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Baroness Hollis of Heigham: My Lords, I hope that I can be fairly brief. I was slightly baffled because on some occasions the noble Baroness seemed to be arguing amendments which were benign—that" could not be done unless the transsexual consented to it. Yet on other occasions she felt that it was necessary because the transsexual might dupe some organisation, possibly a religious one. As these are diametrically opposed positions, I was not sure which one she was arguing.

I shall take Amendments Nos. 66, 75 and 81, as I understand them. The amendments would allow a certified copy of an entry on the gender recognition register to reveal that it comes from that register and so to reveal the gender history of that person if that person, he or she, consented. I have two points. First, I am advised that it would be unworkable in practice as the registrar would have to keep a record of the consent of the person concerned. Secondly, in practice, I wonder whether it is at all necessary. If the transsexual person agrees that the registrar may reveal it, why should the transsexual not agree that he or she would reveal it to whoever directly asked them for that information or identity? I do not understand why, in the case of any transsexual person who is willing and has given consent to have that information revealed,

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the information needs to be looped through the registrar. Perhaps I have misunderstood the import of the noble Baroness's amendments.

Lord Tebbit: My Lords, it seems to me that that question answers itself. If a minister of a Church were to ask a person whether they were a transsexual, they might quite easily say no. The minister now has nowhere to go. But if the minister says, "Do you give your permission for an inspection of the register" and the person says, "No, I don't", the minister would be well advised to conclude that they were concealing something.

Baroness Hollis of Heigham: My Lords, in which case, the minister can withhold consent to what is being asked for.

Lord Tebbit: My Lords, indeed, and it is the withholding of consent that would be the very answer that the minister wanted, would it not?

Baroness Hollis of Heigham: My Lords, as a later amendment seeks to establish, in that case the minister could draw from it what conclusion that minister saw fit, and therefore refuse to solemnise the marriage, for example. That position is covered.

Baroness O'Cathain: My Lords, I shall consider the matter. I was probably confused by the way in which I delivered the amendments. I thank the Minister. I shall read the Official Report and talk to her afterwards. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 to 70 not moved.]

Lord Filkin moved Amendment No. 71:

    Page 20, line 9, leave out paragraph 11 and insert—

"11 The Chancellor of the Exchequer may by order amend this Part in consequence of any order under section 1 of the Regulatory Reform Act 2001 (c. 6) which includes provision relating to the system of registration of births and adoptions in England and Wales."

On Question, amendment agreed to.

[Amendments Nos. 72 to 84 not moved.]

Schedule 3, as amended, agreed to.

Schedule 4 [Effect on marriage]:

The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, I remind the House that if Amendment No. 85 is agreed, I shall not under the rules of pre-emption be able to call Amendments Nos. 87 to 91.

Baroness O'Cathain moved Amendment No. 85:

    Page 26, line 3, leave out paragraph 3 and insert—

"After section 4 insert—
(1) No person shall be under any duty whether by contract or by any statutory or other legal requirement to solemnise the marriage of a person—
(a) whose gender has become the acquired gender under the Gender Recognition Act 2004, or

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(b) who will not consent to the disclosure of any entry relating to him contained in the Gender Recognition Register.
(2) No clerk in Holy Orders of the Church in Wales shall be under any duty whether by contract or by any statutory or other legal requirement to permit the marriage of such a person to be solemnised in the church or chapel of which the clerk is the minister.""

The noble Baroness said: My Lords, the Government concede that there is a problem for Churches over marriage. The Bill as introduced contains a limited conscience clause for Anglican clergy in England and Wales, in recognition of their statutory duty to marry people from their parish. It allows them to refuse to marry a person who has a gender recognition certificate. However, the conscience clause immediately ran into difficulties when it was pointed out that the Bill gives clergymen no right to know a person's true sex. It allows them only to refuse if they knew that the person had a gender recognition certificate.

The Government have now tabled Amendments Nos. 87 and 90, which would allow an Anglican clergyman to decline to conduct a marriage if he reasonably believed that one of the parties had changed sex. While that doubtless moves in the right direction, it still falls a long way short. For a start, it still places an onus on the clergyman to prove the reasonableness of his belief. It still leaves him at risk of litigation over whether his belief is reasonable. Courts may spend days deliberating on the question of reasonableness. Is that fair to the clergyman?

It is also too narrow in scope. In Committee, I mentioned that the wedding ceremonies of some non-conformist denominations are carried out by laymen. The amendment still deals only with Anglican clergymen, so how will the Government amendment help them? The Minister will say that only Anglicans are under a statutory duty to perform weddings, so only they need a conscience clause. Why could a similar action to that in the case of Parry v The Maesteg Christian Centre—part of the Vine Christian Centre, to which I have referred on previous occasions—not be launched over marriage? In that case, a man wanted a court order forcing a church to recognise him as a woman and allow him access to the ladies' prayer meeting and the ladies' toilet. Why should Churches be laid open to the possibility?

