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Lord Goodhart: My Lords, as a number of the amendments result from points made by us in Grand Committee, we naturally welcome them. The amendments on points that we did not make ourselves all seem perfectly sensible. We are therefore entirely happy with all the amendments.
Baroness Buscombe: My Lords, I also welcome the Minister's response to the concerns that we raised in Grand Committee, and entirely agree with the noble Lord, Lord Goodhart, that the other matters that the Minister raised today make sense. We support the amendment.
On Question, amendment agreed to.
Clause 4 [Successful applications]:
The Deputy Speaker (Lord Geddes): My Lords, I remind the House that if Amendment No. 28 is agreed to I cannot call Amendment No. 29 due to pre-emption.
Lord Goodhart moved Amendment No. 28:
- Page 3, line 9, leave out subsections (2) and (3).
The noble Lord said: My Lords, Amendment No. 28 stands in the name of my noble friend Lord Carlile of Berriew and myself, and in the name of the right reverend Prelate the Bishop of Winchester. We and the right reverend Prelate come at the amendment from different directions, but we reach the same objective.
A number of transsexual people have entered into marriage before gender change with a person of the opposite sex. If a transsexual person wishes to obtain a gender recognition certificate in their required gender and the marriage in the birth gender still subsists, the panel under the terms of the Bill as it now stands can grant only what is called an interim certificate. Such a certificate has no effect at all in itself; it will, however, be converted into a full certificate if, and only if, the marriage is annulled or dissolved in proceedings commenced within six months of the interim certificate being granted.
In many cases, gender dysphoria of one of the parties to a marriage and the consequences of that dysphoria will lead to a breakdown of the marriage. However, there is a small number of marriages, thought to be in the order of 50, in which one party to the marriage is a transsexual person who wishes to obtain the same right as other transsexual people to legal recognition in their required gender, while both parties wish to keep the marriage in existence. The fact that the marriage has to be terminated for the transsexual partner to obtain a gender recognition certificate is a cause of great distress.
The Joint Committee on Human Rights took evidence on a draft of the Gender Recognition Bill. Thirty individuals or couples submitted written evidence, and 11 of those 30 were letters from one or both parties in a subsisting marriage protesting at the need to terminate the marriage before a full gender recognition certificate could be granted. That is a very high proportion of those affected by the Bill to have responded to that issue.
We believe that allowing a subsisting marriage to continue will alleviate distress and cause no harm. We have therefore tabled a long series of amendments. Most of them, in fact, are minor consequential amendments and do not need to be referred to in any detail. The purpose is, first, to eliminate the existence of interim certificates so that anyone, whether married or not, will be able to obtain a gender recognition certificate if he or she satisfies the conditions for obtaining such a certificate. The grant of the certificate will continue to be a ground for the termination of the marriage if either party wishes to terminate it. Secondly, the amendments provide that the marriage shall be treated as dissolved for the purpose of state benefits and pensions, as the Government have managed to persuade us that leaving the marriage in existence for those purposes would cause undue confusion.
Why do the Government not accept our amendment? There appear to be three reasons. The first is a philosophical reason: namely, that it will recognise same-sex marriages. However, we are talking about marriages that were all legitimate when they were entered into. We see no need to extend the principle that marriages must be between people of the opposite sex to say that the marriage cannot continue if one party changes gender in law.
Secondly, the Government say that the changes would cause serious administrative difficulties. I am unpersuaded of that, despite the best efforts of the noble Baroness, Lady Hollis, to persuade me otherwise. She has sent a long letter to me on the issue. As the letter is not a confidential one, I shall read your Lordships a couple of paragraphs from it. The Minister said:
- "Schedule 5 makes provisions for the treatment of social security benefits and contracted-out private pension arrangements when a person registers in their acquired gender. If an existing marriage is allowed to subsist for all purposes other than Schedule 5"—
- "a married couple would have to claim some state benefits as individuals. However, as not all state benefits are covered by Schedule 5—for example, income-related benefits—they would still be able to claim some state benefits as a married couple. This would cause considerable administrative difficulties and confusion for the couples involved. It would be difficult to explain to such a couple why they have to make individual claims for some benefits, while being able to claim other benefits as a married couple, and why they would not be able to claim survivor benefits when it would be appropriate for other married couples to do so. The current proposal to end the marriage for all purposes ensures that all transsexual people are treated in the same way and that generally they acquire the same benefits and pensions as others".
The third argument put forward by the Government is that parties can wait until the civil partnerships Bill is enacted. They could then get a divorce and a full certificate one day, and enter into a new civil partnership the next day. There are two objections to that. First, we cannot yet tell when, or if, a civil partnerships Bill will be enacted. Although I understand that it is the Government's intention to bring one in fairly shortly, there is no guarantee that that will be done. I believe that the Government, understandably and rightly, do not intend to delay the coming into force of this Bill until it is clear that there will be an effective civil partnerships Bill that can be brought into effect at the same time. There is at least a risk that transsexual people who want both a certificate and to maintain a legal relationship with their former spouse will find themselves in a limbo that might last for years or, if something goes wrong with the civil partnerships Bill, if it gets squeezed out by the pressure of other legislation or for some other reason, perhaps indefinitely.
Secondly, and perhaps more importantly, what this very small number of parties clearly wants, if one has read the often very moving letters, is a continuation of the marriage. These people do not want to give up their marriages and enter into a new and quite different legal relationship. These amendments will substantially improve the very difficult situations of, admittedly, a very small number of people and will do so without doing any harm to either the administration of the benefits system or to anyone else. I beg to move.
4.15 p.m.
The Lord Bishop of Winchester: My Lords, I identify myself with everything that the noble Lord, Lord Goodhart, has just said. I thank him and the noble Lord, Lord Carlile, for their graciousness in agreeing to me adding my name to their amendment.
The noble Lord has excellently expressed the needs of this small number of people—I have been made aware of some seven or eight couples, as I think he has. I noted the letter that he quoted from the Minister, but this situation cannot possibly be beyond her well-known skill and ingenuity and that of her officials if they set their minds, as I am sure that it is their nature
to do, to seeking to assist this tiny group of people whose situation, if the Bill goes through in this form, is simply deplorable; indeed, the proper word is cruel.If people have committed themselves to a marriage, whether or not out of a religious understanding, of any faith, it is part of the Government's responsibility to sustain that marriage if they wish to sustain it; I have made this point in other circumstances in this House. To force them to be broken apart and then to suggest that they be placed in some other legal relationship which—quite apart from the fact that it does not yet exist—if it were to exist, they do not want, is not a sustainable way of behaving on the part of the Government. I think the Minister knows my reasons for disagreeing with him—I shall not repeat them—that what we are discussing necessarily constitutes a same sex marriage.
I want also to underline the point that the noble Lord, Lord Goodhart, made that there is an extraordinary retrospectiveness in this element of the Bill. We are talking about couples, many of whom have been married for years and a significant number of whom have begotten children and brought them up, in which case children are involved too. I refer to the earlier comments of the noble Baroness, Lady Buscombe, in that regard.
I applaud the fact that the Government are making clear that they do not support same sex marriages. The Minister will know that for me the illogicalities of the Bill in principle are revealed if it says that a marriage which has not been a same sex marriage for many years suddenly at a certain point becomes one. However, that is not the main point at issue here—that concerns a quite unnecessary piece of cruelty. Noble Lords opposite and I are to a great extent in agreement on the matter for similar reasons. I hope we shall hear that the Government have had further thoughts on the matter and that they will not be thrown off course in that regard by looking to the kind and gracious nature of the noble Baroness, Lady Hollis of Heigham, to find a way through the detailed problems.
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