Schedule 5 - Change of gender of married persons or civil partners

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 3:15 pm on 7th March 2013.

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Photo of Kate Green Kate Green Shadow Minister (Equalities) 3:15 pm, 7th March 2013

I beg to move amendment 13, in schedule 5, page 40, line 18, at end insert—

‘Reinstatement of marriages annulled to permit a person to obtain a gender recognition certificate

9A Schedule 4 (Effect on Marriage) at beginning insert:

(1) This section applies to a formerly married couple whose marriage was annulled in order to permit one or both partners to that marriage to obtain a full gender recognition certificate provided that:

(a) the marriage was annulled following the coming into force of the Gender Recognition Act 2004, and

(b) the formerly married couple either:

(i) formed a civil partnership with each other within six months of the annulment of their marriage, and continue to maintain their civil partnership, or

(ii) have continued to live together in the same household since the annulment of their marriage, and

(iii) both partners to the former marriage give notice that they wish their marriage to be reinstated - with effect from the date that it was annulled.

(2) When notice is given under section (1)(b)(iii), the marriage shall be reinstated with effect from the date it was annulled.

(3) In such circumstances the continuity of the marriage shall not be affected in any way and all legal rights that accrued to either party to that marriage will be reinstated - including the right to pensions, tax status in the UK, rights to property and inheritance.

(4) In those cases where the couple subsequently formed a civil partnership, the civil partnership shall be set aside.

(5) The couple whose marriage is reinstated shall be compensated from public funds for the costs they incurred in annulling the marriage, separating their financial affairs, forming a civil partnership and in respect of their costs incurred in the UK or abroad as a result of the annulment of their marriage.”.’.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss the following:

New clause 14—Civil partnerships: change of gender—

‘(1) If one of the parties in a civil partnership changes their gender under the Gender Recognition Act 2004, the civil partnership may continue, provided that both parties so elect.

(2) Subsection (1) applies only if a full gender recognition certificate is issued after the civil partnership has been entered into.’.

New clause 17—Applications for gender recognition certificates following the coming into force of this Act—

‘An application for a gender recognition certificate under the Gender Recognition Act 2004 made by a person who was married at the time that Act came into force, has undergone surgical treatment for the purpose of modifying sexual characteristics in the period since the coming into force of the 2004 Act and has remained married shall be treated as if it was an application under section 27(3) of the Gender Recognition Act 2004.’.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

Amendment 13 relates to marriages where one member of the couple has undergone gender reassignment. Until the provisions put forward in the Bill, when that happened in an opposite-sex marriage, the marriage was annulled. It was obviously impossible, prior to this Bill, for same-sex marriages to exist. If one member of a couple changed gender, it meant, by definition, that it was a same-sex relationship, and the marriage ended as a result.

I understand that we should be wary of retrospective legislation. This would apply to a small group of people who have been hit particularly hard by having to make the choice to end the marriage in order to undergo gender reassignment, while wanting to continue in all other respects as a married couple, and have done so since the Gender Recognition Act 2004.

Amendment 13 would provide that where couples have been forced to have their marriage annulled in those circumstances, but have continued to live together as a couple and continue to do so when the Bill is enacted, that marriage would be reinstated. There would, as it were, be no break in the nature of the marriage. I would argue that that was very much in the spirit of the Bill, as regards couples who have not undergone gender reassignment and who wish to take advantage of the provisions in the Bill.

New clause 17 relates to provisions affecting couples where one member applies for a gender recognition certificate. It seeks to replicate the fast-track procedure brought in at the time of the 2004 Act. There will be some couples who, when that Act was passed, took the decision that the partner who wanted gender reassignment would not undergo that process, because they knew it would bring the marriage to an end. It was very welcome that the 2004 Act provided a fast-track procedure for people who may have waited many years to undergo legal gender reassignment. For those who have waited even more years because they wanted to protect their marriage, the new clause would offer the possibility of a fast-track procedure.

The new clause does not seek to specify that fast-track procedure in detail. It could be modelled on the procedures laid out in section 27(3) of the 2004 Act, but some elements of that provision need further tweaking in response to the situation that now arises under the Bill. None the less, I hope that the Minister is sympathetic to the intention behind the new clause.

