Oral evidence: Transgender Equality Inquiry, HC 390Wednesday 28 October 2015
Oral evidence, 28 October 2015.
Witnesses
Rt Hon Nicky Morgan MP, Secretary of State for Education and Minister for Women and Equalities, Nick Boles MP, Minister of State for Skills, Department for Business, Innovation and Skills and Department for Education, and Caroline Dinenage MP, Parliamentary Under-Secretary of State for Women, Equalities and Family Justice, Ministry of Justice and Department for Education, gave evidence.
Chair
Thank you very much for joining the Committee today and for taking the time out of what I know are very hectic diaries to come and give evidence to us as part of our trans inquiry. We are most grateful for that. For the record, could you just give your names and your positions, please?
Nicky Morgan
Right Hon. Nicky Morgan MP, Minister for Women and Equalities and Secretary of State for Education.
Caroline Dinenage
I am Caroline Dinenage MP and I am Minister for Family Justice in the Ministry of Justice and also Minister for Women and Equalities.
Chair
Minister Morgan, I think you wanted to make an opening statement, which the Committee would be very interested to hear.
Nicky Morgan
Thank you very much, madam Chairman. I am really delighted to be here today along with Caroline and Nick, who is going to join us. I know that you have already heard, because I have been sitting here for the past hour, fascinating evidence from Karen Bradley, Jane Ellison and the gentleman from NHS England. It is a pleasure to be here giving evidence in the first inquiry of the Women and Equalities Select Committee. I think you are going to shine a light on some issues that have been sometimes neglected and we are starting with one of those now. It is very timely that we are all talking about transgender equality because it has powerfully entered public debate in the last few years. There was even news about it in today’s broadcasts. More transgendered people are talking about their experiences and speaking out about discrimination, yet I am also aware that public policy and society more widely has been notably quiet on transgender equality. We have as a country come a long way in terms of lesbian, gay and bisexual equality, but we have further to go. We need now the same national determination to see equality for transgender people. We also ought to celebrate the fact that this is the most diverse Parliament; we have the most openly gay parliamentarians ever and, again, that is something to be celebrated. As Minister for Women and Equalities, I am directly responsible for the Government Equalities Office, which has a vital role in bringing the voice of transgender people to Government policymaking and leading on key equalities legislation. You have already touched on some of those issues in the previous session. I am delighted to say that earlier this year the UK was for the fifth year in a row recognised as the leading country in Europe for LGB and T equality by ILGA-Europe’s annual rainbow map, but that does not mean we can allow ourselves to become complacent. I know that you have already heard much evidence about the challenges transgender people often face and I also know that engaging with the trans community is vital to improving our understanding of inequality. That is why a central role of the Government Equalities Office is to meet stakeholders and support organisations such as the Parliamentary Forum on Gender Identity, LGBT Consortium and Transgender Organisations Network regularly. I will not go into the specifics that GEO engaged in because we will come across that in evidence. I know also that you have already heard from other Departments, but is right to reflect that a range of Whitehall Departments, from some of which you have Ministers before you today, are involved in delivering specific policies for transgender people. Part of our role in the Government Equalities Office is to co‑ordinate that work across Government, to champion an overarching vision for transgender equality, but to leave some issues rightly with Departments, where they will best be tackled. There is much more that we should and must do to improve life for transgender people. I am currently finalising my transgender equality priorities for this Parliament and the report from this Committee will be of huge value in doing that. Trans people have a higher profile than ever before and your inquiry is contributing to greater public awareness of the issues they face and we all look forward to seeing your report.
Chair
Thank you very much, Minister. It is a very helpful outline of the work that you are doing. A number of us are going to ask questions. I was going to kick off the questioning session with something very general. It is something that was said by one of the people who came to give us evidence. In 2011, the previous Government published a transgender action plan and it was descried by Christie, who came to give us evidence, as “all plan and no action”. Do you think that is a fair description?
Nicky Morgan
I do not think it is a fair description. There were 103 action plans set out in the two plans. 60 have been completed, 31 are ongoing—and many of them were meant to be ongoing—and 12 have either not been taken forward or action is not underway on them. Some of the major achievements include reforming Ofsted’s schools inspections. Perhaps we will come on to talk about education to tackle prejudice‑based bullying and homophobic and transphobic bullying as well. We issued a new hate crime manual for all police officers. Sport England issued guidance on supporting trans people in sport. There was the Marriage (Same Sex Couples) Act. There was also external production of guidance for employers and service providers, which has been funded and drafted and is shortly to be published. There are some things that have not yet been done. To be honest with you, as we heard in the previous session, these are issues that have not been widely discussed in society or in this place. I think it is fair to say that, just because there is an action plan, that does not mean there is change or cultural change or necessarily a dialogue. That is what we would very much like to see happening in this Parliament.
Chair
What do you see your role as in creating that momentum for a dialogue to start?
Nicky Morgan
Genuinely I think we all welcome the fact that the Committee has started off looking at this. That has given a huge profile already to some of these issues. I see my role as Minister for Women and Equalities as twofold. First, it is very much to come up with the priorities for the Government Equalities Office for this Parliament. I have already said, shortly after the election when I was reappointed, that issues for transgender people would be a part of that. I am going to use the phrase “transgender”, but I take that the point that Ben has already raised earlier today that there is a wide variety of non‑binary—all sorts of things. I also apologise in advance if I get something wrong, which I will probably inevitably do. Hopefully it shows that we are all willing to listen and to learn. Partly it is about having the priorities. It is also about holding other Government Departments’ feet to the fire. You have already heard in the previous evidence session that Health has a huge part to play here, as does the Home Office in terms of hate crime and passports. Clearly the Ministry of Justice does, because they are responsible for gender recognition. Nick Boles is going to talk about workplace issues. There are other Departments as well: the Foreign Office and the Ministry of Defence. Again, it is about making sure that the Government Equalities Office’s expertise and that of those from outside is available to help other Government Departments develop the right policies.
Chair
Before I bring other colleagues in, you have just put your finger on it there, have you not? Six Ministers will be giving evidence to this Committee over today and next week. We have a lot of Ministers involved here. Is there a lack of progress in this area because of a lack of accountability?
