To ask His Majesty’s Government when they expect to lay before Parliament the Equality and Human Rights Commission’s code of practice for implementing the Supreme Court judgment on the meaning of “sex” in the Equality Act 2010.
My Lords, the Government are considering the draft updated code and, if the decision is taken to approve it, the Minister will lay it before Parliament. Parliament will then have 40 sitting days to consider the code when it is laid. It is important that the correct process for laying the code is followed.
I thank the Minister for that Answer, but the Equality and Human Rights Commission has today had to write to the Minister for Women and Equalities, reminding her that it is six months since the Supreme Court judgment, which confirmed that “sex” in the Equality Act means biological sex, and six weeks since the commission submitted its draft of the new code of practice for implementation of a judgment that the Home Secretary reportedly regards as “beyond reproach”.
Does the Minister think it is satisfactory that the pitfalls of delay in producing the statutory guidance include that service providers continue to rely on the existing 2011 code, which is now partly illegal and must be quickly revoked and replaced, and that many organisations continue to drag their feet, wrongly claiming that they need to wait for the code, and risk breaking the law in their treatment of women and same-sex attracted people?
The code is absolutely important. That is why it needs to be dealt with properly and appropriately. The draft code, which is over 300 pages long, was submitted on 4 September and it is really important that the Government consider this across Whitehall. We also have a duty, as specified in the Equality Act, to consult the devolved Administrations, too. So the timescale the noble Baroness is talking about is not a delayed process. It is absolutely important that we ensure that the Supreme Court ruling is properly applied in the draft code of conduct, and we will ensure that it is done properly.
My Lords, can my noble friend the Minister confirm that six weeks, which included the summer, is actually not a very long time? Does he agree that the crucial matter here is to ensure that the guidance is right, respects the dignity and rights of individuals and groups, places an equality duty on public bodies and businesses, in scope with our legislation, and ensures that legal challenges are avoided by not rushing into this matter through being bullied by the EHRC, editorials in the Times, and others?
My noble friend is right. As the chair of the Equality and Human Rights Commission, who is in her place, acknowledges in her letter, it is important that the Secretary of State can take a fully informed decision. That is also why, although the letter was received today, officials have approached the Equality and Human Rights Commission, requesting additional material that needs to be reviewed as part of giving a thorough consideration of the code. It was acknowledged in today’s letter that the request for additional information is necessary. Obviously, we have not received this information from the EHRC.
Does the Minister agree that it is highly desirable that the guidance, or codes of practice, when published, should be as sensitive as possible about the needs and interests of those individuals who have by long usage or certification acquired a gender different from that of their birth gender?
As the noble Viscount acknowledges, we have a duty under the Equality Act to ensure equality of treatment, including for trans people and others. It is important that that is understood. The Equality Act remains in place and providers should continue to follow the law. Practically, this means that providers should consider the needs of all their service users when designing and delivering services. If they are uncertain as to how to apply the Equality Act to their specific services, they should obtain legal advice.
My Lords, I serve on the UK delegation to the Parliamentary Assembly of the Council of Europe. I have not had any dealings with the Commissioner for Human Rights, but is the Minister aware that yesterday he shared his observations that inconsistencies between the Equality Act and the Gender Recognition Act could leave some trans people in an “intermediate zone”—a problem that was identified in 2001 and led to the Gender Recognition Act? How will His Majesty’s Government ensure that the code of practice prevents that discrepancy?
I understand that many trans people may have read the human rights commissioner’s correspondence. I reread it this morning. It will undoubtedly raise concern among trans people. We have been clear that the laws to protect trans people from discrimination and harassment will remain in place. Trans people will still be protected on the basis of gender reassignment, a protected characteristic within the Equality Act.
My Lords, according to the Equality and Human Rights Commission, the Government received the full revised code of practice on 4 April. Only three chapters of it were altered in the updated version following the Supreme Court ruling. Can the Minister explain why there has been such a delay to review only three chapters and how much longer it is expected to take?
I do not accept the noble Baroness’s assertion. The department received the final draft code on 4 September. It is 300 pages long. That code needs detailed consideration because, as my noble friend pointed out, we want to avoid uncertainty. We want to ensure, as the Equality and Human Rights Commission is absolutely concerned to ensure, that there is absolute clarity on the Supreme Court decision. That is why we will take the necessary time to ensure that, when it is presented for full consideration by Parliament, it is as accurate and legally proofed as possible. There has been no delay.
Can the Minister indicate how the Government plan to monitor future case law in this area to ensure that statutory codes remain accurate and up to date, particularly if the courts further clarify the relationship between sex and gender reassignment under the Equality Act?
Put simply, that is why we have the Equality and Human Rights Commission, and that is why it has a responsibility independent from government to do precisely that. That is why we will give full and proper consideration to the draft code. It is important that we maintain that balance and understand our respective roles and responsibilities under the Equality Act.
My Lords, given the gross misrepresentation of trans people as a threat to others, I urge the Minister to encourage the Government to take all the time that is necessary to get the guidelines absolutely right, so that we can reverse the uncertainty created by the Supreme Court and the subsequent misrepresentation of that judgment. Furthermore, I urge the Government urgently to address the Equality Act to ensure that trans people maintain the protections that they have within the legislation.
My noble friend is absolutely right. Of course, we recognise that the application of the Supreme Court ruling is, in some settings, complex, which is why it is important that this code is given full and proper consideration. That is why the independent EHRC code of practice is so important, and we will do that. I will allow the noble Baroness to intervene at this late stage.
My Lords, I have enormous respect for the Minister, who has given very fulsome answers today. He referred to me. Therefore, I would just like to clarify for the House, because I know the Minister would not wish to mislead the House, that the time period needed for the code to be laid in Parliament is not 40 sitting days: it is 40 calendar days under Section 15 of the Equality Act. The further point that I want to clarify is that we were asked to provide the equality impact assessment last Friday. We provided it to the Government on Monday. We are here to serve the Government with any information that they need at pace.