The Alex Carlile
bill
The second reading of Alex Carlile's
Gender Identity (Registration and Civil Status) bill, as it was
recorded by Hansard on February 2nd 1996
Hansard is the official journal of
British Parliamentary proceedings. Among other things it records,
verbatim, the debates that take place in the house. You can purchase
printed copies of a day's proceedings (priced £5) from HMSO or
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printed copies of the official bill itself.
This extract records the last thirty five minutes of the
proceedings on Friday February 2nd, 1996 when Alex Carlile's bill
received its' second reading.
The Crown's Copyright is acknowledged. This short extract
is provided for research use only.
House of Commons
Hansard Friday 2 February 1996, Volume 270, No. 42
(Columns 1282-1290)
Gender Identity
(Registration and Civil Status Bill)
Order for Second Reading
read.
1.55pm Mr Alex Carlile
(Liberal Democrat, Montgomery):
I beg to move, That the Bill now be read
a Second time.
The Bill is about transsexuals -- a
significant group of people in our society who, in a phrase, are
deprived of the ordinary protections of law that we take for granted.
I am grateful for the support that I received in the preparation of
the Bill from transsexuals and others all over the country who have
effectively lobbied not only me but hon. Members in all parts of the
House on this issue. I have yet to hear from a right hon. or hon.
Member who does not support the principle of the Bill, and only one
significant misgiving has been expressed about part of it.
I should like to express my gratitude to
Mr. Terence Walton from the firm of Fallon, solicitors in London, for
his assistance in the drafting of the Bill. Mr. Walton was the
solicitor for April Ashley, in the well known and leading case of
Corbett v. Corbett, in which judgement was given 26 years ago to this
very day. The issue has been in the public domain for more than a
quarter of a century. It remains unresolved and is becoming
increasingly acute.
It gives me special pleasure to note that
the Minister replying to the debate is the Under-Secretary for
Health, the hon. Member for Orpington (Mr. Horam). I can think of no
one in the House better qualified to understand the issue. The hon.
Gentleman started his active political life as a Labour Member, later
going into limbo as an early member of the Social Democrat Party, and
has emerged as a Conservative Minister. No doubt he would say that
his brain has always been Conservative really. An interesting analogy
can be drawn between the Minister's political position and the rather
more unfortunate situation faced by transsexuals. The Minister, from
his august and influential position, is able to claim many rights for
himself. I hope that when he replies to the debate he will not seek
to deprive others of rights.
It used to be thought that transsexualism
was a florid psychological state enjoyed -- I used the word advisedly
-- by hysterical individuals who wished to draw attention to
themselves, and who were the subject of a good deal of laughter and
risible printed comment. I am glad to say that the situation has
changed. Since I have been involved in this issue, for some 10 years
or so, press comment has moved away from the jokey freak-of-the-
week-type comment to a serious discussion in newspapers and journals
about the issue of transsexualism, why it arises and what should be
done about it.
Perhaps one of the main reasons why the
flavour of the debate has changed is that science has at last begun
to play a real part in our understanding of what transsexualism is
and how it arises. In November last year, neurobiologist Dr. D. F.
Swaab of the Netherlands and his international colleagues at the
Netherlands Institute for Brain Research in Amsterdam announced and
published their post-mortem study of a tiny division of the brain
known as the BSTc -- the central subdivision of the bed nucleus of
the stria terminalis.
The study showed that, on average, the
stria terminalis was 44 per cent larger in heterosexual men than in
heterosexual women. More remarkably, the BSTcs of six male-to-female
transsexuals, whose post mortem brains the researchers had
painstakingly collected during the course of 11 years, were 52 per
cent. smaller than those of the average man in the study and were in
fact about the same size as those of the females-from-birth. The
researchers had chosen to study the BSTc because previous research in
rodents had shown that it plays a pivotal role in sexual behaviour.
Remove the BSTc from a rat, and the animal will show no interest
whatsoever in sex. The findings led very distinguished scientists to
conclude that in humans, too, BSTc size is programmed during foetal
and neonatal development -- perhaps as a result of an interaction
between sex hormones and the developing brain -- and is probably not
the result of parental, social, or psychological pressures after
birth.
Dr. Swaab and others concluded that
transsexuals are right in their belief that their sex was wrongly
judged at the moment of birth, and can understand why it was so
judged. At the moment of birth, it is possible to look at the sex
organs, but it is not possible to look at the BSTc in the brain.
