Legal Recognition of Non-binary Gender Identities

Tim Loughton Excerpts

Monday 23rd May 2022 Westminster Hall

[Tim Loughton (East Worthing and Shoreham) (Con)]

I had wanted to say only a few brief words in this debate, but given that we have a little time, I might add a few more. I start by echoing the words of my hon. Friend the Member for Don Valley (Nick Fletcher), who opened the debate: we absolutely have a duty to be tolerant of those who do not identify with the gender that reflects their biological sex, or who choose to identify as non-binary. I acknowledge that a great many young people suffer from gender dysphoria, and we need to be supportive and give them the help they require.

That does not mean that we have to change the law, and it certainly does not mean that we have to change statute in order to recognise one particular description of how people are choosing to identify. As my hon. Friend said, there are criminal laws in place to deal with transphobic crime and other related hate crime. It is important that those laws are enforced and are seen to be enforced, in a way that is no different from how they are enforced in respect of those who do not identify in that way.

The petition states that recognising non-binary as a valid gender identity

“would aid in the protection of Non-binary individuals against transphobic hate crimes, and would ease Gender Dysphoria experienced by Non-binary people.”

That is quite a bold claim, for which I do not see the evidence. Indeed, being faced with the possibility of identifying not as a male, not as a female, but as non-binary could cause added confusion, certainly to teenagers going through a very formative and impressionable stage of their lives—as if they do not have enough to worry about already.

In so many debates, we hear about the huge pressures on our teenagers, and those of us who are parents have seen those ourselves. Teenagers certainly face far more pressures than when you or even I, Sir Roger, were at school and growing up, going through puberty and everything related to it. They face the mental health impact of the modern world—of social media, of peer pressure, and of the trendy thing to do that goes on in school and, crucially, in the social media world, out of the range of face-to-face challenge.

Those are huge pressures on our young people. What are they to do if faced with the question, “Are you sure you are a girl or a boy?” If we put that into law and say, “Actually, you may not be a girl or a boy; you can opt for non-binary,” whether or not a young person instigates that themselves, the pressure from some people to get their contemporaries to do so could be overwhelming. I take issue with the formula in the petition because I think it could actually make things worse for children who are already potentially questioning their gender identity because of pressures on them.

Not acknowledging that the law needs to be changed in order to protect such individuals should not be seen as in some way anti-transgender or anti people who want to identify themselves as different from the sex with which they were born. I share the concerns of my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates) about the disproportionate number of young people, in particular, who are looking to identify as transgender or non-binary and are ending up in gender clinics. She said there has been a 15-fold increase in recent years. Why is there this big increase? We need more evidence and research on exactly what is driving it in certain parts of the country and certain parts of the world.

I gather that it is heretical to claim that a person cannot change their birth sex, but to me, it is not terribly traditional to have been brought up with biology lessons that say that sex is not immutable. I fully acknowledge that people can choose to change their gender and want to be identified as something else. They cannot reverse history and change their birth sex. They can only choose to change their gender or the way they are recognised now; they cannot go back in time.

We must also look at the impact on the rest of the population. It is absolutely right that we protect a minority of people who need protections, but it is not right that we do it with no regard whatsoever to the vast majority of the population who do identify as men and women—in particular, women; the impact on women’s space is absolutely worrying. We have heard examples relating to gender-neutral toilets and changing rooms, the situation in prisons, and so on.

[Kirsten Oswald]

I am delighted that the hon. Gentleman has given way. Is he able to go into some more detail about his concerns regarding prisons? I have heard the Minister on numerous occasions clarify the arrangements for ensuring that everyone ought to be safe on the prison estate.

[Tim Loughton]

Indeed, everybody should be safe in prisons. I have raised this matter with the Prisons Minister in the past. There are statistics, I am afraid, that show that there have been sexual assaults committed in prison by somebody whose gender is different from their biological sex. I appreciate that the Government are doing more to ensure that that cannot happen in the future, but I am afraid there are cases where that has happened. That is why women, in particular, feel threatened. [Interruption.] The hon. Lady may well not feel threatened, but a lot of my constituents have come to me, having seen this evolving argument, to say that there are places where they no longer feel safe. We have a duty of care to those people; we must ensure their safety and wellbeing too.

