Equality Bill [Lords]

I beg to move that the clause be read a Second time. The new clause is intended to enable the protection of transsexual people from discrimination in the supply of goods and services by creating a power to introduce secondary legislation. It is a near copy of the provisions relating to the provisions on sexual orientation, which the Minister will be aware were not in the original Bill as introduced in the House of Lords, but were by the time it came to be considered by this House. That was partly as a result of the pressure applied by other hon. Members, including those, such as myself, who signed early-day motion 710 in the name of my hon. Friend the Member for Brighton, Kemptown (Dr. Turner). That was a very welcome move on the part of the Government and it is unfortunate that the Government have so far chosen to ignore the requests for a similar provision in the case of transgender people; for example, 88 hon. Members signed early-day motion 1083 in my name on the Equality Bill and the supply of goods and services to transsexual people. There are three reasons for including the provision now: the need for protection, administrative efficiency and compliance with EU law. Society is much more accepting of transpeople today. The Gender Recognition Act 2002 was passed unopposed with all-party support, a far cry from 1994 when there was widespread discrimination against transsexual people, which led me to found the parliamentary forum on transsexualism. At that time, Ministers tolerated blatant discrimination in employment against transpeople. Nevertheless, discrimination continues. It took five years to see the introduction of the Sex Discrimination (Gender Reassignment) Regulations 1999, which amended the Sex Discrimination Act to prohibit discrimination in employment and vocational training. However, those regulations do not extend to discrimination in the supply of goods and services. The media has reported several cases involving transsexual people refused access to pubs. Press for Change, the lobby group on behalf of transpeople, is particularly concerned about young transsexual people who are forced to leave home when relationships with their families break down. Discrimination by private and institutional landlords means that these young and vulnerable transsexual people often encounter great difficulty in finding accommodation. The more widespread problem is that without legal protection against prejudice, many transsexual people censor their lives by taking care to avoid situations where they feel discrimination, knowing that the law currently leaves them with no redress. In that regard, we have made little progress since the time shortly after I was elected in 1992 when I was approached by a transsexual woman who was absolutely terrified of her gender status becoming known by her employer. It was that kind of discrimination that led to legal challenge and to the regulations that I have mentioned. In relation to the provision of goods and services, a few test cases have so far come to court, but most potential litigants stand down when advised that they have no case as the law currently stands. As I have said, the Sex Discrimination (Gender Reassignment) Regulations amended the Sex Discrimination Act in 1999 to prohibit discrimination in employment and vocational training. This was done to implement the 1996 ruling in the European Court of Justice in the case of P v S and Cornwall county council. That was the case of a transsexual woman who, having initially been promoted by the council, was then sacked by it when she informed it that she was going to undergo gender reassignment surgery. The directive determined that discrimination on grounds of sex includes discrimination on the ground of gender reassignment. Because the 1999 regulations were introduced under the terms of the European Communities Act 1972, they could not exceed the scope of the equal treatment directive. They extend only to employment and vocational training, and not to the rest of part III of the Sex Discrimination Act 1975. An opportunity to legislate for goods and services protection arose with the Gender Recognition Act 2004. At that time, however, Ministers preferred to wait for the outcome of discussions on a new EU directive on gender discrimination in goods and services. In Committee, the then Minister with responsibility for such matters, my hon. Friend the Member for Tottenham (Mr. Lammy), responded to a query from me as follows:"““She is right in saying that there is nothing to prevent the Government from acting. However, as I indicated, we are in discussion with our partners in Europe. We have a draft directive as of three months ago, and it appears that there will be legislation on the matter. The Government welcome that and believe that it is right to have that dialogue with our European partners, come to a conclusion and then take the matter forward.””—[Official Report, Standing Committee A, 16 March 2004; c. 186.]" That conclusion was reached later in 2004. European Council directive 2004/113/EC, of 13 December 2004, implemented the principle of equal treatment between men and women in the access to, and supply of, goods and services. However, no provision was made in the Equality Bill to implement the directive, which surely would have been the obvious means of dealing with the issue. The Equality Bill is therefore the second missed legislative opportunity to provide that protection for transpeople. One major concern that the Government expressed about introducing such protection through the Bill was that a substantial amount of work would be required in considering whether any exceptions were necessary. Given that the 1975 Act already contains exceptions to cope with single-sex facilities, it should not be considered problematic that new exceptions are required to permit continued discrimination against transpeople. However, there are likely to be rare and complex situations in which exceptions may be needed—probably those involving people in the process of changing gender. The new clause would address that by introducing a power for Ministers to issue regulations creating exceptions. It is intentionally constructed as a replica of clause 81, which creates a power to introduce goods and services protection on the ground of sexual orientation. The new clause can therefore be presumed to be acceptable to the Government as a workable framework. However, the power to make regulations would allow Ministers to make any special provision that might be necessary, and it would ensure that Parliament does not have to satisfy itself at this stage that all possible exceptions have been considered. The provision allows more time and flexibility to ensure that the protection can be provided now, and in a way that works. Ministers have argued that it is not the right time for such a step. In answer to my hon. Friend the Member for Colne Valley (Kali Mountford), the Minister referred on Second Reading to the Government’s equalities review and the discrimination law review, with a view to the inclusion of any changes in the promised single equality Act. However, as the Government are aware, waiting for a single equality Act would risk leaving the UK in breach of its obligations under EU law. The directive that I mentioned earlier, which implemented the principle of equal treatment in the access to and supply of goods and services, does not explicitly refer to transpeople or to gender reassignment. However, the minutes of the Council meeting include an explicit note that the directive should be determined in the light of the 1996 European Court of Justice ruling in the P v. S and Cornwall county council case, which I mentioned earlier also. In that case, the European Court of Justice held that the prohibition of discrimination on grounds of sex should be construed to include discrimination on grounds of gender reassignment. Goods and services protection for transpeople will therefore be required no later than December 2007, when the directive enters into force. It is very unlikely that a single equality Act will be passed by Parliament and have entered into force in time to meet that obligation. It would, of course, be possible to implement earlier the directive to implement goods and services protection by making regulations under the European Communities Act, which I understand is the Government’s intention. That appears, however, to be little different from using the Equality Bill now to create a power for regulation, and I am therefore confused about why the Government are not taking that opportunity, particularly as it would enable some areas not included in the European directive to be addressed. Some areas protected by the goods and services protection provided under the Sex Discrimination Act 1975 fall outside the scope of the EU directive. Education, as a reserved area, is one example, and media representation another. Clearly, in introducing regulations under the European Communities Act, the Government will not be able to extend protection in those areas.