Clause 3 - Evidence
Gender Recognition Bill [Lords]
4:15 pm
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I beg to move amendment No. 56, in
clause 3, page 2, leave out line 41.
Mr David Taylor (North West Leicestershire, Labour/Co-operative)
With this it will be convenient to discuss the following:
Amendment No. 47, in
clause 4, page 3, line 11, leave out subsections (2), (3) and (4).
Amendment No. 57, in
clause 4, page 3, line 11, leave out
'unless the applicant is married'.
Amendment No. 58, in
clause 4, page 3, leave out lines 13 to 16.
I remind Members that they should avoid allowing their contributions on these amendments straying into the area of pensions, which will be covered by later amendments.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I certainly intend to do that. I note that unfortunately the hon. Member for Birmingham, Selly Oak is not in her place; she warned us in advance that she would not be able to remain after 4 o'clock. I notice also that the hon. Member for St. Helens, South (Mr. Woodward) is not here, which is also unfortunate because of the work he has done on the Joint Committee on Human Rights. Nevertheless, we shall do what we can, even in the absence of their expertise.
The debate on this group of amendments will touch on the issue of marriage, and it is not my intention to go into the area of pensions. I shall stick closely to the
report of the Joint Committee on Human Rights during the last Session, when it commented on the draft Bill.
Amendment No. 56 is a paving amendment under clause 3, but it really applies to clause 4. The amendment in itself is not competent because it would not make all the subsequent amendments that would be necessary. I hope that the Minister will accept that. I do not intend to press the amendment to a Division, not least on that basis and for other reasons. The amendment represents the maximalist argument for the position taken by the Joint Committee in respect of marriage, and I shall quote from that Committee. Debates have taken place in the House of Lords, and we will not gain much by having a long debate in Committee, particularly given the pressing time due to the length of the previous debate. Therefore, I shall be brief. However, I shall explain a compromise arrangement that could be put to the Government. It is based on the date of the marriage—that is, whether it is a historic marriage or one entered into after the Bill is enacted.
In paragraph 81 of its 19th report of the 2002-03 Session, the Joint Committee said that the draft Bill
''also has important implications for the parties to marriages who were respectively male and female at the time of the wedding but one of whom subsequently seeks to change his or her sex or gender as a result of gender dysphoria . . . A person who is validly married in his or her birth gender would be unable to obtain a final gender recognition certificate unless the marriage is first annulled or dissolved.''
That has been carried through to the Bill.
The report recognises, as I do, that the Bill amends the Matrimonial Causes Act 1973 to provide an easier way to dissolve a marriage in the event of someone suffering from gender dysphoria and seeking treatment to change gender; that is, the interim gender recognition certificate gives a fast-track approach to avoiding the marriage.
In paragraph 85, the Joint Committee says that when it initially examined the draft Bill it was
''deeply concerned about the way that people in stable marriages, perhaps with dependant children and strong family ties, would be pushed into ending the marriage if one of the parties suffers from gender dysphoria and wants legal recognition of his or her acquired gender. A number of the people who sent us written evidence provided eloquent testimony to the heartache and hardship which this might cause. As well as the emotional costs, the ending of a marriage could affect people financially, by depriving a surviving partner of widow's benefits or of the benefit of a pension, or of a right to damages under the Fatal Accidents Acts. It was also pointed out that the approach gives relatively little weight to the value of maintaining family life and the sacredness of marriage vows.''
That is a dilemma for a Government who seek to provide for full recognition of human rights, even if that was done after being prodded if not pushed into it by the European Court, but who also talk about the value of maintaining family life and the sacredness of marriage vows.
