Gender Recognition

It is this Government’s policy that the UK does not recognise self-identification for the purpose of obtaining a gender recognition certificate. However, the Government are determined that everyone should be able to live their lives free from unfair discrimination. We are proud to have passed the Marriage (Same Sex Couples) Act 2013 and Turing’s law. We also introduced a modernised and affordable gender-recognition process, while recognising the need to maintain checks and balances.

Today, we are laying an order to update the list of approved overseas countries and territories for parliamentary approval. That is provided for under section 1(1)(b) of the Gender Recognition Act 2004 and follows previous periodic updates. This is long overdue. The list of approved overseas countries and territories was last updated in 2011. A commitment was made to keep the list under review, so this is a further step in implementing our response to the Gender Recognition Act consultation.

We are doing this because some countries and territories on the list have made changes to their systems and would not now be considered to have similarly rigorous systems as the UK’s. Inadvertently allowing self-ID for obtaining GRCs is not Government policy. It should not be possible for a person who does not satisfy the criteria for UK legal gender recognition to use the overseas route to do so. We also need to ensure parity with UK applicants: it would not be fair for the overseas route to be based on less rigorous evidential requirements. That would damage the integrity and credibility of the process in the Gender Recognition Act.

We have finalised details of overseas countries and territories to be removed and added to the list laid today via an affirmative statutory instrument. We have undertaken thorough checks in collaboration with the Foreign, Commonwealth and Development Office to verify our understanding of each overseas system in question and measure it against the UK’s standard route to obtain gender recognition.

My officials and I formally engaged with colleagues and Ministers from devolved Governments in advance of laying this statutory instrument. The Government are committed to ensuring that this outcome of the 2020 Gender Recognition Act consultation is followed through and upheld, and the overseas list will be updated via statutory instrument more regularly in future.

This work is important because of the complex interactions between the Gender Recognition Act and the Equality Act 2010. The complexity of the legal situation was reinforced by the judgment in December 2022 by Lady Haldane in the judicial review brought by For Women Scotland, upheld on appeal last month by the Inner House of the Court of Session, which effectively stated that a gender recognition certificate changes a person’s sex for the purposes of the protections conferred by the Equality Act. Labour’s Gender Recognition Act 2004 and Equality Act 2010 did not envisage that the words “sex” and “gender” would be used as differently as they are today. That is having an impact on all policy that draws on those Acts, including on tackling conversion practices and guidance for gender-questioning children.

To that end, I am exploring how we can rectify these issues across the board and provide legal certainty. That will reduce the tensions that have emerged as a result of the confusion around the terms “sex” and “gender”, first by ensuring that we are evidence-led in the approach we take—for example, when considering appropriate treatment of children on the NHS, we should be fully informed by the final report from the Cass review, which is due early next year; given the complexity of this area, the review is understandably taking longer than originally expected—secondly, by ensuring consistency in how we implement policy across the board; and thirdly, by exploring whether we need more clarity in law. For example, the Equality and Human Rights Commission has recommended that we clarify the definition of sex in the Equality Act, while ensuring that any further proposed legislation fully takes into account the complexity of issues.

We should not leave ordinary people to suffer unintended consequences because we in Parliament are shy of dealing with difficult issues. I commend this statement to the House.

I call the shadow Minister.

I thank the Minister for Women and Equalities for advance sight of her statement. I welcome the chance to respond to her on these important issues. Such opportunities are vanishingly rare, given that I believe this is the first oral statement she has made on the women and equalities brief this year. Like Santa Claus, it seems she gets to work when Christmas is around the corner.

I started this morning by joining a debate on the Government’s continued failure to ban conversion practices, a promise that was made over half a decade ago. I was sorry not to see the Minister there to explain that failure in person—no conversion practices ban, no commitment to making every strand of hate crime an aggravated offence in order to tackle the staggering rise in violent hate crime targeting LGBT+ people, and no provision to schools of the guidance that has been promised repeatedly but not delivered. She has been unable to deliver in any of those areas, and she even tried in her statement to say that legislation passed over 13 years ago has caused those delays—you couldn’t make it up.

Let us be clear. There are millions of British LGBT+ people in this country. I would love to hear from the right hon. Lady what she is doing for them, after her Government ditched their LGBT action plan, disbanded their LGBT advisory panel and frittered away taxpayers’ money on a cancelled international conference that LGBT+ organisations refused to attend.

Of course it is important that the list of approved countries is kept up to date. That was what Labour provided for when we passed the GRA back in 2004. The list was last amended in 2011, when two countries were removed from it and nine added. At that time, the Government said that they expected that it would be necessary to update the list

“within the next five years.”

