The purpose of this new clause is to put protection based on association or perception into the Bill. The full protection against discrimination which the Bill offers can then be as widely known to all users, or potential users—such as employers, employees, service providers, service users and public authorities—as possible.

The Explanatory Notes make very clear that protection against discrimination and harassment includes protection based on the person’s association with a person with a protected characteristic—for example, as the spouse, friend, child, parent or lover of a person who has a protected characteristic—or on association by the person’s actions by, for example, campaigning for rights related to a particular characteristic or refusing to discriminate against people who have a particular characteristic. The notes also make clear that protection applies where a person is discriminated against or harassed because they are perceived to have a particular protected characteristic where such perception is false—for instance, a Sikh man subjected to Islamophobic abuse.

That this protection should apply to association has already been clarified by the European Court of Justice in the recent case of Coleman v Attridge Law, in which the parent and full-time carer of a disabled child was discriminated against and harassed because of her association with the protected characteristic of disability. Earlier case law in the UK courts under the Race Relations Act 1976 had established this principle for racial grounds. In looking at association it has been well established under the Race Relations Act 1976, for 25 years or more, that a person can bring a complaint of race discrimination if they are treated less favourably because of their association with a person of a particular race—for example, where a white person with black friends is not admitted to a club, and the reason that the white person is excluded is because he or she is with them. The reason is race, even though not his or her race.

That is the same type of situation as being associated with disability for the carer of a disabled child in the Coleman v Attridge Law case. In two other reported cases, Showboat Entertainment Centre v Owen and Weathersfield v Sargent, association with the ground of race was extended to apply to white employees who were dismissed when they refused their employer's instructions to discriminate on racial grounds. The courts were satisfied that the reason for the dismissal was race.

It has been understood for many years that the Race Relations Act also covers situations where a person was wrongly perceived to belong to a particular racial group and, based on that perception, was treated less favourably. For instance, the abusive reference “Paki”, if intended to refer to people of Pakistani origin, is often used against any one of south Asian origin in the course of harassment or discrimination against “Pakis”.

The new clause does not introduce anything in terms of the law; it would merely ensure that any person reading the Bill would know that those aspects of protection against discrimination were part of the law. The amendment is aimed at helping to facilitate the streamlining of the law and making it clearer and more accessible for everyone. I beg to move.

My Lords, I support the noble Lord, Lord Ouseley, and in so doing speak to my Amendment 21A, which is on a very similar basis. The idea of my amendment was to clarify what discrimination can involve. The amendment would make it clear that direct discrimination can include discrimination based on a perception of B’s sexual orientation, religion or belief, whether that perception is right or wrong. It would be possible for a person believing that they had been disadvantaged because of assumptions made about their sexual orientation, religion or belief to bring a claim, and they would not have to disclose their sexual orientation, religion or belief when making such a claim.

The wording also covers association, which the noble Lord, Lord Ouseley, mentioned, and persons believed to have protected characteristics. For example, an employee might be treated less favourably because of the sexual orientation, religion or belief of his or her partner, or because his or her son was believed to be gay, or in the case of the mother of a disabled child.

As the noble Lord, Lord Ouseley, said, that is all in line with the equal treatment framework directive, and I hope therefore that the Government will be prepared to accept it. My wording is extremely simple, so I hope that it will attract support.

I have three amendments in this group: Amendment 24, which adds protection for those who are perceived to have a disability under the direct discrimination provisions; Amendment 38, which adds protection for those who are perceived to have a disability under the indirect discrimination provisions; and Amendment 54, which adds protections for those who are perceived to have a disability under the harassment provision. Amendment 7 addresses more widely amendments that I have tabled to Clause 13 with regard to disability.

In her Second Reading speech, the Minister stated that the Government were proud to welcome the important change that widened the definition of direct discrimination and harassment. The result of this change would be that people who themselves did not possess a protected characteristic but were associated with someone who did would also be protected. This expanded definition, however, is only made obvious in the Explanatory Notes. I think that the noble Lord, Lord Ouseley, has said that he would like to take this expansion still further and ensure that there is an explicit statement in the Bill, in a prime location, that a reference to anyone with a protected characteristic includes an association with people with that characteristic, or even when it is mistakenly assumed that someone had the characteristic when they do not. This would therefore include any area of equality law where a protected characteristic was mentioned. Can the Minister tell us why the expanded definition to include associations and perceptions applies only to direct discrimination and harassment? Is there not a case that it should cover any form of safeguard designed to be given to a protected characteristic?

Furthermore, I look forward to hearing the Minister’s response on why the definition itself has not been put clearly in the Bill. I think that we are all in favour of the broadened definition, and it is very much to be hoped that when the provision is enacted it will mean real help for those who previously may have suffered detriment and disadvantage with no hope of redress. Does the Minister accept that there is a worry that, if this is not clearly stated in the Bill, there is a risk that it will not bring the benefits that we all hope to see? There may well be a sensible explanation for this course of action, but I think that the Committee would very much appreciate hearing the Minister’s thoughts on it.

In a similar vein, we have tabled our amendments as probing amendments to ask the Government for greater clarity. We welcome the fact that the Explanatory Notes to Clause 13 state that this definition is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic—for example, the person is disabled—or because the victim is wrongly thought to have that characteristic, such as a particular religious belief. This addresses an issue raised by Coleman v Attridge Law. The European Court of Justice ruled that the relevant directive applied to a mother who claimed protection under an EU directive, not because she herself was disabled but because she had a direct relationship with her child who was disabled. We have already discussed much of this on Second Reading, so I will not go into it in more detail now. However, the Government have expanded this judgment still further so that it includes carers who look after elderly people.

