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Mr. Alex Salmond (Banff and Buchan) (SNP): Will the Minister say a little more about the schedule relating to exceptions for clergymen in England and Wales in regard to their obligation to solemnise a marriage? How will a clergyman know whether he is in a position to exercise such an exception? Why are such exceptions not
necessary in Scotland and Northern Ireland? I know why they are not necessary, but it might be helpful if the Minister answered that question for the record.
Mr. Leslie: As the hon. Gentleman knows, various Sewel motion activities and other Scottish Parliament implications exist in relation to extending some of the UK provisions to Scotland, and I shall deal with some of the exemptions shortly, including what has been termed the conscience clause. That proposes that those in the established Church who are under a legal obligation to solemnise a marriage when a person requests them to do so will have the ability effectively to opt out of that legal obligation. That provision has been put in place to allow those clergymen and women to have that opt-out, and it is now part of the Bill.
The determinants of gender are important, and the hon. Member for Salisbury (Mr. Key) quoted a number of sources in that regard. In the Court of Appeal, Lord Justice Thorpe concluded in the Bellinger case that:
- "The test that is confined to physiological factors, whilst attractive for its simplicity and apparent certainty of outcome, is manifestly incomplete. There is no logic or principle in excluding one vital component of personality, the psyche."
The hon. Member for South-West Bedfordshire (Andrew Selous) said that hon. Members should defer to those with medical qualifications and experience in these matters. The chief medical officer himself has informed Government thinking and concluded that gender dysphoria is a medical condition that needs to be addressed. We must face up to these problems and issues, and not bury our head in the sand and pretend that there are no issues to be addressed.
The Bill has already undergone detailed scrutiny, not least in the other place, and it had its genesis in the interdepartmental working group back in 2000. The Joint Committee on Human Rights has considered the draft Bill. The noble Lord Filkin has taken a great interest in the formulation of the Bill, and I would also like to pay my own tribute to the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton), for her part in devising and framing it when she was a Minister in the then Lord Chancellor's Department.
The Bill contains a number of specific proposals. A panel of lawyers and doctors or chartered psychologists will be established and will be capable of issuing gender recognition certificates to individuals who are assessed as having the medical condition of gender dysphoria. My hon. Friend the Member for City of York (Hugh Bayley) pressed for hon. Members to include transsexual persons on the panels, but that requirement is not in the Bill and we have no plans to go down that particular avenue. The panel will be set up to take evidence from a wide number of experts, family
members and others, and that will be the manner in which it will be informed of relevant experience and expertise, rather than by trying to break down the composition of the panel. However, I understand where my hon. Friend is coming from on this issue.The medical condition assessment will require the applicant to provide evidence of a diagnosis of gender dysphoria, details of any treatment undergone for gender dysphoria and of whether the applicant has, in practice, lived in their acquired gender for at least two years—family evidence of this will be an important factor, as the hon. Member for South-West Bedfordshire pointed out—and whether they intend to continue to do so permanently. Evidence of treatment will not solely relate to surgical treatment. Although most transsexual people have had surgery, some have not and should not—perhaps for other health reasons. The key test will be whether a person has taken decisive steps to live fully and permanently in the acquired gender, as the hon. Member for Winchester observed.
The issue of a new birth certificate will overcome a number of problems currently encountered by transsexual people. The hon. Member for Winchester highlighted the point about insurance, which was a good example. Insurance can be taken out in the acquired gender once a new birth certificate has been issued, so that, in the event of an accident, there would no longer be a risk of prosecution for fraud or driving without insurance, as legal recognition would remove the discrepancy between what the insurance documents record and the reality of how a person presents to the wider world.
My hon. Friend the Member for Birmingham, Selly Oak mentioned the interim gender recognition certificates, and asked why a six-month time limit had been decided upon. The only purpose of the interim certificate will be to allow the dissolution of an existing marriage, and six months was felt to provide sufficient time for those proceedings to begin. As the interim certificate provides grounds for ending a marriage, allowing unlimited time would create too much uncertainty for the other partner. It is therefore only fair to limit its use to six months. I am sure, however, that this issue will come up in Committee.
A number of hon. Members have mentioned the provisions in clause 22 on disclosure of information. It is clear from the approach that the Government have taken in respect of the issuing and recording of birth certificates that we have tried hard to strike a fair balance in the Bill between protecting the privacy of transsexual people and preventing disclosure by public authorities, while not acting excessively and criminalising all aspects of disclosure. For example, when a person acquires information about a person's gender history in the course of official duties, this will be regarded as protected information, and disclosure would be an offence.
