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Lord Tebbit: My noble friend is absolutely right. Indeed I should have said of marriages that may remain in being despite one partner suffering a mental illness—the partner may simply be a different person—that the bonds are so strong that such marriages last. I believe that that is the kind of situation that we face with this legislation.
Baroness Buscombe: Am I right in thinking that my noble friend believes that marriage is just about sex and that it is as dead as a dodo if there is no sex?
Baroness O'Cathain: Perhaps I can correct my noble friend. I can reassure her that I said that it was certainly not only about sex. It is not just sex that keeps alive a marriage. People who marry before God, or elsewhere, can remain committed over a long period of time despite illness—my noble friend mentioned mental illness—and they are some of the strongest marriages that I know.
Lord Cameron of Lochbroom: I take the point made by the noble Lord, Lord Goodhart, about the illogicality of the situation that arises when an applicant is married. I observe that earlier today noble Lords pointed out that it was not necessary for the panel to be satisfied other than in relation to the particular criteria set out in Clause 2 of the Bill, which include proof of intention to continue to live in the acquired gender until death. On the other hand, notwithstanding the acquisition of a new gender, Clause 12 provides that that will not affect the status—observe the word "status"—of the person as father or mother of a child. The consequence of the issue of a certificate is that the person is still married and is therefore a spouse. The other party, who has had no rights in the context of an application, remains a spouse and is entitled, whether he or she wishes or not, to raise an action for decree of nullity, or in Scotland a decree of divorce, on the ground that a certificate has been issued.
Going through the fiction in law, as regards the children of a marriage, the person who has acquired the new gender remains the parent who was normally called "father" or "mother" beforehand. There seems little difficulty in having a fiction that someone who has been the spouse of a person who has changed gender by acquisition should remain a spouse until the parties determine one way or the other whether they wish that relationship, and all the consequent rights that go with it, to remain. I am bound to say that I find myself entirely sympathetic with the view that there should be no distinction made between a person who is married or one who is unmarried as to the issue of a gender recognition certificate and the consequence on legal rights.
6.45 p.m.
Lord Phillips of Sudbury: Following the remarks made by the noble Baroness, Lady O'Cathain, one
should go a little further. I pay tribute to the noble Lord, Lord Tebbit, for provoking consideration of issues, in his inimitable way, that otherwise may have gone unnoted. He said that a marriage would be as dead as a doornail—I think that was the expression—in conventional terms when one party to the marriage received a certificate.
Lord Tebbit: I actually said "as dead as a dodo".
Noble Lords: The noble Lord said "as dead as a doornail".
Lord Tebbit: I meant to say "as dead as a dodo". Let us all agree on "dodo". I believe I said "in conventional terms", but I should have said "in sexual terms". That is the point that I wanted to make.
Lord Phillips of Sudbury: The noble Lord has rather spoilt my intervention. This is important. Everyone is grappling with a hugely difficult set of issues. It is important to remember and the noble Lord quoted a famous saying which talks of deceiving everyone. I do not believe that anyone is trying to deceive anyone about anything. In a way, the noble Lord may be arguing against himself. Surely the endeavour here is to be honest about a relationship.
The marriage relationship is an extraordinarily complex and many splendoured thing. The truth of the matter is that those—I am tempted to say, who are in an unfortunate predicament—who still love each other and who still have children, would, as the right reverend Prelate said, destroy a marriage or have a marriage destroyed, with all kinds of consequences that I suggest that the noble Lord, Lord Tebbit, would not want to see come about. I put it to him and to the Grand Committee that whatever the outcome, one must recognise that social reality evolves. In the kind of minority marriage that we are talking about, it does not do justice to honesty or to reality to pretend that the core of the relationship does not still exist and is not vital.
Lord Tebbit: The noble Lord is quite right. The deceit to which I referred was the deceit that is at the base of the Bill; the deceit that we can change a person's sex. Law Lords may believe that they are very powerful and that the law can change people's sex, but that quite clearly is arrant nonsense. I stand by what I said about deceit in the Bill.
