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Gender Recognition (Approved Countries And Territories) Order 2005

Volume 670: debated on Thursday 17 March 2005

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1.27 p.m.

rose to move, That the draft order laid before the House on 20 January be approved [7th Report from the Joint Committee].

The noble Lord said: My Lords, in laying this order for affirmative resolution, the Government are fulfilling commitments they made to both Houses following the recommendations of the Delegated Powers and Regulatory Reform Committee. The noble Baroness, Lady Buscombe, and the noble Lords, Lord Goodhart and Lord Carlile, proposed amendments to that effect.

Members of this House might find it useful if I briefly outline the main objectives of the Gender Recognition Act before considering the detail of this order. The Act provides transsexual people with legal recognition of an everyday reality: the gender to which they now belong—their acquired gender. This is no mere legal technicality. It determines who an individual can marry, their pension rights and much else.

The effect of legal recognition will be that the transsexual person is entitled to be treated for all purposes as a person of the acquired gender, and gains the legal rights and responsibilities appropriate to that gender. The Act sets out clear criteria against which a transsexual person applying for legal recognition will be assessed. Each application will be properly scrutinised by a Gender Recognition Panel, composed of people with legal and medical qualifications. That application process is robust, credible and sustainable, and was recognised as such by Parliament during the passage of the Bill.

In drawing up that application process we had to be mindful of the fact that many other countries already grant legal recognition to transsexual people in their acquired gender. This is something we cannot ignore when so many UK citizens live and work overseas and just as many overseas citizens live and work in the UK. That is why Parliament agreed to include in the Act a process whereby a person who has gained legal recognition overseas can also gain legal recognition in the UK.

However, Parliament also agreed that it was only fair to provide such individuals with a simpler process for gaining recognition in the UK. They will have already changed their gender and obtained legal recognition for that change. It would be unfair and unnecessary if, at the end of that long journey, they were required to repeat the full legal process in the UK.

At the same time, Parliament and the Government were rightly concerned to ensure that the criteria set out in the Act were not compromised. If we were not alive to that danger, a person who did not expect to receive recognition in the UK could potentially go overseas to a country with much softer criteria. If by virtue of that overseas recognition that person also gained recognition in the UK, others would follow and the integrity and credibility of the process in the Gender Recognition Act would be damaged.

This order protects the integrity of the application process in the Gender Recognition Act. We have undertaken careful research to identify those countries and territories which have a process for legal recognition at least as rigorous as our own, and it is our intention to publish details of that research on the Gender Recognition Panel website.

The precise criteria for legal recognition of a change of gender are of course not standardised across the world. In drawing up this list we applied two key criteria: first, we allowed only countries or territories that provide legal recognition for gender change—the UK Act is about legal recognition and we felt that we should only approve others which had taken the same decisive step; and, secondly, we allowed only countries or territories where the process of legal recognition is such as to demonstrate the permanence of the decision to change gender.

Of course that meant that there were countries which did not meet these tests. For example, one country which did not pass muster was Bosnia-Herzegovina. There, while there is a unique citizen's code which refers to "change in gender", the local police station makes the decision on change of name and change of gender. The legal adviser we contacted said that it was probable that such a decision would be based on documentation issued by a competent hospital. This was not good enough.

The order can be revised as countries or territories establish new schemes for legal recognition. The links we have forged with contacts overseas through the Foreign and Commonwealth Office will enable us to keep the list of countries or territories up to date.

Once alerted, we will investigate, and if we are satisfied that the criteria for recognition meet our requirements in terms of legality and permanence, an amending order will be brought before the House.

Using the same network of contacts, we will also be able to monitor changes in policy which might cause us to withdraw a country or territory from the approved list. However, as countries which appear in this order recognise gender change in law it would be unusual for there to be any resiling from this position.

The order has been consulted on and has received the support of the transsexual community.

In summary, the order provides clarity as to those countries or territories with a process for legal recognition which we can trust. A transsexual person who has been recognised in any of the countries or territories on this list will have undergone a process of gender reassignment with the intention of living permanently in their acquired gender. I commend the order to the House.

Moved, That the draft order laid before the House on 20 January be approved [7th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

My Lords, I thank the noble Lord for that very full and helpful explanation of exactly what is behind the order. By giving that very full explanation most of my questions have been answered. In particular, I wanted to ask about the details of how the Government intend to check on the rigorousness of tests in other countries overseas. For example, in Bosnia-Herzegovina it seems that one just goes along to the local police station to have one's change of gender ratified. I am grateful for the explanation that that is not appropriate. The country cannot be put on the list at the moment, unless it improves its tests in the future.

The noble Lord went on to say that there would be further orders in due course as evidence appeared from other countries on whether their tests were suitably rigorous, and the Department for Constitutional Affairs would be able to recognise them. How often will it be necessary to come to the House with further orders adding countries? I cannot remember whether under the Act it is only the first such order that needs to have affirmative resolution. Subsequent orders might not be possible with this particular order because of what happened at the time of the passing of the Act, but perhaps subsequent orders might be introduced under the negative procedure. Otherwise, the noble Lord will have to come to the House presumably with some regularity as he adds Bosnia-Herzegovina, then Idaho or India or whatever other country or state of the United States has been left out. I put that forward as an idea. It is certainly something that might be thought of in the future.

I have one further minor question. In the Explanatory Memorandum we are told that a regulatory impact assessment has been prepared. I am sorry, I misread that. I see that one has not been prepared. I failed to notice the "not". I had some doubts as to what on earth any regulatory impact assessment could look at in this order. But I am glad to see that one has not been prepared on this occasion.

With that perhaps I may say that I welcome this order. I shall be interested to know how many further orders we will have to see in the future and how often.

My Lords, we fully supported the legislation under which the order is made. We are very happy to support this legislation.

I am glad that the order includes a large number of territories. It includes the whole of Australia, almost the whole of Canada, 46 out of the 50 states of the USA, together with New Zealand, all the major European states and most of the minor ones. There are obvious gaps. For instance, the list does not as yet include any state that is wholly within Asia. It includes Turkey and Russia, both of which are partly within Asia. It includes no states from Latin America and it includes only South Africa from the states of Africa.

So I hope that in due course it will be possible to come back; that the changes in the law which have been adopted here by the Gender Recognition Act and in many other countries will spread to those parts of the world as well; and that it will be possible therefore to get extensions from time to time with the approved countries. We feel that this is certainly a very big step in the right direction. We are entirely happy with it.

My Lords, I am grateful for the welcome the order has received. There were a few questions from the noble Lords, Lord Henley and Lord Goodhart, with which I shall deal. The noble Lords might be interested in the criteria that we apply to territories when we engage in discussion with them. The speaking note is a long one. I shall not try and précis it because that will not do it justice, but I will make sure that both noble Lords have a copy of it because it is very interesting.

I move on quickly to the recognition of the noble Lord, Lord Goodhart, that the list of countries is a very good one, although there are sad omissions. It will also be interesting for the noble Lords to see the list of countries and those with which we have decided we cannot make an arrangement at the moment.

The noble Lord, Lord Henley, helpfully asked whether subsequent orders will be by affirmative or negative resolution. They will have to be made by a affirmative resolution: that was the arrangement that we made. However, we do not expect to be coming back to the House regularly. It is really too early to tell, but there may be an order once in every parliament. I am grateful for the welcome that the order has received. It is terrifically important and I commend it to the House.

On Question, Motion agreed to.