Legislative Definition of Sex

Debate between Olivia Blake and Lloyd Russell-Moyle

Monday 12th June 2023 Westminster Hall

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

It is always difficult to talk about these sensitive issues. By and large, apart from some exceptions, we have managed to do it in a calm manner today. I have not always been the calmest on this issue, because it is difficult when we are talking about people’s lives from all sides. Last time I spoke in this Chamber about some of these issues, people who were in the room then spread lies about me wanting to teach BDSM to children and so on. They were horrible, pernicious lies that were put on Twitter and caused a lot of hate. I think it is important to note that there has been a lot of hate and angst outside of this room directed at politicians on all sides of the debate. It is totally unhelpful. It is also probably unhelpful to say, “It’s just me, your honour”, because all of us have had really horrible times. I think it is important to start by saying that. We need to defuse that, and I will try to take the lead and do that myself.

What we have heard today is a set of cherry-picked case studies of examples and exceptions. Each one of them will have been very complex cases that need complex answers. People are not simple. People are not just binary. Biology is not as simple as that, as I know that my hon. Friend the Member for Sheffield, Hallam (Olivia Blake) will attest to.

[Olivia Blake (Sheffield, Hallam) (Lab)]

Absolutely. There is a risk in this House of us talking about GCSE biology rather than actually biology. The aneuploidies XXX occurs in one in 1,000 women, and XXY occurs in one in 500 men. These are very common biological differences that do complicate the matter—and those are not intersex individuals, to be clear.

[Lloyd Russell-Moyle]

I appreciate that, and coming from a biologist that is important to note. People are complex. That is why flexibility in the current law is important. By defining things too much, what we suddenly do is assume that everyone lives in these easy, binary boxes. The current principle of the law, as my hon. Friends have mentioned previously, is that general and specific discrimination should not happen, but there are a number of exceptions for people with protected characteristics where discrimination can happen to provide specific spaces. We know that this can be on sex, race, disability and on gender reassignment.

However, the ability to have flexibility on one’s determination, such as in an organisation or on a specific place-by-place basis, is important. Survivors’ Network in my constituency, the predominant organisation supporting survivors of abuse, has for over 30 years decided to take a trans-inclusive approach to how it treats women’s spaces. That has been done through working out what the local need is for the service provision. The majority of providers in Britain choose to draw the line on biological sex. Both are legal. Because of the flexibility in the law, both can be determined.

What would happen if we then made a strict rule that the discrimination could only happen according to biological sex? Survivors’ Network would be barred from the flexibility that was dreadfully important in providing its inclusive service in our city. Moreover, we would have a legal provision that would prevent a trans man going to use male changing room facilities. I believe that in many respects we should try to find accommodation. A lovely new swimming pool has opened up in my constituency. It has fantastic changing facilities, with all individualised cubicles and individualised facilities. Gender is not an issue.

Nationality and Borders Bill: LGBTQ+ People

Debate between Olivia Blake and Lloyd Russell-Moyle

Wednesday 2nd February 2022 Westminster Hall

[Olivia Blake (Sheffield, Hallam) (Lab)]

I beg to move,

That this House has considered the potential effect of provisions in the Nationality and Borders Bill on LGBTQ+ people.

It is a pleasure to serve under your chairship, Mr Sharma. Before I begin, I would like to refer Members to my entry in the Register of Members’ Financial Interests for the support I receive from the excellent Refugee, Asylum and Migration Policy Project. I also pay tribute to the organisations in my constituency and across Yorkshire—such as the South Yorkshire Migration and Asylum Action Group, City of Sanctuary Sheffield, ASSIST Sheffield, Time to be Out and so many more—that do such vital work supporting asylum seekers and refugees in my region.

The Nationality and Borders Bill is a wide-ranging piece of legislation. There are so many problems with it that it has been difficult for Members to address them all as it has passed through Parliament. Today, I want to shed some light on the potentially devastating impact this legislation will have on LGBTQ+ asylum seekers and refugees.

I have spoken to many campaigners advocating on behalf of LGBTQ+ communities, and every organisation I have contacted is appalled by the Bill. They are appalled because LGBTQ+ people seeking sanctuary are already met with a system full of obstacles and challenges.

In a world where homosexuality is still illegal in 70 countries and punishable by death in 11, it is shocking that across Europe, one in three applications from LGBTQ+ asylum seekers is refused because officials simply do not believe the applicant. According to the University of Sussex, four in 10 people report being rejected because decision makers did not consider them to be persecuted or at risk of persecution in their home country, while more than a third felt interviewers did not listen to their story or ask relevant questions.

In the UK, the story is no less bleak. Around 2,000 people fleeing persecution because of their sexual orientation seek asylum here every year, with only about a quarter of those applications granted by the Home Office. However, when those decisions are challenged, almost half of those who have been refused win their appeals. Those numbers alone suggest that something is very wrong at the Home Office. They speak to what researchers at the University of Sussex have described as a “culture of disbelief” that is a symptom of a wider hostile environment for migrants, refugees and asylum seekers. As ever, it is the most vulnerable who suffer the most. Ministers should put themselves in the shoes of someone running from violence and abuse for their sexuality or gender identity to truly understand what that is like to go through.