The Disabled Charities Consortium also welcomes this change because, as it says,

“it moves the focus from the disability … to the allegedly discriminatory treatment itself and the reason for that treatment”.

However, we have tabled these amendments to raise two issues. First, the DCC is looking for clarification from the Government about how they expect the provision to work in reality. The DCC is concerned about groups such as those who at some point in their life have suffered mental health problems—though perhaps only for a short period of, say, a few months—which are perhaps not considered to have had a long-term impact on their life. An employer may discover this and deny them employment because of it. If so, could they claim direct discrimination, as they have been perceived to be a disabled person, and would this come under the expanded definition brought in by the Coleman case?

Can the Minister say how she thinks the perceived disability provision will work? Furthermore, can she explain why it was not thought necessary to include this provision in the Bill? In Committee in another place, this was discussed and the Solicitor-General said that she understood,

“that at the very first look at the clauses there is a transparency argument for making the protection explicit”.—[Official Report, Commons, Equality Bill Committee, 16/7/09; cols. 253-54.]

We agree with that. The provision is welcomed all round, so it seems dangerous to hide it in the Explanatory Notes, which after all are not part of the Bill, are not endorsed by Parliament and cannot be relied on as an absolute description of the Bill. Without stating it directly in the Bill, there seems to be a danger that it might not be enacted or used, which would be a terrible shame.

I strongly support this amendment. It seems to offer very helpful clarification of the new rights that we are enshrining to extend protection from direct discrimination and harassment on grounds of association or perception. These new rights are a major breakthrough for carers and colleagues of disabled people, but they need to be in the Bill. Why should they be hidden away in Explanatory Notes that probably only parliamentarians, lawyers and lobbyists ever read? We need these rights spelt out on the tin, so that people can access and use them more easily, rather than hidden away in the small print.

Another major advantage of this amendment is that it focuses on the fact that it is the defendant's motivation for the discrimination that matters, not whether the claimant meets the stringent legal definition of disability. That seems to me to be entirely the right approach, and I very much hope that the Government will adopt it.

I, too, support these amendments, particularly as they relate to disability. The Bill makes it possible for non-disabled people to claim protection from direct discrimination or harassment because they are associated with a disabled person or are perceived to be a disabled person or to have any other protected characteristic. This is an important and welcome step as it moves the focus from the disability of the disabled person to the allegedly discriminatory treatment that they have received and the reason for that treatment.

I shall not go over the ground that has already been ably traversed by the noble Baronesses, Lady Warsi and Lady Wilkins, but I would welcome some clarification from the Government, particularly on how they see perceived disability working in practice and on whether additional provision is needed to address the long-term requirement. We have heard from the noble Baroness, Lady Warsi, about someone who is perceived to be disabled because they have suffered from depression at some point in their career, perhaps intermittently, but without an episode lasting 12 months, and therefore not satisfying the requirements of the definition of a disabled person. This is clearly a case of someone who is subject to prejudice by the way in which they are perceived. I would be grateful to hear from the Minister how she sees the legislation working to protect people who fall into this kind of category.

My Lords, the Government have done something splendid in moving beyond the old discrimination law. Old discrimination law on direct discrimination went something like this: if I went into a pub with someone who was black and I was rejected because of my association with that person, that would be discrimination on racial grounds—in other words, it would be because of my association with my black friend—or if went into a pub and I was thought to be black when I was not and I was discriminated against for that reason, again I would have a remedy under the old Race Relations Act. But because of the way in which the Sex Discrimination Act was structured, a woman or man had to show that the discrimination was on the ground of her sex, not on the ground of an association with someone else. What the Government have done is admirable. They have produced a more general and less cramped test of causation—to use that legal word. The test is whether the less favourable treatment is because of a protected characteristic.

Later we will have a debate about “on the grounds of” and “because of”. But that does not matter. My point is that the noble Lord, Lord Ouseley, is correct in saying that his amendment is not radical and does not significantly change the law. We can decide after we have heard the Minister whether or not we need language to spell it out. The substance of the amendments is correct. I entirely agree with the noble Lord, Lord Low, on what he said about disability discrimination.

My Lords, I should possibly declare an interest as vice-president of the Princess Royal Trust for Carers in respect of disability. I support the amendment proposed by the noble Lord, Lord Ouseley, or that proposed by the noble Baroness, which seems to do the same thing. The only possible advantage of the earlier amendment is that it seems to state a principle which goes through the whole range of later provisions. But the essence of it seems to be highly desirable and I venture to think that it may be necessary as well.

My Lords, the proposed new clause under Amendment 7 and similarly veined Amendments 21A, 24, 38 and 54 are variants on an amendment which was debated in Committee in the other place. In resisting that amendment, my honourable friend the Solicitor-General highlighted the danger that if the Bill were to refer expressly to association and perception, by implication Clause 13 could be misinterpreted as excluding or devaluing other forms of discrimination. In fact, as well as discrimination based on association and perception, the definition of direct discrimination in Clause 13 is broad enough to cover, for example, cases of less favourable treatment because of a refusal to comply with instructions to discriminate. There are other reasons why the Government resist the proposed new clause and Amendment 21A.

I turn now to the question raised by the noble Baroness, Lady Warsi, about whether it would be better to have this in the Bill. The Bill refers to discrimination because of a protected characteristic, not because of the protected characteristic of the claimant. The key issue is the reason for the less favourable treatment. If the reason is disability, it would be disability discrimination, whether or not the victim is actually disabled. The Bill clearly provides for that, to which I shall return in a moment.

