Sal Brinton: Make sure Ministerial maternity leave bill includes everyone

Earlier this week, we reported on Liz Barker’s speech on the Ministerial and other Maternity Allowances Bill, in which she compared the demonisation of transgender people today to the discrimination she and others faced during the 80s.

The Bill was a simple one – designed to give ministers leave when they have a baby, something that our Jo Swinson and Jenny Willott did not benefit from when they had their babies. There was a concerted effort by socially conservative peers to change the Bill’s gender neutral language. In the first of two speeches, Sal explained why it was important to be as inclusive as possible. It is good to see our peers arguing that extending rights to trans and non binary people does not diminish women’s rights.

My Lords, I too support this Bill, even though it does not go far enough in giving Ministers who are parents the same rights that other workers have now come to expect. As others have already said, these include adoption leave, sick leave and shared parental leave. The last is particularly important and affects any Minister who becomes a parent and who is still missing out on the rights to share in the care of their new baby with their partner. I hope the Minister will remedy this urgently.

There is one other parental benefit that has not yet been mentioned—statutory parental bereavement pay and leave. I worked with the noble Lord, Lord Knight of Weymouth, for a number of years to win this right for parents, but it is omitted from this legislation for Ministers. I urge the Minister to ensure that it is added to the other forms of parental allowance and leave for future discussion. One hopes that it is never needed but it is vital to have it in place to cover such awful circumstances.

My former colleagues, Jo Swinson and Jenny Willott, both had their first babies while they were Ministers. No arrangements were made for them. They had to cover for each other without maternity pay at exactly the time when they were working in government for better rights for women and parents in the workplace.

I agree with my noble friend Lady Hussein-Ece about the lack of equality impact assessments. We need to remedy this and to reflect on why, as a society, we have moved over the years to gender-neutral language. The gender-neutral language in this Bill is inclusive. Changing it, as many speakers have asked, would make it exclusive—perhaps not to many, but to some people for whom it matters a great deal. No one is trying to erase women but rather to accept that, over recent years, there have been advances in medicine. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for referring to trans men in Brighton. We also have to remember that non-binary and intersex people who were born women would be excluded. Both equality law and clinical care have kept pace with them and their circumstances. Medical care, in particular, has adapted in order to provide the best possible care for them in rare and difficult circumstances. That is why I would gently correct the noble Baroness, Lady Noakes, in her reporting of the Brighton hospital trust introducing “chestfeeding” and “pregnant people” and removing “breastfeeding” and “women” from its documentation. It is not. Snopes, that excellent debunker of myths, explains this carefully:

“A maternity department at a U.K. hospital announced in February 2021 that it was expanding terms it used in maternity care to include, for example, ‘chestfeeding’ and ‘pregnant people’, in order to be more inclusive of trans and nonbinary patients … To be clear, the NHS said that such language—like referencing ‘pregnant women’ and ‘breastfeed’—will not change for those who identify as such … Adding terms like ‘chestfeeding’ and ‘birthing parent’ was not intended to take away from women-oriented language already in use. Rather, the move was meant to be additional support that offers more inclusion for trans and nonbinary individuals.”

I was also moved by the remarks of the noble Baroness, Lady Grey-Thompson. Like her, I am disabled and have been on the receiving end of some pretty despicable hate crimes and trolling. Just like her, I am concerned that the trolls will descend on me this evening, but they will be those from the other side of her argument. However, that is nothing as to the daily abuse that trans and non-binary people suffer.

Over the years, your Lordships’ House has learned how to disagree well. In this sensitive debate, I hope that people who are not here with us in the Chamber will choose to watch and listen to those on both sides of the argument. I have heard from trans men that, even though there are currently no trans Members in either the House of Lords or the House of Commons, they think it is important that language used in legislation remains inclusive. Using the word “woman” excludes trans men and therefore removes their rights.

Finally, we must focus on the specific nature and the urgency of this Bill. I hope that the Minister can reassure the House not only that the Bill will proceed but that all Ministers who are new parents will benefit from the same parental rights as workers across the country.

She went into more detail in her speech on Thursday:

My Lords, this afternoon, we have heard once again from many noble Lords who are concerned about erasing women through the use of gender-neutral language. However, as liberals, we remain of the view that wording that excludes or removes the rights of any one group in favour of another is a problem.

The noble Lord, Lord Hunt, talked about the rights of one group conflicting with another, but the compromise that his Government and successive Governments have reached shows that gender-neutral language does not do this. That is why it was used: to avoid excluding certain groups. The noble Lord, Lord Triesman, made some important points about our own use of language in this House, and I am grateful for his final comments, in which he expressed concerns for trans people and the poor census officials.

I am deeply sorry for anyone receiving abuse on social media. We on this side of the argument, including myself, have been on the receiving end of some over the last few days, but nothing like as much or as Toggle showing location of Column 956horrible as that which I know that my noble friend Lady Barker and others receive on a regular basis. I agree with the noble Baroness, Lady Hayman; there is an important issue there about our society and its use of social media. The Prime Minister spoke about finding some protection for MPs, especially women and BAME MPs, from this hate-filled abuse. I hope that he will extend that more widely when the online harms Bill starts its legislative journey.

