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Lord Lucas: My Lords, I support the amendments, yet I find myself supporting my noble friend Lord Tebbit at the same time. I agree entirely with my noble friend Lord Skelmersdale. The key is the sanctity of marriage and the vows that are taken and supported by the state at the time of marriage—although I am still annoyed that I was not allowed to use the Anglican vows of marriage in my civil marriage service, which was an affront that I may attack on another occasion. People are married on the basis of "'til death us do part", or many of us are, and that is the basis on which marriage holds its privileges and should be respected. There are other circumstances where marriage has caused problems. There was another such problem of gender recognition when the Church of England agreed to have women priests, which led to some male priests moving to the Roman Catholic faith. They were accepted as priests with their wives, despite the rule that Roman Catholic priests are forbidden to marry. However, the sanctity of marriage was respected. It was the right decision although it created a class of married Catholic priests who could not have first become Catholic priests and then been married.

Marriage involves an important set of vows. It is an important relationship and should not be broken in such a way—even if it involves surgery. So what? A person who has his testicles shot off is not then compelled to become unmarried. It is a matter of tiny importance compared with the importance of the vows that have been taken. As my noble friend Lord Tebbit says, the reality is that they are still a man and woman married to each other, whatever they may call themselves or whatever lie may have been put on the statute book and the birth certificate. To separate and destroy that, when both parties wish to continue with the commitment that they have given, is entirely wrong.

Baroness Buscombe: My Lords, I did not take part in the debate during Grand Committee. I want to make it

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clear that, bearing in mind that members of the Conservative Party have a free vote on all aspects of the Bill, I am offering my personal view of the matter.

At Second Reading, I said that to legislate for divorce goes very much against the grain. I suspect that I speak for all noble Lords on that and all will have great sympathy with the view of the right reverend Prelate the Bishop of Winchester in that regard. However, these amendments, if accepted, would mean in law same-sex marriage. That is clear and I cannot accept or support it.

I am sure that all noble Lords have sympathy for everyone who has written in. Several have referred to Janet and Sarah Wood, who wrote to a number of noble Lords. In their letter, they say:

    "To allow such marriages to continue will not undermine the principle against same-sex marriage any more than the main thrust of the Bill for allowing transsexual marriages".

That simply is not true. There is a point which I am sure the Minister will make clear in response. It is that if people like Janet and Sarah really do not want to divorce, they have a choice: they do not have to undertake this process; they do not have to seek legal gender recognition. I accept that it compromises what they had sought to succeed in through the process of this legislation, but there is that strong element choice. As my noble friend Lady O'Cathain commented, they can continue just as they are. I support everything my noble friend said.

In any event, I am more persuaded by the Minister, the noble Baroness, Lady Hollis, than by the noble Lord, Lord Goodhart, with regard to the enormous difficulty of creating a whole system of welfare and benefits for what in fact will be a small number of people.

I return to relying on our obligations under the ECHR. Perhaps it is because I am a lawyer and because of those obligations that I am just able to justify what we are doing in passing this legislation.

The Lord Bishop of Chester: My Lords, perhaps I may speak from these Benches with just a touch of Episcopal dysphoria. I do not quite agree with my noble friend the right reverend Prelate the Bishop of Winchester. He was sorry to have to leave for a diocesan appointment this evening. It is such a difficult issue.

I believe that it comes down to which decision would best uphold the dignity and institution of marriage in our country. We are caught between our absolute sympathy for the individuals concerned, which the noble Lord, Lord Goodhart, and my noble friend expressed, and an unholy alliance. They come at the issue from totally opposite points of view, which reminds one of some of the alliances we hear about in the other place between those on the more Right-wing Conservative Party and those on the more Left-wing of the Labour Party.

What will uphold the dignity of marriage by making every concession, which our emotions draw us to do, to the small number of individuals who are affected? Will we simply put one more nail in the coffin of the

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institution of marriage and the way it is perceived in society at a time when the institution of marriage is under huge pressure? That ultimately leads me to the position expressed by the noble Baronesses, Lady Buscombe and Lady O'Cathain.