The word “association” inevitably invites a potentially confusing debate about what is meant by that word. In his recent judgment in the case referred to by the noble Baroness, Lady Warsi—Attridge and Coleman, which was handed down on 30 October 2009—the president of the Employment Appeal Tribunal reformulated the Disability Discrimination Act’s definition of direct discrimination without using the language of “association”. He preferred to,

“avoid language which encourages [employment] tribunals to become bogged down in discussion of what does or does not amount to an ‘association’, when that should not be the focus of the enquiry”.

What matters is that A has treated B less favourably because of a protected characteristic, and the fact that the characteristic in question is not B’s own is not of the essence. That is clear from the judgment of the European Court of Justice in the Coleman case.

We believe that we have addressed association, but Amendment 24 would explicitly confer protection from direct discrimination on those who are treated less favourably because they are “perceived”, rightly or wrongly, to have a disability. It could also, in relation to Clause 13(3), explicitly protect, for example, a service provider who treats a person they wrongly perceive to be disabled more favourably than another, who then takes action against the service provider.

In relation to Amendments 24 and 38 which deal with perception, similar arguments against an explicit approach apply. We suggest that there is no need for such amendments. The definition of direct discrimination in Clause 13 is broad enough to cover cases where the victim of the less favourable treatment is wrongly thought to have any of the relevant protected characteristics, not just disability. The same principle applies in relation to subsection (3) when considered in the context of the operation of Clause 13 as a whole. Aside from it being unnecessary, by singling out disability, the amendment wrongly implies that discrimination based on perception is not prohibited if the protected characteristic is one other than disability.

Clause 13(3) as drafted will help to address the very real disadvantage that disabled people can face in their everyday lives and sits alongside the other key provisions in the Bill such as the reasonable adjustments duty. We have acted in the Bill to outlaw the direct discrimination and indeed harassment of people who are perceived to be disabled because that is the right thing to do. We are not convinced that there is any need to be prescriptive in circumstances where more favourable treatment is afforded to a person who is incorrectly perceived to be disabled. The broad, single definition of direct discrimination in Clause 13 allows the courts to be flexible in their approach to its interpretation. On the other hand, listing the different kinds of direct discrimination could not be done exhaustively and would arguably reduce the courts’ ability to interpret the legislation flexibly in the future.

I would like to say a little more on Amendment 38 which would extend protection from indirect discrimination to people who do not have a disability. If an employer refuses to employ a person because the employer thinks that the person has HIV/AIDS, a remedy is provided for such a person under Clause 13, even if the employer is wrong and the person does not have HIV/AIDS. What matters in a case of direct discrimination is that the victim has received less favourable treatment because of a protected characteristic. The fact that they do not actually have the protected characteristic is not relevant. They should not suffer discrimination because of that incorrect perception, just as someone else should not suffer discrimination because of a correct perception.

By contrast, indirect discrimination in terms of both the Bill and underlying European directives occurs where an apparently neutral provision, criterion or practice puts or would put people who have a protected characteristic at a particular disadvantage compared to others, unless the application of the provision, criterion or practice can be objectively justified. An example of this would be where a bus company has a general policy of not allowing on its buses people who swear loudly. Unless the bus company could objectively justify the application of this policy, it would be indirectly discriminatory if the policy is applied to a person who has Tourette syndrome and as a result could not help swearing loudly in public. However, if the policy is applied to someone who does not have this disability, the policy would be perfectly reasonable. The bus driver’s perception of the person who swears loudly would be totally irrelevant. In the absence of any evidence that this protection is required, it is the Government’s view that only people who actually have a protected characteristic should be protected from indirect discrimination. Further, if we did extend protection from indirect discrimination to those who are perceived to have a particular disability, we would be giving them greater protection than those perceived to have any of the other protected characteristics listed in this clause. This would run contrary to the overall harmonisation and simplification objective of this Bill. The approach we have adopted in this clause is consistent with our obligations under European law.

More generally there is a further risk, were discrimination based on association or perception to be set out on the face of the Bill, that this could be interpreted in a different way from how the courts have read that concept into the “on the grounds of” formulation used in current domestic and European legislation. Some might argue that the absence of a specific prohibition risks leaving victims unaware of their legal rights or generating uncertainty among employers and service providers. However, it is well established and well understood that the definitions of direct discrimination in current legislation using the “on the grounds of” formulation are broad enough to cover discrimination based on association and perception. As I will explain when we come to consider Clause 13, the “because of” formulation in that clause does not change the legal meaning of the definition. Guidance from the Equality and Human Rights Commission will clarify the legal position.

Perhaps I may make a practical suggestion. I know it is the first day in Committee and we are far from achieving our target, but might it be possible, as in previous Bills, for the Government to circulate notes on clauses and amendments in order to make the proceedings a bit quicker and to avoid the poor old Minister having to read it all out? In my experience of previous Bills, Ministers have authorised the distribution of notes on clauses and amendments. It does not mean that the notes cannot be read in, but it would accelerate the process. I know that has all the disadvantages of common sense.

I shall look into that. Thank you.

My Lords, I thank the Minister for her response and those who have contributed in support of the proposed new clause. I had hoped that we would provide the opportunity for a wider understanding of the accessibility that association and perception in the Bill as a protected clause would have offered. However, I shall not press the matter and I beg leave to withdraw the amendment.

My Lords, Amendment 8 is designed to address how long-term conditions fit into the provisions of the Bill. As currently drafted, Clause 6 is quite strict. It defines someone as having a disability if they have a “physical or mental impairment” and that impairment has a,

“substantial and long-term adverse effect”,

on their,

“ability to carry out normal day-to-day activities”.