Frankly, anybody who has the audacity to question any of these things, as I just have, is faced with the cancel culture, which is so utterly damaging and absolutely does not help the population as a whole. It certainly does not help women, and it does not help the gay and lesbian population, who feel greatly restricted by much of this. This argument and the terminology in the petition are, I am afraid, about the creeping blurring of language and a conflation of and around sex and gender. That threatens to erase the recognition of males and females—of men and women.

As I said, I am particularly concerned about the impact on children. I have been in Parliament for quite a while—not quite as long as you, Sir Roger—and in that time most things have become more restricted for children; for more things, we have seen the age of access raised to 18. A person under 18 can no longer go into a suntanning parlour to get a suntan, and they can no longer have a tattoo. We quite rightly restrict cosmetic procedures for children unless medically required. We know the pressures on young girls to get breast-enlargement surgery to be with the programme, and all the social media pressures about men and having cosmetic surgery.

Against that trend of recognising that children are children—when they are adults, they can do what they like, within reason, if it does not harm anybody else, but children need our protection, and that that is why the laws are there—it seems extraordinary that we have seen a huge increase in access to puberty blockers through gender clinics. As my hon. Friend the Member for Penistone and Stocksbridge quite rightly said, puberty blockers have life-changing impacts on children—far more than a tattoo, a temporary suntan or even a breast-enlargement operation would have. Yet if someone challenges that—if someone questions whether those children are capable of thinking through the consequences and are cognisant of the implications for the rest of their lives of making that decision, with or without the involvement of parental responsibility—they are subject to cancel culture. There is a huge contradiction in those two scenarios.

Let me end with some examples from Parliament. Whether we like it or not, what we do here is seen outside, and it is seen as setting an example. Sometimes it is a bad example, but certainly what we do and say in this place has influences. Members may have seen the reports of the debates on the Ministerial and other Maternity Allowances Bill in the House of Lords, where there were attempts to erase the term “woman” from the Bill. I am glad that my hon. Friend Baroness Noakes led the resistance to that. She said:

“I am not prepared to be erased as a woman”.—[Official Report, House of Lords, 22 February 2021; Vol. 810, c. 640.]

Effectively, that is what was happening there. The language that we use in this place is important.

I mentioned the creeping blurring of language. You may recall, Sir Roger, that three years ago I was successful in my private Member’s Bill, which is now the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. It enabled opposite-sex couples to have a civil partnership, it enabled the mothers of married couples to have their names on marriage certificates, and it brought in various requirements for stillbirths. Unbeknown to me, and only pointed out some time after the legislation went through both Houses, section 3 refers to persons who are pregnant—not “women”, but “persons” who are pregnant.

If I had known that that had been inserted—I did not write those words; they were written by civil servants in one of the Departments—I would have insisted that the language be changed. Indeed, at the first opportunity—perhaps in the conversion therapy legislation that is coming through—I will be proposing an amendment to my own Act to ensure that we refer to women, because it is only women who can get pregnant. This is happening all the time, and the insidious changing and blurring of our language is so important.

Another thing has just come to my attention. If we are looking for a fellow Member on the Houses of Parliament search engine—or if one of our constituents is doing so—and we are not sure where they come from or what subject we are looking for but want to search by sex, we now have four options. We can say that they are “male”, “female”, “any” or “non-binary”. That is on the search engine of this House, yet, as we have heard, the term “non-binary” does not have any status in legislation. Indeed, that is what the petition is all about.

We are setting the trend by acknowledging the existence of a formal term “non-binary” in searching for Members of Parliament. I am not aware that any Member of the Lords or Commons has, in any case, identified as non-binary. That is what I am worried about. Words matter. Although this petition—

[Kirsten Oswald]

Will the hon. Member give way?

[Tim Loughton]

I should hand over to the Front Benchers, or we will run out of time. I have been generous to the hon. Lady.

Words matter, and if we do not set a good example in this place—if we allow the blurring of terms and language to go unchallenged and unnoticed—then we should not be surprised when we see the consequences, some of which my hon. Friends the Members for Penistone and Stocksbridge and for Don Valley have alluded to.

Finally, the noble Lord Winston, who has written extensively—he is a man of huge expertise, knowledge and respect for his scientific and medical background—talks about badly damaged children who have been subjected to puberty blocking and other treatments at gender clinics. We have a duty to young people and to our constituents to ensure that words matter, that protections matter and that respect matters. That is why, despite the best intentions that I am sure the petition has, I think that it would have great implications were it to be adopted by the Government, and I urge the Minister to desist from doing so.