However, the research seems to demonstrate that in terms of their
brain BSTc transsexuals are in fact of the gender that they later
come to acquire after gender reassignment therapy.
In a paper given to Council of Europe's
23rd colloquy on European law, Prof. Gooren suggested that there is
now evidence to believe that the sexual differentiation process in
the brain of transsexuals has not followed the ordinary course.
Although sex assignment at birth by the criterion of the external sex
organs is statistically reliable, in people who experience
transsexualism it is not. Those people are exceptions to the
statistical rule, and perhaps therein lie the roots of their
difficulty: we all know how easy it is to rely on statistics and
ignore reality.
What are the consequences in human terms?
Transsexuals in this country have told me and other hon. Members of
the consequences. I pay tribute, in particular, to the work done in
this sphere by the hon. Member for Birmingham Selly Oak (Dr. Jones),
who has established the Forum on Transsexualism. We worked as a
partnership to try to improve the situation of transsexuals, and I
suspect that I am presenting the Bill rather than she only because I
was successful in the ballot and she was not.
Dr. Lynne Jones (Labour, Birmingham Selly
Oak):
I thank my hon. and learned Friend -- I
will call him that at least for the purposes of today's debate.
Tribute should be paid to those individuals who have been brave
enough to let hon. Members and the public to know about their
personal experiences. That has contributed a great deal to the
changed atmosphere and the way in which society at large regards
these people. We should pay tribute to their bravery because they
risk discrimination and suffering as a result of their willingness to
reveal their experiences.
Mr. Carlile:
I agree with my hon. Friend, and I
recommend that hon. Members and others read some of the recent
serious and useful short autobiographies produced by transsexuals.
The most recent is that by Mark Rees. Having written the forewords
to, I believe, two of the most recent three, I have been able to
enjoy reading them before they were published and understood what a
clear picture they give of the condition.
I wish to say a little more about the
human consequences and the discrimination that transsexuals face. In
employment terms it is apparently possible -- at present, at least --
for transsexuals to be dismissed solely because they are
transsexuals. They also face discrimination in educational
institutions, and in Department of Social Security offices where,
although the staff may be extremely polite and helpful, the computer
does not tell the real truth about the person before it. There are
many other examples, but I do not have time cite them as we only have
half an hour or so available.
What type of people face discrimination?
I received perhaps 200 letters during the preparation of the Bill.
That is a remarkable number because, as my colleague implied a moment
ago, it is more convenient for transsexuals to remain in the closet,
keep themselves to themselves and function quietly in their acquired
gender. Nevertheless, some very brave people have come
forward.
Hon. Members should not get the idea that
transsexuals are not playing their full part in society. I have had
letters from at least two dons at Oxford University who are involved
in distinguished scientific and other work. Other transsexuals are
lawyers, doctors, company owners and executives, civil servants,
teachers and nurses. In one case, a nurse is obtaining support from
other members of the medical staff at the hospital where they work.
Transsexuals are to be found across a broad spectrum of society and
represent a cross-section of the population.
I shall say a word about a group of
people who are not covered by the Bill but of whom I hope that the
Government will take account. Very occasionally, genuine physical
hermaphroditism arises at birth. I have received two moving letters
from midwives who have been professionally involved in such cases. It
is extremely difficult to judge what should appear on the birth
certificate at that stage, and a wrong judgement has been made in one
or two cases when viewed in light of the feelings, activities and
behaviour of the people involved, but there is no method to correct
misrecording at birth. I raise that point simply so it is not
overlooked. Such cases have produced moving submissions.
Let us compare the situation in this
country with that in other countries. In Germany, perhaps as one
would expect, there is an efficient tribunal system to deal with
transsexuals. Once they have gone though the system, they can live
with full rights in their acquired gender. In the United States, it
is permissible in certain states for a transsexual to marry after
treatment. In Australia, there is a limited right to marry, although
problems have arisen in connection with female-to-male
transsexuals.
If a person who is a transsexual marries
in their acquired role in one of those countries, and comes to live
with their spouse in the United Kingdom, they face an extraordinary
situation. They would not have been allowed to marry here and yet, as
I understand private international law, they are entitled to have
their marriage recognised as lawful. It is a confusing international
legal situation which needs to be sorted out. Transsexuals can also
marry in this country, but only in the most bizarre circumstances:
one transsexual can marry another transsexual provided that, in law,
the bride is the groom and the groom is the bride. We surely do not
want our law to support such an asinine situation.