Lord Carlile of Berriew: I am tempted to say, "Oh, what a deceiving web we weave, when first we tangle". I believe we are getting into a tangle over legal provisions, while probably sharing a set of laudable intentions to make family life as easy as possible after a gender recognition certificate has been issued to those who have gone through the traumatic process, which it is for everyone.
I am one of those associated with amendments moved by my noble friend Lord Goodhart and I do not resile from that for one moment. However, I ask the Government to consider postponing any final decision upon this part of the Bill to see whether we can
find a way of seamlessly translating relationships, whether from one legal relationship to another, or so that there remains a definition that permits the existing legal relationship of marriage. I entirely see the logic of what the Government are trying to do. It is far and away the simplest and least tangled approach available, although it may not be the best for families.At the very least I invite the Government to consider the possibility of trying to make the translation, if there is to be one, from marriage to civil partnership—I thank the noble Baroness, Lady Hollis, for that phrase—completely seamless and automatic. If the civil partnerships Bill had been considered by Parliament before this Bill, the matter could have been made completely seamless. Please may I beg the Minister to consider whether somehow we could find a legislative means so that this part of the legislation can be hitched into the civil partnerships Bill? Can we have an undertaking that it will be, so that there can be automatic translation without any need for any proceedings, rather than the cumbersome tangle we find ourselves in today? I do not resile for one moment from supporting the views of those who wish to remain married, but I recognise the difficulty and ask, as a back stop, for that possibility to be considered as a practical answer.
Baroness Buscombe: I entirely agree with everything that the noble Lord, Lord Carlile, has just said. That is the reason why I have brought forward an amendment to say that Clause 25 stand part as that is all about the commencement of the Bill. The reason why I tabled that—we shall probably debate it tomorrow—is that if only the civil partnerships Bill had been debated and come into force before this Bill, we would all be in a better position.
The Lord Bishop of Winchester: Perhaps I may offer the Minister a word of advice. It is intriguing to hear the noble Lord, Lord Carlile, and the noble Baroness, Lady Buscombe, inviting him down what is so far from a primrose path as to be a path of thorns and thistles of all kinds. It cannot be the case that there is an equivalence between marriage on the one hand and civil partnership on the other. The notion that there can be a seamless join means that we are into dusk and dawn again. There cannot be a seamless join between two significantly different relationships.
To suggest to people who are married, whether their convictions are based in the practice of a faith or not, that notwithstanding the enormous crisis of trans-gendering, which may be quite analogous to the crisis of a chronic illness of whatever kind or a whole range of other things, that the matter can be resolved by walking down the road of a seamless transition to civil partnership, seems to me to be utterly unacceptable.
Lord Filkin: I am grateful for the chance to join this important debate. I am glad that someone has taken Auden's advice and stopped the clock, so we are in good time. According to the clock we have another hour and 10 minutes!
As will be apparent, the aim of the Bill is to give transsexual people the right to live legally in their acquired gender. It is not to make special allowances for transsexual people which do not apply to other groups in society. If the existing marriage of a transsexual person were to be allowed to continue after a change of gender, it would be a same-sex marriage. I was explicitly clear on the Government's position on this point—not to universal acclaim—at Second Reading. Same-sex marriages are not permitted under UK law. The Government believe that that should remain the case.
Acquiring a new gender brings with it—it is tough but true—all the rights, responsibilities and restrictions that currently exist in UK law. We believe that it is not possible, nor is it right to have a mix-and-match situation. In deciding whether to seek legal recognition in the acquired gender a person has to take all of the implications of that change into account, including the effect on an existing marriage. My noble friend Lady Hollis, when responding to Amendment No. 82, will also signal that and it applies to all the financial and relationship implications.
The right to marry under Article 12 of the convention applies only to men and women of marriageable age. There is no ECHR issue here. The Strasbourg courts have not required that a state have an institution of same-sex marriage. We would have heard about it had they done so. The fact that recognition of a transsexual person might require a previous marriage to come to an end was recognised by the Strasbourg court in Goodwin v UK when it noted,
- "it is for the Contracting State to determine inter alia the conditions . . . under which past marriages cease to be valid".
If a married individual applies and is successful, he or she will receive an interim gender recognition certificate. That certificate will provide the basis for a new ground for dissolution of the marriage provided in Schedule 2. On dissolving the marriage, the court will substitute a full gender recognition certificate for the interim certificate.
