Legal Recognition of Non-binary Gender Identities

Mike Freer Excerpts

Monday 23rd May 2022 Westminster Hall

[The Minister for Equalities (Mike Freer)]

It is a pleasure to serve under your chairmanship, Sir Roger. I thank my hon. Friend the Member for Don Valley (Nick Fletcher) for introducing the debate.

I want to put on the record that, since I took up the role of Equalities Minister, I have always sought to ensure that the tone is respectful. People have a right to disagree. They have a right to hold views and express them firmly without being cancelled, as hon. Members have said. I also want to put on the record that pursuing someone’s rights does not mean taking someone else’s rights away. It does not have to be one or the other. I am sure that, as we pursue these thorny topics, we can seek agreement and find some common ground.

The United Kingdom is a diverse society with many different cultures, backgrounds, identities and perspectives, and that diversity is a source of strength and enrichment of our culture and a driving force for change and growth. Our United Kingdom is made great by its diversity and its embracing of new cultures, new peoples and—dare I say it?—new ways of looking at people’s sexuality and gender.

That diversity started from simple things—well, they were not simple at the time—from the 1957 Wolfenden report on the decriminalisation of homosexuality, to the full recognition of same-sex marriage across all four nations of the UK.

[Kirsten Oswald]

I meant to mention this earlier, but I wonder whether hon. Members agree that the Church of Scotland’s decision today about equal marriage is very welcome and that we should all applaud it?

[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.

[Kirsten Oswald]

I am grateful to the Minister for being so generous with his time. One of the things that would certainly improve the day-to-day experience of trans people is banning conversion therapy for them as well as for lesbian, gay and bisexual people, and I would be really grateful if he could outline his views on the lack of that provision.

[Mike Freer]

The hon. Lady seeks to tempt me down a particular path, but the only view I have on that is the view of Her Majesty’s Government, which is that the Bill will proceed without the trans inclusion while we do further research on the complexities. All I can say to her is that it is a work in progress, and I cannot be tempted down that path at this stage. However, I have committed to ensuring that some of the day-to-day issues facing LGBT+ people are addressed across Government, and I hope to be able to discuss further details in the coming months.

Members have referred to single-sex spaces, and the hon. Member for Oxford East talked about the guidance that has been issued by the EHRC. Members also took part in what I thought was a very good debate in Westminster Hall a few weeks ago. Those on all sides of the debate agreed that clarity on the law and on the rules around single-sex spaces was to be welcomed, and I think that is a position that we are getting to. It is important that the principle of being able to operate spaces reserved for women and girls is maintained, and I think we all agree that that clarity is important.

Turning to prisons, there have been incidents in the past, but I refer Members to the answer given by the Under-Secretary of State for Justice, my hon. Friend the Member for South Suffolk (James Cartlidge), who made it abundantly clear that the rules were changed three years ago and that there have since been no incidents in prisons. Where a prisoner is placed is not down to what gender the prisoner identifies as; it is down to the offence for which they have been convicted, their physiology, their medication and where they are on the trans journey. All those factors form part of the risk assessment, which is how the Prison Service comes to a conclusion on where place a prisoner. It is simply not true to say that a prisoner can self-identify and place themselves in a prison of their choice.

I want to touch on the issue of trans people in single-sex spaces. For many years, trans people have used single-sex spaces in their gender without issue, and we have no interest in curtailing that. The law strikes the right balance, and we will not be changing it. The newly published guidance does not change the legal position or the law; it simply seeks to provide clarity to providers on the existing legislation, and that will not change.

To touch on the issue of trans adolescents and healthcare, it is important that under-18s are properly supported in line with their age and decision-making capabilities. To be clear, the child and adolescent Gender Identity Development Service does not provide any surgery to those under the age of 18, or permit any treatments that the NHS believes to be irreversible. That is the NHS’s view and the Government’s position. If Members believe that the NHS is prescribing puberty blockers inappropriately, that is a matter for the NHS and Members need to take it up with the Secretary of State for Health and Social Care.

[Miriam Cates]

I fully accept the Minister’s comment that what is being done within the NHS is within current guidelines. However, there is no evidence for the use of puberty blockers in gender treatment. Their evidential base is for other conditions, and while they may stop certain elements of puberty taking place, their effect on those going through puberty—the effects on brain development and bone density—are not known at all. Those drugs are being used without the evidence that is required.

[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.