This is quite tight but we welcome the fact that Schedule 1 includes the provision that,

“If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.

We welcome the fact that this will include fluctuating and recurring conditions. In other words, even if the person suffered a condition which then subsided, they could still be considered to have a disability for the purposes of the Bill. This is important because it gives disabled people stability.

The obvious example is depression, which has been given in the Explanatory Notes to Schedule 1. This illustrates that the section is supposed to include the possibility of a person with depression finding simple decisions or tasks difficult, which would amount to a disability because it would be considered to have a “substantial adverse effect” on their ability to carry out daily activities. It would also count despite the fact that the occurrences of depression were split into separate periods over two years. It therefore appears at first glance that our concerns have been answered.

Nevertheless, we have tabled the amendment to probe in the Bill the status of “long-term” and fluctuating conditions because the Disability Charities Consortium remains worried. The example stated would allow the individual to be covered under the Act only because the separate instances of depression had been,

“diagnosed as part of an underlying mental health condition”.

Many fluctuating and recurring conditions are very hard to diagnose, often because there is a lot of disagreement about them in the medical profession. This can mean that claims fail because of the expense and complexity of obtaining hard and firm medical evidence rather than because the condition is any less valid. The disagreements may be based, as in the case of depression, around whether the symptoms represent a continuous condition which also has separate episodes where it is specifically active or whether the episodes are self-contained occurrences. That would obviously affect whether such a person would be covered under the Bill. For this reason, the Joint Committee on Human Rights in conjunction with the Equality and Human Rights Commission and the Disability Charities Consortium recommended the removal of “long-term” to create a,

“simpler, more certain approach for identifying who has protection”.

While we do not advocate its take-up here, our amendment specifically addresses depression to draw attention to the fact that it is vital to be clear about which conditions are included in the scope of the Bill. At this moment, it could be argued that it is quite vague.

As the Disability Charities Consortium states, it can be difficult to predict the duration of such a mental health problem. Without being able to forecast this accurately, it would be very difficult for one to judge whether the,

“effect is likely to recur”.

There are two problems here. The first is that this vague area may mean that some people with very serious conditions are left out in the cold and not covered by the Bill. They may be people who have recently been diagnosed as having had an “episode” of depression, but it is unclear whether they will have a repeat occurrence. The second, as we said in another place, is that a debate about the likelihood of recurrence will give rise to a legal wrangle where a court might be forced to take a decision. This is surely far from ideal. This issue was debated in another place and it was concluded that it might be best to put advice on how to deal with conditions such as this into statutory guidance. Will the Minister confirm that this guidance will contain provisions relating to specific conditions such as depression where medical opinion may be divided? Will she inform the Committee of any further provisions which might be included? Can we hope to see draft guidance soon?

The Solicitor-General in another place rightly pointed out that,

“there is a limit on what one can do in statute to clarify every possible situation that might arise”.—[Official Report, Commons, Equality Bill Committee, 16/06/09; col. 201.]

This is true, but does the Minister agree that the language should not be left vague enough for the Disability Charities Consortium, the Equality and Human Rights Commission and the Joint Committee on Human Rights to worry that there may be groups who are not included? I beg to move.

My Lords, this amendment would make an addition to the provisions in Schedule 1 for some people who experience depression. It would apply only to a person who has had a period of depression in the past five years that has had a substantial adverse effect on their ability to carry out normal day-to-day activities for a period of six months or more. It would enable them to always be treated as if that substantial adverse effect is likely to recur, and thus to meet the long-term element of the definition of disability.

I recognise that depression can have a profound effect on a person’s life, but I do not consider that extending the Equality Bill in this way is the appropriate way forward. The Bill is intended to cover those people who are disabled in the generally accepted sense of the word. That is, they have a condition which is long-term, or even permanent. This is reflected in the current definition, which requires that a person must have an impairment that has a substantial and adverse effect on the ability to carry out normal day-to-day activities. These are issues that the noble Baroness referred to. That effect must have lasted, or be expected to last, at least 12 months, or for the rest of their lives.

If the amendment was accepted, it would treat some people with depression more favourably than others who experience periods of ill health or impairment, which can also have substantial adverse effects, but where those effects last for only a few months. Ill health, or an impairment such as a broken limb, is not the same as a disability. I am sure that we all know that. I am sure that people in that position would not regard themselves as disabled, because their conditions are temporary and short term. A disability is by its nature more substantial, as the noble Baroness has acknowledged. What is being suggested here is a move away from the well established approach taken in the Disability Discrimination Act, which we are carrying forward to the Equality Bill. Sub-paragraph 2(2) already provides for people whose impairment has fluctuating or recurrent adverse effects, and that provision can help people with recurring periods of depression to gain the protection of the Bill. If a person has experienced a six-month period of depression, which had a substantial adverse effect on their normal day-to-day activities, and that effect is likely to recur, the Bill enables those effects to be treated as continuing. That would apply regardless of whether the previous period was within the past five years or not.

Many people may experience separate and isolated periods of depression at traumatic times of their life—for example because of divorce, bereavement or redundancy. These do not necessarily arise from an underlying condition. I do not believe that it would be right to protect a person from discrimination on the basis of their having experienced two periods of depression, however substantial each one may have been, simply because they occurred within a period of five years. Changing the definition of “long term” just for depression, as this amendment proposes, would be unfair to other disabled people and would cause uncertainty, as there is no clear dividing line between depression and some other mental illnesses. The majority of disabled people do not have special provisions enabling them to meet the long-term condition of the definition, but they will have to show that the effects of their impairment have lasted, or are likely to last for at least 12 months.