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[Kirsten Oswald]

I think that all children should be surrounded with safeguarding and support—I suspect that that is something the hon. Member and I can agree on—but to conflate autism diagnosis and people who are non-binary is a mistake and unhelpful in the bigger picture.

I also did not agree with the assertion of the hon. Member for East Worthington and Shoreham—

[Tim Loughton]

Worthing.

[Kirsten Oswald]

The hon. Member for East Worthing and Shoreham (Tim Loughton)—I beg his pardon. I am glad he corrected me—I cannot read my own writing—but I did not agree with his assertion that there is some kind of issue with something like “non-binary” appearing on a drop-down menu. That should not be an issue for any of us. That costs us absolutely nothing, and it makes people feel more comfortable.

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[Mike Freer]

All converts to equal marriage should be welcomed. My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and I sparred over the debate on equal marriage. Now I am delighted to see that we agree not only on equal marriage but on civil partnerships for opposite-sex couples. It is amazing how things sometimes come full circle.

[Tim Loughton]

The Minister is indeed right, but we sparred not over equal marriage but over the same-sex marriage Bill, which had many deficiencies. I have never had a problem with the principle of same-sex marriage, and I was very happy to be one of the sponsors of the extension of the measure to Northern Ireland, as has just happened, late in the day though it may be.

[Mike Freer]

I stand corrected.

The Government have no plans to change the Gender Recognition Act, and nor do we have an appetite to change the Equality Act 2010. The provisions in those Acts will remain.

The journey of LGBT equality has been debated with rigour, and those debates have not always been respectful. We need to ensure that people feel that they have the right to disagree and to debate those points forcefully where necessary. We sometimes feel that change can be too slow. Those who want more change are always hungrier for speed, while those who are less sure of the change often take some convincing or seek to stop the change. I understand that, and that is where we are today.

Non-binary people are an emerging focus of LGBT equality. Although to many people non-binary identities are familiar and understood, to others they are much newer and raise questions that challenge the traditional notions of gender. Interestingly, throughout history there have always been individuals across many cultures with different experiences and identities, many going back thousands of years. Some of the identities we are debating today have been with us for thousands of years; they are not a new phenomenon driven by TikTok. Some of them go back 2,000 years or more.

Today, as in the past, people who identify under the non-binary umbrella are as diverse as any other group. They are of all ethnicities, sexualities, backgrounds and ages; their experiences will be unique; and the obstacles they encounter will be unique. What is true of one person’s experiences of living as a non-binary individual may not be true of another person’s, and it is those experiences, this information and that data that the Government are committed to examining and monitoring.

Members have called for more data and research, and that is exactly the Government’s position, because we must understand how everyday life for non-binary people is impacted by their identities and explore any obstacles they face that may require addressing in law, which is exactly what the hon. Member for Oxford East (Anneliese Dodds) supports. We need more data, because it simply is not there in sufficient quality—as I have said, that information is lacking at present. Officials in the equality hub have conducted an analysis of existing data and research on non-binary identities, and have found that it is not of sufficient quality to allow us to draw conclusions, so the Government will continue to monitor research into the experiences of non-binary people, seeking to better understand their lived experience.

I turn to the LGBT plan, to which Members have referred. The Government remain committed to improving outcomes for LGBT people at home and abroad, and we continue to explore opportunities in the areas of health, education and safety specifically. I am working across Government with ministerial colleagues to develop tangible commitments that will improve the day-to-day lives of LGBT+ people in the UK.

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[Mike Freer]

That may well be true, but I urge my hon. Friend to take it up with the Secretary of State. This is a matter for the NHS; it is not a matter for me, and at the moment the NHS is of the view that puberty blockers are reversible.

I also put on record that the interim report that Dr Hilary Cass has published is absolutely clear. Members have referred to the incidence of other factors that may cause gender distress, such as neurodiversity. Dr Cass is absolutely clear that it is the clinician’s duty and role—a protected right—to ensure that they explore all possible causes of gender distress. She will be issuing firmer guidance to ensure that clinicians, as well as their clients and wider society, understand that it is the role of the clinician to explore all possible reasons for gender distress. That clarity will be welcomed not only by the patient, but by parents, teachers, clinicians themselves and wider society.

[Tim Loughton]

The Minister is making an interesting argument. He has quite rightly said that permitting puberty blockers is a decision to be made by the NHS. The capacity of minors is a decision for the Government, so does the Minister think that a 12-year-old has the capacity to opt into puberty blockers without the need for parental consent?