The reality of this change in language in this Bill is that some people, perhaps very few in number, will be affected. I was very moved by the speech of my noble friend Lady Barker; she is right that the law is there to protect all members of our society. Over the years, equal rights have been granted to the nine protected characteristics because they need protecting, not least against those parts of society that not only do not understand them but may even want to do them harm. I note that our trans community is at extremely high risk of being victims of domestic abuse and violence.

As a woman who campaigned for women’s rights over many years and joined the “Reclaim the Night” marches in my student days, I could certainly not support language that I felt totally excluded women, but I just do not believe this to be the case. For all the reasons that my noble friend Lady Barker has outlined, we now risk impacting the rights of trans men and non-binary and intersex people through the revised language.

I am, and will always be, happy—even proud—to be referred to as a mother. However, if I were Freddy McConnell’s mother, I would want to respect his wishes and refer to him as a father to my grandchild because, legally, he is recognised as a man. It is factually incorrect, as the noble Baroness, Lady Meyer, has asserted today, to suggest that only women can become pregnant. It has been legally recognised that men and non-binary and intersex people can also get pregnant, so it is vital that the Bill is fit for this purpose and can function in a real-world context. The only way to achieve this would have been for the Bill to retain its original drafting and to refer to “person”.

On Monday, the noble Lord, Lord Pannick, referred to Mr McConnell’s case, where a trans man who had gained legal recognition as a man became pregnant and then gave birth to a child. Mr McConnell specifically objected to being recorded as the mother on the child’s birth certificate. It is worth looking at this case to understand the potential consequences of changing the wording from gender-neutral language, given that many noble Lords have referred to the contribution of the noble Lord, Lord Pannick.

The case was heard first by the High Court, then the Court of Appeal. It is worthy of note that both courts found that the rights of the child are paramount—so they should be—and that Mr McConnell was legally male, and socially and psychologically the father of the child. The case revolved on how the parent who gives birth to the child should be registered. Society and science continue to develop, so terminology used when laws were drafted and enacted may be superseded by scientific or social progress.

Their court ruling applied to the case before them, but Parliament could legitimately take an informed view and change the policy on registering births. The Toggle showing location of Column 957language that the Government currently use for registering births requires Mr McConnell to be identified as the mother of the child for that purpose. The mechanism was for a legitimate aim and the process was a proportionate means of accomplishing it.

The Bill before this House relates to benefits accruing to those who give birth, not to registering births, and extending those benefits to government Ministers and some opposition spokespeople who currently do not have them. Let me say that again: it does not deal with the registration of births. The process for the registration of births is not proposed to change under the Bill; I am concerned that the noble Lord, Lord Pannick, drew the conclusion that an issue relating to the law on birth registration certificates can have a direct read-across beyond that narrow matter.

The judges in the original case and the appeal recognised that this was complex and, importantly for this House and another place, that Parliament had not dealt well with all the issues it should have done in the past. Us trying to do so in what amounts to two working days in your Lordships’ Chamber in one week—and at very short notice—means that there are risks and problems.

The law should deal practically with how our society currently works. We know that people who are legally male can give birth, due to advances in medical science as well as the law. While some may find this baffling or even immoral, the reality is that it is legal and it happens. The scope of the Bill does not extend to either legal gender recognition or restrictions on fertilisation and embryology.

Changing the language on birth certificates would resolve a number of these issues, which is where discussions were beginning to go when things were calm and the language warriors had not got started. That was actually prompted by the changes to marriage certificates during the enactment of the Marriage (Same Sex Couples) Act 2013, but this would require changes to statute law and is clearly not feasible now.

However, as the courts made clear in this case, this remains a political issue. If Parliament wants to persist in using gender-neutral language because trans men, non-binary and intersex people can give birth while living as men, there is absolutely no reason why Parliament should not ensure that the legislation does so. Doing so does not erase women giving birth and being called mothers.

I want to end by asking those who have proposed and succeeded with their amendments today whether, in their congratulations to one another on their success, they will undertake to help to protect the rights of our LGBT community, many of whom have felt a very chill wind in our United Kingdom today. As my noble friend Lord Wallace of Saltaire commented, given the threat that LGBT people face in Poland, Hungary and some of the Baltic states at the moment, we need to protect their human rights. I particularly thank the noble Baroness, Lady Goudie, for her comments in support of the trans community.

From these Benches, we are proud to stand up for the LGBT community, but we are also proud to support the Bill because it starts to give Ministers and opposition spokespeople some, though not all, of the maternity and parental rights that they deserve.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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One Comment

  • Catherine Wilson 2nd Mar '21 - 3:01pm

    The problem with extending maternity rights is that it is bad for the children. The first three years are crucial for healthy emotional development. Staying at home with a consistent full time carer, preferably mother, for those years means the child is less likely to develop mental health problems later on. By putting babies and infants into nurseries, we are fueling the growth of young people with mental health issues. Google ‘What About the Children?’ to see research that shows this. If, like me, you think that staying at home for three years with a child would be too boring the solution is simple – don’t have children. Not everyone is suited to be a parent. Some, like me, are better off without children.

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