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Standing Committee A
Thursday 11 March 2004
(Afternoon)
[Mrs. Marion Roe in the Chair]
Clause 5
Subsequent issue of full certificates
Amendment moved [this day]: No. 65, in
clause 5, page 3, line 31, leave out from '(1))' to end of line 32.—[Dr. Evan Harris.]
The Chairman: I remind the Committee that with this we are discussing the following amendments:
No. 54, in
clause 5, page 3, line 32, leave out 'six months' and insert 'two years'.
No. 69, in
clause 5, page 3, line 34, leave out 'within that period'.
No. 67, in
clause 5, page 3, line 35, leave out from 'certificate' to '(3)' in line 36.
No. 66, in
clause 5, page 3, line 35, leave out from 'certificate' to end of line 39.
No. 52, in
clause 5, page 3, line 36, leave out from 'time' to end of line 39.
No. 61, in
No. 11, in
clause 5, page 3, line 38, leave out 'six months' and insert 'two years'.
No. 68, in
clause 5, page 3, line 38, leave out subsection (3).
2.30 pm
Dr. Evan Harris (Oxford, West and Abingdon) (LD): I welcome you back to the Chair, Mrs. Roe. I was just setting out the fact that three time periods are involved in the legislation relating to an interim certificate. The third is that between the ending of a marriage by the death of the person's spouse or by dissolution or annulment other than on the ground mentioned in subsection (1), which relates to the decree of nullity based on the interim gender recognition certificate having been issued, and the seeking of a full gender recognition certificate.
My amendments, along with amendments Nos. 69 and 52, on which I might offer support, although perhaps not to both, would ensure that there are no time limits in any event other than the first. No one is arguing that there should not be some time limit for granting the decree of nullity on the ground that an interim gender recognition certificate has been issued—otherwise, a sword of Damocles would hang over the marriage.
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My amendments, however, support the argument that, thereafter, there is no reason why the person with the interim gender recognition certificate, even though none of the human rights of recognition go with it, should be under a time limit. Since there are no rights accorded, no damage would be done to the Government in extending the period for which someone could hold the certificate.
Lynne Jones (Birmingham, Selly Oak) (Lab): It is true that no specific rights are attached other than the right to have the marriage annulled before applying for a further certificate. However, recipients of such an interim certificate may regard it as having some value, perhaps as a document that at least says that the Government recognise that those recipients have a right to full recognition if their marriage is dissolved. I hope that the Government might consider that aspect. If, for understandable reasons, people do not wish to dissolve their marriage, having the interim gender recognition certificate may be some comfort to them while they remain married to their spouse.
Dr. Harris: I endorse that fully. That is why the amendment, and the others in the group, recognise that someone may be happy to have that interim recognition certificate and go no further. That is why a time limit does not appear to me to be necessary.
The narrower point I was making was that the Government might argue that there should be a time limit because they want to limit some rights to six months. The six-month period would apply to dissolution other than by annulment on the basis of the interim recognition certificate, so there is some reason for that limit. Another six-month limit can also be involved, but I am arguing that there does not appear to be any reason for limits of six months and six months; there is no reason why they could not be longer.
The Government may argue that, 10 years later, the marriage may be dissolved or annulled through normal divorce or annulment proceedings, or by death. An application could be made some time after that for a full recognition certificate. The end of the marriage may happen earlier, but if my amendments were accepted there could be an application 10 years down the line. By then, the person may not intend to continue to live in the new gender. That may or may not be true in any given case, but the same argument might apply to consideration of a full recognition certificate. Unless the Government intend to build in an automatic review after a specific period, it seems illogical to say there must be a short time limit on the grant of an interim recognition certificate, assuming the same tests are applied, because of something that may happen down the line.
Mr. Tim Boswell (Daventry) (Con): The hon. Gentleman is making a compelling argument. As I understand it—I would be grateful if he confirmed that I am correct—he is simply stating that one diagnosis of gender dysphoria and re-assignation, confirmed by a gender recognition panel and the issuing of a certificate, whether full or interim, will continue
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indefinitely because it is assumed that it will not normally be reversed, at least without returning to the panel.
Dr. Harris: Indeed, that is a good summary of the situation. The argument for subsequent action should not apply because the decision will already have been made. Given what I said about discrimination issues this morning, although I do not want to stress this too much, one could argue that it would be unfair on someone who was married—who had to go through that extra stage—to include some additional test, unless it is in the Bill, thereby requiring more time for the panel to make a further judgment on conversion of the interim certificate to a full certificate.
It seems reasonable that there should be one test; otherwise, inequity will be created in the system. I do not feel that I need to say any more: the default situation should be no time limit other than for the purpose of annulling the marriage on the basis of the interim certificate. It is for the Minister to make the case for a time limit of six months, followed by a further six months, in the first instance.
Lynne Jones: On Second Reading, I made the point that the draft Bill did not allow for any expiry time for the interim gender recognition certificate. Having studied the Bill in more detail, I now realise that it is necessary to provide a time limit for the special annulment arrangements that the interim gender recognition certificate provides for. If there is to be that special provision, it should not persist indefinitely because the other spouse would have a sword of Damocles hanging over their head indefinitely.
