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

Lord Henley Excerpts

Tuesday 12th March 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, this statutory instrument updates the list of countries and territories from which citizens are eligible to use the fast-track recognition process to obtain a gender recognition certificate. We laid the statutory instrument before the House on 6 December 2023. Subject to parliamentary approval, this will be the first time that the approved overseas countries and territories list has been updated since July 2011.

The Statement given by my right honourable friend the Minister for Women and Equalities on 6 December in the House of Commons generated a wide debate. The Commons Committee debate touched on the importance of communicating these changes clearly. It is important that everyone understands why we are updating this international gender recognition process, and that includes our colleagues internationally. Importantly, this debate is focused on the details of the SI and our need to make this update.

We are making these changes because the Government believe that it should not be possible for a person who would not satisfy the criteria to obtain legal gender recognition through the standard route under UK legislation to use the overseas recognition route to obtain a UK GRC. This would damage the integrity and credibility of the process of the GRA. There have been many changes in the international approach to gender recognition since the list was last updated in 2011. We have provided details of overseas countries and territories to be removed and added to the list laid on 6 December, which is available to view on legislation.gov.uk.

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 have measured them against the UK’s standard route to obtain gender recognition. My right honourable friend the Minister for Women and Equalities and the Minister for Equalities have both engaged extensively with posts, including those in the USA, Canada and Australia. I am confident that the international community understands the extent of the changes and their impacts on their citizens.

The overseas route to obtaining a gender recognition certificate sees low volumes of applicants. Of the 370 total applications in the last quarter, only 4% used the overseas route. Of the 7,043 applications received since 2009-10, 94% were standard applications and 5% were overseas applications. The impact on transgender people in this country and abroad will be minimal and this update brings the overseas route back in line with the standard route, allowing for more equality in application requirements.

Finally, it is extremely important to ensure parity with those who have taken the UK standard route to obtaining a gender recognition certificate. It would not be fair for the overseas route to be based on less rigorous requirements and consequently for the certificate to be acquired more easily. I beg to move.

[Lord Henley (Con)]

Before the Front-Benchers intervene, I wondered if I could ask my noble friend a question.

[Baroness Thornton (Lab)]

This is not the end of the debate; it is just that I have chosen to speak at the beginning.

[Lord Henley (Con)]

I give way to the noble Baroness. I will come in later.

[Baroness Thornton (Lab)]

As the noble Lord is aware, it is perfectly all right to speak now, but I always think when doing statutory instruments that, if you have a lot of questions, as I have, it is only fair to put them in first, so the Minister and the team can think about them.

I thank the Minister for her explanation. I would like to make one little prod or poke, as it were, to the Government over this matter because it was the subject of the first Statement that the Secretary of State for Women and Equalities chose to make in her job. She did not choose to talk about why more black mothers and babies die in the maternity units in our hospitals or why we have huge misogyny in our uniformed services. She did not choose to talk about the increase in violence that our LGBT+ communities are experiencing or the problems that disabled people have with our train service and in getting jobs. She chose not to speak about those things and the fact that she chose to speak about this issue says something. Reading that debate, I think that it probably achieved the exact political purpose she wanted.

However, we can agree, I think, that it is important that this list of approved countries is kept up to date, as the Labour Government provided for when we passed the GRA in 2003. I was there and involved in the discussions around the then Bill; I helped to put it on the statute book. The list was last updated in 2011. The Government at the time said that they expected to update it within five years, but that was 13 years ago, so it is timely that we should be doing this now. My first question is: have the Government stated when they expect this order to be updated next? What is the intended timescale as we move forward? The reason why we wanted to do this in 2003 is that we knew that the world was changing constantly in this area.

With the limited information on the criteria that have been adopted by the Government in making these decisions—there is a headline list included in the Explanatory Memorandum but no further detail—can the Minister give the Committee more detail on what criteria will be applied and an assurance that they will be consistent across each case? For absolute clarity, will the changes made by this instrument have an impact on those in the UK who already hold a GRC via the overseas route? What about the applications that are currently outstanding but were initiated before this order comes into force? Can the Minister give details on how the countries affected by this instrument were both consulted ahead of the change and notified that the change was being made?

Will the changes in this instrument have any impact on the mutual recognition of UK GRCs in other countries? Further, what discussions have Ministers had about mutual recognition in other areas including equal marriage, adoption and pensions, and whether they may be impacted? Can the Minister assure the Committee that those rights are safeguarded and that discussions have been had with the relevant countries on those issues? The Explanatory Memorandum confirms that the Northern Ireland Executive and the Scottish Government were consulted; I would like to know what the outcome of that consultation was.

