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Lord Tebbit: My Lords, I thank the Minister for his reply. Let me make it absolutely plain that I would not be party to any legislation that forced a transsexual person to undergo surgical mutilation in order to benefit from the provisions of the Bill, if it becomes an Act of Parliament. That would be quite wrong and quite outrageous.

I am enormously flattered that this evening the Government had to bring in the heavy mob, in the shape of the noble Lord, Lord Winston, as well as the light cavalry in the shape of the noble Lord,

3 Feb 2004 : Column 623

Lord Turnberg—light cavalry is a formidable weapon when it is used effectively. Let us not forget that it can even undo heavy cavalry.

Both noble Lords perhaps suffered from the disadvantage of not having read every word of the proceedings at earlier stages of the Bill, although I would not wish to sentence either of them to that, as it comes under the heading of cruel and unjust punishment. I have never maintained that there is a single test of sex. In this amendment, I propose a triple test. The noble Lord, Lord Winston, said that that is not satisfactory. I am terribly tempted to ask him—particularly as I know that under the rules of the House he cannot speak again—exactly how he would set about defining sex. I acknowledge that he said that it is extremely difficult.

It is a wonder to me that the human race has got on quite well for so long without the benefit of all this doubt about the matter. We have had marriage for centuries, for thousands of years, and we have always had an understanding—initially informally but gradually more formally and eventually legislatively—that marriage is possible only between people of opposite sexes. Now the noble Lord, Lord Winston, tells us that it is almost impossible to distinguish whether people are of opposite sexes. It would seem to indicate that we have been making a massive mistake of some kind for thousands of years. I do not accept that that is so. He is over-elaborate in his cautions. We may be in danger of damaging society, and the institution of marriage, because of these doubts that spring from our better understanding of the fact that no simple theory of the structure of life is adequate.

There is a legal requirement to differentiate between the sexes. We should not throw aside all common sense and experience, and rest everything upon the judgment of a couple of medical practitioners and, even worse, registered psychologists, particularly when in recent weeks we have seen just how fallible expert opinion may be. We all revere expert opinion. We all revered the opinion of the medical expert on whose expert evidence many women were unjustly sentenced to gaol for murder. We would be wise to ask whether we should uncritically accept expert advice or whether we should accept common sense advice. If we had accepted the common sense view, those women would not have been sentenced to gaol. They were sentenced to gaol by a medical expert. In future we shall rest our conclusion upon whether a couple may marry upon just such expert opinion. I would rather rest upon common sense. It is something that we have done in this country for a very long time. It is why we have juries. It is why we do not always trust judges, who are very expert, to come to the right conclusion unless they are assisted by juries.

The choice here is between what some people think and what all of us can see. We should choose what all of us can see.

Lord Elton: My Lords, before the noble Lord sits down, will he explain to me a point that is probably clear to others? He has said that we should not rely

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upon expert witnesses, but who, except an expert witness can tell us whether a particular person answers to one or other of the descriptions in his amendment?

Lord Tebbit: My Lords, the descriptions are not terribly difficult. Two-thirds of them would be obvious if the marriage ceremony were to take place in a nudist encampment. The other one, the definition of the chromosomes, is not terribly expert. It ought to be within the ability and experience of an A-level student in biology, although with the degradation in standards in schools and universities it would probably now take a master's degree.

I wish to test the opinion of the House.

7.35 p.m.

On Question, Whether the said amendment (No. 86) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 121.

Division No. 3

CONTENTS

Ashcroft, L.
Attlee, E.
Brookeborough, V.
Brougham and Vaux, L.
Byford, B.
Carlisle of Bucklow, L.
Cope of Berkeley, L.
Dixon, L.
Erroll, E.
Ferrers, E. [Teller]
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Home, E.
Hooper, B.
Jopling, L.
Kimball, L.
Knight of Collingtree, B.
Lindsay, E.
Lofthouse of Pontefract, L.
Luke, L.
Lyell, L.
Maginnis of Drumglass, L.
Mancroft, L.
Marlesford, L.
Miller of Hendon, B.
Montrose, D.
Northesk, E.
O'Cathain, B. [Teller]
Palmer, L.
Plummer of St. Marylebone, L.
Roberts of Conwy, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Shaw of Northstead, L.
Soulsby of Swaffham Prior, L.
Southwell, Bp.
Stoddart of Swindon, L.
Strange, B.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gwydir, L.
Ullswater, V.
Vinson, L.

NOT-CONTENTS

Acton, L.
Addington, L.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Barker, B.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carlile of Berriew, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Freyberg, L.
Fyfe of Fairfield, L.
Gale, B.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Hamwee, B.
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Jones, L.
Judd, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Lockwood, B.
Lucas, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Maddock, B.
Mallalieu, B.
Mar and Kellie, E.
Massey of Darwen, B.
Merlyn-Rees, L.
Miller of Chilthorne Domer, B.
Nicol, B.
Oakeshott of Seagrove Bay, L.
Oxford, Bp.
Parekh, L.
Patel, L.
Pendry, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Roper, L.
Russell-Johnston, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sharp of Guildford, B.
Simon, V.
Smith of Clifton, L.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Triesman, L.
Turnberg, L.
Wallace of Saltaire, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wigoder, L.
Winston, L.
Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

3 Feb 2004 : Column 625

7.45 p.m.

Lord Filkin moved Amendment No. 87:


    Page 26, line 5, leave out from beginning to first "gender" in line 6 and insert "A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's"

The noble Lord said: My Lords, I seek to be relatively crisp because this is not the first time that the Government have moved an amendment having sought to listen and respond to points made at earlier stages of a Bill.

Ministers of the Church of England and the Church in Wales are legally obliged to solemnise the marriages of parishioners. The Bill therefore provides a conscience clause so that ministers are freed from their legal obligation if one of the parties to the marriage has been recognised in the acquired gender. Although the relevant minister may not wish to solemnise the marriage, there are plenty of other opportunities for a person to get married and not be debarred of their legal rights.

There is wide support for the principle of a conscience clause, including from the transsexual community. Similar provision exists, for example, in relation to a person who seeks to remarry after having been divorced.

3 Feb 2004 : Column 626

There was considerable discussion on this issue in Grand Committee. I accept the difficulty posed by the present version of the provision. If the person seeking to marry does not, or refuses to, tell the minister, a minister will not be in a position to know that a person has changed gender. Information about a person's change of gender is, for good reason, protected under the Bill.

We have listened to the arguments and consider that it is sensible to amend the schedule so that it provides protection for the conscience of a minister both where he or she knows that a person wishing to be married has been recognised in the acquired gender and where he or she has a reasonable belief that this is the case.

Were the noble Lord, Lord Chan, present, I would speak to his amendment in a little more detail. However, the succinct response regarding why we consider his amendment is inappropriate is that it is perfectly possible for an unreasonable belief to be held sincerely by a person. The noble Lord's amendment would therefore, if accepted, open up an injustice.

As I have said, we are open to addressing the concerns of the clergy regarding being able to act on their consciences on the matter. I have met with representatives of the Church of England and my officials have worked with them to formulate an acceptable form of words. I understand that the Church in Wales has examined the new wording of the schedule and is content with it.

This is the first opportunity to pay tribute to someone else who has been a redoubtable adversary of the Government on this Bill. If I am being polite, that means that I have not agreed with every word that the noble Baroness, Lady O'Cathain, has said. However, I recognise the passion and sincerity with which she has argued her case. Therefore, it is fitting to recognise that today is her birthday. I beg to move.


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