Mr Tim Boswell (Daventry, Conservative)
I suspect that the hon. Gentleman is aware of a communication to some members of the Committee enclosing a legal opinion that suggests that certain married persons have been advised that they may have a case under the Human Rights Act 1998, in
that the right to marriage and the right to lead one's own life under article 8 are not adequately covered by the Government's proposals. The opinion goes on to say that if the Government persist with their present policy, a judicial review would be sought at the earliest possible opportunity in order to expose the situation.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I am sure that that is right. I have seen several legal opinions on different issues. Of course, judicial review is a hazard with which all Governments must contend. There is a legal argument as well as a moral one, and the Joint Committee took legal advice when it drew up its recommendations. I hope that the Minister will expand on that when he responds.
I have heard directly from Ministers that the Government believe that it is justifiable under articles 8.2 and 12 to require transsexual people
''to accept the ending of a male-female marriage as a condition for registration in the new gender''.
That is a quote from the report, which quoted the Government. The report explained that that view is held
''mainly because the Government does not wish to sanction the idea that there can be a valid marriage between two people of the same sex or gender. It may be reasonable to expect people contemplating gender reassignment to accept that a willingness to accept that a marriage between two people of the same sex is not legally acceptable.''
The Government are proposing to bring in civil partnerships legislation. There are two reasons why I will not go into that issue directly or accept it as an argument against the fundamental principle that we identified. First, it remains to be seen whether the civil partnerships legislation will provide the full rights that are available to married couples. Based on what we have seen, that is certainly a moot point. Secondly, it is difficult for us, considering this Bill and the injustice that it may cause, to accept promises of future legislation, particularly at this point in a Parliament and particularly given the difficulties that Governments always say that they have in getting legislation through. Indeed, the events of last night suggest, if nothing else, that that is an ever-present danger, even for a Government with a large majority. For those two reasons, I am not going to use the civil partnerships' argument to address the principle that we are raising.
The Joint Committee therefore recommended that the Government should
''reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate.''
It goes on to say that the Government might be best placed to reconsider that when the civil partnerships legislation comes in. Indeed, a position that one might ask the Government to take is not to require the ending of marriages now, but to consider whether they have a stronger case when they bring in the civil partnerships legislation and seek to amend what will then be this Act, using a civil partnerships Bill.
I think that the Joint Committee makes a strong case. One could argue that the marriage contract would not be a same-sex marriage contract because, at the time that the contract was entered into, the parties to it were male and female. So, the Government could argue, if they felt that they were in a difficult position over sanctioning what they see as same-sex marriages, that they are not doing so, because, at the time that the contract was entered into, the parties were clearly male and female and there was not the issue of a transgendered person being one of the parties. On that basis, the Government will have to make a strong argument to convince me that they are right to pursue their present path in the face of the powerful report from the Joint Committee on Human Rights.
I think that, even at this late stage in their consideration, the Government should avail themselves of the moral and legal arguments that are available. They should change their view and say that they do not expect people who are married in good faith, under a valid contract, to have to divorce and face all the personal and financial implications that go with that in order to avail themselves of their separate right to recognition in their new gender under the Human Rights Act.
Mr Andrew Selous (South West Bedfordshire, Conservative)
I too rise to voice my objection, through amendment No. 47, which I tabled, to the fact that the Bill will force a man and a woman who are married to divorce purely because one of them has undergone a gender change. I think that that is wrong. In essence, it comes down to the fact that someone's biological sex should take precedence over their adopted gender. There is no medical argument against the fact that one's birth-given biological sex remains the same. That, as far as I am concerned, should be the determinant for marriage, which is clearly the union of a man and a woman, as is stated on the wall of every register office in the country.
My hon. Friend the Member for Daventry cited the case of the married couple who have written to every member of the Committee. They are extremely concerned at the prospect of being forced to divorce purely because one of them has adopted a different gender. Many people wish to avail themselves and stay committed to their marriage vows, and they do not wish to take on separate or different rights offered by the Government. I ask the Government to reconsider that point. On Second Reading, there was strong concern about the matter across the House. The hon. Member for City of York (Hugh Bayley), who is present, also expressed support for my point and I hope that the Minister will be able to give some ground when he comes to reply.
Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)
I support the amendments tabled by my hon. Friend the Member for Oxford, West and Abingdon, partly because I come from a different perspective to his. I am a practising Christian and he is very secular or, I think the correct expression is, agnostic.
Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)
There is some confused thinking about the Government's proposals. They have almost certainly been lobbied by several groups, some saying that we should not have the Bill because they do not believe in same-sex marriages or recognise that gender can be changed by an operation; and others that if one has had the operation, applied and been registered with a different gender, one cannot remain married because one would be in a same-sex marriage. Those views cannot be held at the same time; they are mutually incompatible.
My hon. Friend said that when somebody has entered into a marriage under their original gender, the marriage should be maintained. It would be wrong for the state to force a couple in those circumstances to break what they have entered into—as they would say—in the eyes of the Lord. It is inappropriate suddenly to say that they will be different from what they were before. They have taken their vows and made their commitment.
Mr Andrew Selous (South West Bedfordshire, Conservative)
Does the hon. Gentleman accept that at the other end of his argument, with which I agree, there is quite justified concern among people of faith that we will be entering into same-sex marriages if marriages are allowed to be solemnised between a biological man and a biological man or a biological woman and a biological woman? That is the other half of the argument that he has cogently advanced.
Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)
From the logic of that perspective, I accept that it might be the case, but I am trying to argue that those who advance that argument cannot hold both positions at the same time. If one comes to the matter from a different perspective, one can hold that we can have ''same-sex marriages'' from the perspective of the Bill because it allows not same-sex marriages but different gender marriages. Once they have applied, the person is of a new gender and can marry. It is not an inconsistency of my standpoint or that of my hon. Friend to hold both arguments, saying that the Government are wrong with the principle of this clause but right with the generality of the Bill.
Mr Tim Boswell (Daventry, Conservative)
I begin with a couple of general comments. First, this is the best opportunity to debate the principles of the issues, and you have rightly warned us that we do not need to stray into the practical implications of pensions until later on, Mr. Taylor. Secondly, I am far from certain about the distinction between sex and gender. Amendments to later stages of the Bill will explore that, but it was clear from some of the earlier exchanges that the words tend to be used interchangeably. They can occasionally confuse the debate.
I am sure that the Minister will have some reservations if I say to him that I rise to support his position. I think he is aware of that. Whatever else one may say of the Government's position, it is logical. If persons can change gender, they may marry a person of the opposite gender but they may not stay married to a person of the same gender as themselves, whatever the circumstances were in a previous period when they were married to that person. The logic of the
Government's position, although it is harsh, is certainly compelling in that the circumstances have changed. That has been recognised by the issuing of a gender recognition certificate.
Mr Andrew Selous (South West Bedfordshire, Conservative)
Does my hon. Friend agree that the matter boils down to a question of priority that one has to give to sex, as opposed to gender? My argument is simple. Biological sex, which cannot be changed—I do not think that there is any dispute medically that that is the case—should take priority over adopted gender. If one holds my position, it is clearly wrong to break up what is, in my view, still a marriage between a man and a woman. That is why I tabled amendment No. 47.
Mr Tim Boswell (Daventry, Conservative)
It grieves me to say so, but I am not entirely at one with my hon. Friend. The logic of his position is impeccable: if there is a given sex that cannot be changed then there cannot be marriages between a person whose gender has subsequently been changed by law and a person of the original sex. Conversely, however, according to the logic of his position, it would never be possible for persons who have gone through a transgender arrangement to have the relationship that they seek, or may be carrying out, recognised.