Is the transsexual community simply
sitting back and waiting for the Government to take half a century to
reach a conclusion, on the basis that the matter has taken a quarter
of a century already, so it may as well take another quarter of a
century already. Not a bit of it -- id the Government do not take
some action, it will cost them a great deal of money because they
will lose case after case in the international and possibly also the
domestic courts.
In a case going through the European
Court of Justice, P v. Cornwall County Council, Advocate-General
Tesauro has given an unfavourable opinion which I suspect is likely
to be upheld. If that is so, it will be held that the United Kingdom
should have anti-discrimination legislation relating to the
employment of transsexuals. The European Court of Human Rights in
Strasbourg -- the difference between the two courts is not often well
understood, but they are very different -- has before it, with leave
to proceed to full judgement, the cases of Kristina Sheffield and
Rachel Horsham, which relate to birth certificates and their
consequences. Reading the preliminary documents from the court, it
seems very likely that the government will lose.
Leave to move for judicial review was
given by Mr Justice Brooke -- the recently required chairman of the
Law Commission who has now returned full time to the Bench -- in a
case heard on 29 January. Other cases are before the Queen's Bench of
the High Court in relation to transsexuals, and there are many more
to come. We should not be looking for piecemeal reform of the law
through reaction to the Government's loss of case after case. We know
that there is a problem and that a solution must be found. My Bill
seeks to provide that solution by a procedure which does not command
universal support, but which seems to be as good a mechanism as can
be found. My Bill seeks to provide that solution by a procedure which
does not command universal support, but which seems to be as good a
mechanism as can be found without offending certain
assumptions.
One of the assumptions that I have
accepted for the purposes of the Bill, although I am not sure that I
accept it fully intellectually, is that a birth certificate can never
be amended. It ought to be possible to amend a public document that
is proved to have been scientifically wrong when it was prepared. For
present purposes, however, let us say that it is not
appropriate.
We seek to allow transsexuals to go the
High Court family division and obtain a recognition certificate. From
that it is my intention and that of the other sponsors of the Bill
that the Registrar-General would issue a new certificate from a new
register -- not involving alteration to the birth certificate, but
resulting in a birth certificate that is physically that is
physically indistinguishable from the original. Following the issue
of that certificate, the rights to which I have referred would
follow. Transsexuals would be able to live in their acquired role,
particularly as their achievement of gender reassignment would have
been proved by applying to the High Court and producing medical
evidence. That being so, why should they not have employment
protection? Why should they not be entitled to marry? Why should they
not be entitled to adopt children if the court is satisfied that it
is an appropriate case for adoption? I know of stable families in
which one person has undergone gender reassignment therapy. There are
several examples and there would be many more if transsexuals were
not forced to hide what has happened to them and to pretend, in the
face of bureaucracy, that they are what the law says they are
not.
I look forward to hearing the Minister's
response and I hope that it will be a positive one. I hope that the
Government will say that in view of the plethora of Government
Departments involved in the issue -- that is a pretty lame excuse for
taking no action -- someone will co-ordinate the government's views
on the issue. I would like the matter to go immediately to the Law
Commission for a quick report. I would like the commission to produce
legislation which would be an ideal vehicle for a further Private
Member's Bill.
2.15pm Mr. Roger Sims (Conservative,
Chislehurst):
In 21 years as a Member of Parliament, I
had not encountered the issues raised in the Bill. Last year,
however, I had two constituency cases of people in this condition who
I tried to help. When I went to the Conservative party conference
this year, I noticed that one of the fringe meetings, arranged by an
organisation called Press for Change, was about the medical and legal
implications of transsexuality.
I admit that I went to the meeting with a
mixture of curiosity and scepticism. My views of homosexuality, for
example, might be described as conventional and I find the expression
"gay priests" a contradiction in terms. However, I soon learned that
transsexuality was something quite different. We are talking about
where nature did not get it quite right -- where nature made a
mistake.
A transsexual is defined as a person "
having the physical characteristics of one sex and the psychological
characteristics of the other."
