Draft Gender Recognition (Approved Countries and Territories and Saving Provision) Order 2023

Catherine West Excerpts

Tuesday 6th February 2024 General Committees

[Anneliese Dodds (Oxford East) (Lab/Co-op)]

It is a pleasure to serve on the Committee with you in the chair, Mrs Murray. I am grateful to the Minister for setting out the draft order for the Committee. I welcome this further opportunity, after initial discussion in December, to debate the important mechanism in the Gender Recognition Act, which Labour passed in 2004. As the Minister for Women and Equalities, the right hon. Member for Saffron Walden (Kemi Badenoch) admitted when laying the order before the House in December, it is “long overdue”.

The list of approved overseas countries and territories for people from other countries who apply for gender recognition in the UK has not been updated since 2011, as the Minister for Equalities recognised today. The explanatory notes for the Gender Recognition (Approved Countries and Territories) Order 2011 state:

“The Ministry of Justice keeps changes to international gender recognition systems under continual review and expects it will be necessary to explore updating the list of approved countries and territories within the next 5 years.”

Let me repeat that: five years. Yet here we are, 13 years later, and the Government seem to have suddenly decided that action is urgently required. It is worth drawing Members’ attention to the fact that no timetable for future revision is promised in the explanatory notes to the new order. After the Government missed their last target by eight years, it seems that the Minister for Women and Equalities wants to remove any risk of breaking a promise in the future, or perhaps she does not think the list should ever be changed again. It would be useful to hear the view of the Minister for Equalities while he is present.

We need to interrogate the reasons for laying this order now, nearly a decade and a half after the list was last reviewed. In December, the Minister for Women and Equalities told the House that it was 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.”

According to her, those changes are needed because

“it would not be fair for the overseas route to be based on less rigorous evidential requirements”

and that

“Inadvertently allowing self-ID for obtaining GRCs is not Government policy.”—[Official Report, 6 December 2023; Vol. 742, c. 359.]

However, some of the countries that will be removed from the list changed their system of gender recognition many years ago. Denmark introduced self-ID in 2014, Portugal in 2016 and New Zealand as long ago as 2012.

I ask the Minister this: if inadvertently allowing self-ID for obtaining GRCs is, in his colleague’s words, “not Government policy”, why has it taken the Government 13 years to enforce that position? If it is “not fair” for the overseas route to be subject to less rigorous evidential requirements, why have the Government tolerated that so-called unfairness for so long? Do the Government believe it is fair that a trans person with a GRC from Denmark who arrived here at any time in the last 10 years could automatically have received a UK GRC, while one who arrives here in future could not? Why does Germany—a country that has, I believe, introduced a self-ID regime for changing birth certificates—remain on the approved list, while other countries with self-ID regimes for GRCs are coming off it? The Minister for Women and Equalities was unable to answer that question in the House. In fact, she seemed to suggest that Germany had been taken off the list. That was not the case; it remained on the list. Perhaps the Minister can explain to us in this Committee the response of the Minister for Women and Equalities to that question.

How are we in this position without, according to the Minister’s definition, undermining the integrity of the UK process? Where is the consistency? I suggest that, unfortunately, the timing of these new changes has little to do with rigour or fairness in the UK system of gender recognition and everything to do with partisan politics. The Minister is absolutely right to state that the debate on the Floor of the House covered a range of issues. I think that that decision to cover a range of issues was the Government’s. These matters are significant, albeit, as the Minister rightly said, for a small number of people. We should focus on those people and on understanding the impact on them rather than turning this into some kind of broader ideological debate.

I will leave the Committee to draw its own conclusions about the timing of this move and about why the Government saw fit to introduce the order at the last minute in December, with so little notice that that Members were unaware of which countries had been added to the list, even during the statement made by the Minister for Women and Equalities. On that note, I think it would be helpful if the Minister stated whether there was no formal warning that the SI was being laid at the time of that debate. Will he ask the Minister for Women and Equalities to correct her comments to the House on the day of that statement? She maintained that the SI was laid

“well before the statement to the House”

and that

“we have done our bit”.—[Official Report, 6 December 2023; Vol. 742, c. 376.]

Will there be confirmation that that is inaccurate? The SI was not formally laid until after the statement, and it was not published by the Vote Office until straight after the statement: not before, but after. Will there be an apology to the staff of the House for the chaotic way in which this process has been gone about—again, a process for which the Government had 13 years to prepare, but still appears, sadly, to have been a complete shambles?

The order will make significant changes to the overseas list. It adds 14 countries and territories and removes 23, including several EU countries, Australian states, Canadian provinces and US states. The order newly recognises China, Iran, Belarus and Cuba—regimes that have, let us say, mixed records on LGBT+ rights—while de-recognising many of the UK’s closest friends and allies. The Minister for Women and Equalities said in December that this mechanism is not a tool for diplomacy, which is correct. However, it is not a tool for grandstanding or political point scoring either. The mechanism is for those who already have gender recognition in their home country and want to be able to access the mutual recognition route to obtain the same recognition here. That is why it is important to understand the criteria the Government have used to reach this decision.

