford, West and Abingdon. It is in the common interest to get on with producing a list, and by implication, to be ready to revise and expand it as soon as possible to other countries that have approved gender recognition.
I want to make one general point on the clause, to reinforce a point that I made during an intervention on the hon. Gentleman earlier. My belief is that it is wise to have a double lock on the system of gender recognition. The first lock—it is entirely proper that it should be so—is the medical judgment of the specialist concerned, who is prepared to accept a person for gender reassignment, possibly leading to surgery. That is clearly a medical judgment and should not be second-guessed by us, although it is appropriate that members of the family should be involved in that decision and able to tender evidence if it is relevant. I do not think that that is in contention.
Where I might be slightly at odds with the hon. Gentleman's point is that I sense that the Minister requires—I think that the logic of the Bill requires this; and I certainly require it—the additional assurance of the procedure involving the panel and a gender recognition certificate being awarded. That is not purely a medical matter; it is also a medico-legal matter. The Minister is nodding. It will involve, if not lay persons, as was debated earlier, at least lawyers, who will bring an ordered mind to the matter and will also in a sense stand in on behalf of the general public and ensure that doctors—I have no reason to argue
that doctors will not act in the best interests of all concerned and the truth—are given some check and balance. The Government have reached the right balance on an excruciatingly difficult matter.
I leave the Committee with the point that came up in extenso in our recent debate on the amendments and implicitly in relation to some other matters: the availability of the maximum possible relevant evidence and the way in which that is brought forward and assessed by the panel will be critical. Understandably but unusually, the hearings will be in private—if indeed there is a hearing and not merely written representations—and it is therefore incumbent on us to ensure that the decision is not rushed, that it is taken with the maximum possible information about the facts, and that anyone who has an appropriate contribution to make, which can be made confidentially, is able to make that as part of the deliberations.
I support the clause as it is, although the debates that we have had about the various amendments have been useful in clarifying it.
Andrew Selous: I asked the Minister earlier whether he would indicate the extent to which he believes that the family should have the right to be involved at the point of treatment. Perhaps he could write to members of the Committee about that. I raised the question earlier and I do not think that he has had a chance to deal with it specifically.
The Minister seemed to imply that if the family were involved in giving evidence, there would automatically be a bar or veto on the process. That is not a fair representation of the points that I have made so far in the debate.
The route that the Minister has gone down will lead to more trauma and upset on the part of those closely involved—the family and close friends of those undergoing gender change—in that they will feel that they have been excluded and locked out from even giving their view on the process.
Mr. Lammy: I say to the hon. Member for South-West Bedfordshire that when I talked about the standards of care that are generally used not only in this country but across much of the European and western world—the Harry Benjamin standards—I thought that I mentioned that they are about genuine engagement with the family, where there is one.
On the point raised by the hon. Member for Oxford, West and Abingdon, I cannot add much to what I said this morning. We have begun researching the recognition systems that other countries have in place. There is a lot of information to gather and get through. We are in correspondence with various embassies and consular offices throughout the world as we gather that evidence. Should the Bill be enacted, we expect shortly thereafter to lay before each House an order containing the list of approved countries. As I suggested this morning, we have to be sure that those countries on the initial list have standards as rigorous as our own. It may be fair to say that countries that require surgery and permanence—we talked about
why we do not require surgery—might be on that initial approved list, but we must consider all the circumstances.
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Prepared 9 March 2004