Given the provision already in Schedule 1, I consider it unnecessary to make the addition put forward in this amendment. In any case, to do so would fundamentally alter the way in which the long-term element of the definition in the Bill operates. On that basis, I ask the noble Baroness to withdraw the amendment.

I thank the Minister for her response. This was a probing amendment, and at this stage I am content to withdraw it. I beg leave to withdraw the amendment.

I move this amendment in the name of my right reverend friend the Bishop of Chester, who apologises that he cannot be in his place and asks me to speak on his behalf. The very large postbag that I and my colleagues have received from individuals and organisations about this matter has focused in the main on the need for faith communities to be protected in respect of particular protected characteristics for reasons that touch central aspects of the life of those communities, which should themselves be protected.

That focus is understandable, but this amendment has a different purpose. It asks that transgendering or transgendered people, claiming the legal protection of this Bill, would need to be or have been under the supervision of a qualified medical practitioner, which is the present situation. The promoters of this amendment certainly do not object to the inclusion of gender reassignment as a protected characteristic. I know from my own experience as a priest and pastor that those who suffer from gender dysphoria are in a particularly vulnerable position in society, which in many cases can be quite acute. To find oneself in a gender which one believes and experiences to be a false characterisation, possessing physical characteristics that one does not recognise as one’s own, is a situation that most of us would find hard to imagine.

My Lords, I fully understand the sentiment with which this amendment has been moved. I listened carefully to the words of the right reverend Prelate, but I have to oppose the amendment, which would limit—as I think the right reverend Prelate said—discrimination protection only to those transgender people who are receiving medical supervision.

The current provisions reflect the Government’s response to the discrimination law review, which stated that the legislation will make it clear that a person is protected,

“whether or not they undergo medical supervision”.

That has to be right, because many transgender people do not live permanently in their acquired gender. Many do not undergo medical reassignment at all. This may be due to age or health, for example, and not necessarily to choice. However, they nevertheless face significant discrimination and harassment in every aspect of their lives. Surely the Bill is designed to protect people in such situations.

A definition based on the medical process of gender reassignment particularly fails to protect children or young people, who, as the right reverend Prelate rightly said, are the most vulnerable. Their gender identity may be less well developed or self-understood than that of an adult and they are, therefore, unlikely to seek medical supervision relating to gender assignment. While they are going through that process of misunderstanding and sorting out for themselves what their own position is, they may face transphobic discrimination and harassment every day. I cannot believe that it would be right not to make sure that the Bill particularly protects young people in that position. I am afraid that the amendment that has been proposed would prevent such protection for those young people.

My Lords, I agree with everything that the noble Baroness, Lady Gould, has just said. I represented a transsexual person in a case in Strasbourg. The amendments to our law sprang out of the enlightened decisions of the European Court of Human Rights about the right to respect for private life without discrimination. I think that the right reverend Prelate was attacking the idea that this was too individualistic. Exactly the same argument was made about sexuality when we debated, for example, civil partnership and other aspects of sexuality. I am sure that, with all the difficulties that the churches have in deciding what to do about homosexuality, no one would suggest these days—at least, no one outside Northern Ireland—that a gay son or lesbian daughter who considered themselves to be gay or lesbian should be put under medical supervision in order to ensure that the personal choice that they were making was valid. The reason why no sensible person would suggest that is that we now understand, I think, that homosexuality is not just a matter of choice but arises out of how one is born and one’s early years. Personal choice is paramount. That is even truer with transgender people. They are the most vulnerable. There are very few of them—I think not more than a few hundred in this country—but in my professional experience they are the most vulnerable people of all because they touch on the fears of ignorant people and they need protection.

The Explanatory Notes give the following example. They state:

“An unemployed person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would be undergoing gender reassignment for the purposes of the Bill”.

Why on earth should such a person be required to show that he was undergoing medical supervision? If that person were discriminated against because of gender reassignment, it is a question of fact whether that was the basis for the less favourable treatment. To say that that person must undergo medical supervision as a condition for enjoying a basic right—the right anchored in Article 8 of the European Convention on Human Rights as well as in our domestic law—would be wholly unacceptable. That is a wholly different matter from how the churches react in their liturgy, dogma, practices and anything else, where I fully respect their right to follow the dictates of their religious beliefs. What we are concentrating on in this amendment is what should be the condition for entitlement for a transgender person who faces discriminatory treatment. For that reason, I strongly oppose the amendment.

My Lords, arising out of this amendment, I would like to know what the Government intend by the reference to,

“a process (or part of a process)”.

I notice that the Equality and Human Rights Commission objects, in its response to the amendment, to adding the words “under medical supervision”, but it says:

“Most transgender people do not live permanently in their acquired gender and many do not undergo medical reassignment at all. This may be due, for example, to their age or health”.

It then goes on to talk about younger people. I would like to know what the Government say about this.

I am not clear how Clause 7 will work if the transgender people do not live permanently in their acquired gender. What happens after they stop living in their acquired gender, because the definition in the Bill refers to a person who is,

“undergoing or has undergone a process”?

I think that that would mean that, if this had happened at one stage in a person’s life, it would stay like that for the rest of their life. However, the commission, which knows much more about this than I could ever do, says:

“Most transgender people do not live permanently in their acquired gender”.

My Lords, this amendment would mean that transsexual people would have protection from discrimination because of gender reassignment only if they were under medical supervision. It would change the definition of the protected characteristic back to what it is in the Sex Discrimination Act 1975.