One of the doctors at the meeting said
that we were talking of a man in a woman's body, or vice versa. It is
a condition that is capable of medical treatment, although not in
every case. I was impressed by the extent and the detail of the
treatment that can be given. Transsexuality is a recognised medical
condition which can be treated successfully through gender
reassignment, enabling the individual to lead a full and normal
life.
The meeting was organised by a lady who
was attending the Conservative party conference as a representative.
She represented her constituency, where she is active in the party.
She is a branch secretary, chairman of her supper club, and typical
of the ladies whom many of my hon. Friends know in their
constituencies. Yet her birth certificate shows her as a man and she
cannot legally marry. If she applies for a job, her birth certificate
will have to be produced and the House will appreciate what might
follow from that.
I well understand the difficulties that
surround the proposition that a legal document should be changed, but
I believe that the Bill contains an ingenious solution which would
make life better for the people whom I have described. I hope that my
hon. Friend the Minister will feel that he can give the Bill
sympathetic consideration.
2.19pm Mr Kevin Barron (Labour, Rother
Valley):
I congratulate the hon. and learned
Member for Montgomery (Mr. Carlile) on his good fortune in the ballot
for private Member's Bills. Unfortunately, speaking from experience
-- I am sure the hon. and learned Gentleman knows this better than
most -- without Government support the likelihood of such Bills being
enacted is nil.
There is much debate within parts of the
medical and legal communities about the status of transsexuals, and
the issue should be addressed. I have been in the House longer than
the hon. Member for Chislehurst (Mr. Sims), and over the past few
years, I have often had dealings with a transsexual in my
constituency.
Medical knowledge about the condition,
which is known as gender identity dysphoria, has changed dramatically
over the years. Much more is known today about both the syndrome and
the methods of diagnosis and treatment, which are far in advanced of
those available when it was first identified in the 1950s.
Biological evidence and indicators can be
examined to assist in determining cases of gender dysphoria, and
hormonal treatments and surgical techniques, together with therapy
and counselling, can help an individual to cope with the physical and
psychological effects of having an incongruent body. Studies of the
effects of adopting that approach suggest that success rates for
individuals who have undergone appropriate treatment are better than
90 per cent.
Although medical advances have helped
individuals to come to terms with the syndrome, the law has not kept
up with these developments. British law is now out of step with that
of many of our European neighbours, and in law those who have
undergone reassignment treatment are still identified as their
previous sex, not their present sex. The law takes no account of
their lives in permanently changed gender roles.
Clearly, that leads to problems. The case
has been made in the debate that the law on the status of
transsexuals is too inflexible. In Europe, recognition has already
been given. The European Court of Justice said: "The law cannot cut
itself off from society as it actually is". Legislators, too, must
recognise that.
The European Court has also ruled that
discrimination against transsexuals is contrary to European law, so
the United Kingdom Government may soon have to introduce legislation
to correct that failure. That being the case, the hon. and learned
Member for Montgomery has suggested that other parts of the law
should be brought into line too. Such a change would put this country
on a par with many of our European counterparts. Even if that change
is not brought about through the Bill, it will still have to be made
at some time, if we are to return to a coherent law on
discrimination.
I echo the hon. and learned Gentleman's
final words. If we need a Law Commission report on the subject, that
should be arranged quickly. It is wrong that such discrimination
should exist in our midst, and we should take action now, instead of
taking the piecemeal path that the hon. and learned Gentleman
described, whereby we deal with issues only when a confrontation
arises because we are outside European law. I hope that the Minister
will look sympathetically at the idea of doing something further,
because it is obvious that the Bill will not have time to progress in
this Session of Parliament.
2.23pm The Parliamentary Under-Secretary
of State for Health (Mr. John Horam):
In introducing the Bill, the hon. and
learned Member for Montgomery (Mr. Carlile) drew an analogy between
my political progress and the situation of transsexuals. I am
flattered by being associated with what he clearly regards as a noble
cause, but it is a little dangerous for him to make such comparisons,
because those of us who are firmly on one side of the House or
another have always regarded the Liberal Democrats as thoroughly
confused, unable to make up their minds whether they are on the left
or the right. If one is in a glass house, it is a little dangerous to
throw stones.
Nonetheless, I congratulate the hon. and
learned Gentleman on his success in the ballot, and on bringing
forward for debate a Bill that attempts to tackle such fundamental
and important issues. I am sorry that it is now 2.23pm on a friday;
perhaps it would have been better to have debated the measure earlier
in the day -- but such was not his luck.
