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Baroness Buscombe: I shall speak to Amendment No. 53, which is grouped with the other amendments. I did not take part in the debate on the first group of amendments in relation to marriage and same-sex marriage because I wanted to reserve what I have to say for this grouping of amendments.
As I understand it, the amendment proposed by the noble Lords, Lord Goodhart and Lord Carlile of Berriew, would result in two individuals, who are recognised in the law as being of the same sex, marrying each other. We on these Benches have a free vote on this Bill, but I cannot envisage a time when we would support legislation for same-sex marriage. I made that point at Second Reading—that we have never supported any form of legislation that would allow for same-sex marriage. That is my personal point of view as well. Therefore, we do not support the amendment.
My amendment is a probing amendment. I am trying to get around the difficulty that the Bill is asking people to divorce. As I said at Second Reading, that so much goes against the grain; and at the same time we want to help transsexual people through this process. The amendment seeks to find a way around what is one of the most unfortunate consequences of the Bill—that is, when a happily married transsexual person is forced to get a divorce before being entitled to any of the rights and obligations that are bestowed on the holder of a full gender recognition certificate. In a society that believes that marriage is a sacred union between a man
and a woman, there seems to be little alternative but to require the marriage to end before there can be legal recognition of the gender change.The amendment is trying to find an alternative. If the Government believed that the amendment would lead to same-sex marriage, I hope that they would make it clear in their response, because it is very important that we avoid that consequence. We hope that the amendment would give the holder of an interim gender recognition certificate full recognition of their acquired gender, apart from when it comes to their status in marriage. In that instance, they remain in the law as their gender at birth. I do not deny that that leaves the transsexual in a rather ambiguous category—and it is far from ideal. However, the question is whether the untidiness that the amendment would add to the Bill is worth accepting for the sake of keeping a loving family together, which is what the amendment seeks to do.
I know that noble Lords will not need convincing of the critical importance of keeping a family together where at all possible. That the families who will be affected by the Bill will in most cases have gone through years of uncertainty, confusion and pain and have still managed to stay together is a testament to their commitment and love for one another, and their own belief that a marriage is for life. For the Government to put that relationship through yet further trauma would be extremely unfortunate.
As the Bill stands, gaining an interim certificate does not affect the status of a transsexual beyond its simply being a passport to getting their marriage annulled. If our amendment, or a version of it, were accepted, it would bring the rights and obligations of the holder of an interim certificate into line with those of a holder of a full certificate, except that they would not be allowed to have an amended birth certificate. I am looking at the Minister and I believe that that will fall before it has hardly come up for air.
This is Grand Committee stage and we have been racking our brains to try to find a way around the problem. Perhaps we are failing, but we are trying. The interim gender recognition certificate would continue for as long as the marriage, hence the term "interim" may have to be altered. The amendment is intended to explore possibilities and I look forward to hearing the Minister's response.
6.30 p.m.
The Lord Bishop of Winchester: There appear to be two different questions before us at the moment. I confess that I am at a loss, just as I believe the noble Lord, Lord Goodhart was, as to why Amendment No. 53 is in this group. I shall return to it in a minute. As for the rest of the group, I am delighted, as I was at Second Reading, to find that on this matter the noble Lords, Lord Goodhart and Lord Carlile, and I and a number of other noble Lords seek to say the same thing. I welcome the speeches made and this line of amendments, with at their heart the fact that Clause 5 should not stand part of the Bill.
I shall not repeat what I said at Second Reading, except to remind the Minister that he knows my reasons, which I continue to believe to be cogent, for disbelieving what he may tell us, that only if Clause 5 stands part and divorce is mandatory in those circumstances, can the Government avoid backing same-sex marriage. He knows that he and I disagree with that, but I note that that was a point that I made.
Since speaking on 18 December, I have been made aware of three, possibly four, other instances of people who are deeply anxious about the proposal that they will have to choose between one party in the marriage seeking a gender recognition certificate and the continuation of the marriage. They regard their marriages as commitments that they made to each other, in some cases before God—in other cases not before God or not explicitly so—and they find it a matter of sheer cruelty that they should be made to break up their marriage. As the noble Lord, Lord Goodhart, made clear too—I was delighted to hear him say so—marriage and civil partnership are not the same thing. I do not believe that the Government will propose that they are; if they do it will make life still more difficult for themselves. It seems to me that for those reasons this is an extremely important set of amendments.
Perhaps the Chairman or other noble Lords will think that we should wait until we get to Clause 9 to work on Amendment No. 53 in the name of the noble Baroness, Lady Buscombe. It is an amendment to Clause 9 and that clause contains what the Government describe in the Explanatory Notes as the fundamental proposition of the Bill. I had imagined that, at this point where I disagree fundamentally with the basic proposition of the Bill, I could not see how it could be amended. The noble Lord, Lord Tebbit, has managed to produce Amendment No. 78, which I take to be such an amendment. I believe that we shall have to discuss those at another time if we are not to cause each other confusion.
Lord Tebbit: As I was listening to other noble Lords I was reminded of a little rhyme that we probably all learned from our mothers at some stage in our childhood:
- "Oh, what a tangled web we weave, when first we practise to deceive".
Having said that, we need to think our way through the problem and try to ameliorate the nastier consequences of this legislation. As we all know, many marriages continue through love and companionship which has grown up over many years and they are no longer related to what one may describe as sexual activity. That is probably true in a number of the kind of cases with which the Bill seeks to deal. That is why the partners may wish to continue living together in some kind of ordered and legalistic structure, although the marriage is quite clearly as dead as a doornail in conventional terms. We have to deal with that problem. We cannot brush it aside in the way that we have had to brush aside the interests of the children by saying that the children do not matter, which is what the Bill says.
I do not know the appropriate way to deal with the matter. I am inclined to take the view which I suspect the Minister will take, that it is clear that such a marriage must be annulled, and not solely on grounds—I see the noble Baroness, Lady Hollis, nodding quietly—of social security or benefits or anything like that. She is responsible for such matters. I am overjoyed to see a Minister showing some signs of parsimony. We are not used to that, except in relation to defence or some such subject. I have the greatest sympathy with those who are trying to make sense of the Bill and who are seeing how they can limit the damage that the Bill, by its very nature, will do.
Baroness O'Cathain: This is probably one of the most difficult issues. It comes back to the effects on the family. Someone who wants to acquire a gender recognition certificate may live as a companion with a spouse, having brought up children together. They may have a social structure of friends and family and suddenly in one fell swoop because one of them feels that he or she has to have gender reassignment, that all falls apart.
That means that Clauses 4 and 5 emphasise how ridiculous are the practical implications of the Bill. Granting a gender recognition certificate forces the end of a legitimate marriage; that is one where the two parties are of opposite sex, exactly the definition given by the Minister. The Government claim that it does not want to create same-sex marriages in law, which is what would happen if such marriages were allowed to continue after the legal change of sex. However, a gender recognition certificate will allow the holder to marry someone of the same biological sex. That will create same-sex marriages in fact. It seems to me that the choice in the Government's eyes is to have same-sex marriages in fact or same-sex marriages in law and in fact. Those who believe in the sanctity of heterosexual marriage want neither.
In the wonderful speech of my noble friend Lord Tebbit he said that such people could live in a marriage that is as dead as a dodo for many years. In fact, many marriages are as dead as a dodo, not because of want
of gender recognition, but because of paralysis, strokes and illnesses of all kinds but they are very strong marriages.
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