Here we are 12 years later and the Minister has just got around to it. That is the kind of timescale our country has grown used to when it comes to Conservative delivery. Indeed, even she herself said that it is long overdue.

It is extraordinary that the hon. Lady would say that the Conservatives are divided on this issue. Does the hon. Member for Canterbury (Rosie Duffield) agree with her? The disgraceful way that she has been treated by members of the Labour party shows that we beg to differ. We are united on this side of the House; they are not.

The hon. Member for Oxford East (Anneliese Dodds) asked quite a number of questions and I will take the time to go through them in sequence. First, she complained that this is the first time she has heard me give a statement on this issue. The fact of the matter is that I am in this House for oral statements and there is plenty of opportunity to ask questions, and the Minister for Equalities has been in Westminster Hall. One thing I am very keen to do is to stop the Labour party using this issue as a political football. They have messed this—[Interruption.] They laugh, but it was Labour party MPs who, during the debacle over section 35, stood on a platform, on stage, with an attempted murderer complaining about this Government, so I refuse to countenance any criticism from them. They have messed around so much on this issue.

The hon. Lady claims that Labour has a policy on gender recognition. It is the policy we announced three years ago. Hollow, empty, repetitive—they have done absolutely no work whatsoever on this issue. Let me take her questions in turn. She asked why countries such as Germany have been removed from the list—

Order. It is not possible to intervene while the Minister is responding during a statement.

The hon. Lady questioned why certain countries are on the list and others are not. Again, I heard lots of laughter from Members on the Back Benches. I am going to have to reinforce this really important point: this is not a tool for foreign policy. This is a tool that is used to make sure that other countries’ systems are as rigorous as ours. I understand why people will have concerns, but this is not about virtue signalling as to which countries we like or which countries we do not like—far from it. This is about whether another country’s system meets our guidelines.

The hon. Lady talked about countries such as China. It is a very good question and I will explain to her why some countries that we might not expect to be are on the list. I will use the example of Kazakhstan, where to obtain gender recognition applicants must undergo gender reassignment surgery. That includes forced sterilisation, something which we condemn completely. It is banned in our country and is a form of conversion practice. Recognising certification for someone who has undergone that is a compassionate acknowledgement of what some transgender people in other countries have had to go through to obtain their certification. Are we really going to say to people with GRCs from China or Kazakhstan who have been forcibly sterilised by their state that we do not think they are serious about legally changing their gender? Of course not. That is why we have included certain countries. If people have gone through such extreme measures for gender recognition, we should not be giving them any additional issues here.

There are countries with which we work very closely, and with which we carried out a good deal of extended engagement. I am also the Secretary of State for Business and Trade, and I work with embassies across the world and Ministers across the world. I spoke to other countries’ Ministers about this issue, and they recognised the sovereignty of the UK. Ambassadors have been notified. We engaged in a great deal of collaboration with the Foreign, Commonwealth and Development Office throughout this process, and we are monitoring the international reaction to the legislation. Members can be assured that diplomatic posts have been notified of the changes, and we have provided them with comprehensive question-and-answer documents that address any potential misconceptions about what this statutory instrument does.

I congratulate my right hon. Friend on her statement. I agree with her that the law concerning sex and gender needs to be clarified, which is why later this afternoon I will present a private Member’s Bill to do just that. First, the Bill will make it clear that single-sex spaces and sex as defined in the Equality Act 2010 are on the basis of biological sex, and secondly, it will protect those under 18 who are undergoing hormone treatment for gender dysphoria. It will also ensure that the state does not formally recognise social transitioning for those under 18. Given what my right hon. Friend has said, may I ask whether the Government will back my Bill?

I certainly support any effort to clarify the law, and we should start from first principles. No child is born in the wrong body, and no child should be put on a pathway towards irreversible medical transition. I am also conscious that it will take time to amend law, and I am therefore focusing on what will work for now. That is why we are publishing guidance to give clarity to schools as soon as possible. I remember discussing the growing problem of what we describe as social transitioning with my right hon. Friend when she was the Minister for Women and Equalities. I am pleased that she has come round to my point of view, and I am keen to work with her to see how we can ensure that the legislation works properly in practice.

I call the Scottish National party spokesperson.

I thank the Minister for advance sight of her statement, although I would have welcomed a good deal more detail. I do not know whether it is because the UK Government have been missing in action on their own commitment to ban conversion therapy for the last five years, but they seem much more interested in culture wars than in looking after the rights of some of the most vulnerable people. Of course, this is the same UK Government who are intent on blocking the democratic will, expressed across parties, of the Scottish Parliament. Again, they seem to be more interested in constitutional shenanigans than in human rights.