After the Bill becomes an Act, the legal landscape in relation to transsexuals will fundamentally be changed. The Minister cannot say with certainty how far the courts will go with this. He cannot assure us that our judges will not seek to impose new obligations on bodies that perform wedding ceremonies. This is especially so when one takes into account Section 6 of the Human Rights Act 1998 which states that public authorities must act in compliance with the convention on human rights. It gives a wide definition of public authorities, which includes any body that carries out functions of a public nature. The Minister will probably say that Churches are not public authorities. However, when they are conducting wedding ceremonies they are standing in the place of the state.

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They have the duty, given to them by the state, to conduct weddings. Baptisms and other religious ceremonies are not public functions, but weddings are.

The former Home Secretary, Mr Jack Straw, MP, made this clear during debates in the other place on the Human Rights Act. He said:

    "On the occasions when Churches stand in the place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools . . . We think it right in principle . . . that people should be able to raise convention points in respect of the actions of Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities".—[Official Report, Commons, 20/5/98; col. 1017.]

So Churches could be sued under the Human Rights Act over the way they carry out weddings.

There is another crucial new factor that greatly increases the risks that courts might take issue with Churches that will not conduct transsexual weddings: the Goodwin and I case. Since the Strasbourg court handed down its judgment in that case in July 2003, it has been a human right, under the European Convention on Human Rights, for a transsexual to wed. Mr Straw said that when Churches carry out weddings, convention rights are relevant to what they do. The convention gives a right to transsexuals to marry. This means that a transsexual who wants to sue is being handed several enormously powerful new legal arguments. There is ample scope for litigation against the Churches over marriage. Even if it is ultimately unsuccessful, why should Churches have to put up with this? The Government have not thought this through. This is an issue of fundamental importance. Do the Government believe that religious rights come such a distant second to the rights of transsexuals?

Does giving effect to the Goodwin judgment really mean that we have to expose Churches to this kind of litigation? What about registrars? I accept that they are civil servants who do the bidding of the state but when they signed up for the job transsexual weddings were illegal. Under this Bill they will be compelled to perform such weddings. Registrars, after all, have consciences too. Because of their religion or for other reasons they may well feel unable to solemnise a marriage between two people who are biologically of the same sex.

In Grand Committee the noble Baroness, Lady Hollis, compared registrars conducting weddings to Benefit Agency employees handing out payments. She asked in effect that, as the Benefits Agency employee could not allow his conscience to override his employment duties, why should a registrar? But a wedding is of far greater significance than a benefits payment. Surely the Government believe that there is something special about solemnising a marriage that distinguishes it from the other much more mundane duties of civil servants. Surely they accept that one's conscience about something as important as matrimony—the building block of society, after all—is worth protecting.

In Holland the human rights courts believe that civil registrars should not be compelled to conduct transsexual weddings if they have a conscientious

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objection. Will the Government allow our registrars the same right? I have brought up my next point before. There is a comparison to be made with the Abortion Act 1967. There Parliament legalised something that was highly controversial. In recognition of the controversy, and the fact that people held strong conscientious views about abortion, Parliament included a conscience clause. That allows medical personnel, including public sector employees—that is, National Health Service employees—to decline to participate in abortions.

With all that in mind I have tabled several amendments that take different approaches to solving the problem and I have offered different ways to let the Minister off the hook. However, having had an opportunity to consider the different approaches I am convinced that Amendments Nos. 85, 92 and 93 provide by far the best solution. These amendments would replace the existing government conscience clause altogether and, if supported, would pre-empt government Amendments Nos. 87 and 90.

Amendments Nos. 85, 92 and 93 operate on a UK-wide basis and would allow any person to refuse to conduct a marriage, whether they are a registrar, a layman conducting a Church wedding or a clergyman. The grounds for refusal are that the relevant person has a gender recognition certificate or that he will not allow disclosure of his gender recognition status. These amendments would make clear that not only can a person decline to marry someone they know to have a gender recognition certificate, they can also refuse to marry someone who will not consent to disclosure of their gender recognition status.

The amendments would also make explicit that no new duties to conduct a marriage may be imposed by litigation, nor could anyone be pressured by employers. That is important as it is government policy to make all those who solemnise civil marriages employees of the local authority. A registrar who would not carry out transsexual weddings could find himself out of a job. A local authority could make it a requirement of the job that all registrars must be prepared to carry out such weddings. Certainly there are some local authorities we know that impose these kinds of politically correct litmus tests. As I prefer the solution provided by my Amendments Nos. 85, 92 and 93, if the group of amendments beginning with Amendment No. 56 were to be supported, I would not move Amendments Nos. 88, 89 and 91.

I know that there are technical problems, but they could be ironed out. Nothing is insurmountable. All it needs is the will to do it. I beg to move.

6.45 p.m.

The Earl of Erroll: My Lords, in our society, which is multi-cultural and multi-faith, we should be careful not to foist what one might classify as liberal western concepts on those of other faiths. Therefore, it is important to include in these provisions those of other faiths who might be asked to conduct marriages.

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