It was revealing to read some correspondence I saw from someone who is not a constituent of mine. She said that she lives with someone who was formerly her husband and is now her partner. She had implicitly accepted the change that had taken place. These are wide issues. I think that the Government are right, but I just modestly flagged up a marker for a new clause of my own that I hope will be discussed later on in relation to marriage between transsexual persons. The one area in which the Government have not quite pursued the logic is a situation where two persons are both transitive and might wish to stay married. If the Government are committed to marriage, it is not clear to me why it is necessary to break that relationship, albeit that both partners have changed gender. We shall debate that when we come to it.
There has been some slipperiness of language, and although it is an easy thing to say—I do not want to say it in a smug way—no individual is obliged to sever their marriage. What they may have to do is sever it as a condition for the issuing of a gender recognition certificate, but that is a matter of their application. It is not being imposed on them. In a sense, their rights to the enjoyment of marriage are not being taken away. I can see the hon. Member for Oxford, West and Abingdon wrinkling on that. He can make an intervention if he wishes. No one is denying that it is a huge dilemma—I do not wish to say that for a moment—but sometimes there is a suggestion that people are being forced out of their marriages.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
It is worth making the point once, because it will be a recurring theme, that people will be forced to make a choice between their marriage, which they hold dear and has consequences for their family and their emotional state, and their access to their right under the Human Rights Act and the European convention to recognition of their new gender. One could argue that that is a choice, but as it is a choice
between two fundamentals, it is a forced choice, which will mean they have to give up something that they hold dear.
Mr Tim Boswell (Daventry, Conservative)
I concede the hon. Gentleman's point to the extent of saying that the choice is a highly invidious one. That is the dilemma with which the Government, among others, have been wrestling. It is the appropriate moment to say that it would be helpful if the Minister responded to the points made about legal opinions. He may not wish to at this stage, but I seek his assurance that the advice—this is a matter of some contention on other occasions—is unshakeable, and is not likely to break down in the face of the European convention on human rights.
I take it as read that the dilemma can be tolerable only if the possibility of civil partnerships exists. One of my concerns is to ensure that the two Bills dovetail, and we shall have an opportunity to discuss that later.
Another argument, which is seductive, although I do not want to accept it, is that there is a special circumstance for pre-existing marriages. Even if that is the case—I understand that emotionally, it might be, and that circumstances were different 30 years ago—the principle of not permitting same-sex or same-gender marriage, however one describes it, is sound. To make a concession for past marriages but not for future marriages concluded on the same basis would be invidious. I presume that people marrying today do so in good faith on the assumption that they are of the gender in which they are marrying, but that circumstances may change in the future when they take a different gender and wish to apply for gender recognition.
We should not preclude that, any more than we should facilitate rewriting history in relation to past marriages. This is a tough problem and the Minister, probably inevitably, is being cast in the role of the villain. No one is suggesting that the dilemmas are not huge, nor that we should not support the people involved or try to find the most acceptable way through their practical problems as well as their emotional and personal problems. However, I find myself reluctantly coming down on the side of the Minister, because I think that the basic principle of one man and one woman in one marriage is sound, and is the only basis on which we can proceed.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
Hon. Members who attended Second Reading or followed the debates in another place will know that these amendments address one of the most difficult issues in the Bill. When I came into this job and acquired this portfolio—hon. Members will know that Lord Filkin leads for this area within the Department—I too had to grapple with these great difficulties. I want to express my compassion and sympathy for those who find themselves having to make what must be, alongside the pursuit of acquiring a new gender, a very difficult, if not the most difficult, decision in their lievs. I pay tribute not just to the work of Lord Filkin, but to the Minister of State,
Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton) who was the lead Minister in the Department before me, and is now a Minister in the Department of Health.
Whether the existing marriage of a transsexual person should be allowed to continue after a change of gender is a difficult issue, and again, it is right to put the matter in context. We are discussing a very small number of marriages, but that does not to reduce the significance of the debate. It is a credit to Parliament that we can discuss such matters carefully, not just in this place but in another place.