Finally, my colleagues in the Commons asked about Germany. There seems to be some confusion as to whether it is being removed from the list. Can the Minister give us an update for clarity? What changes are being made to the German system and when will those changes come into effect? Will there be further changes to this list in the near future to respond to those changes?

Those are my questions. If the Minister cannot give us all those details in her answer, I would be quite happy for her to write to us and put her answer in the Library.

[Lord Henley (Con)]

My Lords, I apologise to the noble Baroness, Lady Thornton, for trying to get in to speak before her. I want to make only a brief intervention in this debate, merely because I am intrigued to know about the list of approved countries and territories and what is included. We have in the Explanatory Note a list of the countries that were included in 2011. It includes quite a lot of Australian states and territories, some of which have, I think, been added to this list. It then goes on to include others, including—as one would expect—countries of a progressive sort, such as Sweden.

What I find particularly peculiar is that it then includes countries such as Iran. What is the Iranian legislation on this matter? Are we allowed to see it? Is it appropriate? Is Iranian legislation really fit for purpose on a matter of this sort? I appreciate that, as my noble friend put it, only 4% of applicants are using the overseas route, so we are talking about tiny numbers, but the inclusion of countries such as Iran and one or two others—I shall not mention them, but Iran is probably the most obvious—requires some proper explanation from the Government about why they are there and what is the Iranian legislation behind it.

[Baroness Barker (LD)]

My Lords, I thank the Minister for her introduction of this SI. As she said, last December the Minister for Women and Equalities, Kemi Badenoch MP, announced that she was planning to update the approved list of countries and territories and remove countries that do not require a medical diagnosis in order to gain legal gender recognition. Her statement was based on a belief that checks and balances and a medical diagnosis are required. There is no evidence of higher crime rates or higher risks to women in those jurisdictions which use self-declaration of gender, so Minister Badenoch’s belief is unsupported by the evidence.

According to the Government’s statistics, fewer than 50 gender recognition certifications were granted through the overseas path in 2022-23 and the average number granted each year in the period from 2009 to 2020 was approximately 17. There is no breakdown of the countries where the original legal gender recognition was granted and there is no data about whether any of the individuals who gained legal gender recognition in the UK using this route have been prosecuted or convicted of any criminal offence. The actual impact of removing various countries is minimal according to the number of GRCs issued, but it may have important repercussions for those who are currently eligible but will not be under this proposed order, and there is no evidence that these individuals should have their current right removed. There is no reason to do so.

The impact of these proposals is unknown, due to the lack of statistics around the countries of origin and crime, but we should not assume that it is negligible. The Council of Europe’s Resolution 2048, which was passed in 2015, says that states should

“develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents; make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record”.

The UK remains a member of the Council of Europe, which is not the same organisation as the European Union.

As the noble Baroness, Lady Thornton, said, Germany remains on the list of approved countries despite introducing legal gender recognition by self-declaration in August 2023. Ireland is not on the current list, and it is not on the proposed list. It is proposed to remove recognition by parts of Australia, the entirety of New Zealand, certain states in the USA and lots of European Union countries. India and China have been added. India allows hijra to be recognised as a third gender, as well as allowing transition between male and female. It places surgical requirements for recognition as male or female, but the recognition is granted by a district magistrate. However, very few people are able to access the law due to difficulties in getting appropriate healthcare and fighting discrimination. In short, there is no consistency in the application process for the proposed countries.

However, there is one thing in common: they do not follow either the UN’s or the Council of Europe’s recommendations—that is the only thing. We are getting to the real reason why this Government, and Minister Badenoch in particular, chose to do this. This is the Government who could not find time to ban conversion therapy and the harm that that does to our community, and this is the Government who are seeking to remove a lot of protections from the LGBT community. Yet they found time to do this, which is likely to affect 20 people at most—people for whom there is absolutely no evidence that they pose any threat to anybody at all.

This is part of this Government’s ongoing war on human rights and the protections that human rights afford to minorities. It is part of their ongoing campaign to destroy human rights and the organisations set up to protect the rights of people who are, and should continue to be, protected under equalities legislation. The message from this legislation to the LGBT community is clear: you are no longer safe while this Government are in office. It is high time that they should go.