The consultation document on the Government’s proposals for the Bill asked whether consultees agreed that we should keep the existing definition of gender reassignment. A majority of those who responded said no and most of them took issue with the reference to medical supervision in the current definition. We therefore decided to amend that definition to make it clear that the reference to gender reassignment being a process taken under medical supervision does not go so far as to require either ongoing medical supervision or gender reassignment surgery. Our intention has never been to limit the protection of discrimination law to transsexual people who undergo such supervision or surgery. Rather, the definition is intended to apply to people who make a commitment over a period of time to live permanently in their non-birth gender, with or without requiring surgical intervention. It might be helpful to the Committee if I explore the definitions more fully.

This clause defines what is meant by gender reassignment and a transsexual person. The definition is central to how the provisions relating to discrimination because of gender reassignment will work. Transsexual people have a gender identity that does not correspond with their physical identity and this can cause great distress. People with this condition who decide to adopt the opposite gender to the one assigned at birth are known as transsexual people. Those individuals who attempt to reconcile their gender and physical identity undergo the process known as gender reassignment. That is the process being referred to. It is not a medical process; it is a process that they go through. They permanently make a transition to a new sex opposite to their birth sex. Reassignment can range from changing name, title, clothing and appearance to undergoing hormone treatment and surgery. This transition from one gender to another can mark the person out as different and that can give rise to discrimination.

I hope that that has explained the process. It is a personal matter for each individual. It is a commitment that they have made to living for the rest of their lives in a gender opposite to their birth gender. That is the process that we have been referring to.

I am grateful for that explanation. I still find it difficult to understand how this is a process. It sounds like a decision, rather than a process in the way that the noble Baroness described. She has repeated more than once that it is a decision to live permanently in the opposite sexual situation, whereas according to paragraph 27 of the Equality and Human Rights Commission document:

“Most transgender people do not live permanently in their acquired gender”.

Therefore, it is not a permanent matter. If the process is to reach a permanent decision, that does not happen in the majority of cases that this clause seeks to protect.

The point that is being made in the Bill is that discrimination takes place against people who are transsexual. That is what we need to focus on.

Would I be right in saying that “process” refers to the course of conduct that leads someone who is not going to stay in their birth gender to transfer to the other gender? The process is the way in which that happens over time. It does not matter for the purpose of discrimination law whether they are discriminated against because they intend the change to be permanent. Is it not the case that what matters is whether they are discriminated against because of their gender reassignment? Therefore, we should not get hung up about “permanent” or “impermanent”. Even if you did not live in your gender identity for ever, it would not matter; what matters is the unfair treatment of someone who is going through that process.

The noble Lord has explained it much better than I did. That is exactly the point that I was trying to make. However, the definition in Clause 7—

Perhaps I may ask for clarification. I thank the Minister for giving way. The first thing that she said about the process concerned wearing the clothes of the different gender, behaving in that way, probably getting their hair cut very short and things like that. Some people then decide that they do not much care for that and go back, because it is not permanent. Where are we then? Are these transgender people or are they not? I ask because the Minister said that the process starts with wearing different clothes and goes through to gender reassignment.

The point I was making is that that is the range of things that could happen for a transsexual person. However, Clause 7 does not cover transvestites or others who choose temporarily to adopt the appearance of the opposite gender. While we do not condone anyone being treated badly because of the way in which they present themselves, it would not be appropriate to provide people who present themselves temporarily as of a gender other than their birth gender with the same protection against discrimination that is available to a person with gender dysphoria, who is somebody who has been assigned one gender at birth, but believes that they are of another gender. That is the point—it is what happens to that person that the Bill attempts to address.

Perhaps I may pursue this. I promise that it will not be for long. We received a document from the Equality and Human Rights Commission. The noble Baroness, Lady Gould, quoted from it. Paragraph 27 states:

“Most transgender people do not live permanently in their acquired gender and many do not undergo medical reassignment at all”.

That means that they are at the beginning of what the Minister described as the process running from clothing through to gender reassignment. I do not know where we are on this, and who is covered and who is not.

The noble Lord, Lord Lester, and I have explained that we are attempting to protect people who are undergoing this process from the discrimination that we know they suffer. I want to reassure the Committee that we are not altering the requirements of the Gender Recognition Act 2004. This was the cause of some confusion at Second Reading for the right reverend Prelate. The Act provides people with legal recognition of their acquired gender. Part of the requirement to obtain a gender recognition certificate is that an individual will have to provide to the gender recognition panel evidence of a secure diagnosis of gender dysphoria. This will be in the form of two medical reports, one of which must be from a registered medical practitioner practising in the field of gender dysphoria or a chartered psychologist practising in that field. The second report must also be from a registered medical practitioner, who may or may not practise in that field. With those reassurances, I hope that the right reverend Prelate will withdraw his amendment.

My Lords, I am grateful to the Minister and to all noble Lords who have contributed to the debate. Far be it from me to attribute confusion to the noble and learned Lord, Lord Mackay, but I share his confusion. It seems that there is a muddle about whether we are talking about a floating situation or a question of genuine gender dysphoria, which is a medically recognised condition in which people are trapped in a gender other than that which they consider their own. We as a community must do more work to understand what we are talking about.

I was grateful to the noble Lord, Lord Lester, for his clarification. The philosophical argument will continue. There is an irresistible force/immovable object struggle going on at the moment. On the one hand, there is the proper desire to remove and outlaw all forms of discrimination. On the other hand, there is a very important question about understanding sex and gender in the community as a whole. It seems to me that, pace what the noble Lord said, this is a question not just of doctrine and liturgy but of pastoral care. As someone who has been involved in the pastoral care and, indeed, the defence of employment rights of church employees who have been in this situation, I know a certain amount about this issue. It seems to me that there are big questions about how we understand what it means to be a human being and the role of gender, and I do not think that we are quite at the end of that discussion yet.