The Government say that the SI is about protecting the integrity of the system. Can the Minister tell us how many nationals from the countries coming off the list have been granted UK GRCs? He mentioned some statistics, but how has that changed over time, particularly with regard to countries that have adopted self-identification? As I mentioned, several have done so, but the Government have not changed the list since those changes. If the Government believe there is a threat to the integrity of the system, surely they need to be able to spell out that information to us this morning.

The Government have said, and the Minister has just repeated, that they have conducted research in collaboration with the Foreign, Commonwealth and Development Office to verify their understanding of each overseas system in question and measure that against the UK standard route to obtaining gender recognition. However, weeks after the order was first laid, we still have not seen any of that research. Members are again being asked to make a decision on the basis of limited information. That is not how such decisions should be made. The notes to the SI are clear that systems vary widely, and there are no exact matches with the UK GRC system. Will the Minister commit to publishing that research urgently so that Members can actually understand the recognition criteria? That information is vital.

I understand the Government’s argument that those who have undergone arduous or even brutal processes or practices to obtain legal gender recognition in countries such as Iran or Kazakhstan should not face additional barriers to obtaining that recognition here. As I said, the purpose of the mechanism in the GRA was to reduce burdens in obtaining a UK GRC, not to create them. Does not the Minister understand that removing some of our closest friends and allies, including our Five Eyes security allies, from the list, while adding regimes such as China, Belarus and Iran, legitimises the human rights record of the latter group? Does he not see how that suggests that the Government might be on the side of authoritarians rather than democracies?

The Minister referred to his conversations with representatives from other countries. Can he tell the Committee whether there was any pushback on these provisions, or whether there was an overwhelming welcome? It is helpful and important for the Committee to understand that, particularly when it comes to our allies.

[Catherine West (Hornsey and Wood Green) (Lab)]

Does my hon. Friend agree that this has more to do with an election year than with facts and a genuine examination of what is best for the people concerned?

[Anneliese Dodds]

I am grateful to my hon. Friend for that point. The question is why this change is being introduced after 13 years, given that there were changes to a number of other countries’ recognition systems many years ago—perhaps Members are not aware of that—and the Government did not update the list then. Instead, they chose to do so just before Christmas. If this is such a significant issue, why has there been no Government action until now?

I have tried to interrogate this issue with a series of written parliamentary questions asking what discussions the Government have had with representatives of every country and territory being removed from the list. I regret to say that I received exactly the same answer to every question:

“The Minister for Women and Equalities has been in conversations with the Foreign, Commonwealth and Development Office…and is monitoring the international reaction to this legislation. Diplomatic posts have been consulted on and notified of the changes,”

and the Government are confident that

“our international counterparts are well informed about”

the changes. That is not the same as a direct conversation between the Minister for Women and Equalities and her foreign counterparts. Can we get confirmation of that today, please? Since this order was laid, have we received any representations from those territories and countries? It is important that the Committee understands that.

Let me be absolutely clear: Labour supports the mechanism for updating the overseas list and the principle of reciprocity and mutual recognition for GRCs for UK nationals living in other countries. That is why we enshrined those provisions in the 2004 Act, and why we have supported changes to the list in the past. We support the principle of reciprocity and mutual recognition not only for GRCs for UK nationals in other countries, but for equal marriage, adoption and pension rights. Does de-recognising so many of our closest friends and allies in relation to this matter potentially put those rights at risk? Will the Minister please indicate to the Committee whether there is any danger of that? Has he received any representations about those matters from other countries? Is he confident that these changes are compliant with the UK’s obligations under the European convention on human rights and other diplomatic treaties?

I want to press the Minister to answer some of the questions I put to the Minister for Women and Equalities in December, but to which I did not receive a satisfactory response. The GRA requires the Government to consult the Scottish Government and the Department of Finance in Northern Ireland before these changes, and the order confirms that that happened. Will the Minister please tell us what response was received from those bodies?

Last January, when first announcing plans to revise the list, the Government also promised to carry out an equality impact assessment to inform any changes. It appears, however, that a full impact assessment has not been produced, unless I am mistaken. I would appreciate it if the Minister confirmed that in his response. Why do the Government not foresee that these changes will have any, or any significant, impact on the private, voluntary and public sectors? If there is no anticipated impact on those sectors, why does the Minister believe the integrity of the UK system is under threat unless these changes are made? There seems to be a contradiction, so perhaps he can elucidate that for the Committee.

I am grateful to you, Mrs Murray, for affording me the time to ask these questions. I am sorry that there have been so many, but that reflects the fact that the process has been so incoherent and chaotic. I have reservations about the motives for making these changes now, as opposed to previously, and the process by which they are being made—[Interruption.]