Clause 3 - Evidence
Gender Recognition Bill [Lords]
4:30 pm
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.