I am more than happy, with permission, to withdraw the amendment at the moment but I am sure that I shall want to consult my colleagues and we may come back to this issue.

My Lords, all the amendments in my name in this group are on the same small and specific point. They seek to extend the protection for married people and civil partners to single, widowed or divorced people who may experience discrimination on grounds of their marital status, and they apply only where the discrimination is in the field of employment.

I am a strong supporter of the Bill. I want to see it further improved and on the statute book as soon as possible. I am very sorry that I was unable to be present at Second Reading to flag up my concerns on this point but I believe that my amendments are simple and straightforward. They are, I believe, entirely compatible with both the strategy and the spirit of the Bill, and I do not believe that any undue delay would result if the Government were to take them on board.

The intention of the Bill is to harmonise protection and, where appropriate, to strengthen and extend protection in certain circumstances. My amendments would do exactly that by remedying one of the defects in the original Sex Discrimination Act 1975. The amendments are supported by Liberty and, in principle, by the Discrimination Law Association.

As it stands, the Bill continues the status quo and makes it unlawful to discriminate in the field of employment against married people because they are married. The Bill also, rightly in my view, extends this protection to those in a civil partnership. I cannot see any good reason why it is—and without my amendments would remain—lawful for employers or prospective employers to discriminate against single people on grounds of their marital status. For example, it is, and would remain, lawful for an employer to offer relocation expenses only to married employees, to turn down a divorced person for a job simply because he or she is divorced, or to say that single employees are not entitled to the same compassionate leave as married employees. There were many cases just like these when the Sex Discrimination Act first came into force. However, I do not have a long list of current cases and examples to quote.

I do not claim for a moment that this is the type of discrimination which is most often experienced or most contentious, or which causes the most hardship or makes the most headlines, but in my opinion this should not mean that the basic principles are discarded. After all, these days marriage discrimination is not exactly rife either.

When the Government consulted on what the Bill should contain, they canvassed views on whether the protection for married people should be dropped from discrimination law altogether on the grounds that it did not really exist any more. If we were having this debate several decades ago, we would be looking at a situation in which women would automatically lose their jobs as nurses, teachers or civil servants the minute they got married, but that is a thing of the past. However, my understanding is that the responses to the consultation were divided as to whether it would now be right to ditch the protection for married people, so the Government decided to keep it in just in case its absence sent out the wrong signal and perhaps had the unintended consequence of reviving this undesirable behaviour.

My argument is simply that, if there is a case for preserving the protection for married people on a just-in-case basis, it must surely follow that, even if wider forms of marital status discrimination are not common, people should still have equal principled protection under the law just in case.

I have not been overambitious in my amendments. I have confined them to the employment provisions of the Bill in order to be as pragmatic as possible. In principle, of course, I should have liked to see marital status discrimination also outlawed in the areas of goods, facilities and services for married and single people alike. It is still lawful, for example, for a landlord to refuse a tenancy to a single parent because of her marital status, but in the interests of expediency I have limited myself just to the provisions where married people already have protection but single people do not. That is just in employment.

My Lords, given that this is the first time I have spoken in Committee and the wide-ranging nature of the Bill, I declare my interest as set out in the Register of Lords’ Interests.

The noble Baroness, Lady Coussins, raises some interesting points. The amendments would make an important change to the Bill and I very much look forward to listening to the Government’s response.

We tabled Amendment 55 to seek clarification on an important issue. I will, however, given the hour and my voice, be brief. My right honourable friend David Cameron has repeatedly made it clear that we on these Benches are committed to recognising marriage and civil partnerships in the tax system in the next Parliament. Support for marriage and civil partnerships does not in any way suggest criticism for those in other relationships, nor does it suggest a criticism of single parents. I am on record in your Lordships’ House as paying tribute to the heroic job they do, often through no choice of their own.

However, we believe that recognising marriage in the tax system would send out a strong signal and would help to support stable relationships. This is particularly important as the evidence available demonstrates that a stable couple relationship is beneficial for a child’s development. Moreover, the UK is actually unusual for not recognising marriage in the tax system at the moment. Mexico and Turkey are currently the only other OECD countries which do not.

Noble Lords will be aware that of course there are lots of different ways of recognising marriage in the tax system. We have not set out our specifics partly because they would depend on what was affordable at the time. However, should there be a change of government in the next Parliament, we on these Benches would want to enact this policy. I would therefore be most grateful if the Minister could confirm that there would be no provisions in the Act that would prevent that happening.

I very much support the amendment tabled by my noble friend Lady Coussins. Indeed, I thought that I had put my name down in support of it. Having listened to what she had to say, and having taken my mind back to the Sex Discrimination Act 1975, I can say that she makes a very good case indeed, particularly her comments on the goods, facilities and services areas. I support what has been said about all the other amendments and hope that the Minister will be able to agree with them. I see no reason why the change cannot be made, because it carries exactly the same strength of feeling as the other amendments we debated earlier today and on which we await a reply.

I shall be brief. I personally support the amendment, provided that it is confined to employment. Treating someone in employment less favourably because they are widowed, divorced or unmarried seems to me to be as unfair as doing so because they are married or a woman.