[Mike Freer]

Again, I am going to have to stray into areas for which I do not necessarily have the detail, because the clinical operation of clinics is obviously a matter for the NHS. My understanding is that under-18s cannot make those kinds of decisions, but I am looking for guidance from officials in case I get this wrong. It is probably safest for my hon. Friend to let me write to him with specific details of the clinical guidance on how under-18s are supported, but my understanding is that under-18s are not permitted to make irreversible decisions. Let me write to him regarding the exact line for decision-making capacity with parental involvement, so that I can get it absolutely right for him.

[Tim Loughton]

I am grateful, but I want to make sure that the Minister is writing to me on the right question, because he has just referred back to an opinion as to whether or not puberty blockers are reversible. I want an assurance from him, because I think I know the answer to my question, and I think he is inclined to give me a different answer. My view is that no child under the age of 18 should be able to opt into a puberty blocker form of treatment that is not required for medical or clinical reasons without parental consent, unless there is a question mark over the capacity of that parental consent. This is about whether a 12-year-old has capacity to take what many of us would regard as life-transforming decisions without any reference to their parents, who retain parental responsibility if that child does something wrong, at least until the age of 18.

[Mike Freer]

I am not trying to give my hon. Friend a different answer; I am trying not to give him the wrong answer, so what I will do is this. I think the officials have a very clear understanding of the question, and we will write with the details, to ensure that that very specific question is answered.

My hon. Friend the Member for Don Valley raised the issue of participation in sports by trans and non-binary individuals. The Government are clear that we support the independence of sports governing bodies to define their own rules on transgender inclusion. It is entirely appropriate that they can determine the right position for their own sport. Gender has no impact at all in some sports, even at elite level; and for those where it does make a difference, the devil is always in the detail. Sports governing bodies are best placed to navigate that. We may have an opinion, but the Government’s view is that sports bodies are best placed to use all the available evidence to come up with their own policies on how to deal with trans sportspeople.

The Equality Act has permitted restrictions on the participation of transgender people in gender-affected sporting competitions in order to uphold fair and safe competition. That has been in place since 2010. Again, the Government have no intention of amending that provision.

In September 2021, the Sports Councils’ Equality Group published the “Guidance for Transgender Inclusion in Domestic Sport”. The sports councils are currently working with a small number of sports to pilot some practical ways of using that guidance. Obviously, Members who wish to engage with that are advised to contact the relevant sports councils so that they can understand what is being reviewed and their views can be expressed and taken into account. The Government believe that time should be given to sports to consider that new guidance.

I would like to draw attention to the changing atmosphere for LGBT people in sports. Sport has traditionally proven to be a more challenging environment for some than for others to make themselves feel comfortable and safe to participate—that is not the same issue as where trans people are placed in sports. But it has begun to change in recent years. Only last week we witnessed the first male professional footballer in a UK club coming out as gay in more than 30 years. Jake Daniels, who is only 17 years old, has shown courage, maturity and authenticity in coming out publicly. I hope that his coming out will encourage a more inclusive sport, because I cannot believe for one minute that he is the only gay footballer in the professional sport. Certainly he has also been very honest in assessing the impact that it is likely to have on not just his career, but how he is reacted to by the fans. But he is now able at least to live his life the way he chooses, on his own terms. I genuinely wish him the very best and I hope that more follow his stance.

I want to finish on an international point. The UK is and will always be committed to being a global leader in LGBT+ rights. We are by no means perfect and we have work to do, but our role as co-chairs of the Equal Rights Coalition and—until this month—the European Governmental LGBTI Focal Points Network is very important to us. Working with colleagues such as Lord Herbert, who is an envoy specifically on global matters, we will continue to address many of the issues that are facing us overseas, because many countries are further behind. Some of that involves providing support, and some of it involves providing financial support, to ensure that non-governmental organisations are able to challenge discrimination. Although we took the difficult decision to cancel the “Safe To Be Me” conference, I am grateful to all the stakeholders for their work to get the conference almost in place.

I want to ensure that at home we continue to build a consensus on the legal recognition of non-binary individuals, because that has not yet emerged. We may not reach that consensus, and the Government may decide that they do not want to go down that route, but we need sufficient data, research and analysis to start to make decisions on where we go with this issue, based on the evidence. These issues are always thorny and never easy. All I can say is that the Government are willing to listen, talk and engage with many individuals so that their points of view are fully reflected in our policy development.