Nicky Morgan
With the introduction of the Committee, that is one of the ways in which Ministers are held accountable to Parliament. It is very interesting that we have had women and equalities oral questions certainly since I have been here—they may very well have been in the previous Parliaments as well—but issues around transgender do not come up very much in those questions. That is often a sense of what Parliament is discussing and looking at, and that is another way in which Members of this House, often acting on behalf of constituents, can hold Ministers to account.
Mrs Flick Drummond
You have touched on this already. Looking at the Equality Act 2010, Section 7 is already outdated, unclear and misleading. It refers to “gender reassignment” and “transsexual persons”. Should this be replaced with just gender identity as protected characteristics, particularly as we have mentioned non‑binary people who might not want to go through the whole procedure to change but would like to be seen as whatever they want to be?
Nicky Morgan
I understand there is a debate and I am sure the Committee has heard evidence on the interpretation of that section, both on what “gender reassignment” means in the context of that Act but also on whether others are protected under the Act because of the perceptions wording that is in the Equality Act too. The Act is only five years old and, as you captured, the world moves on very swiftly. I would want to take time to understand, to hear the Committee’s recommendations and to identify any gaps, if it is agreed that there are any, before opening up the whole Act again. The issues of non‑binary certainly, as I understand it, were discussed when the Act was debated in both Houses of Parliament and Parliament decided to go with the wording that was put forward by the then Government. I also understand that some of that relates to the Equal Treatment Directive and its implementation. What is in the Act does reflect that, but, again, life clearly does move on apace.
Mrs Flick Drummond
The Ministry of Justice stated in its response to Ashley Reed’s petition on gender self‑definition that the Government are “not aware” that being non‑binary “results in any specific detriment”. Do you know on what evidence that statement is based?
Nicky Morgan
Caroline probably will want to come in, because the Gender Recognition Act falls particularly within MoJ.
Caroline Dinenage
Yes. This was probably a very regrettable example of MoJ officials trying to answer a petition factually and swiftly without really being necessarily as aware of things like understanding and tone as they should be. What they said was that they felt that there was no specific detriment experienced by people who identify as non‑binary. What they meant to say was that there is no specific detriment experienced by people who identify as non‑binary that is not already covered by existing legislation, in the sense that we have very extensive legislation in the Equality Act and other legislation to cover things like any form of discrimination on the basis of sexual orientation because somebody is proposing to undergo or is undergoing or has undergone a process or part of a process for the purposes of reassigning their sex. People are also protected if they are incorrectly perceived to have one of the Act’s protected characteristics, even if they do not. For example, someone would be protected if they experienced discrimination because people incorrectly perceived them to be undergoing gender reassignment when they were not, or people incorrectly perceived them to be male or female when they were not. People are protected if there is any discrimination on the grounds that they do not comply with what society seems to think that men or women should be. They may also be protected by other forms of laws, such as employment legislation and hate crime and human rights laws. Factually, the answer was technically correct but did not show the understanding of the fact that people who are anywhere in the trans community may indeed at any one time experience all manner of obstacles and challenges that society may throw at them.
Angela Crawley
Do you think it is fair to say that, despite the aims and ambitions of the Equality Act, in many ways the protected areas within the Equality Act perhaps are not disseminated to the community, in the sense that people do not know how to use the Equality Act for the purpose for which it perhaps exists? That is a common theme from some of the expert witnesses that we have heard.
Nicky Morgan
That is probably fair. We issue guidance across Government to several different organisations. Putting my Education hat on, schools are issued with guidance about how to follow the Equality Act. As you all know, just because you have guidance or because a law has been passed, that does not necessarily change what is happening on the ground or make people really think about how exactly, as Caroline says, you can be right technically, but, in terms of your attitudes and the conversations that you have, it takes more than that. I know there are also debates about the exceptions under the Equality Act and whether they are right and we might come on to that. We have talked about hate crime; you gave a terrible example earlier of the hate crime somebody had suffered. By and large I do not think people mean to get it wrong when I go into schools or businesses or other areas, but sometimes they might not realise what the legislative framework is they should be aware of.
Caroline Dinenage
I agree with Nicky and just add that I also think that people in the trans community may not necessarily be aware of the protections that are afforded to them, which are quite diverse and quite complicated in some ways.
Ben Howlett
Excuse me for my unparliamentary language here—do not take offence—but when we have been listening to some of the evidence it has been quite clear that from the Equality Act in 2010 if someone hurled abuse at you, “You are a tranny”, that would be categorised as against the legislation, but if they hurled abuse saying “freak” or “queer”, that would not be. It is quite clear that the response that came through from the Ministry of Justice really did not understand that. I appreciate what you have just said there, but it is right that the Equality Act is not fit for purpose based on a 21st century model and how things have changed. It really needs to continually evolve with the different ways that different members of the LGBTQ community are being discriminated against. I just wondered what your thoughts were on that.
Caroline Dinenage
Yes, completely. As Nicky said earlier, we have come such a long way in the last five years in terms of understanding, but we still have such a long way to go in terms of how we best protect people and best facilitate people to be able to live their lives without having to endure this really unreasonable and, frankly, appalling behaviour. The law by definition needs to evolve in order to reflect the society in which people live.
Chair
I am keen to get to the end of these questions by the time the bell rings at four, because we have a vote at four.
Jess Phillips
This is specifically to Caroline, because I asked this question about conviction rates earlier and you are from the Ministry of Justice, so it is your Department. Could tell me whether you think the Ministry of Justice is enabling conviction of hate crime, and specifically trans hate crime, to keep pace with the rate of reporting? Also, I just wonder, Caroline, if you could outline for us exactly what the Ministry of Justice is doing to move this on.
Caroline Dinenage
With regard to hate crime, there was a Law Commission report that looked at how we classify hate crime in the trans community and made certain recommendations. That is being looked at by the Ministry of Justice in partnership with the fact that we have this hate crime strategy that is going across Government. The MoJ wants to do that in partnership with those reforms. At the same time, it is very early days. What was the other bit of your question?