The purpose of the bill is to grant
recognition of change of sex for all purposes to anyone who, under
the terms of the Bill, has undergone gender reassignment treatment
and has obtained a recognition certificate from the High Court,
provision for which the hon. and learned Gentleman makes in the Bill.
The Bill makes provision for medical, judicial and administrative
procedures for facilitating the change, culminating in the issue by
the Registrar-General of a birth certificate in the new sexual
identity.
People who undergo gender reassignment
treatment are commonly referred to as transsexuals, although I am
aware that many prefer the term gender dysphoria. They are
biologically of one sex, but feel themselves to be of the other.
Transsexuals may undergo hormone treatment and, in many cases, gender
reassignment surgery.
The Government are sympathetic to the
distress felt by transsexuals, and we have tried to smooth the
transition from one gender identity to the other. Gender reassignment
operations are permitted without any kind of legal formalities. The
surgery and treatment may be carried out under the NHS --
[Interruption.] That is the case.
The law entitles any person to adopt such
first names and surnames as he or she wishes, without any
restrictions or formalities, except in connection with the practice
of some professions where the use of the new names may be subject to
certain formalities. The new names are valid for the purposes of
legal identification, and Government Departments and the agencies
concerned will issue documents such as passports, driving licenses,
car registration books, national insurance cards and medical cards in
the new name.
That has helped the progress of
transsexuals and mitigates the obvious problems and distress
associated with their position. The Bill would move the recognition
process a further step on to relate it to the change of sex, rather
than to the personal and legal identification that has been the focus
of the present position.
The hon. and learned Gentleman is aware
from our discussions that his Bill, sadly, is defective in a number
of respects. Nonetheless, I can assure him that the government
recognise the importance of the issues that he has raised. We take
them seriously, and we shall carefully consider the issues raised by
the Bill. To that extent, I believe that, even though the Bill has
had a relatively short length of time to be debated today, it has had
a useful purpose in taking the argument on to a later stage.
Mrs. Edwina Currie (Conservative, South
Derbyshire):
Does my hon. Friend realise that, despite
his litany of permitted changes in documentation, he has not yet set
out a good argument as to why that should not include birth
certificates?
Mr Horam:
That is one of the points that I want to
come to. The changing of a birth certificate is one of the problems
that the hon. and learned Member for Montgomery recognised during our
discussions. I am sorry to say that, while the Bill makes a credible
effort, it does not overcome something that the Registrar-General
sees as a real problem.
Dr. Lynne Jones:
I do not understand why there is a
difficulty. In a letter to me, the Office of Population Censuses and
Surveys said that, on average over the past 10 years, there have been
30 applications for corrections to the sex recorded at birth, and
added that most have been granted. Furthermore, before the Corbett v.
Corbett case, it was normal for birth certificates to be
changed.
Mr Horam:
A number of changes have been made, but
only after it was recognised that a mistake was made at birth.
Indeed, it is normal to wait until after the sex is clear before a
birth certificate is issued as a safeguard. Occasionally, errors have
occurred despite these precautions and a subsequent correction has
been made. There has never ben a case where a correction has been
made because someone's sex has changed during his or her life -- a
point to which my hon. Friend the Member for South Derbyshire (Mrs.
Currie) referred. There are real problems in making the change 20 or
30 years after the birth. I shall skip some of the points that I
intended to make to deal with this particular point, which is
obviously a matter of concern to hon. Members. Apart from the complex
policy and legal implications, which are manifold, there is also the
problem of how to provide tangible public recognition of the new
civil status of a transsexual.
To date the campaign by transsexuals has
focused heavily on birth certification. Many transsexuals appear to
believe, in my view wrongly, that if the Registrar-General would only
agree to amend their birth certificates, that would suffice to change
their legal sex. I acknowledge that the Bill does not entirely take
that line. The hon. and learned Gentleman attempts to go further. He
proposes to change birth registrations as one means of giving effect
to a wider objective. However, sadly. his method of doing so would
undermine the basis of birth registration in Britain. I shall explain
that.
The entry in the
birth register is a record of the facts as they were at the time of
birth. It may be changed by annotation of the original record if the
facts --
It being half-past Two o'clock, the
debate stood adjourned.