The amendments would remove the interim gender recognition certificate from the Bill, and would allow the marriage of a transsexual person to continue after a change of gender. We must be clear about that: in law, it would be a same-sex marriage. I say to the hon. Member for South-West Bedfordshire that we are not arguing about whether the marriage is a same-sex marriage in the eyes of God, or about whether the couple are, biologically, of the same sex. None the less, many religious people accept that a person can change gender. I put on record my own position as a Christian. The preponderance of opinion in the medical community is that gender can change. Although marriage is an institution defined by law, the Bill provides a mechanism by which a person will, after going through a robust and credible process, acquire legal recognition as being of the acquired gender.
We need to be clear that if existing marriages were not required to end, the Bill would pave the way for the creation of a small category of same-sex marriages. Those are not permitted under UK law and the Government do not intend to change that.
Mr Andrew Selous (South West Bedfordshire, Conservative)
The Minister is dealing with the points carefully and in a considered manner. A number of us seem to be outing ourselves as Christians this afternoon, and I join that category. I put to him the point that I put to my hon. Friend the Member for Daventry. To me, it is a simple one: that sex, not gender, should be given priority. I agree with the Minister that people can choose to adopt a different gender. That is not the point of the argument. The Minister said that he was trying to prevent same-sex marriage. I do not think that there is any biological or medical dispute about the fact that we are not talking about a change of biological sex. I challenge anyone on the Committee to come up with experts who dispute that. I put that challenge on Second Reading and nobody responded. I put it to the Minister that when he says that he is trying to prevent same-sex marriage, it appears that he is prioritising gender above sex. Can he respond to that specific point?
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I can. I understand why the hon. Gentleman makes that point, but for my purposes it is, unfortunately, a semantic exercise. Many years ago, when people talked about transsexuals and gender re-alignment surgery, the colloquialism for it was ''sex change''. We could debate the language of gender and sex for some time, but I am not sure that that would get us where we need to be.
My position is this: I believe that there are people—born both in this country and in other parts of the world—who are driven to believe that they are in the wrong body and want to acquire the right one and a new gender. Given that fact, and given that the Bill is about recognising that and giving those people rights, I think that once someone has acquired a new gender, in law that person, although previously a man, is now a woman—or, although previously a woman, is now a man. There are obviously discussions and conversations going on in Europe in terms of discrimination and other things in that connection. In law, that person must have the rights that go with that change of status, which means that in terms of same-sex relationships, this is a very difficult area.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
The point that the hon. Member for South-West Bedfordshire made was also made in the House of Lords. Will the Minister accept that it was soundly dealt with by Lord Turnberg and Lord Winston? They pointed out that one cannot define gender by chromosomes alone, because there are so many cases in which the chromosomes are not clear. Indeed, there is physical intersex, which creates difficulty.
Andrew Selous rose—
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
The hon. Gentleman cannot intervene on me, as I intervened on the Minister.
I do not believe that there is a tract in any religious book that goes into the matter in any detail. There certainly was not in anything that I was taught at Sunday school, or its equivalent.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I am grateful to the hon. Gentleman. Not being a medic myself, I did not want to use those arguments, which were well made in another place.
Mr Andrew Selous (South West Bedfordshire, Conservative)
I want to return briefly to the point about Lord Winston. Some of us believe that he was wheeled into the Lords debate to shore up a shaky Government case. I repeat a point that I raised on Second Reading in the Commons. The Minister and any member of the Committee would have difficulty finding a large number of medical experts who can conclude categorically that such matters are entirely physiologically determined. I am not saying that there is no physiological element, but the condition is not entirely determined by physiology. I ask the Minister to respond to that point.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
There is not much to be added to the debate in another place. It would certainly be wrong to say that Lord Winston was wheeled in. Many people recognise that he is a man of immense expertise. As he is one of the most pre-eminent medical Members in the other place, it is entirely appropriate that he should comment on this matter, as he does on other controversial issues such as stem cell research. I am sure that he made his comments on that basis.