In this way, the Bill proposes to avoid the situation where a married applicant must first end his or her marriage and only then learn whether his or her application meets the criteria for a gender change. The process provided in the Bill prevents the applicant falling into the vulnerable position of learning that his or her application has been unsuccessful after having already ended his or her marriage. The applicant is therefore in control of the process and able to plan his or her affairs.
When the court deals with the ending of a marriage, it can also deal with ancillary, practical issues. It will, for example, be able to consider orders for financial provision, a pension-sharing order or provisions regarding the children of the family.
In taking the stance of requiring existing marriages to end, we nevertheless recognise that the relationships in question might be very strong. In acknowledgement of that partnership bond, we want to enable couples who have stayed together through the most difficult gender transition of one partner to regain a legal status for their relationship.
As Members of the Committee will know, the Government are also planning to legislate so that same-sex couples can gain legal recognition of their relationships. When the civil partnerships Bill is enacted, the institution of civil partnership and the rights and responsibilities that go with it will be available to a couple who were previously married after one partner receives recognition in the acquired gender. That couple will then be a same-sex couple and will be able to form a civil partnership just like any other same-sex couple.
Forming a civil partnership will address the issue of legal recognition of the relationship. It will bring rights and responsibilities. Clearly it is important that the process of transition from marriage to civil partnership is as smooth as possible. I commend the clarity of the noble Lord, Lord Carlile of Berriew, on this point. He recognises the logic of the Government's position and that we are not intending to change it. It is absolutely important that we make that process of change as painless as possible.
In developing the civil partnership proposals, the Government have been considering ways of making the movement from one status to another. The right reverend Prelate the Bishop of Winchester is right. These are different statuses. No one is pretending that they are not. The status of marriage is very different from that of civil partnership. Nevertheless, the proposed civil partnerships will seek to give legal clarity to the relationship between two people who wish to live together and will seek to resolve some of the current uncertainties.
Therefore, in developing the proposals, we have considered ways in which the gap between the ending of a marriage and the formation of a civil partnership can be minimised. Exceptionally, I should like to mark the efforts that officials have put into this. It is difficult stuff and they have been working very hard on it.
The intention of the Government's civil partnerships proposals is to permit a couple who have ended their marriage—in order to allow one party to change gender—to give notice and enter into a civil partnership with each other on the same day as their marriage is annulled. Therefore, while there will be separate processes, we think that it is possible to bring the two as close as possible so that there will be no gap if the couple do not wish there to be a gap as a consequence. Clearly, they are in control of that process. The process is not forced on them.
Should the Gender Recognition Bill be enacted as we intend and be implemented prior to the civil partnership legislation, it will—as we have already
touched on—be for a married transsexual person to decide whether to wait for the implementation of civil partnership proposals or to seek gender recognition as soon as the gender recognition panels are in place. Again, those individuals are in control of the process. If they did not wish to move into a legal void in which they could not move into a civil partnership, they would be able to wait and not pursue the gender recognition process until the other legislation had come into force.I shall leave Amendment No. 82 to my noble friend Lady Hollis.
I turn to Amendment No. 53, tabled by the noble Baroness, Lady Buscombe. As we know, marriage is connected to many other legal rights and responsibilities. It is not possible to say that a person is of one gender for marriage and another gender for everything else. Marriage will include much of what is in the other category; for example, parenthood, inheritance, pensions and benefits.
Ultimately, to say that a person is of one gender for marriage and another gender for everything else is to attempt to subvert the principle of opposite-sex marriage, in a way that we cannot support. I am sorry about that because I recognise the earnestness of the endeavour of the noble Baroness in that respect. The Government recognise that when a marriage has survived the often difficult process of one partner's transition to another gender, there exists a strong and important partnership bond. That is why we believe it is important that the state does what it can to make that continue at least in a legal framework.
UK law has clearly defined marriage as an institution for opposite-sex couples. That is the history of the institution and its distinct nature. Same-sex partnerships will provide an alternative form of recognition which will not be marriage but which will have the benefits on which I have touched.