The specific annulment provision should be time-limited and I now support that proposal. However, I concur with the gist of the argument made by the hon. Member for Oxford, West and Abingdon (Dr. Harris). My amendments Nos. 54, 69 and 52 differ from his specific proposal in that amendment No. 54 would extend the time limit of six months to two years for ending the marriage through the procedures available to anyone when, sadly, a marriage breaks down.
Amendment No. 54 is probing. I do not believe that it is necessary to have any such time limit, although it may be useful for the other partner. However, it should be greater than six months. The marriage can end at any time, but in most cases that we are concerned about—marriages that have subsisted for a long time—it is highly unlikely that the marriage would be dissolved other than to take up the rights given in this legislation, if the couple decided that that was of overriding importance rather than remaining married. That is obviously a difficult decision.
We have spent a lot of time dwelling on the difficulties—the very real difficulties—of those very few people. We started by discussing whether it should be necessary for their marriages to be dissolved at all. Then we discussed the question whether, if those marriages have to be dissolved, the people involved
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should have some retained pension rights that recognise that they are being forced to dissolve the marriage against their will.
We have not managed to get the Government to move on those two issues, so we come to this proposal, which would be very helpful to such couples. It would mean that the person who had their gender dysphoria corrected and was living in their acquired—what they would regard as their correct—gender possessed at least some official recognition of their new civil status. However, if they chose to remain married, they would not be entitled to take up their full rights. None the less, such a document may have great significance for and be of great value to that individual.
Should, sadly, the marriage end because the non-transgendered spouse dies, there should be no time limit involved. If, for example, somebody was living with a partner who was terminally ill, but it was not clear when they were going to die, what dilemma would that person face in a time-limited situation? They would have to make a decision on whether to dissolve their marriage, which they do not want to do, lest their spouse survive beyond the six-month or the two-year period.
I ask the Government seriously to consider the amendments. Although I have suggested a period of two years, that is a compromise over ending marriages other than by the special annulment procedure. Having thought through the arguments, I cannot see any point in having any time limit on the interim certificate, other than in respect of the specific issue of the special annulment procedure. I hope that the Government respond positively to the ideas that have been put forward.
Mr. Boswell: I have considerable sympathy with the points that have been made and I do not need to rehearse them.
This aspect was once described as putting a pistol to the head of people who already have a very difficult decision to make. I am sure that the Minister does not want to do that and that he wants people to have a reasonable time for consideration. It will be obvious to anyone who has studied the amendments carefully—not for the first time in the Committee I have misplaced my amendment paper, but I hope I have not mislaid my thoughts about them—that there should be reasonable thinking time for people to consider whether to take this dramatic step.
I will listen with interest to the Minister, but I take it that the argument for having a time limit at all is that he does not want such a situation to continue indefinitely. I echo the point that I have already made in an intervention, which is that the diagnosis is, in a sense, indelible, unquestionable and almost irreversible, except at the behest of an application by a party for further diagnosis or a reversal, as it were, which is not likely in my view. Therefore, in theory, there should be no bounds on the interim certificate. It is, in one sense, a useless document, unless and until it is used as the vehicle for obtaining an annulment.
I will make two points on the issue of the choice of time. My thinking is coincident with, if not expressed in the same way as, that of the hon. Member for
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Birmingham, Selly Oak (Lynne Jones). Two years is a reasonable waiting period. My thinking was simply drawn by analogy with the requirement for two years of living in the acquired gender before the issue of a certificate in normal circumstances. The Minister may want to ponder on that.
2.45 pm
The second, supporting reason is that it is likely that we will know where we are with civil partnerships within the two-year period and it will make the transition less objectionable and difficult for those caught up in it.
I would like to make two wider points now rather than speak on clause stand part. I am mindful of the constraints of the amendment. I sympathise again with the comments of the hon. Lady on the validity of certificates. At this point, or by ingenuity, at another point, the Minister may wish to say whether interim certificates have any validity other than as a vehicle for obtaining an annulment. If the diagnosis exists, the Committee may wish to consider issues related to discrimination legislation or other private rights.
If one likes legislation, one often walks along the Corridor thinking of things that one has not thought of before. In this case, polygamy is the final point that I throw out to the Minister on which I have no conclusion. [Interruption.] I see the Under-Secretary of State for Work and Pensions responding to that point. That is because she and I had some interesting discussions about it on the State Pension Credit Bill.
The clause refers to the death of one spouse during the two-year period, and that is the typical western pattern. I do not seek to open a debate on the matter now, but the Minister knows from our exchanges on pension credits that we must acknowledge the facts about polygamy. The issue is about UK certificates and how they work, but I would appreciate the assurance of the Minister with responsibility for constitutional affairs that there will be no difficulty with them.
It has not been the practice of this Committee, but when one raises an issue such as polygamy, it is easy to caricature it and say that it is all games. Sadly, something that may seem notional or even fanciful can be the real experience of an individual. The last thing that we want to do is make life difficult for them. The purpose behind the amendments and the thinking that has informed members of all parties is that we do not want to put people in a position where they have to make agonising choices in a hurry. The agony may be prolonged if the process is open-ended, but we should give people a reasonable degree of thinking time before they have to come to such difficult decisions.
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