Companies Documentation (Transgender Persons)

Baroness Morgan of Cotes Excerpts

1st reading: House of Commons & 2nd reading: House of Commons
Wednesday 1st March 2017 Commons Chamber

[Nicky Morgan (Loughborough) (Con)]

I beg to move,

That leave be given to bring in a Bill to enable transgender persons to apply to the registrar of companies for England and Wales for documentation relating to their change of name to be treated as protected information under the Gender Recognition Act 2004; and for connected purposes.

May I, too, welcome my hon. Friend the new Member for Copeland (Trudy Harrison) and wish her every success in her tenure?

One of the privileges of being a Minister is having the opportunity to find out more about other people’s lives and concerns. In July last year, I was pleased to be able to publish the Government’s response to the House of Commons Women and Equalities Committee’s report on transgender equality. I am sure that the response did not satisfy all the Committee’s demands, but I believe that it was another step to acknowledging that although we have the Gender Recognition Act 2004 and although the coalition Government published the world’s first transgender action plan in 2011, there is more that could be done by the Government, among others, to address the remaining inequalities, unfairness, violence and discrimination faced by trans people.

I am sorry that I did not have the opportunity to steer the Government’s continued response on these matters, but I know that my successor as Minister for Women and Equalities, my right hon. Friend the Member for Putney (Justine Greening), and the Under-Secretary of State for Women and Equalities, my hon. Friend the excellent Member for Gosport (Caroline Dinenage), are continuing that important work.

We were aware that many loopholes remained, and that for every loophole a trans person can worry that something will inadvertently reveal their transition. In my experience, some trans people are quite comfortable telling their own stories. In fact, many trans people are doing inspirational advocacy work in our schools and across our society to break down barriers and to tackle stigma and discrimination about transgender issues. However, for some trans people, their transition and history are very personal and something that they want to choose to share, rather than being forced to do so by someone else. That is the situation that my Bill aims to address.

In September 2016, I received a letter from Alex, who wrote:

“I am the sole director of a company I set up some years back to manage a small property portfolio…When I changed my name and title the process to inform Companies House was actually very easy and my name was updated quickly…I noticed afterwards however, that this change of name and title was recorded in the company filings that are freely available for public inspection on the Companies House website. The document in question is a…Change of Particulars for Director form and clearly states my original name and title and subsequently my new name and title. This very obviously discloses my change of gender to anyone who happens to look at the filing history of my company, publically outing me without my consent. The main issue I take with this is that of safety. In future there will be many people I meet and interact with who will have no idea of my transgender status because I simply will not tell them. If someone later finds out, this could potentially lead to violence, which is a reality that you are already aware the trans community faces.”

The potential for inadvertent disclosure comes about because of a conflict between section 22(4)(j) of the Gender Recognition Act 2004 and section 1087(1)(k) of the Companies Act 2006. In her letter to me dated November 2016, the Under-Secretary of State for Business, Energy and Industrial Strategy, my hon. Friend the Member for Stourbridge (Margot James)—the Minister responsible for small business, consumers and corporate responsibility—makes it clear that the companies registrar must make available to the public all information held on the public register unless he is specifically forbidden to do so by section 1087 of the Companies Act.

Section 22 of the Gender Recognition Act generally prohibits the publication of protected information held on a transgender person. However, section 22(4) details the circumstances under which it is not an offence to disclose protected information, which are if

“the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.”

The Minister’s letter states:

“The Government is satisfied that this applies to the disclosure of a director’s former name as this is required to be placed on the public record by enactments in the Companies Act. In conclusion the data is not considered to be material excluded from public inspection by the Gender Recognition Act for the purposes of section 1087 of the Companies Act.”

I do not disagree with this interpretation, but I think that this is an unintended loophole that needs to be closed. That is what my Bill would do.