Jess Phillips
I suppose that answers what the MOJ is doing. Do you think that the Ministry of Justice is doing its bit in hate crime and is conviction keeping pace with reporting? The Home Office very much laid out to us that they were doing stuff and reporting was going up, so they must be doing something. Do you think that the Ministry of Justice is doing the same levels and that would then come out in conviction at court?
Caroline Dinenage
The role of the Ministry of Justice is to ensure that the legislation is in place for people to be able to bring prosecutions where the law has been broken and where people have been treated in an inappropriate way. In answer to the question about conviction rates, we know that the number of reported cases has gone up and in many cases that is a good thing, but potentially that could be seen as a bad thing as well, because it shows more people are victims. The conviction rate for hate crimes across the board at the moment is 84.7%, but at the moment we do not have that broken down into hate crimes that are directed at people from the trans community.
Jess Phillips
84.7% of people who come forward with a hate crime will receive a conviction in court.
Caroline Dinenage
The figure I have written on my bit of paper in front of me is that the conviction rate for hate crimes that are taken to court is 84.7%.
Jess Phillips
I am almost certain that that does not mean 84.7% of the people who go forward with a hate crime will end up—
Chair
Maybe we can ask the Minister to write to us about that.
Caroline Dinenage
That might be people who go through the court process, but I am more than happy to write to you to elaborate on that.
Ruth Cadbury
My questions are for both your hats. First, in the light of the review you have just mentioned, is the MOJ reviewing the Crime and Disorder Act and the Public Order Act so that aggravated offences exist for transphobic crime and also stirring up hatred? Are they being considered? Secondly, in terms of the questions we were asking earlier about the Equality Act, wearing your Government Equalities Office hat, when will you be reviewing the Equality Act to address the omissions around transgender issues?
Caroline Dinenage
With regard to hate crime, as I said, there is a cross‑Government hate crime action plan that is being taken forward at the moment and so a lot of changes in legislation would be considered as part of that. Also, the Ministry of Justice is really keen to hear the input of this Committee and this inquiry to see where you feel changes might be considered. We already have one of the strongest legal frameworks to combat hate crime, but the Government should never rest on their laurels and never think that they cannot improve the situation.
Nicky Morgan
On the Equality Act—I was just looking at it—first, it is one of the world’s strongest legislative frameworks to protect and prevent discrimination, harassment and victimisation on the grounds of nine protected characteristics, including gender reassignment and sex. One of the reasons for having this discussion is to identify the gaps in policy. Exactly as we heard earlier, life moves on. One of the issues for Government is that if there were to be a review or a change, there are lots of other people who also think that there are grounds for protection. I do not think it would be a simple and straightforward review. The Sex Discrimination Act 1975 was either repealed or replaced by the Equality Act 2010. That is quite a gap. The other thing is that the Equality Act introduced the public sector equality duty and in the last Parliament the Government agreed to review that in 2016 and so that has been ongoing.
Mrs Drummond
The Act allows trans people to be excluded from single-sex services in some situations. How certain are you that those provisions are used proportionately, appropriately and fairly?
Nicky Morgan
I suspect overall they probably are. I am not sure that we have necessarily evidence. There are certainly examples. I have some here: group counselling sessions for female victims of sexual assault; public changing rooms; bathing facilities and toilets, which I know is a huge area; and certain procedures in hospitals where it would be appropriate to have single and separate sex services. We should be very clear this is not a green light for discrimination. There is a line between discrimination and legitimately offering single-sex services. We are aware of only one case, which relates to a pub in Halifax, which was heard at Halifax Crown Court last year. That was in relation to the gender reassignment exception. That is the first case that we are aware of. Again, I would be very interested to see the evidence—I have heard some of the evidence that has been given to the Committee—and hear the Committee’s recommendations on that.
Ben Howlett
On that particular point, you mentioned one case. Based on the fact there is only one case—I am sure there should be many more cases out there—do you think it is easy enough for someone who is a member of the trans community to be able to uphold an issue of discrimination using the legislation?
Nicky Morgan
The Act was only introduced in 2010. With my former legal hat on, taking things to court can take a while. You also have to have somebody who is willing to step forward and to identify and go through the publicity associated with bringing a case. I suspect that acts as a bit of a barrier. Whether there are organisations that are preparing test cases we are not aware of, but you are right. The broader point in all this is we can have all the legislation we want, but this is about changing things on the ground. In that particular case, it was about the use of a ladies’ toilet in a pub. Would it not be better if we had just avoided the case in the first place and had somebody who was running a public service who had thought more about what they would do when they were asked if somebody who was transgender could use that particular toilet? This goes back to the point about education and dialogue and discussion and understanding, which is where I hope we are beginning to get to.
Chair
Before we break, can I just ask a very general question of the Secretary of State? Do you think that Government policy should allow people to determine their own gender?
Nicky Morgan
Do you mean as they have done in Ireland, with the self‑declaration? We are very interested to see how that develops. It is a big step. It is a different way of doing things. It reflects, perhaps, the point we were discussing earlier about where we have got to in the last few years, and the point you were exploring earlier on about passports. It happens as well in school exams. When and why do we need to know about people’s genders? That is a big debate to be had. Thinking about exam certificates and exam entrance, in one way, what does it matter what someone’s sex is? It is their paper, it gets marked and they get a grade. On the other hand, I would like to know which subjects girls are not doing and boys are not doing and which ones they are not doing well in. For research purposes and knowledge, I would like that information. That is just one tiny area of public debate on this, which is a big issue, but, again, I absolutely welcome the evidence given to the Committee and we will read the recommendations with huge interest.
Chair
I sense sympathy to a position the Committee feels a little strongly about, which is that people should be able to determine something like this, which is so personal, themselves.
Nicky Morgan
It is very personal. Jane used the words earlier that the NHS is “on a journey”. I have found this. Even my office, in preparing all this, has learnt a huge amount. I certainly have in reading all the papers for this hearing today. There are some debates and discussions to be had, but they are big steps. Caroline is absolutely right about societal changes. Sometimes in this place we have to think about whether we run ahead of society or whether we are reflecting society as it is and the debates that people are having. I cannot give you a definite answer, madam Chairman, because, to be honest with you, I would not say I am through my thinking on all of this, but I am absolutely open for a personal debate and discussion on it.