The Minister talked about unintended consequences. Has she undertaken an impact assessment of the impact of this change on the safety, health and wellbeing of those affected? What conversations has she had with international counterparts, and what specific evidence did she receive ahead of the change that made her decide to remove these named territories? Can she tell us exactly what will happen to those already living here, and living under their new gender, who come from the places that she is now removing from the list? Can she say where this leaves the motion of reciprocal arrangements? What of those from the UK who are living elsewhere? Does she recognise that the UK is travelling rapidly backwards on the rights of LGBT people and that this decision is very much out of step with other progressive countries around the world? What consideration has she given to the UK’s international reputation?

From sending vulnerable refugees to Rwanda, placing barriers in front of care workers who want to come to the UK and now this, we can see the dearth of compassion at the heart of the UK Government writ large. We have all heard the reports that the Conservative party intends to fight the general election on the trans debate and culture wars, but nobody’s identity should be in question. As the Minister herself said, nobody’s identity should be used as a political football. We need to stop that. She needs to reflect and she needs to change tack.

I completely disagree with the hon. Lady. She talks about our using this issue as a culture wars football, yet the Labour Opposition spokesperson says that this is the first time that she has heard us say anything about this in the House. Surely both cannot be true. I think it is extraordinary that she is telling us that we are not compassionate. It is her Government in Scotland who were allowing rapists to be housed in women’s prisons while using self-identity as a cover, so I will not accept that. We are the ones who are thinking about women’s rights. We are the ones who are thinking about safeguarding. We are the ones who are thinking about vulnerability.

The hon. Lady asks me about reciprocal arrangements. The fact is that our system is a lot more rigorous, so there is no reason for others to stop accepting our certificates because they have not changed. It is because other countries have changed their process that we are updating this policy. We cannot have a situation where there are rules for people in this country and where we allow people from other countries with different rules to be able to access things that people in the UK cannot access. This is about equality before the law. This is about parity. Reciprocal arrangements will be fine. She also asked about people already living here. This is not retrospective legislation, so it will not impact people who are already here. We are just making it clear: self-ID is not something that this Government support. We do not believe that this is something that people should just declare, because that creates the very same problems that she saw in Scotland in the Isla Bryson case, with rapists going into women’s prisons. We will not allow that to happen on this Government’s watch.

Of course we cannot change biological sex. The GRC establishes legal sex for the purpose of exercising certain rights. Given that we have had a massive shift in rights since the Gender Recognition Act was passed in 2004, particularly with same sex marriage, can my right hon. Friend advise me exactly what additional rights are granted through the giving of a GRC?

I thank my hon. Friend for that question. This is one area where we are trying to provide clarity. As a result of the Haldane judgment, there is now confusion between biological sex and legal sex and certainly in terms of the interpretation that people put on it. A gender recognition certificate had different standards in terms of what could be obtained until this judgment. We want to make it clear, for instance, that single-sex spaces will still be protected. We will do a lot more to clarify that. As I said, the Haldane judgment changes that, which is one reason why we need to look at this very carefully. There were 30 pages in the Appeal Court report, which shows how complex this issue is. The law is no longer clear. In fact, I would go so far as to say that the law is now a mess because of changing times. We need to provide clarity. We cannot assume that the wording as was intended in 2004 and 2010 still works in 2023, and we are carrying out work to fix that.

I will be calling only those who were here at the start of the statement. Members will know if they were not here, so I do not expect them to stand.

Well, Madam Deputy Speaker, not wishing to be upstaged by the ex-Home Secretary, the Minister whose job it is to defend vulnerable minorities chooses to make her first statement this year in the House to announce two measures attacking transgender people. Why does she think that the UK, which was the first for four years up until 2015 in the European league of LGBT rights, and has now fallen to 17th under her watch?

I completely reject the right hon. Gentleman’s assertion. I have come to the Floor of the House for an SI, which is unusual for a Secretary of State, because I think it is important that Members across the House have the opportunity to ask questions. I am not afraid of anybody on the Opposition Benches. I am not afraid of a single one of them, because I know that they do not take this seriously. The right hon. Gentleman asks why we have fallen. It is because self-ID is something that we differ in opinion with from other countries—[Interruption.] It is. It is a fact. We are different. But just because other countries believe that self-ID is the way does not mean that we in the UK have to do what everybody else is doing.

The issues of gender recognition and self-ID that my right hon. Friend is working to clarify are increasingly an issue in amateur and professional sports, with the risk of serious injury to women and girls and also examples of unfairness. Does she agree that, in general, for most sports, it is safer and fairer to separate on the basis of biological sex?