Alex also told me:

“In 2004 the GRA came in to place with the clear main goal of protecting people who were at risk of being vulnerable, and it was a world-leading piece of legislation which frankly I’m proud to say came out of the UK. What is happening now with Companies House is an entirely accidental and unfortunate flaw in the way that the GRA 2004 and CA 2006 interact with each other. This flaw is entirely against the spirit of the GRA 2004, and I think that anyone would be hard pushed to argue against that...I’m currently able to protect myself when it comes to my credit profile, my tax profile at HMRC, the FCA register, Government Gateway. I just personally think it is the right thing to do to force Companies House to be held to the same standard.”

The Bill would close the loophole by amending the 2004 Act in a way that would allow transgender persons to apply to Companies House to withhold from public inspection information about a director’s former name and for that information to be treated as protected information under section 22 of the 2004 Act.

Hon. Members and people outside this House might ask why such a disclosure matters. I argue that, as a country, we have provided a legal mechanism for people to change their gender. In my experience, this is not a decision that anyone enters into lightly, and nor does it happen quickly. Again, in my experience, once that decision is made, transgender people want to be able to move on with their lives, to be treated with respect, and to live without the fear of being inadvertently outed or subject to violence.

I am afraid to say that violence and discrimination do still occur. Home Office figures show that, in England and Wales in 2015-16, there were 858 transgender hate crimes, a 41% increase from the previous year. Living in fear because of who you are is unacceptable in the modern United Kingdom. Can hon. Members imagine what it must like for someone to live in fear of violence because of official documents that they have filed in compliance with a particular Act of Parliament?

Amending the law can be, even for lawyers, a rather dry topic. As always, however, behind the law lie real lives. In spite of such a fear, I thank those who have contacted me, including Alex. For example, in the course of preparing for these proceedings, I was contacted by another trans person who said to me:

“My current position is that I am unable to start my business without running the very real risk of outing myself as a transgender woman. Presently I want to start a business to provide technology and web development services. However as I cannot yet transition I am in the unfortunate position where if I started a business now and then transitioned this information would be publicly available.”

I thank the accountant who told me that the advice that they were given was to resign as an existing director and register a new director’s appointment in the new name, although clearly details such as their date of birth would be the same; or to close the company down, have it struck off and then set up a new company, with all the administrative expenses entailed in that course of action.

Just to illustrate the point, let me quote another message that I received:

“I used to do IT contracting and did so via a limited company. I changed my name and title by deed poll in 2012 and also need to change my details at Companies House as a director of my company. I’ve now had gender reassignment surgery and will be applying for my gender recognition certificate as soon as I receive the necessary report from the Gender Identity Clinic. Whilst this will give me a lot of protection in law it will still be possible for people to find out my deadname by interrogating the records of my company at Companies House which could possibly put me at risk if someone found out those details for malicious purposes.”

This small legal change would send out a big signal. Altering the Gender Recognition Act would be a simple change to make, yet it would mean a great deal to the many trans people who suffer this problem in silence. The House has an opportunity, by giving me leave to bring in this Bill, to close this inadvertent loophole and to show that we will tackle unfairnesses wherever we find them. I hope that hon. Members will support the motion.

Question put and agreed to.

Ordered,

That Nicky Morgan, Mrs Maria Miller, Ben Howlett, Mike Freer, Mrs Flick Drummond, Norman Lamb, Angela Crawley, Jess Phillips, Peter Kyle and Anna Turley present the Bill.

Nicky Morgan accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 24 March, and to be printed (Bill 149).

[Kirsty Blackman (Aberdeen North) (SNP)]

On a point of order, Mr Speaker. The next item on the agenda is Second and Third Reading of the Supply and Appropriation (Anticipation and Adjustments) Bill. Standing Order No. 56 states that we shall not have a debate and that both Questions will be put forthwith. The Bill says that we will spend £254,713,662,000, but we will be agreeing to it without any debate or scrutiny. We have had the estimates days, but on those days we are not supposed to talk about the estimates and the budget lines provided. Will you give me some guidance, Mr Speaker? At what stage is this House able to scrutinise properly the departmental estimates that come before it, and is there any place in which we can do so adequately?