Angela Crawley
I simply want to probe the point you made about marking or deciding on how people advance in academia based on girls and boys. I appreciate why you might want to use gender as a marker. You have spoken at great length about this. If we were to remove the emphasis on male or female within the school setting, perhaps we could seek to address some of the concerns that we have just explored over the course of this Committee. While I appreciate your point, perhaps the Government’s emphasis on marking male or female is creating more of an issue than it is resolving.
Nicky Morgan
I think I have explained to the Committee why, on the one hand, I can understand why it should not matter what sex somebody is or whether they are not identifying with any sex when they are taking an exam. They are there, they are being tested and then they get the mark. As I say, for other purposes I am interested to know what boys and girls are doing and how they are doing. There may be other ways of finding out that information—other ways of declaring and gathering the information for research purposes.
Chair
I am now humbly apologising to Jo, because I have started to tread on your toes again with your next series of questions. I apologise. Shall we cautiously go on to the next set of questions, knowing that the Minister is on her feet and we are probably going to hear the bell ring very shortly?
Ben Howlett
I was just going to come on to one question on the back of what has just been said. Can I just get a general summation in relation to the Equality Act and the position of the Government? You do see that there is a need to update and add in things like non‑binary as a protected characteristic and you are open to our suggestions of what other protected characteristics need to be added in to the mix there.
Nicky Morgan
I am absolutely open to suggestions. As I say, it would not be a straightforward review because, being open to one set of recommendations, I can see this opening up another whole area of debate and discussion. I do not know how long the Equality Act 2010 was in gestation, but I suspect it was for some time, so I do not think this is going to be a quick process, but I understand that life and society move on.
Jo Churchill
Taking that point, if we are looking at that one, how about looking at the Gender Recognition Act 2004 as well? There is some argument that that needs revision. It has been criticised as longwinded and a bit bureaucratic, because the fees are excessive with regard to the certificate, and for the requirements of medical diagnosis, the two‑year rule and there being no provision for non‑binary in it. We have just alluded to the change in Ireland and also Denmark and Malta. Their legislation is slightly further ahead. Could we use that to guide us as we go forward? Just recently, Ashley Reed wrote to the Ministry of Justice and got a reply, but the reply did not really indicate that there was going to be any change. Specifically to Caroline, the process of applying for a gender recognition certificate has been described as protracted, bureaucratic, costly and humiliating. Do you agree?
Caroline Dinenage
I am going to unpick this. We have to start from the basis where we understand that the Gender Recognition Act, which went through draft form in 2004 and was introduced in 2005, was internationally ahead of the game. We were quite ground‑breaking internationally in introducing this form of legislation. Because of that, we had very little international basis for comparison when drawing this up. I have listened with enormous interest to quite a lot of the evidence sessions this Committee has taken and have really taken on board quite a lot of that evidence, because it is fascinating and invaluable for the Ministry of Justice. I know that there are concerns around the two‑year waiting time. I know that there are concerns around the medical nature of the evidence that needs to be produced to the panel. For very good reasons, these things were introduced at the beginning, because there was very little understanding of the transition process and what people needed. We have to recognise that for everybody it is a journey. It is a journey for those who are going through their transition, but it is a journey for Government and it is a journey for the Ministry of Justice. For everybody, that journey will be different. Some people will not really need a great deal of time to know exactly what they are doing, but other people may feel that they do need that time to adjust, to live their acquired gender and to make sure that they have some form of medical support, whether that is counselling or other types of medical intervention people feel that they want. These were seen as appropriate balances given the knowledge at the time. Since then, we have seen other countries around the world—most recently Ireland—come up with legislation that differs from ours, in the sense that people can self‑refer, people do not have to wait two years and there are also discussions around ages. These are all really important experiences for us to learn from, to see how that works in countries like Ireland, Malta and Argentina, where you have already identified that it is different. We are very much on a journey as well and trying to learn from the best practice around the world, from those who did not start off with this legislation as early as we did but have now done things slightly differently based on the learned information they now have and based on the fact that in the last five years we have moved on such a long way in understanding trans issues. I would just say that the cost has never gone up since this was introduced 10 years ago. It is still £140 and there are remissions available for those who are unable to fund that. Effectively, people are applying for documentation and there is always a fee related to Government documentation, be that a passport or another birth certificate or whatever. I take on board that feedback, but the price has not gone up in the last 10 years.
Chair
I will bring in colleagues as well if they want to add anything else, but I listened very carefully to what you were saying and I am very pleased to hear an openness to review whether it is the legislation or processes or, with your colleagues beforehand, around the NHS. But I go back to the quote that we had from Dr John Dean, reported in the press today that “Not treating people”—talking about medical issues—“is not a neutral act. It will do harm.” Do you not agree that inaction in your area, whether it is legislative or in any other area, is not neutral? It does harm, because we have a situation where one in three trans people have reported attempting suicide at least once as an adult. Getting this right really matters and I sense a little complacency. I hope I am wrong.
Nicky Morgan
You are completely wrong, madam Chairman, if I might be so bold. I do not disagree with the comment. You cannot be neutral about these things. For every person who transitions there are people around them—family members often, whether you are talking about parents, a spouse or children—who also are very much tied up in this and often affected too. I do not think we can be neutral about change, but if we are going to change the law, we all know in this place that does not happen overnight. There will be reviews and consultations. Just think about how long it takes for a Committee like this to gather evidence, hold sessions and publish recommendations. We have to get it right, because if we are going to pass a new law, the Gender Recognition Act was 2004, so it will be 11 years on, and we are going to have to have an Act that will stand the test of time a little bit and be broad enough to deal, as we have just heard, with all the different issues that have come up, even just in five years since the Equality Act. I would push back on complacency. There is no complacency with any of the Ministers before this Committee on this issue at all.
