| Gender Recognition Bill [Lords]
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Mr. Boswell: The difficulty with the complexity of such issues—I accept the hon. Lady's good will in the matter—is that one can think of points only as one goes along. The law of Britain provides for marriage between a man and a woman—but it is for life. The effect of the hon. Gentleman's sterling efforts to solve the problem would produce a concept of time-limited marriage, which might cause difficulty for the Minister. Lynne Jones: I do not think that that is the case. During the interim, the couple will not have the choice of a civil partnership; it will not exist during that period. The circumstance is specific. We are trying to narrow the provisions so that they do not set a precedent for claims of discrimination; we must have regard to the fact that the Government's requirement for transsexual spouses to choose between their marriage and their civil rights in their reassigned gender may lead to such claims. It is a difficult issue. Once again, I urge the Government to see whether anything can be done to remove the necessity for that small number of couples to make a choice. The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): We have had an extensive discussion, so I do not expect to keep the Committee long. As I have conceded, there will clearly be an emotional impact on the couples who have to end their marriages. In that sense, I say only that it will not be unexpected and that the couples in question will have had a long time to prepare for it. However, there is a practical impact, too. We heard this morning of the financial impact, but we must also consider any children and mutual rights and responsibilities. Clearly, courts will be able to consider such matters when dealing with annulment. The Government are acutely aware of the proximity and nexus of the civil partnerships legislation. I indicated that the Government hope to come forward with it shortly. Hon. Members who are experienced in the ways of this place will know that when the Government say shortly, it means soon. We fully recognise that it is important that the two pieces of legislation coincide in this Session. I must tell the hon. Member for Oxford, West and Abingdon that a couple will be able to wait for that legislation—as I said, that will be shortly—and, beyond that, we shall go on to discuss the interim certificate, which will last for six months. Column Number: 104 On the principal point that the hon. Gentleman raised, as I have said, the Government's position is not that same-sex marriages are not permitted under UK law and that we do not intend to change that, but that marriage is distinctly for opposite-sex couples. That is perhaps the principle that divides us. Although I am sympathetic to much of what he has said, that is the Government's position.
11.15 amDr. Harris: I would be grateful if the Minister clarified whether he thinks that there is any distinction to be made between the point at which the marriage took place—at the time, between a man and a woman—and subsequent events. Should that not satisfy Government policy? Mr. Lammy: We have gone over that ground. The Government's position is that on acquiring the new gender one is in a new gender for the purposes of the law. That is the hurdle that the hon. Gentleman is unable to get over, and on that basis I am unable to accept the amendment. Dr. Harris: I shall be brief. I am grateful that the amendment was selected because I have been able to argue narrowly so that we do not repeat the debate on amendment No. 56. I want to respond to just two points from the debate. The hon. Member for Daventry argued that the proposal was invidious because it would discriminate against other groups of people who would not be able to remain married in such circumstances. In order to argue discrimination under article 14, one has to engage another of the human rights articles, and it is hard to see that any other is satisfactorily engaged. The hon. Gentleman cannot have it both ways. If a gay couple demanded the right to be a same-sex couple, they would have to argue under article 8 or article 12, and European jurisprudence is clear that public policy can permit Governments to reserve marriage for relationships between men and women. So, if the Government are secure in arguing that they do not have to accede to amendment No. 71 or amendment No. 56 on the basis of a challenge under article 14 together with article 8 or 12, which is presumably their view because they would never want to enact something that they felt liable to successful challenge, it is very hard for those who share that to claim—I notice that the Minister did not—that accepting the amendment would strengthen a similar claim made by, for example, a gay couple wishing to get married. Mr. Boswell: With respect to the hon. Gentleman, he may have slightly misunderstood my argument, but for the avoidance of doubt I will put it again. My concern lies in the comparison between the position of an existing couple, where one of the parties has transgendered and wishes to stay married, as in the terms of his amendment, and that of a future marriage between a man and a woman that has been entered into in good faith, in which subsequently a transgender situation arises. They would not be able to avail themselves of the same right. Column Number: 105 Dr. Harris: I wrote down that point but I could not read my scribbling of the word ''future''. I want to deal with the general point because the same argument applied. The hon. Member for Birmingham, Selly Oak clearly said that it is more reasonable to assume that once the legislation has been enacted and people know that there is not a lifetime of not being able to obtain recognition ahead of them, might if they have any doubts at the time that they get married—many will—pause when deciding whether it is appropriate to marry in their original gender rather than first seek treatment and take advantage of the other measures in the Bill. So, there is a difference. The argument that such people cannot just rely on discrimination, as another human rights convention article must be engaged, still applies. It is hard to see that, if the Government are right in feeling that they do not have to concede the point the basis of article 8 or 12, there would be a case to be made under article 8 or 12 by that category of people in the future. That does not mean that the Government cannot accept the amendment; they just choose not to do so on the basis that it is a fundamental breach of human rights. The point is interesting, but it is difficult to argue on the grounds of discrimination given that some of us feel that, if anything, such people are still discriminated against in relation to the provision of goods and services. Hopefully, we will be able to debate that later. I am grateful to the Minister for his response. It is disappointing that he did not agree to change his position, but I would like to deal with the question of ''shortly''. We were told several years ago, for example, that the Government's alcohol strategy would be published shortly. He knows that even a Government with a large majority in both Houses cannot be certain of their timetable. There is a worry that the civil partnerships legislation will not emerge shortly as many of us would like. The Government have not accepted the point of the proposal, so I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. The Chairman: We have had extensive debate on the principles and detail of almost all aspects of clause 4, so I hope that any contributions to the stand part debate will be limited and focused. Clause 4 ordered to stand part of the Bill. Schedule 2 agreed to.
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| Prepared 11 March 2004 | |