However, there are exemptions that will allow disclosure for valid public policy reasons, such as preventing or investigating crime—as mentioned by the hon. Member for Winchester—and there will be no prohibition on disclosure if information is acquired in a private capacity. If the individual is not identifiable, disclosing protected information will not be an offence—for example, in the use of information for statistical reporting purposes. The Government believe
that this approach strikes the right balance between protecting the privacy of individuals and safeguarding the public interest. My hon. Friend the Member for St. Helens, South asked whether officials would be bound to have a duty of care in regard to the use of protected information. My understanding of the Bill is that that will be the case, because they will be covered by the tightly defined offence involving the misuse of protected information. I believe that it is right to have that provision in the legislation.The issue of marriage was raised by several hon. Members. Transsexual persons will be able to marry persons of the opposite sex. These would not be same-sex marriages—as the hon. Member for South-West Bedfordshire wrongly asserted—as the change of gender would allow a valid marriage to proceed between a male and a female in law. That is the principle that we have followed.
Andrew Selous: I feel that the Minister is falling into a slight confusion between sex and gender. One could argue that it would be same-sex marriage. His case is that it would be marriage between people of different genders, but it is not the case that it would not be same-sex marriage.
Mr. Leslie: I do not think that the hon. Gentleman has understood our proposal for the use of the gender recognition certificate to acknowledge, on behalf of society, that individuals have been reassigned by their own volition and have acquired their gender—men and women, as defined by the panel on gender recognition.
Mr. David Heath (Somerton and Frome) (LD): May I bring the Minister back to information held by public bodies? He has not made it clear whether provision exists for a requirement on public bodies to amend registers that they hold, perhaps on professional or academic qualifications. Does he anticipate any change on that basis within the legislation?
Mr. Leslie: The only core change that the Bill proposes is in respect of the issuing of a new birth certificate through the gender recognition register. That is the main register that will effectively be created by the Bill. No specific consequential series of changes will be made to public information held elsewhere, and, as was said, there will be no attempt to rewrite history. The original birth certificate will remain on record, with the new birth certificate on the gender recognition register. I take the hon. Gentleman's point about wider public information, however, and those are the sorts of issues that we will need to consider in Committee.
The Government intend to introduce separate civil partnership legislation in this Session following consultation about a framework for the legal recognition of same-sex couples. Indeed, 83 per cent. of respondents to the consultation supported the principle of a civil partnership scheme. That is an entirely different issue, which is unaffected by this legislation, but it is important to bear it in mind that the Government are attempting to address some of the other questions in different pieces of primary legislation.
The issue of pre-existing marriages is a difficult one, about which the right hon. Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friends the Members for St. Helens, South and for City of York were asking. Pre-existing marriages would need to be dissolved in order for legal recognition for a newly acquired gender for married persons to be achieved: marriage in the UK is between a man and a woman, and the panel would therefore issue only an interim gender recognition certificate, which would be grounds for dissolving the marriage, at which point the court would issue a full gender recognition certificate. That is because marriage is an institution distinctly for opposite-sex couples. I accept, however, that careful consideration of this matter is needed, and my hon. Friend the Member for Colne Valley expressed carefully and pragmatically the difficult judgments that come into play on this issue.
On the complicated question of pensions and benefits, my hon. Friend the Member for City of York asked two specific questions and made several other comments, as did the hon. Member for Bournemouth, East (Mr. Atkinson), the right hon. Member for Maidstone and The Weald, the hon. Member for Salisbury and others. The basic principle that we are following is that pensions and benefits follow the entitlement for the new acquired gender. A male-to-female transsexual person, say, aged 62, will gain state pension eligibility from the date of that gender recognition certificate. It will not be backdated, because we do not have retrospective legislation.
My hon. Friend the Member for City of York raised a specific example of a case in which an individual whom we will call Y is a male-to-female transsexual person, and X is the wife of that original male individual. Were Y to apply for a gender recognition certificate, but is married to his wife, X, they will have their marriage dissolved. While X will lose her category B married woman's pension, the court will be able to institute a pension sharing order for occupational and other pension sharing rights, and X will be entitled to some category A state pension based in part on the national insurance contributions record of the former husband, Y, or on X's national insurance contributions record.
My hon. Friend asked whether it was right to require a couple to divorce in order to obtain recognition if neither party wanted to do so. As I said, marriage is an institution between persons of the opposite sex, and that is part of the essential nature of a marriage contract and the marriage legislation. We must look towards some sense of consistency in our legislation. He then asked whether it was fair to put the right to marriage, in some sense, before the right to gender recognition, and to give that spouse less power in the relationship. That is a difficult judgment to make, and we are trying to resolve some of these problems, not least through the civil partnership legislation, which needs to be considered in tandem with this Bill.
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