Caroline Dinenage
Just to add to that—I am fully aware that we have a bell ringing—there is no greater illustration of how seriously the Government take this than that, for the first time ever, we have a Minister who straddles the Ministry of Justice and the Government Equalities Office. I was specifically put into the Ministry of Justice with a women and equalities background to further issues just such as this.
Chair
Can I suspend the sitting for 15 minutes? We will reconvene at 16.40. Sitting suspended for a Division in the House. On resuming—
Chair
Apologies for that light intermission to those sitting listening to us. Perhaps we could continue with our questioning. Mims Davies, you wanted to come in at this stage with some questions.
Mims Davies
Yes. Thank you, Chairman—Chair. I cannot say “Chairman” here, can I? Thank you, Chair. Sorry. I am going back to the Dark Ages. This is for Minister Dinenage. It has been reported to us that sometimes during court proceedings for cases regarding transgender people they have been inappropriately outed, which has caused immense trouble and harm to them. What is the Ministry doing to prevent this?
Caroline Dinenage
In terms of protection, there are measures currently in place to protect trans people’s privacy during any form of engagement. Section 22 of the Gender Recognition Act defines any information relating to a person’s application for a gender recognition certificate or to a successful applicant’s gender history as protected information and therefore a trans person’s gender history, regardless of whether they have a gender recognition certificate, can also constitute sensitive personal data as defined by the Data Protection Act 1998. There should be a massive onus on organisations, if requiring trans people to disclose their gender history in any way, to undertake measures to ensure that this information is protected, because there are fines of up to £5,000 for those who do not.
Mims Davies
In terms of the sensitive personal data, is it people during the proceedings not acknowledging this might be the case in these proceedings?
Caroline Dinenage
I would be really keen to look at the evidence that you are referring to, because the protected information should be disclosed only when an individual has given their direct consent for it to happen, when it is required explicitly for investigating a crime, if there are strong medical reasons for needing that information, or for religious purposes—if somebody wants to become a religious minister, in some cases. Other than that, there should be no reason for anyone’s private and personal information, particularly with regard to something sensitive like this, to be divulged.
Mims Davies
It is a potential sensitivity issue that is being missed, I guess. Just following on from that, Section 22 of the Gender Recognition Act 2004 is supposed to protect transgender people from this outing, but there has not been a single prosecution. Is the provision basically a dead letter? That is the perception.
Caroline Dinenage
I do not really have any evidence to suggest that the reason there have not been any successful prosecutions is because the legislation is not working, but, again, these are things that it is very difficult to get evidence on. If this Committee can produce anything like that, I would be very keen to have a look at it.
Chair
I know there is probably more that we could ask in that area, but in the interests of time could I ask Angela to move us on to our next area of questioning?
Angela Crawley
We have been told that the need for a spousal veto when a married transgender person wants to apply for gender recognition is a denial of their human rights. Why can the same approach not be taken as in Scotland, where the provision does not exist?
Caroline Dinenage
First, it is really important to recognise that when it comes to marriages we are entering into the realms of people’s personal lives, their most private lives, their most intimate relationships, and these are always going to be incredibly sensitive discussions. Often in this type of environment we hear very strongly the voice of the trans community, and rightly so, because there are many obstacles and challenges in their path, but sometimes it is very difficult to get the voice of their spouse as well. If we look at how this system works, nobody has the right to prevent their wife or husband from obtaining a legal gender change. When somebody goes for a gender recognition certificate, if their spouse has not signalled that they are content for the marriage to continue, there will be an interim certificate issued, which will enable them to take whatever action is appropriate, be that a divorce or further discussions with their spouse, to further that. This is a really careful balancing act between making sure we understand that any marriage contract is a contract between two people and a spouse’s transition can fundamentally change their relationship. For some people, that will not make any difference. For some people, they married a person; they did not marry a man or a woman. This is the very individual nature of marriages. For others, that might make a difference, particularly because the law allows the new marriage certificate to show the name of the trans spouse, so it is important that they have given their indication that they are happy for that to go ahead. In Scotland, it is still the same to a certain extent, to the point that you still get an interim certificate, but then you can take that interim certificate to the Sheriff’s office and then that can turn into a full certificate.
Angela Crawley
The key point here is that a spouse can essentially veto their partner’s decision to transition, because the two often do not run concurrently. In Scotland, for example, if you notify your partner, that is all that is required in the legislation and someone can then continue through the transition process without necessarily having to wait for their partner to decide whether they wish to remain in the marriage.
Caroline Dinenage
This does not prevent the trans person from going through all the other interventions or support that they might need. This is the gender recognition certificate in isolation. Nobody, as I said, can prevent somebody from getting that document at the end of the day. The spousal veto is a little bit misleading in the sense that it suggests that that is it, game over; you cannot get the certificate. You get an interim certificate until a decision is made between the two of you as to whether the marriage will continue and the spouse will go along with the new decision or, indeed, whether the marriage will end in divorce. It is very difficult. During the drafting of the gender recognition provisions in the Marriage (Same Sex Couples) Act, officials met trans stakeholders regularly and tried to ascertain the views of non‑trans spouses for the proposed changes, but this proved really difficult as there was no real route to contact them. In Government, we have an obligation to protect the rights and the needs of everybody and it is a really strong balance in getting that right. You have identified that in Scotland things are different and I am not saying that we will not be listening to how things are done in Scotland and keeping that in mind.
Angela Crawley
I am just curious, because there are now over 10 countries in the EU that have same sex marriage, but only the UK has essentially what is termed a spousal veto. Why do the Government feel that is a necessary part of obtaining the gender recognition certificate?
Caroline Dinenage
As I say, I do not for one second dismiss people’s concerns about this and this is an evolving process. When the same sex marriage legislation was drawn up, they tried to get as much evidence from the trans population as possible and I think that that evidence‑gathering continues. I do not think, in any way, anyone’s mind is closed off to learning from how things are done in other countries and always keeping a mind as to how, potentially, we could do things here.
Ben Howlett
Nick, I have a question for you, because you were Minister for implementation of gay marriage in the last Parliament. This issue came up in the last Parliament as well. I am just wondering if you would agree with what has just been said there or there is anything that you think potentially should be advanced from your time when you were the Minister looking at these areas.
