Gender Recognition Bill

Part of the debate – in the House of Commons at 5:04 pm on 23 February 2004.

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 5:04, 23 February 2004

If the hon. Gentleman will forgive me, I will make some progress. I have taken a number of interventions, and if I can make progress we can then have a full debate.

In short, although the marriage will have to end, there is no impediment to the continuation of the relationship, and, should civil partnership legislation be enacted, it will be possible for the relationship to regain a legal status and for there to be mutual rights and responsibilities.

On how the marriage is to end, we are concerned to leave the individual in control of the process and to tackle the practical difficulties that ending an existing marriage may create. If a married individual applies and is successful, he or she will receive an interim gender recognition certificate, which will provide the basis, in schedule 2, for a new ground for dissolution of the marriage. On dissolving the marriage, the court will substitute a full gender recognition certificate for the interim one. In that way, the Bill proposes to avoid the situation where a married applicant first has to end his or her marriage and only then learns whether his or her application meets the criteria. The process provided in the Bill eliminates the potential for that vulnerability and allows a person to plan his or her affairs. When dissolving the marriage the court will also be able to deal with practical matters such as the sharing of pensions or making provision for children of the family.

The Government will also introduce during this Session legislation on same-sex civil partnerships. Should that legislation be enacted, a couple who have to end their marriage to allow one party to gain recognition in the acquired gender will be able to enter into a civil partnership. After the recognition of the acquired gender, they will be a same-sex couple like any other, and will have access to the rights of a same-sex couple. The effect of that is that the couple will be able again to acquire a legal status for their relationship, with legal rights and responsibilities. We plan to make it possible for a couple to end their marriage, for the full gender recognition certificate to be issued, and for a civil partnership to be formed, all on the same day.

The second section of the Bill outlines the consequences of issuing a gender recognition certificate. The consequences are largely straightforward. The two main principles are stated in general terms in clause 9. Once a certificate has been granted, a person's gender becomes in law the acquired gender. The Bill proposes to provide transsexual people with access to the rights and responsibilities that are appropriate to their acquired gender. This change of gender is, however, prospective only—the Bill does not seek to rewrite history.

Clause 10 and schedule 3 are critically important. Following a successful application for recognition, the panel will issue a gender recognition certificate. The appropriate Registrar General, depending on whether the individual's birth was initially registered in England and Wales, Northern Ireland or Scotland, will then create a new record on the individual in the gender recognition register. A birth certificate in the new name and gender recorded on the gender recognition certificate can then be issued from the new record. The link between that new birth certificate and the original birth certificate will be confidential. I want to make one thing very clear. The original birth record will not, and should not, be erased, because it is a record of a historical fact. The original birth record will remain in existence, and any person who has the original birth details will have access to a certified copy of that record. The point of issuing a new birth certificate is to allow the transsexual person privacy by not revealing their gender history in a public document. We feel that this is a reasonable safeguard for that small group of people.

I shall mention one vital aspect of the third section of the Bill. Clause 22 prohibits the disclosure of information about a person's application for gender recognition or about a successful applicant's gender history. That information is to be protected whenever it has been acquired in an official capacity. Changing gender is a difficult process. It is difficult in terms of the person's own identity and in terms of their relationships with others. Recognising the change of gender in law will produce benefits for transsexual people. Those benefits will be undermined if there remains open access to, and open disclosure of, the fact that the person was once of the other gender.

Gender dysphoria is, after all, a medical condition whereby a person feels driven to live in the opposite gender. To be reminded of the original gender, to be regularly confronted by it, and to have others knowing that one suffers from that medical condition and to know that they might be talking about it is not conducive to feeling secure and it makes it very difficult to live in the acquired gender in dignity. We do not believe, as a Government, that we are able to, or should seek to, prevent all rumour and gossip—that would require too great an encroachment into the private sphere—but we do believe that those with access to information about a person's gender history in an official capacity should play no part in any such activity. Clause 22 seeks to achieve that.

There will be instances of the individual's previous identity being relevant. All human rights legislation should try to balance the rights of one set of individuals with the rights and interests of others. To that end, clause 22 sets out the limited circumstances in which disclosure is permissible, for example, for prevention or detection of a crime or in pursuance of a statutory duty.

I should like to add to the theme of respecting the rights and interests of third parties. Schedule 4 contains a conscience clause for ministers of the Church of England and the Church in Wales.