Gender Recognition Bill [Lords]

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Mr. Boswell: There is a degree of reciprocity that may be difficult in the case of countries that require surgery in relation to our nationals who go to those countries. I appreciate that we are not legislating for that circumstance at the moment, but will the Minister reflect on whether any rights will be attached to those persons—this may surface in other debates—if they have a gender recognition certificate in this country and are resident in countries where surgery would have been a requirement for the nationals of that country?

Mr. Lammy: I do not want to get into matters of private international law to which we alluded, and the clear fact is that we are not yet at a stage where we can talk about parity, even across the European Union. That is the great difficulty, but I suspect that our attempts, and those in the rest of Europe and the world, will mean that we reach parity in due course.

I hope that I have set out how the selection will take place. The Bill contains criteria for granting recognition in the acquired gender. To go on the list, a country will need criteria as rigorous as those in the Bill. We have had a good debate on clause 2 and I hope that we can make progress.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3

Evidence

Dr. Harris: I beg to move amendment No. 56, in

    clause 3, page 2, leave out line 41.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 47, in

    clause 4, page 3, line 11, leave out subsections (2), (3) and (4).

Amendment No. 57, in

    clause 4, page 3, line 11, leave out

    'unless the applicant is married'.

Amendment No. 58, in

    clause 4, page 3, leave out lines 13 to 16.

I remind Members that they should avoid allowing their contributions on these amendments straying into the area of pensions, which will be covered by later amendments.

Dr. Harris: I certainly intend to do that. I note that unfortunately the hon. Member for Birmingham, Selly Oak is not in her place; she warned us in advance that she would not be able to remain after 4 o'clock. I notice also that the hon. Member for St. Helens, South (Mr. Woodward) is not here, which is also unfortunate because of the work he has done on the Joint Committee on Human Rights. Nevertheless, we shall do what we can, even in the absence of their expertise.

The debate on this group of amendments will touch on the issue of marriage, and it is not my intention to go into the area of pensions. I shall stick closely to the

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report of the Joint Committee on Human Rights during the last Session, when it commented on the draft Bill.

Amendment No. 56 is a paving amendment under clause 3, but it really applies to clause 4. The amendment in itself is not competent because it would not make all the subsequent amendments that would be necessary. I hope that the Minister will accept that. I do not intend to press the amendment to a Division, not least on that basis and for other reasons. The amendment represents the maximalist argument for the position taken by the Joint Committee in respect of marriage, and I shall quote from that Committee. Debates have taken place in the House of Lords, and we will not gain much by having a long debate in Committee, particularly given the pressing time due to the length of the previous debate. Therefore, I shall be brief. However, I shall explain a compromise arrangement that could be put to the Government. It is based on the date of the marriage—that is, whether it is a historic marriage or one entered into after the Bill is enacted.

In paragraph 81 of its 19th report of the 2002-03 Session, the Joint Committee said that the draft Bill

    ''also has important implications for the parties to marriages who were respectively male and female at the time of the wedding but one of whom subsequently seeks to change his or her sex or gender as a result of gender dysphoria . . . A person who is validly married in his or her birth gender would be unable to obtain a final gender recognition certificate unless the marriage is first annulled or dissolved.''

That has been carried through to the Bill.

The report recognises, as I do, that the Bill amends the Matrimonial Causes Act 1973 to provide an easier way to dissolve a marriage in the event of someone suffering from gender dysphoria and seeking treatment to change gender; that is, the interim gender recognition certificate gives a fast-track approach to avoiding the marriage.

In paragraph 85, the Joint Committee says that when it initially examined the draft Bill it was

    ''deeply concerned about the way that people in stable marriages, perhaps with dependant children and strong family ties, would be pushed into ending the marriage if one of the parties suffers from gender dysphoria and wants legal recognition of his or her acquired gender. A number of the people who sent us written evidence provided eloquent testimony to the heartache and hardship which this might cause. As well as the emotional costs, the ending of a marriage could affect people financially, by depriving a surviving partner of widow's benefits or of the benefit of a pension, or of a right to damages under the Fatal Accidents Acts. It was also pointed out that the approach gives relatively little weight to the value of maintaining family life and the sacredness of marriage vows.''

That is a dilemma for a Government who seek to provide for full recognition of human rights, even if that was done after being prodded if not pushed into it by the European Court, but who also talk about the value of maintaining family life and the sacredness of marriage vows.

Mr. Boswell: I suspect that the hon. Gentleman is aware of a communication to some members of the Committee enclosing a legal opinion that suggests that certain married persons have been advised that they may have a case under the Human Rights Act 1998, in

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that the right to marriage and the right to lead one's own life under article 8 are not adequately covered by the Government's proposals. The opinion goes on to say that if the Government persist with their present policy, a judicial review would be sought at the earliest possible opportunity in order to expose the situation.

Dr. Harris: I am sure that that is right. I have seen several legal opinions on different issues. Of course, judicial review is a hazard with which all Governments must contend. There is a legal argument as well as a moral one, and the Joint Committee took legal advice when it drew up its recommendations. I hope that the Minister will expand on that when he responds.

4.30 pm

I have heard directly from Ministers that the Government believe that it is justifiable under articles 8.2 and 12 to require transsexual people

    ''to accept the ending of a male-female marriage as a condition for registration in the new gender''.

That is a quote from the report, which quoted the Government. The report explained that that view is held

    ''mainly because the Government does not wish to sanction the idea that there can be a valid marriage between two people of the same sex or gender. It may be reasonable to expect people contemplating gender reassignment to accept that a willingness to accept that a marriage between two people of the same sex is not legally acceptable.''

The Government are proposing to bring in civil partnerships legislation. There are two reasons why I will not go into that issue directly or accept it as an argument against the fundamental principle that we identified. First, it remains to be seen whether the civil partnerships legislation will provide the full rights that are available to married couples. Based on what we have seen, that is certainly a moot point. Secondly, it is difficult for us, considering this Bill and the injustice that it may cause, to accept promises of future legislation, particularly at this point in a Parliament and particularly given the difficulties that Governments always say that they have in getting legislation through. Indeed, the events of last night suggest, if nothing else, that that is an ever-present danger, even for a Government with a large majority. For those two reasons, I am not going to use the civil partnerships' argument to address the principle that we are raising.

The Joint Committee therefore recommended that the Government should

    ''reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate.''

It goes on to say that the Government might be best placed to reconsider that when the civil partnerships legislation comes in. Indeed, a position that one might ask the Government to take is not to require the ending of marriages now, but to consider whether they have a stronger case when they bring in the civil partnerships legislation and seek to amend what will then be this Act, using a civil partnerships Bill.

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I think that the Joint Committee makes a strong case. One could argue that the marriage contract would not be a same-sex marriage contract because, at the time that the contract was entered into, the parties to it were male and female. So, the Government could argue, if they felt that they were in a difficult position over sanctioning what they see as same-sex marriages, that they are not doing so, because, at the time that the contract was entered into, the parties were clearly male and female and there was not the issue of a transgendered person being one of the parties. On that basis, the Government will have to make a strong argument to convince me that they are right to pursue their present path in the face of the powerful report from the Joint Committee on Human Rights.

I think that, even at this late stage in their consideration, the Government should avail themselves of the moral and legal arguments that are available. They should change their view and say that they do not expect people who are married in good faith, under a valid contract, to have to divorce and face all the personal and financial implications that go with that in order to avail themselves of their separate right to recognition in their new gender under the Human Rights Act.

 
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