Nick Boles
I was hugely privileged to have the chance to be able to slightly alter the way in which the process of converting a civil partnership into marriage was constructed. I was not directly involved in the rest of the same sex marriage Bill and I do not currently have any of these responsibilities, so I would not want to creep into territory where I am not particularly well informed. I would just underline the general comments that both Nicky and Caroline have made that we are always open to learning from how other people do things elsewhere in Europe, including just over the border in Scotland. While we have different legal systems and different histories of how we have got to where we are, we can always learn from each other. I would not want to pretend that I have any particular expertise, because I dealt with a very narrow thing, which was the conversion of civil partnerships that pre‑existed same sex marriage into same sex marriage and where and how they could be affected. That was really the only extent of my involvement in that piece of legislation.
Ben Howlett
Well, I am sorry—
Nick Boles
No. I was delighted to get a chance to say something, Ben, even if it was only “I don’t know”.
Ben Howlett
That backfired, did it not? Moving on to prisons, at the moment, we know that there are around 100 trans prisoners in the Prison Service and, theoretically, in 2011, the National Offender Management Service issued guidance on transgender. For example, they issued guidance on ensuring transgender people would have a care plan. However, quite a lot of the evidence we have heard from people who have accessed that system or those who have been involved in the prison system simply shows it has not been working. You will be very aware of the fact that I have a constituent in Bath, Tara Hudson, who has been recognising herself as a woman since the age of five. She is now 26. She has gone through six years’ worth of surgery and hormone replacement, etc. but is still in an all‑male prison and her family are very concerned. We have heard other evidence as well around this. I have a wider point, really, which is to ask you whether you will ensure that both prisons and transgender prisoners know about the rights that they are guaranteed in the Prison Service’s instruction. That is to you, Caroline.
Caroline Dinenage
It is really important that I say right from the outset that as much as I would love to talk about the individual nature of this case, I cannot go into the individual details of your constituent’s case, not least because I could be committing a criminal offence if I do so, but it might help if I talk more generally about decisions on locating trans prisoners. The first thing to say is the fundamental underlying concern is the safety of that individual prisoner and, indeed, the safety of the wider prison population. What happens when a decision is made as to what prison location someone is going to go into is that the legal gender will be determined by the birth certificate or a gender recognition certificate, if there is one. If there is not, an individual decision has to be taken on the basis of the location for that particular trans prisoner and that has to be done on a case-by-case basis, taking into consideration the individual needs of that particular prisoner. Once that decision has been made, it is not game over. That person’s case will be discussed virtually immediately upon arrival in prison in a case conference, where all the different stakeholders in their case will be brought together. That should be prioritised and, up until that point, that person will be protected from the mainstream prison estate. They will not just be left in the prison estate as a normal prisoner; they will be in a protected state until a full decision is made about their case. We want to do more on this, which is why there is PSI guidance at the moment, but that is being updated to take into consideration everything we already know and everything we are learning about the trans population in our prisons. That new guidance is in draft form at the moment and will be issued, hopefully, before Christmas. In addition to that, there is a new equality information form that we hope to introduce very shortly, which will happen at the very earliest stages that somebody engages with the criminal justice system, where they can, if they want to, disclose that sort of information, which will very much help the judges when making decisions about where that person is going to go but will also help the prison governors and staff in that immediate area when they decide upon a location.
Ben Howlett
Following on from that and going a bit more in depth, you have said that there have been a number of areas within the NOMS guidance that have been identified as not working at the moment. What specific areas have been identified and thus what are the potential recommendations? Without wishing for you to prejudge what the report is going to say, it would be nice to have some themes so that when we are presenting evidence through the report we can specifically highlight some of the key issues.
Caroline Dinenage
As I say, that guidance is still very much in draft form, so I cannot comment on the content of it at the moment, but rest assured that this Committee will be the first to know as soon as we have something that is in any way ready to be seen. The key message is that this guidance was originally released in 2011 and here we are nearly five years later and a lot has changed. We have had many more trans prisoners through the doors of our prisons—still a small number, around 80; we do not know exactly—but we are learning all the time. There are two key things with anybody who comes into the prison estate. One is that their protection and the protection of the prison estate is key. The second is that we need to treat everybody on a case-by-case basis. Everyone must be seen as an individual and, as far as possible, their individual needs must be met within this protection sphere.
Ben Howlett
That is good to know. I have one final point on this. The 2011 guidelines for NOMS apparently became out of date by March of this year. Can you give assurance that this particular guidance for the Offender Management Service is still usable until the next ones are introduced?
Caroline Dinenage
Yes. We have had assurances that the guidance is still valid and we are still able to use it until the new guidance comes through, which will be very soon.
Jess Phillips
On the offender issue, I just wanted to ask whether transgender issues were specifically included in the re‑contracting of Transforming Rehabilitation. If they were, are there any specific services that have been commissioned as best practice in one of the package areas around, specifically, transgender people and their care in the community?
Caroline Dinenage
Yes. One of the key things about Transforming Rehabilitation is that there is huge emphasis on both the Probation Service and the community rehabilitation companies to set up a pathway and a programme that is geared towards every single individual person, and that is everybody. Previously, they had to have been in prison for more than a year; now it is everybody. In women’s prisons, the vast majority of women have been in prison for less than a year. It is really good that we have a pathway that is for everybody that is supportive of that individual. There are very good examples, which I have written down and I am not sure if I can find them, of programmes that have been put in place by individual CRCs particularly with the trans community in mind.
Chair
Maybe you could just forward us some of those examples. That would be incredibly helpful.
Caroline Dinenage
I will happily do that.
Ruth Cadbury
This is to Nicky and/or to Nick. Transgender people continue to experience employment difficulties, particularly in relation to recruitment and also for those in work, as they change the definition of their own gender. What are you doing to monitor the nature and extent of these problems?
