| Gender Recognition Bill [Lords]
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Lynne Jones: We had some debate on this matter when considering clause 1. I expressed the view that the Government ought to be seeking reciprocal arrangements with countries whose procedures on such matters were as rigorous as ours. I remain of that view. Amendment No. 73 is one way round that problem, and I hope that the Government might consider it. If it is not satisfactory, I hope that they will draft their own amendments on the issue.
Column Number: 194 3.15 pmI would also like to raise the issue of how we treat such marriages at present. I have a note from Nicholas Blake, QC, of Matrix chambers, who has expressed concerns about the effect of the legislation on custom and practice. I am told that the rules on recognition of foreign marriages, both in common law and by statute, refer to the validity in the law of the place of domicile or intended permanent residence of the party concerned. For example, foreign transsexual marriages have been recognised by the authorities in this country for such purposes as immigration and tax. Clause 21 would be inconsistent with European Community law and is therefore futile. The example is given of a Dutch transsexual who is married to a Malay man in Holland, and who seeks to come to the UK for employment. That person would have the right to bring in the spouse as a family member under regulation 1612/68; the UK would have to defer to Dutch law as to whether the marriage was valid. Any non-recognition for the purpose of a visa, residence permit, tax or social security would be incompatible with European Community law on the grounds of, first, an obstacle to enjoyment of rights of free movement, and secondly, discrimination in the recognition of foreign marriages and subordinating all marriages to domestic law. I am told that in such a state of affairs it is clear from KB(ECJ) that UK law is void and must be disapplied by national courts. I appreciate that the point that I have raised is a new one for the Minister, but I ask the Government to consider the issue. Mr. Boswell: I have not previously sought to speak in this debate, but stimulated by comments made by the hon. Members for Oxford, West and Abingdon and for Birmingham, Selly Oak, I have found a potential pitfall. In fairness to the Minister, these are issues to take away and think about. In addition to endorsing the need for the Minister to provide understanding in response to the probing amendments and the comments made on legal opinion, I ask him to consider subsection (3), which relates to the odd concept of not recognising a foreign post-recognition marriage—or regarding it is as void—but regarding it as valid on the issuing of a certificate. The Government could be caught between two stools. It would be difficult, as the hon. Lady said, for them not to accept certificates at all because of common law. However, if they said, ''You have to have a gender recognition certificate and you also have to have a British marriage certificate that brings you up to date in consequence of the issue of your gender recognition certificate'', that would be a coherent position. From my understanding, the clause means that we will not accept the validity of a foreign post-recognition marriage unless and until a British gender recognition certificate has been issued, which may be available on the strength of a foreign gender recognition certificate. My problem is in construing the proposal in subsection (3) with the general Column Number: 195 provision in clause 9(2), in which it says that the general rule about a person's gender becoming the acquired gender,
There is the potential for a loss of rights to the parties to the marriage due to non-recognition during that interim period. I do not know whether that is a material difficulty; I am not absolutely sure whether it is exactly the same point that the hon. Lady obtained from learned advice; however, the comments have exposed the difficulties in that area, and Ministers may need to reflect a little more before reaching a final conclusion. Dr. Harris: I offer an alternative form of words to the amendment, which summarises what the hon. Gentleman and the hon. Member for Birmingham, Selly Oak said. If the Minister could respond to it in the same debate I would be very grateful. An alternative subsection (6) would state:
Mr. Lammy: We have already had detailed discussion of the issues in the context of clause 1, as has been mentioned. In reality, gender recognition is not an area in which there are standardised criteria across the world. Different countries apply different standards of recognition—hence we have sought to create a process that takes account of those variances and allows the UK to deal differently with applicants from those countries that have criteria that are at least as rigorous as our own. I understand the view that a person who has recognition from an approved country should not have to apply for recognition in the UK, but have it by virtue of recognition overseas. Before I set out why we require the person to make an application before recognition, I should clarify that the application is straightforward. All that the person is required to provide is evidence of their recognition overseas. We are talking about people who probably wish to live and work in the UK, and the application can be completed well before the person gets to this country.
Column Number: 196 In discussing the issue, it is important that we consider the practicalities of subsection (6). Recognition may be an amended birth certificate, as in Austria, Belgium or France; or a new civil status certificate, as in Germany or Italy. The person does not have to produce new medical evidence, so there are no new hoops to jump through. If the country is on the approved list, we will be satisfied that the criteria are at least as rigorous as our own. There is nothing to prevent a person who is travelling to, or coming to live and work in the UK, from applying for recognition in the UK before he or she arrives. So, for the Government and the integrity of the legislation, the solution in the Bill provides a high level of certainty. It provides for the issue of a UK gender recognition certificate and hence a precise point at which the person has recognition in the UK.Although gender recognition certificates will not be used as an identity document by most transsexual people, as by its very nature it reveals a very private fact, we understand that some people will choose to use it in that way—especially if the alternative is to use a foreign birth certificate, which may be alien to any person to whom they show the documents. One other consideration has been that some countries allow same-sex marriages and that, therefore, a person could be recognised in the acquired gender and married to a person of the same gender. That person will still be of the original gender and, as far as the UK is concerned, their marriage will be an opposite-sex marriage. On recognition of the acquired gender in the UK, however, the marriage would become a same-sex marriage under UK law. If we recognised the acquired gender of those with recognition overseas without an additional application, we would be faced with the creation of a small category of same-sex marriages recognised by UK law. UK law does not recognise any same-sex marriages at present. The requirement for an application allows the UK to ensure that it does not begin to recognise same-sex marriages contracted overseas. Andrew Selous (South-West Bedfordshire) (Con): I am interested in the Minister's words ''at present''. Is it the Government's intention to head towards same-sex marriages at some point? Mr. Lammy: We have had much debate on this. I do not know how many times I have used the term ''civil partnership''. The Government's position in this area is clear. The complex problem of overseas marriages illustrates the difficulties raised by private international law in relation to the issues that we are discussing. We believe that the process that we have designed in the Bill minimises the difficulties through a straightforward application process, without placing any undue burden on transsexual people who already have recognition of their acquired gender overseas. Lynne Jones: Will the Minister clarify whether the passage of this legislation will affect the rights of a couple who are legally married in one of their countries of origin, and who are resident in this country, or living Column Number: 197 here for a while? Would such a couple be required to have that relationship recognised for other purposes, such as tax and immigration? Would they have to apply for a gender recognition certificate?Mr. Lammy: The issue that my hon. Friend raises, and the quotation that she refers to from Nicholas Blake, QC, are things that I want the Department to consider fully. I will reply to her in a letter, if she can provide me with the full text of that summary. I acknowledge that the issue is serious, and I want to get to the bottom of it.
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