On Clause 25 and the argument that we should defer the Bill until we have the civil partnerships Bill, there are powerful arguments for allowing married couples to move smoothly into forming a civil partnership when one partner has changed gender. I do not believe that anything is gained by preventing transsexual people from applying for gender recognition until the civil partnerships Bill is enacted. In other words, the vast majority of this group, who are not married, therefore should have the right to exercise their right to change their gender, while the others, who cannot as yet avail themselves of civil partnerships, can exercise the option I indicated of waiting until the civil partnerships Bill is enacted. That is a better remedy than saying nothing must happen at all until there are civil partnerships. I hope before long to be able to add reinforcement to my indications that we are committed to the early introduction of the civil partnerships Bill, so that the Committee will see that these are not mere loose words.
I shall now leave my noble friend Lady Hollis to deal with Amendment No. 82.
7 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): I shall not seek to repeat the comments of my noble friend. At the end of the day the issue is about an informed choice. Someone might live their life in their preferred gender, go for surgery, but if they do not seek a gender reassignment certificate, the legal basis of their marriage remains. They can do that until or if or when they wish, perhaps to move on to a civil partnership. The problem is that we are not just dealing with legal rights in a vacuum, but legal rights that carry a whole frame of financial responsibilities, as the noble Lords, Lord Carlile and Lord Goodhart, accepted in previous discussions after the Bill's Second Reading.
I tried to suggest that we could not run a social security system where the rules of social security are based to some degree, particularly pensions, both on gender and on marital status. One has to think only of basic state pension. One cannot work a social security system which allows some individuals to be married for some purposes and not to be married for others. It must be universal.
Our talk was perhaps the genesis of Amendment No. 82. It seeks to exclude social security, so that one ends up with people who have undergone gender reassignment being able to remain married in other parts of their lives but being separate individuals for the purposes of social security. That also presumes that the words "social security" are sufficiently ring-fenced that one can make that clean distinction. One cannot do so. I am sure the noble Lord, Lord Goodhart, who has very real experience in this matter, will recognise that, certainly—for example—regarding the impact on occupational pension schemes. I shall be very happy to write to the noble Lord in greater detail on the issue. Non-contracting out schemes are not covered by Schedule 5, so the payment of such pensions and survivors' benefits would operate as though the marriage had continued, despite the effect of the amendment.
That could result in different treatment for a surviving partner of a member of a contracted-out scheme and the surviving partner of a member of a scheme that is not contracted out. Equally, contracted-out pension schemes could also be affected because the calculation of the Guaranteed Minimum Pension (GMP), which assures that one is no worse off than if one had stayed within the state system, would have to be altered. Contracted-out schemes, which provide benefits beyond GMP rights would suffer administrative difficulties.
Due to the fact that Schedule 5 does not apply to pension rights above GMP rights, if Amendment No. 82 were to be accepted, there would be acute difficulties in that the marriage would be void for the purposes of contracted-out rights, but not for the benefits over and above these rights. Linked to that is the issue of the survivor's GMP. If the marriage were to be considered ended for the purpose of social security benefits, the surviving partner would not be
entitled to a survivor's GMP. Some decision would have to be taken by the occupational scheme about the rights of survivors' benefits exceeding the GMP rights and so on. I could continue. It is extremely technical stuff.I recognise the spirit behind the intent, which is to extract social security. But one cannot say that for some purposes one is married and that for other purposes one is not and have a social security system run by 130,000 staff across the country and make it discretionary. One cannot do that.
Therefore, I recognise the pressure behind it to try and exclude social security, but that again assumes that a clean line can be drawn. It cannot, because given our occupational pensions, the guaranteed minimum pension, which is what people who contract out receive, ensures that the provision offered by contracting out is no less favourable than would have been paid out under the old SERPS national insurance scheme. All of those are intimately linked. One cannot draw such a clean line, and therefore I repeat, along the lines of my noble friend, that one cannot pick and mix which gender one can have for different purposes. It is regrettable, but if a marriage is so valued by both parties, at the end of the day an informed choice can be made to live one's life in a new gender, even to have the surgery, but not necessarily go for gender reassignment, because that is the legal framework upon which the benefits have to rest.
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