Currently, under UK law, to be granted asylum, a person must demonstrate that if they were forced to return to their country of origin, there is a reasonable degree of likelihood they would be persecuted. They are compelled to prove their sexual orientation to Home Office officials who, as I have said, have been told to be intensely suspicious of anything said to them.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

I had a constituent who was from Venezuela. He was told to return. He had married a British person. He was told that he could be more discreet in Venezuela and have no problem, and then return via the marriage route—he had no problem and should not worry. Is there not a problem in the Home Office looking at technical processes rather than at human beings? It expects people to be able to fit into boxes that are just not them.

[Olivia Blake]

I completely agree. I have huge sympathy with my hon. Friend’s constituent. I am sure that story has been told many times before.

Imagine being an LGBTQ+ person who lives in one of those countries where homosexuality is illegal, or where it is punishable by death: you live in a constant fear of being outed. Every day is a struggle to erase any evidence of your identity. If you fail or slip up, or accidentally reveal that you are gay or bisexual or do not feel at home in the gender that society has assigned you, you will face horrific consequences. You finally manage to escape, and after what has probably been a very traumatic journey, you find yourself in an interview room in the UK. What will you say when you sit down with Home Office officials and they ask you to produce evidence of your identity—the same evidence that you have been erasing your entire life? How can you prove anything to them? You might think of contacting a former romantic partner from your country of origin, but what if they are unwilling to provide the evidence, for fear of being outed too? Or, even worse, what if they have already been imprisoned or even killed for their gender identity or sexuality? You cannot even rely on family members, who often do not feel safe enough to write a statement for the Home Office. They may even have disowned you for your identity.

Instead of seeking to right those wrongs and to address this impossible situation, the Nationality and Borders Bill increases the burden of proof for asylum applications. Clause 31 says that instead of a reasonable degree of likelihood, the threshold should be far higher and should be based on the balance of probabilities that a person will face persecution if they return.

What if someone does not even have the language to describe their own sexuality and gender identity? What if they come from a culture that describes them in very different terms? I recently heard from a woman who had been accused of witchcraft in her home country for having relationships with other women. After violence and intimidation, she fled to the UK, where she said to officials that she faced persecution for witchcraft. They simply did not understand. They looked on in confusion and denied her application. Only after living here for some months did she have the words to describe herself as a lesbian.

These are not isolated stories. The people who come here have been brutalised and traumatised. They often cannot immediately find the words to describe what they have been through and why. In many cases, they are explaining those difficult and complex experiences in a language that is not their own and that does not easily translate.

Proposals in this Bill make life for people such as that woman and countless others much harder. Under new measures, people could be forced to produce relevant evidence by a fixed date. If they miss that deadline, the Bill allows for the evidence to be given minimal weight.

Evidence is evidence. A person does not stop being LGBTQ+ over time, nor does the threat to someone’s wellbeing in their country of origin diminish. Any legal pretence that it does will have devastating impacts on the most vulnerable LGBTQ+ people. For them, it is already a challenge to gather evidence. For many, proving their sexual orientation or gender identity is impossible. For some, explaining it is difficult. There are also so many reasons why a person simply would not want to disclose their sexuality or gender identity to people they do not know and do not trust.

The asylum system is not a hospitable place at the moment for someone who is openly LGBTQ+. As we process asylum applications, it is bitterly and cruelly ironic that we often incarcerate people who, in their country of origin, face prison sentences for their identity and sexuality.

LGBTQ+ people already face disproportionate levels of abuse in the asylum centre system. Detaining more people who make asylum claims will only make those statistics worse. The new rules for the so-called group 2 refugees also discourage LGBTQ+ people from telling their stories with their genuine claims for asylum. The UN has already said that the distinction in the Bill between group 1 and group 2 refugees undermines the 1951 refugee convention.

I am worried that giving one group of refugees lesser temporary rights and ratcheting up the uncertainty they face could also force LGBTQ+ refugees to continue to hide their identify, for fear of being returned to their home country. After all, why would anyone disclose their sexuality and gender ID if they knew they could be deported? It could be used to press charges against them once they are sent home and put them at further risk.

I know the Government are aware of some of these issues. Organisations such as Rainbow Migration, a group fighting for LGBTQ+ people in the UK immigration system, have been loudly sounding the alarm. In September 2021, the equality impact assessment for the Bill admitted that it risked indirectly disadvantaging protected groups, including LGBTQ+ people. Six days after the publication of that assessment, I questioned the Minister in Parliament. Back then, he said he was new to his role and had to get up to speed before he could comment in full. Now that he has had time to do his homework, I look forward to hearing what he will do. He told me then that he fully expects the Government to be sympathetic in taking proper account of the issues that I raised.

I would like to reach out to all hon. Members here today. The Nationality and Borders Bill will soon return to the House. When we draft and debate such legislation, we write the future stories of countless thousands fleeing the worst of circumstances. Every pen stroke of every amendment can make a difference to some of the most vulnerable people in the world.

Every day, LGBTQ+ people flee from violence, threats and abuse, but they cannot flee from who they are. As legislators, we can choose. We can either allow those horrific experiences to follow them here, inscribing yet another chapter of trauma into the lives of people who have already suffered enough, or we can turn the page and write something new. I hope that is what every hon. Member here chooses to do as the Bill comes back to the House in the coming weeks.