Clause 21 - Foreign gender change and marriage
Gender Recognition Bill [Lords]
3:00 pm
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
The amendments are partially intended to probe what the Government are trying to do with the clause. Amendment No. 72 would leave out subsection (1), which states:
''A person's gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom.''
It would also remove the word ''accordingly'' in subsection (2) to make the rest of the provision sensible without subsection (1).
My concern is that subsection (1) closes down any option for mutual arrangements to be agreed between Britain and other countries. If the Government were to negotiate a mutual recognition arrangement, which I understand has not been ruled out, it would be necessary for the provision not to exist; otherwise, such arrangements would be rendered useless by inclusion of the subsection.
For example, let us say that we were happy with the rigour of the procedures in Belgium and were more than willing to recognise its transsexuals as people to whom we would give recognition in this country. There could be a mutual recognition arrangement with the Belgians whereby a Belgian who is staying here for some time and wants recognition would not have to follow the clause 1 approach and apply for a gender recognition certificate. It would be fine simply to accept the Belgian recognition in law.
Subsection (1) would preclude that, regardless of the marital status of the person concerned. I hope that the Minister will clarify, first, whether that is his understanding of the provision, and, secondly, whether he believes that to be a problem or whether he believes that there can never be any mutual recognition that would preclude someone from going through the formal stages set out in earlier clauses, which are onerous in respect of evidence, medical reports and so on but which make exception for approved countries. People from the list of approved countries are not required to provide the evidence in clause 3 but are required to make application. People moving around European countries that have satisfactory arrangements should not have to apply for recognition in every country in which they live.
There is a separate issue concerning marriage in relation to amendment No. 73. That amendment would add a new subsection (6), which states that subsections (1) to (5)—or (1) to (4), if the previous amendment is by some miracle accepted by the Government—shall not apply to persons who have gender recognition under the law of an approved country or territory and who have entered into a foreign post-recognition marriage. The term ''approved country'' or ''territory'' comes under the same definition that is provided in clause 2.
It is important to go through subsections (2) to (5) because they are not easy to grasp conceptually. Subsection (2) states that a person is
''not to be regarded as being married by reason of having entered into a foreign post-recognition marriage.''
That in itself, without the further provisions, would be rather disappointing to a transsexual coming from abroad who has entered into a foreign post-recognition marriage. Subsection (3) goes on to say:
''But if a full gender recognition certificate is issued to a person who has entered into a foreign post-recognition marriage, after the issue of the certificate the marriage is no longer to be regarded as void on the ground that (at the time it was entered into) the parties to it were not respectively male or female.''
It is a nice concession to make for people from other European countries that we shall deign to recognise their marriage when they get a full gender recognition certificate.
Subsection (4) states:
''However, subsection (3) does not apply to a foreign post-recognition marriage if a party to it has entered into a later (valid) marriage before the issue of the full gender recognition certificate.''
That is all a bit bizarre. Subsection (5) states:
''For the purposes of this section a person has entered into a foreign post-recognition marriage if (and only if)—
(a) the person has entered into a marriage in accordance with the law of a country or territory outside the United Kingdom,
(b) before the marriage was entered into the person had changed gender under the law of that or any other country or territory outside the United Kingdom,
(c) the other party to the marriage was not of the gender to which the person had changed under the law of that country or territory, and
(d) by virtue of subsection (1) the person's gender was not regarded as having changed under the law of any part of the United Kingdom.''
It is not entirely clear to me what those provisions are designed to do, but it seems that they should not apply to any country whose procedures we recognise. There should be nothing wrong with a foreign post-recognition marriage when we recognise the procedures of that country as valid.
I am not sure whether the Government are worried about having to recognise same-sex marriages from abroad when one of the people concerned is a transsexual. It does not seem that the provisions are needed to deal with that. The amendment is designed to probe why the Government have had to contort themselves, when there might be provision for a country or territory whose systems we approve of—as provided for in another clause—in which case the provisions would not be necessary.