Nick Boles
To be clear, for all that we have heard that there may be areas in which the Equality Act could evolve positively, nevertheless it is very clear what the law states and what the attitude of the law is to discrimination. Anybody who experiences discrimination either in the workplace or, as it were, on the way into the workplace, i.e. through a recruitment process, however early on in that process, is encouraged to get in touch with the Equality Advisory and Support Service at the Government Equalities Office, which can advise and assist them on what their rights are and how to enforce them. In a sense, what we also need to be doing as much is helping employers avoid ever getting into a positon where they are not treating somebody fairly. There are some people who have prejudices and who are willing to express them in ways that are illegal, but there are also an even larger number of cases of people who are ignorant and baffled and nervous and do not quite know how to deal with this because they have never had to encounter it before. I think that Nicky, before I was able to join you, referred to the new guidance being produced by the Government Equalities Office as the guidance for employers. I have a draft here and I can reassure you that on the subject of the recruitment and retention of transgender staff—and I think I might, given it is draft, suggest a change to the title a little bit—it has several pages on application process, application forms, security and vetting, interviews and everything else. Hopefully, we can spread this around employers so that they can avoid ever doing something, whether consciously or unconsciously, that is discriminatory. What I think it is fair to say is that, like many of these services, the excellent advice service that the Government Equalities Office has probably is not known enough by enough people who are finding themselves in this situation. That is so often the case and we must do more, perhaps through Citizens Advice and other locally distributed bodies, to ensure that they know that that expert source of advice is there. We must do better.
Ruth Cadbury
It is good to know that you are writing advice for employers. My question was about what you are doing to monitor the problems. My supplementary question is: in rolling out that no doubt excellent advice, what is the Government doing with employers’ organisations and trade unions and others to address transgender equality?
Nicky Morgan
Can I just answer partly to fill in what you were just asking about, Ruth, and then Nick may have some specific other work on employer organisations? There is some general research that is happening, which will touch on employment and collate some numbers. The Government Equalities Office invited tenders for a contract to look at the evidence on the nature of discrimination because of sexual orientation and gender identity. The National Institute of Economic and Social Research got that contract and has done the work. They were looking particularly at inequality within LGB and T groups and LGB and T populations. There is also the Equality Advisory Support Service, which is a free advice service that was launched in October 2012. They have had 47,000 enquiries from individuals related to protected characteristics and, interestingly, 39% of their enquiries have been about employment, 40% about direct discrimination and then there will be others as well—harassment—relating to private sector and public sector. We will have collected quite a lot of information through that as well. There are also websites, but also schools are employers and, again, they have guidance. I asked what the unions do in the education sector about issuing advice and guidance to schools. Interestingly, the NUT has produced a leaflet that is more about supporting transgender pupils, but staff as well. The NASUWT has a section in their guidance on prejudice‑related bullying, trans bullying and supporting trans members. ASCL respond to individual queries through their hotlines. I would strongly suspect that if you look at lots of different sectors there are employer organisations, unions and individual organisations themselves—schools, employers—who are, again, developing guidance and starting off conversations about all this. The guidance that Nick has just been talking about is, again, intentionally very practical things that an employer will want to think about generally, but also specifically should someone come to them needing advice and support.
Nick Boles
If I may add just one brief note, the organisation that a lot of both employees and employers go to first when they have an issue of employment, when there is either a potential dispute or they feel they do not quite know what the law is and what the position is, is ACAS, a superb organisation. They already have guidance on their website on gender reassignment discrimination and are planning to produce further advice on trans issues in 2016-17 as part of a whole set of advice in relation to all the protected characteristics in the Equality Act. ACAS will be a place I think a lot of people will go, but the challenge that I am hearing in your question, and I think is a very reasonable one, is: it is all very well putting guidance up on websites and having, as it were, a response, but what is proactive? It is a very reasonable challenge and I would have no problem in making contact with the CBI and chambers of commerce and all these people and saying—
Ruth Cadbury
Can you say the words “trade unions”?
Nick Boles
I was going to get on to that, because I have another relationship with trade unions, as you may be aware. I would be very happy to get on to employers’ associations to encourage them to use this guidance and distribute it widely to their members. On trade unions, the Committee may be aware that, as the Minister responsible for the Trade Union Bill, I am having a lot of engagement with trade unions and I am sure they would agree with me that it would be quite nice to be talking about something on which we agree. Therefore, I am very happy to take it up with them too.
Chair
Minister, can I come in here? We touched earlier in our discussions on the very different issues faced by non‑binary people versus trans people and, indeed, non‑gendered individuals. I was very struck by a piece of research that has been done, which showed that one‑fifth of non‑binary people surveyed had experienced workplace harassment and 95% were worried about disclosing themselves as non‑binary. In all the discussions so far this afternoon that you have been involved in, you have talked about trans people. Do you think there is room for additional work to recognise the very real challenges that non‑binary and non‑gender people experience in the workplace?
Nick Boles
It certainly, in a sense, is what I was implying when I said that I thought the title of this new guidance might use a little change, because it says currently in this draft “the recruitment and retention of transgender staff” and if we cannot get it right with a thing that is not yet published, to include those who are not yet or may never be in a position to define themselves in that way—we should be getting that right. We may not be able to change the Equality Act quickly, because it is a piece of legislation, but we can certainly change the guidance we are about to issue and have not yet issued. I am very happy to look into that and see if also, through the whole text, it is properly reflecting all of the different people who feel affected.
Ben Howlett
I do not know whether you are aware of this or not, but when you are going through the process of getting a gender identification certificate you have to live “in role” for two years. From the evidence we have heard, a number of people have said, “Look, I have ended up having to revert back to my previous sex in order to secure a job or even to hold on to a job”. I am wondering what work you will be doing, as Minister, in the workplace to ensure that this is identified as a problem and that workplace environments are providing the support necessary for people who are accessing a new job or trying to hold on to their job. To be frank, you are going to end up having a huge welfare payment bill in unemployment benefits if people are not ending up getting the recognition and the support they need.
Nick Boles
I entirely understand. I am not going to pretend I was familiar with the position. Now you have explained it so well, I can completely understand why you cannot, on the one hand, be living in a new role and, on the other hand, be coping with the fact that people may be used to working with you in your old role and they are not willing to work with you in that new role. I will certainly take that away and try to make sure that, if nothing else, this guidance properly addresses that issue and thereafter that we distribute it widely.