We had all this out more than 30 years ago when we were considering the original Sex Discrimination Bill. Reluctantly, we then came to the conclusion that we would not make the change. The problem about doing so is political—that the right honourable William Hague and the Conservative Party have decided to pin their colours to marriage to the exclusion of non-marriage. Many of the right reverend Prelates may also feel that they have to defend marriage as an institution. I am in favour of marriage and defend it as an institution, but I introduced a cohabitation Bill last year to give some protection to those who are not married—unmarried, widowed, divorced and so on.

The one very good reason to be in favour of the amendment which has not so far been mentioned is children. The fact is that if employment discrimination is permitted against single parents, whether they are unmarried, widowed or divorced, the people who really suffer in the end are the children. The major social problem of children living with a single parent, or with an unmarried non-civil partner, is a very serious social problem for which we all pay as taxpayers. It leads ultimately to going on social security and so forth. Therefore, there are compelling arguments in favour of the amendment. The main argument against it is that, if it is taken seriously, it will probably lead to hours of debate subsequently. If that were so, I would not be in favour. However, personally, I strongly favour the idea behind the amendment, provided that it is confined to employment.

Finally, there is one problem and I do not know whether the noble Baroness, Lady Coussins, has thought about it. It is that you do not want to pit married women against single women; married women against widows; or married women against divorced women. The problem about the concept of indirect discrimination is that you have to work out which group you are talking about. If you are talking about, say, single women, you have to ask whether it is right that they should be treated better or worse than married women. This is a mistake that we made in the original Sex Discrimination Bill without thinking about it, by including marriage discrimination in the first place. No one has noticed it for the past 30 years, but it is true that there are some situations in which married women might seek to have greater rights than single women. That may be an argument for not extending this to indirect discrimination, but it is not an argument for not extending it to direct discrimination.

My Lords, Amendments 11 to 15 would add marital status, including those who are unmarried, widowed or divorced, to the list of characteristics protected by the Bill. Amendments 25, 16, 39 and 46 to 48 are consequential to that. That would extend the protection offered by the protected characteristic of marriage and civil partnerships. Although I understand that the amendments are certainly not a Trojan horse and I recognise the careful drafting of the noble Baroness, we do not consider that such an expansion of protection is warranted.

The purpose of the Bill is to provide protection against discrimination where such discrimination exists and legal protection is necessary. If we were to extend the protection of the Bill to characteristics where there is no evidence that people encounter harmful discrimination, it would dilute the force of discrimination law. We would consider adding further characteristics to the scope of protection under the Bill if this were a proportionate response to a real problem experienced by individuals who share a particular characteristic. We have not been provided with any evidence of such problems being faced by those who cohabit or who are single.

I heard the arguments put forward by the noble Baroness, Lady Coussins, and her account of her swift research, and I heard the arguments put forward by the noble Lord, Lord Lester. However, as the noble Baroness pointed out, as part of the Discrimination Law Review, the Government consulted on whether to remove the existing marriage and civil partnership protection. We listened to the responses and considered them very carefully, as they were almost equal on whether to remove the protection or not, but some of the replies indicated that there were still instances of discrimination on this basis, mainly when an employer attempts to prevent a married couple from working together. However, there was no such evidence of any discrimination against people in other forms of marital status, including widows, widowers and divorcees.

The issue of equalising the rights and responsibilities of people who are married or in a civil partnership with those who are not is one which goes to the heart of the status in society of the institutions of marriage and civil partnership. This is not an issue that the Government are seeking to address in the Bill. For these reasons, the Equality Bill will continue to provide protection only for married and civil partners. On that basis, I ask the noble Baroness to withdraw the amendment.

Amendment 55 is a clarificatory amendment to make clear that any benefits dependent on marriage or civil partnership are not discriminatory. I am glad that the noble Baroness has a clear statement of her party’s policy on this matter. A week is a long time in politics, one might say. We do not consider the amendment to be necessary. The Equalities Bill prohibits discrimination against someone on the grounds of their married or civil partnership status. We believe that it is confusing to suggest, even for the avoidance of doubt, that anything done in the tax system to favour spouses or civil partners could be discrimination under the Bill, which explicitly protects marriage or civil partnership status. On the other side of the coin, treating married or civil partnership couples more favourably might be said to discriminate against an unmarried person, but as noted earlier, being unmarried is not a characteristic protected by the Bill. Therefore, it is impossible that recognising marriage in the tax system could be discrimination against an unmarried person under a provision of the Bill.

More fundamentally, revenue collection is a public function, and we have not made discrimination in the exercise of public functions on the grounds of marriage or partnership unlawful. Finally, there are cases where being married or in a civil partnership is already recognised in the tax system, in inheritance tax, capital gains tax and for those who remain entitled to the married couples allowance. Nothing in the Bill prevents that. Consequently, we believe that the provision would have no effect. On that basis, I ask the noble Baroness to withdraw the amendment.

Has the noble Baroness any comment on the equal opportunities policy in relation to employment in this House and in the Civil Service, in Oxfam and in Marks & Spencer?

I listened with interest to those comments. It would seem that those are excellent employers and there is no reason why other employers should not follow suit. For the purposes of the Bill, however, we are content with it as it stands.

I thank the Minister for her response and other noble Lords who have spoken. Clearly I am disappointed with the response; I do not share the Minister’s view on this point, and I do not think that the Government’s consultation exercise, as I understand it, explicitly sought views on marital status discrimination, only on the protection of married people. So I am not surprised if not much evidence was forthcoming to suggest that such protection was needed in the Bill. Although I am disappointed and do not accept the Government’s view, I do not want to hold up the Bill’s progress. I therefore beg leave to withdraw the amendment.