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Lord Cameron of Lochbroom: My Lords, in Grand Committee I spoke in support of this measure. I should like to thank the Minister for the letter that he sent in response to my intervention. I am very grateful to the Minister for what he said in that letter but it still does not cover the concerns that I sought to express, which have been put before the House very forcefully this afternoon by both the noble Lord, Lord Goodhart, and the right reverend Prelate.
I think of the couple who have been happily married as man and wife and one of whom has, as a consequence of the change that we are discussing, become of the same gender as the other. However, both are anxious to continue the marriage with all that goes with it, not merely in terms of a social relationship but also in terms of the legal rights that go with it. What the Government propose is that the courts have to interpolate themselves into this relationship by way either of a decree of nullity in England or a decree of divorce in Scotland. Noble Lords will be well aware
that a divorce involves the question of division of property. Indeed, one of the issues involved in property is that the property that is to be divided is not necessarily the whole of what each party has. There is something in Scotland called matrimonial property. The consequence of that is there has to be a division of that which the parties do not want to divide in order that they then may, as it were, resume the relationship but call it a civil partnership. It seems to me that that is a very odd way of going about dealing with a problem which exists even now. The Bill will, of course, have consequences for all those who in future undergo the whole process of gender reassignment.I feel very strongly that issues such as those which have been mentioned by the noble Baroness, Lady Hollis, are matters that we shall have to look at again anyway in another context. Today I received the transcript of a judgment of the European Court of Justice in the case of KB v National Health Service Pensions Agency. The facts are different because in that case they were two persons. One was transsexual in an established partnership. KB was entitled to an occupational pension under the National Health Service, which gave rights to a widower. But the partner, not being married or being capable of marriage, was not so entitled. That is precisely the kind of thing which arises on a decree of divorce. The person cannot be a spouse at the time of death in that relationship. These are the kinds of much deeper factors which we shall have to look at in another context and no doubt will have to make changes to the various schemes and the like which attach to these new relationships brought about by gender reassignment. But for the moment it is enough to say that I strongly support the amendment.
Baroness O'Cathain: My Lords, I disassociate myself from this amendment because I cannot support it for all sorts of reasons. It is one of the trickiest issues in the Bill. One can say on the one hand that we have a Bill which will force divorce and, on the other, that we have a Bill which creates same-sex marriages. Many noble Lords will have received a letter from Janet and Sarah Wood. Clearly, Janet has chosen to reconcile herself to her husband's wish to be a woman. He would like to change his sex in law, but he also wants to remain married to Janet.
Surely, he must choose between being a woman in law and being married to Janet. Many will feel huge sympathy for him, but that is the situation which pertains at the moment before the Gender Recognition Bill becomes an Act. Some have said that they must simply make the choice and some argue that the Bill is already bending over backwards. It might be said that transsexuals in this position want to have their cake and eat it.
Legalising same-sex marriage in law is obviously a step too far even for the Government. That ignores the fact that they are already creating same-sex marriage
if this Bill becomes an Act, where a person who was born a man will be a woman and will be able to marry a man who was born a man. That is same-sex marriage.
Lord Filkin: My Lords, I am saddened because I thought that I was going to have the opportunity of saying that I agree with everything that the noble Baroness has said. She has spoilt my fun.
Baroness O'Cathain: My Lords, I do not believe that it is fun. We are dealing with it in a slightly light-hearted way, but it is a very serious issue. The Bill allows a biological man to marry another biological man. That is my contention. I know that is not agreed by other noble Lords. Returning to the amendments tabled by my noble friend Lord Tebbit, just because a woman wants to be a man, whatever gender recognition certificate the person has they were born either as a man or woman and they will always be so.
Lord Tebbit: My Lords, the Bill allows two persons to marry, both of whom have borne children and are still capable of bearing children, and who might do so in future. If that is not same-sex marriage then I am deeply puzzled to know what is.
Baroness O'Cathain: My Lords, I thank my noble friend for his intervention. Perhaps I should not have caught his eye at the beginning of what I had to say. The matter is becoming more and more complicated.
There is real concern that if we create same-sex marriages, every other group of whatever kind will say that they want same-sex marriages. The option is simply for people to stay the way that they are and, if they want to go that far, they do not apply for a gender recognition certificate. People may be in a close, harmonious relationship which has existed for 20 or 30 years and they may have two, three or four children and even grandchildren. If they cannot bear the thought of breaking up and divorcing, with the assets being split and the family being torn apart, is it not better that they do not go through the process in the first place? I really cannot support the amendment.
4.30 p.m.
Lord Monson: My Lords, in rising briefly to support the noble Baroness, perhaps I may urge your Lordships to bear in mind the well known maxim "Hard cases make bad law".
Lord Tebbit: My Lords, I recollect that on this issue in Grand Committee, I started by quoting the old adage that our mothers taught us:
- "O what a tangled web we weave,
I find this an extraordinarily difficult issue. I take on board entirely what my noble friend Lady O'Cathain said, as I do what I am sure the noble Lord, Lord Filkin, is going to say. But then I think to myself that, in my view, the certificate and the amended birth registration are both lies. They are simply untrue. The individual concerned has not changed sex. I might go so far as to please some other Members of the House by wondering whether he or she has changed gender. But I am sure that the person has not changed sex.
If the individual has not changed sex but, through the process of a perverse piece of legislation, he or she has been issued with a false certificate stating what is demonstrably a lie—that is, not only that that person is not of the sex that he or she is but that he or she never was—where does that take me? It might easily take me to the position where I would say, "There is no ground for annulment because nothing has happened. This man and this woman are still a man and a woman. In that case, why should the marriage be annulled?" That would get me off an awkward hook because I have the greatest sympathy with people who are in that position. I believe that if this matter were to go to a Division, I might plead for extra time so that I could sit here and finally make up my mind as to which Lobby to enter. I hate to say that because it is not a problem that I normally have. Perhaps I am suffering from voting dysphoria.
Lord Skelmersdale: My Lords, the names of Janet and Sarah Wood have already been mentioned in this debate. I was very surprised to see a copy of a letter to them from an official in the Gender Recognition Division of the Department for Constitutional Affairs. That letter, in part, said:
- "The issue of what to do with existing marriages is a complex one"—
- "and the decision to require that existing marriages should be annulled was not an easy one to make. The Government is not about undermining strong and stable relationships that have survived the upheaval of one of the parties going through the transition to a different gender. It is the marriage that cannot continue, not the relationship".
- "Those that God has joined together let no man put asunder".
Earl Ferrers: My Lords, I agree with the comments of my noble friend Lord Skelmersdale, particularly his last quotation. That is what is happening. I am also sympathetic to my noble friend Lord Tebbit, who said that the longer he listens to the debate the longer he
wants it to continue, so that he can make up his mind. I may not be able to help him with that, but the issue is a deceit whichever way it is looked at. We all know the reasons for it and we have sympathy for them, but it is a deceit. If a person is born a girl and has a birth certificate to say so, but later decides to become a man, the registrar has to say that the certificate was wrong and "You are now a man and you always have been". That is wrong and is a lie. The registrars are being forced by law to make a lie.
What happens if a person who was born a man, decides to change sex and become a woman, but has been living with his partner as her husband? What happens if that man, who is still biologically a man, contracts and subsequently dies from, for example, cancer of the testicles? What does the doctor put on the certificate—that the woman has died of cancer of the testicles? That is curious and one of the sort of absurd cases that will emerge. It comes back to the basic point of my noble friend Lord Tebbit—it is a deceit whichever way one looks at it.
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