In deciding whether to seek legal recognition in the acquired gender, a person must take all the implications of that change into account, including the effect on an existing marriage.
Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I will not give way, as I want to make some progress. We have had a lengthy debate on this matter.
Should the transsexual person, having weighed the consequences, decide to press ahead with an application for gender recognition, the Bill provides a simple mechanism for dissolving a marriage. It leaves applicants with ultimate control of the process and the ability to plan their affairs. It avoids the possibility of a person having to end their marriage before discovering the results of their application for recognition in the acquired gender. In making that argument, I do not wish in any way to underestimate the heartache that will be experienced by couples who face that dilemma. There is no doubt that a relationship that survives a gender change by one party is a strong one, and that it involves a partnership bond that is worthy of respect.
The hon. Member for Oxford, West and Abingdon referred to our civil partnerships legislation. Its proximity to this Bill is important. We hope to come forward shortly with a Bill in progress. Transsexual people in this country will consider how all those things fit together, because the Bill will not require them to apply for the gender recognition certificate. As the hon. Member for Daventry suggested, it will require them to end their marriage, not their relationship; that is an important distinction.
Transsexual people will fall into one of three categories. Some who have lived together for many years and are now quite elderly may decide that the process is not for them and that they want to remain as they are. Others will be pleased to go through the process of ending their relationship and moving into the new framework that will be provided by the civil partnership arrangements, and some will not be affected, in that they will be able to remain in their relationship within the context of the Bill. So there will be categories of people who will see how the Bill affects them.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I know that we will debate time limits and the interim certificate. I am examining the issues around interim certificates that bear on the ability to allow those in existing marriages to obtain recognition but not move on to full recognition.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I know that we are keen to make progress but I want the Minister to explain something that he said earlier. He said that British law does not allow same-sex marriages and that is why he will not change the law in this Bill to allow it. That is tautological, however, because a small group of what he considers to be same-sex marriages could be allowed by law if he accepted the thinking behind the amendment. Merely saying that British law does not allow same-sex marriage and that he will not therefore change the law to allow it is a circular argument, is it not?
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
Let me explain the context, because the hon. Gentleman referred to the matter in earlier remarks. The Government do not consider that a requirement that a marriage end breaches the rights of a spouse under the European convention on human rights. In the Goodwin case, the Court in Strasbourg recognised that in according recognition to transsexuals the Government right to specify the conditions in which a marriage will end is still there. The spouse's right under article 8, which is effectively the right to a private life, is engaged, but the requirement that a marriage end is proportionate to the need to afford recognition to the transsexual person. To preserve marriage as the union of a man and a woman is appropriate in that context.
The hon. Gentleman also knows that the right to marry, to which he referred in article 12, is the right to marry someone of the opposite sex, not someone of the same gender as currently maintained. Although I accept that it is a very difficult area and extremely hard for those who find themselves having to make such considerations, it is the Government's firm view that we cannot allow a small category of same-sex marriages.
Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)
As the Minister accepted earlier on the intervention of my hon. Friend the Member for Oxford, West and Abingdon, the definition of chromosomal changes is not clear. The Minister is saying that everything is cast iron, very clear and there are two sides to the argument—one is either on one side of the argument or the other. Life is not like that, however; life is far more complicated.
In the consideration of such complications there is, if I can use the phrase, an innocent party. I cannot think of a better expression for the partner of the person who is transgender. The partner may be in a marriage, may be deeply religious and may not wish to see that marriage broken up by divorce, but they are effectively being forced to do so. That person also has rights, and they are not considered in the Government's proposal.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
As I have said, I understand what the hon. Gentleman is getting at and I understand the great difficulties that the proposal poses to those marriages, but it is the Government's view that marriage is an institution for opposite sexes. We will be introducing legislation for civil partnerships for same-sex relationships, but in order to marry now, the transsexual person must be in an opposite sex relationship.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I shall be brief because I notice that the hon. Member for City of York who has patiently sat through today hoping to reach his very important set of amendments is sitting on the Labour Benches.
