Gender Recognition Bill [Lords]

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Andrew Selous: I too rise to voice my objection, through amendment No. 47, which I tabled, to the fact that the Bill will force a man and a woman who are married to divorce purely because one of them has undergone a gender change. I think that that is wrong. In essence, it comes down to the fact that someone's biological sex should take precedence over their adopted gender. There is no medical argument against the fact that one's birth-given biological sex remains the same. That, as far as I am concerned, should be the determinant for marriage, which is clearly the union of a man and a woman, as is stated on the wall of every register office in the country.

My hon. Friend the Member for Daventry cited the case of the married couple who have written to every member of the Committee. They are extremely concerned at the prospect of being forced to divorce purely because one of them has adopted a different gender. Many people wish to avail themselves and stay committed to their marriage vows, and they do not wish to take on separate or different rights offered by the Government. I ask the Government to reconsider that point. On Second Reading, there was strong concern about the matter across the House. The hon. Member for City of York (Hugh Bayley), who is present, also expressed support for my point and I hope that the Minister will be able to give some ground when he comes to reply.

Richard Younger-Ross (Teignbridge) (LD): I support the amendments tabled by my hon. Friend the Member for Oxford, West and Abingdon, partly because I come from a different perspective to his. I am a practising Christian and he is very secular or, I think the correct expression is, agnostic.

Dr. Harris: Secular.

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Richard Younger-Ross: There is some confused thinking about the Government's proposals. They have almost certainly been lobbied by several groups, some saying that we should not have the Bill because they do not believe in same-sex marriages or recognise that gender can be changed by an operation; and others that if one has had the operation, applied and been registered with a different gender, one cannot remain married because one would be in a same-sex marriage. Those views cannot be held at the same time; they are mutually incompatible.

My hon. Friend said that when somebody has entered into a marriage under their original gender, the marriage should be maintained. It would be wrong for the state to force a couple in those circumstances to break what they have entered into—as they would say—in the eyes of the Lord. It is inappropriate suddenly to say that they will be different from what they were before. They have taken their vows and made their commitment.

Andrew Selous: Does the hon. Gentleman accept that at the other end of his argument, with which I agree, there is quite justified concern among people of faith that we will be entering into same-sex marriages if marriages are allowed to be solemnised between a biological man and a biological man or a biological woman and a biological woman? That is the other half of the argument that he has cogently advanced.

Richard Younger-Ross: From the logic of that perspective, I accept that it might be the case, but I am trying to argue that those who advance that argument cannot hold both positions at the same time. If one comes to the matter from a different perspective, one can hold that we can have ''same-sex marriages'' from the perspective of the Bill because it allows not same-sex marriages but different gender marriages. Once they have applied, the person is of a new gender and can marry. It is not an inconsistency of my standpoint or that of my hon. Friend to hold both arguments, saying that the Government are wrong with the principle of this clause but right with the generality of the Bill.

Mr. Boswell: I begin with a couple of general comments. First, this is the best opportunity to debate the principles of the issues, and you have rightly warned us that we do not need to stray into the practical implications of pensions until later on, Mr. Taylor. Secondly, I am far from certain about the distinction between sex and gender. Amendments to later stages of the Bill will explore that, but it was clear from some of the earlier exchanges that the words tend to be used interchangeably. They can occasionally confuse the debate.

I am sure that the Minister will have some reservations if I say to him that I rise to support his position. I think he is aware of that. Whatever else one may say of the Government's position, it is logical. If persons can change gender, they may marry a person of the opposite gender but they may not stay married to a person of the same gender as themselves, whatever the circumstances were in a previous period when they were married to that person. The logic of the

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Government's position, although it is harsh, is certainly compelling in that the circumstances have changed. That has been recognised by the issuing of a gender recognition certificate.

Andrew Selous: Does my hon. Friend agree that the matter boils down to a question of priority that one has to give to sex, as opposed to gender? My argument is simple. Biological sex, which cannot be changed—I do not think that there is any dispute medically that that is the case—should take priority over adopted gender. If one holds my position, it is clearly wrong to break up what is, in my view, still a marriage between a man and a woman. That is why I tabled amendment No. 47.

Mr. Boswell: It grieves me to say so, but I am not entirely at one with my hon. Friend. The logic of his position is impeccable: if there is a given sex that cannot be changed then there cannot be marriages between a person whose gender has subsequently been changed by law and a person of the original sex. Conversely, however, according to the logic of his position, it would never be possible for persons who have gone through a transgender arrangement to have the relationship that they seek, or may be carrying out, recognised.

It was revealing to read some correspondence I saw from someone who is not a constituent of mine. She said that she lives with someone who was formerly her husband and is now her partner. She had implicitly accepted the change that had taken place. These are wide issues. I think that the Government are right, but I just modestly flagged up a marker for a new clause of my own that I hope will be discussed later on in relation to marriage between transsexual persons. The one area in which the Government have not quite pursued the logic is a situation where two persons are both transitive and might wish to stay married. If the Government are committed to marriage, it is not clear to me why it is necessary to break that relationship, albeit that both partners have changed gender. We shall debate that when we come to it.

There has been some slipperiness of language, and although it is an easy thing to say—I do not want to say it in a smug way—no individual is obliged to sever their marriage. What they may have to do is sever it as a condition for the issuing of a gender recognition certificate, but that is a matter of their application. It is not being imposed on them. In a sense, their rights to the enjoyment of marriage are not being taken away. I can see the hon. Member for Oxford, West and Abingdon wrinkling on that. He can make an intervention if he wishes. No one is denying that it is a huge dilemma—I do not wish to say that for a moment—but sometimes there is a suggestion that people are being forced out of their marriages.

Dr. Harris: It is worth making the point once, because it will be a recurring theme, that people will be forced to make a choice between their marriage, which they hold dear and has consequences for their family and their emotional state, and their access to their right under the Human Rights Act and the European convention to recognition of their new gender. One could argue that that is a choice, but as it is a choice

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between two fundamentals, it is a forced choice, which will mean they have to give up something that they hold dear.

Mr. Boswell: I concede the hon. Gentleman's point to the extent of saying that the choice is a highly invidious one. That is the dilemma with which the Government, among others, have been wrestling. It is the appropriate moment to say that it would be helpful if the Minister responded to the points made about legal opinions. He may not wish to at this stage, but I seek his assurance that the advice—this is a matter of some contention on other occasions—is unshakeable, and is not likely to break down in the face of the European convention on human rights.

4.45 pm

I take it as read that the dilemma can be tolerable only if the possibility of civil partnerships exists. One of my concerns is to ensure that the two Bills dovetail, and we shall have an opportunity to discuss that later.

Another argument, which is seductive, although I do not want to accept it, is that there is a special circumstance for pre-existing marriages. Even if that is the case—I understand that emotionally, it might be, and that circumstances were different 30 years ago—the principle of not permitting same-sex or same-gender marriage, however one describes it, is sound. To make a concession for past marriages but not for future marriages concluded on the same basis would be invidious. I presume that people marrying today do so in good faith on the assumption that they are of the gender in which they are marrying, but that circumstances may change in the future when they take a different gender and wish to apply for gender recognition.

We should not preclude that, any more than we should facilitate rewriting history in relation to past marriages. This is a tough problem and the Minister, probably inevitably, is being cast in the role of the villain. No one is suggesting that the dilemmas are not huge, nor that we should not support the people involved or try to find the most acceptable way through their practical problems as well as their emotional and personal problems. However, I find myself reluctantly coming down on the side of the Minister, because I think that the basic principle of one man and one woman in one marriage is sound, and is the only basis on which we can proceed.

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