I have an anxiety that to agree to these amendments now might subtly pre-judge some of the debates that need to happen under the civil partnerships Bill. The Government's consultation papers have gone too close to the notion of same-sex marriage in the way that has been set out. That representation has been made by the Churches—it is not just me saying it now. When that Bill comes before us, there is a real discussion to be had as to how civil partnerships are to be construed.

I speak as someone who is very much in favour of having a system of civil partnerships in our country to remedy injustice and bring better order into our social relationships. But the devil is in the detail in that Bill as to how those partnerships are construed. If we agree to this amendment, we could be seen to be pre-judging some of those discussions.

4.45 p.m.

Lord Tebbit: My Lords, I am grateful to the right reverend Prelate. I think that he has just about brought me back on side.

Lord Filkin: My Lords, this is one of the really difficult issues. I find it even more difficult because part of the privilege of being a Minister for such a Bill is that at times it is important to meet people who feel passionately about these dilemmas. Therefore, in a number of meetings people have explained to me their passionate feelings about wishing to have the gender change and, at the same time, the status of marriage. I have had the unpleasant duty—I believe this is right as well as being our policy—to look them in the eye and say, as I said at Second Reading, "We are not going to do that".

The reasons why we are not going to do that have already been stated, eloquently and clearly, by the noble Baronesses, Lady O'Cathain and Lady Buscombe, and by the right reverend Prelate the Bishop of Chester. Fundamentally, marriage means something to everyone in our society—a legal union between a man and a woman. It is a sophistry to play games and to pretend that because one does not think that the Bill is a good Bill, in some sense the two people are not married and so we can pretend that it is not a same-sex marriage. In law the position is absolutely clear: if the state, through the processes that the Bill sets out, gives legal recognition to a change of gender, then that will be, in law, the gender of that person. If we allow a marriage to continue we shall allow a same-sex marriage to continue.

One could argue that this concerns only 50 people, but I am sorry, that will not do. We are not going to allow same-sex marriage; I said that very clearly at Second Reading and that is our position. However, we shall do our utmost to make the process of change, for those who wish to continue a close relationship into the future, clear and possible. They will have to have a

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divorce; and they will receive an interim gender recognition certificate which will be turned into a final gender recognition certificate only after they have been through the divorce courts and received a divorce.

We also signalled at earlier stages of the Bill that we intend to bring in the civil partnership Bill. When that is enacted, if people so wish, they can have a legal relationship, sustaining their emotional relationship, but it will not be marriage. On the timing of that, we intend to bring that Bill into the House as a substantive Bill before Easter and, if it passes, it will become legislation and implementable by about October 2005. This Bill, if and when it passes, will become legislation by April 2005. Therefore, there will be a short gap of some six months between our best forecast of when the two Bills will be in place. Those who do not want to go into a legal limbo, awaiting civil partnership, after their divorce as a result of gender change recognition, will not need to do so; they can wait until the civil partnership process is in place. They will still be able to have the fast-track process of gender recognition, of which we have spoken. As noble Lords will know, in later amendments we shall allow the fast-track process to run for two years.

Therefore, we come back to the point that we are not forcing people to get divorced. We are giving them a choice, which is what the state should do in such a situation. It should say to people who believe fundamentally that they have a discontinuity in their gender, "We are giving you the option of legal recognition of your change of gender; you can take that if you want to; we are not forcing it on you, but you cannot pick-and-mix; you cannot have both at the same time; if you want to stay married you can"—God bless them; long may they do so—"but you cannot have gender change". If they want gender change that is their choice. There will be a facility for doing so. But they cannot stay married at the same time. That is the Government's position which we shall stay with. For those reasons—with concern for humanity, respect for the people who move the amendments and understanding of the pain of people in that situation—I believe that that is a right and principled position.

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