Jess Phillips
This is for Nick, just before he runs off. The National Union of Students told us that one in three trans students have reported being bullied or harassed on campus. I just want to know what your Department is doing to ensure that this stops.
Nick Boles
That, in a sense, is perhaps particularly shocking. Maybe this is naïve of me, but you would rather hope that a younger age group was more aware and more open-minded. We can excuse, perhaps, people who have grown up in a different age and with a different set of attitudes. That is very troubling. The higher education sector has a sector‑led Equality Challenge Unit and it produces guidance. There is guidance called “Trans staff and students in higher education”, which was updated in 2010, which helps the institutions. There is a gender equality charter. Even as I am saying all this, I sense that we all know that guidance is important and laws are even more important and charters and goals and concordats and all of the stuff of Government, but what we need is challenge to bad behaviour—a zero tolerance regime. Certainly I am very happy to take that away and have a discussion with the Universities Minister, Jo Johnson, about whether we can make sure that university vice chancellors, frankly, are taking this seriously and not just thinking, “Oh, well, I have my charter and I have my guidance”, but are doing something about it where these cases are reported.
Jess Phillips
The concern around universities not just in this field but in all sorts of hate crime, certainly sexual violence, domestic violence and all of those things, is that there is a real gap in where universities are addressing these issues. It is not like schools so much, where people have direct contact. Using this inquiry and this evidence that we have, we really need to look at how universities cope with the changing and difficult lives of people at a very difficult and transitioning age.
Nick Boles
The truth is, to some extent, it is not like it is new for them, because we would all probably feel universities have done a reasonably good job in recent years of challenging homophobia and racism—by no means perfect, but nevertheless great strides have been made. This is not so different. Ultimately, these are crimes and they should be rooted out.
Chair
Can I just gently suggest you also have a chat with the FE Minister as well?
Nick Boles
I am the FE Minister. That was the only reason why I was not going to, madam Chair, although I do talk to myself quite often.
Jess Phillips
Moving on to the Secretary of State, we heard some harrowing evidence from Susie Green of Mermaids, who told us of a child who had transitioned during the school holidays and then was barred from the school premises, which I am sure is an anecdotal case. We have also heard very good examples of where education facilities have been really good. I just wonder if you could tell us a little bit about what you are doing to make sure that schools are abiding by their responsibilities under the Equality Act.
Nicky Morgan
I am glad you highlighted some positive examples. There are positive examples as well. There are some schools that do this and have a very open, tolerant culture that allows for discussion. As I have said before in the House, one of the issues about dealing with things like bullying is you have to have a whole‑school culture, in which everyone from the top down takes this very seriously. As I said before, schools are educators, they are employers and they have to deal with families, some of whom may involve trans parents, for example. In terms of the Equality Act, we are looking at initial teacher training. At the moment, there is no curriculum as such, but Sir Andrew Carter has been doing a review for my Department on what we think should be in teacher training, without wishing to be too prescriptive, but there are areas where there is more that we could do about getting teachers to be more confident and to support pupils and other members of staff. The National Curriculum includes a section on inclusion and the equality duties that there are on teachers, so there is guidance that we have issued as a Department. I have just mentioned some of the unions as well and the valuable work they do. Schools have to have behaviour policies, and that relates to instances of bullying. Bullying applies, sadly, to both pupils and members of staff. We have introduced the fundamental British values. One of those values is tolerance as well as respect. Again, I want that to run right the way through schools. Ofsted holds schools to account on their bullying policies and that is one of the questions they will ask in relation to a school. Earlier this year, we announced a £2 million fund to tackle homophobic, biphobic and transphobic bullying. One of the eight organisations that got some of the money was Stonewall and they are working with Gendered Intelligence, who I think might have given evidence to the Committee.
Jess Phillips
Yes, they did; I am coming to them in a minute.
Nicky Morgan
We are working with them to pilot areas, which will be assessed to see what works throughout schools. Overall, there is some really good practice, but there are clearly some areas where there is a lot of improvement needed.
Chair
Before we move on to the next question, I know Minister Boles has a pressing engagement, which he told me about before. I am very happy if you want to slip away at the moment. I think we have finished our questions to you.
Nick Boles
Thank you. Apologies. I was late and now I am leaving early.
Chair
Please do not apologise. We were aware of your time constraints.
Jess Phillips
Moving on to the Gendered Intelligence evidence that we received—I am sure the Secretary of State never tires of hearing me raise this subject—they told us about how PHSE was a brilliant curriculum support to students around gender identity and many other things. It almost certainly is part of a whole‑school approach in encouraging children to talk about these things. I wanted to ask specifically if she feels that transgender issues should be taught in schools as part of what should be mandatory PHSE.
Nicky Morgan
She and I debated this issue about mandatory or not and I know the Education Committee has also looked at it and published their report earlier this year. PHSE is hugely important. She and I will differ on the fact that I do not think just because you say something is statutory means it is going to be taught well.
Jess Phillips
That is definitely true.
Nicky Morgan
Trans issues are included in the non‑statutory PHSE programme of study, which is produced by the PHSE Association, and that includes things like diversity, gender identity, recognising and challenging stereotypes, bullying, discrimination—all sorts of things. Sex and relationship education is mandatory in secondary schools and even those where it might not be part of what—they do tackle it, but there is more that we can do. Going back to the whole issue of British values, the respect and tolerance part of that is about gender identity, sexuality, relationships, consent, discrimination, bullying and all those sorts of issues that it is very important all schools explore. You are right; it goes back to the whole‑school approach. They are not waiting to be asked to make it mandatory. Those schools that are doing it well find time on the curriculum and it runs right the way through, and they give teachers and staff the confidence to discuss these issues.
Chair
Thank you so much for your contributions today to our evidence base. We are really grateful to you and your colleagues for your time. I apologise for having overrun a few minutes. Please forgive us. The vote did not help us there. On behalf of the whole Committee, thank you so much for your time. Oral evidence: Transgender Equality Inquiry, HC 390 34