I am disappointed by what the Minister has said because my party's position on the matter is clear and was made so in the House of Lords when there was a Division on the matter. The question is one of a balance of harms. I have to ask the Minister: what harm will result from the creation of, even as he sees it, a very small number of same-sex marriages? We are talking about a limited number, not one that could
explode. Indeed, one could take a historical point of view and say that there will be a defined, finite number of marriages that he deems to be same-sex. Will the earth blow up? Will the sky fall in? Will the fabric of society be undermined? No, it will not.
We are talking about putting people through what the hon. Member for Daventry called a difficult dilemma—I accept that he does not support me all the way on this, but he does recognise, as does the Minister, that there will be a terrible dilemma for individuals—for the sake of legislative tidiness. I think that was the argument that the Minister used. He said that he could not countenance the creation of a small number of what he considers to be same-sex marriages because British law does not allow that.
I accept the Minister's argument that European jurisprudence does not require Britain to do what I am calling for it to do, and I accept the argument that he made in response to my intervention that there is a margin when it comes to national laws and that the Goodwin case did not find that what I am calling for was required. I am not necessarily claiming that this will be challenged under European law; I am just making a practical and principled point that the Government are not prevented from going down this path, and that they are deliberately choosing not to go down it for what I think are reasons of legislative tidiness.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I want to put on record that I do not think that I used the phrase legislative tidiness. The point is far more one of principle.
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I do not want to misquote the Minister or imply that he used the words that I used. However, I think that his point of principle was that British law does not permit same-sex marriage, and will not be changed to permit even a small number of people to fit into a category that he calls same-sex marriage. He considers that a point of principle. It is not demonstrably so. It is a position that the Government have taken to be tidy legislatively and to ensure that there is no group falling outside that rule—as the Minister puts it, that is a principle—and because they do not want to send out a message that might encourage people to believe that they support the creation of same-sex marriages in a wider set of circumstances. The Government are quite capable of conveying a message without victimising a small number of people who will be forced to choose between marriage and accessing their full human rights through gender recognition.
I recognise that we will have an opportunity to come back to this matter and put it to a vote, in some form, at a later stage, and therefore I do not propose to put it to a vote now. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr Richard Younger-Ross (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Teignbridge, Liberal Democrat)
I hope that the Minister will be able expand on the issue of evidence, particularly in the case of someone who starts living in their acquired gender while abroad, but moves to this country in the transitional period. What evidence would be accepted about when they had started their two-year period? What would be the case in terms of recognition of medical evidence from abroad? I am thinking in particular of cases in which the country is not one that we accept in relation to gender recognition. I hope that the Minister will explore that and explain his thinking, and the thinking of his Department.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
As I explained earlier, we must be sure that countries on the approved list have standards as rigorous as our own. To that extent, we have to make a tough assessment of the list, which will enable the process. The hon. Gentleman will have heard the debate that I had with my hon. Friend the Member for Birmingham, Selly Oak about that matter. The assessment will enable the process of the applicant providing the evidence of their gender recognition to be a streamlined one—what some hon. Members refer to as a rubber stamp.
In relation to countries that are not on the approved list, we require that the person make an application. The application will be a rigorous one that assesses the nature of the medical evidence, how that person is presenting, the length of time that that person has spent in acquiring the new gender, and the permanence of that. That means that there will be an investigation of the evidence that the panel would expect.
Indeed, it may well be that in those more complex and difficult matters, the panel president will seek to have a panel of three members to assist him or her in that process. I do not want to tie the president's hands in that regard, but I say to the hon. Gentleman that we have to be sure about that evidence. The length of time and scrutiny that we have had on the matter in this place, on the Joint Committee and in the other place means that we have to ensure that when the arrangements are put in place that we are rigorous in that assessment.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.