New clause 14 takes us back to an earlier discussion about the possibility of opposite-sex civil partnerships, albeit only in relation to parties who have undergone gender recognition. The Minister has already said that the Government intend to reconsider the matter before Report. I am not opposed to the intention behind the new clause, but I hope that the Committee members who tabled it are willing to wait for the Government to come back on that issue. I would therefore not support the amendment being implemented with immediate effect.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

I welcome a huge amount of what the hon. Member for Stretford and Urmston said, and the intentions behind her amendments, and those in the name of my hon. Friends the Members for Bristol North West and for Cambridge (Dr Huppert), and the hon. Member for York Central (Hugh Bayley). Although this issue affects only a small number of people, it is recognised that it does so in a deleterious way, effectively telling them, after they have gone through the pain of gender transition, that the marriage from which they took a huge amount of emotional strength through the transition is no longer valid, and in fact never existed. We need to deal with that.

The hon. Member for Stretford and Urmston correctly identified an historical problem with the 2004 Act, whereby if one spouse transitions and seeks to obtain gender recognition, the marriage must be annulled. I think that that was probably based on the partially erroneous view that couples would almost always want to split up when one partner transitions, but it was also a result of the lack of availability of same-sex marriages at the time.

The Bill allows marriages to continue after legal gender recognition, but does nothing to fix those marriages that have been lost to people who went through the process before the Bill’s passage. Amendment 13 goes some way to fixing that, as the hon. Lady outlined. I join her in seeking reassurance from the Minister of State that the Department is actively considering ways to resolve that. He has indicated to me that that is so in conversations, and I should like him to put that on the record today. I hope that we are able to resolve the matter before Report; none the less, colleagues may wish to return to it on Report if it is not resolved before then.

Photo of Helen Grant Helen Grant The Parliamentary Under-Secretary of State for Women and Equalities

It is a pleasure to serve under your chairmanship, Mr Streeter.

Amendment 13 would amend schedule 5 to restore marriages previously entered into that have been ended to enable one party to obtain gender recognition. It applies to couples who have annulled their marriages to enable one party to obtain gender recognition and who have subsequently entered into civil partnerships, or who have continued to live together in the same household. The amendment would restore all rights that the couples may have lost or had curtailed following their marriage ending. It would also allow couples to obtain compensation from public funds for any costs they had incurred as a result of the annulment.

I understand the concerns that have prompted Committee members to propose the amendment. The Government have great sympathy for couples who were required to make the very difficult choice as to whether to end their marriage to enable one of the parties to obtain gender recognition.

However, I cannot support the amendment. We have to take the law as we find it. It is not possible simply to undo the fact that the previous marriage was lawfully ended. Such a retrospective change could also have unpredictable consequences, in terms of any rights and responsibilities that the couple had accrued since their marriage was annulled. As a result, couples may find themselves worse off than they currently are. For example, ending a marriage can, in some cases, mean that a person gets a higher rate of state pension as a divorcee. I appreciate that some transsexual people in such a situation may be disappointed by this, but we need to ensure that people’s legal relationship status is completely clear at all times in the eyes of the law.

New clause 14 would allow couples to stay in a civil partnership where one party obtains gender recognition. It would therefore create opposite-sex civil partnerships. We have been clear from the start that the Bill does not amend the Civil Partnership Act 2004 to extend civil  partnerships to opposite-sex couples; consequently, the new clause would create an anomaly. I therefore cannot accept it.

However, the hon. Member for St Austell and Newquay can be assured that the Bill will enable couples in civil partnerships to convert to a marriage before one party obtains gender recognition, and to stay in this marriage following gender recognition being granted. A conversion of this kind will not constitute a break in the relationship for the purposes of any rights that may have accrued during the civil partnership.

Finally, new clause 17 seeks to reintroduce the so called fast-track procedure in section 27 of the Gender Recognition Act 2004. Section 27 expired on 3 April 2007 and new clause 17 seeks to resurrect it for those transsexual people who would have been eligible to apply under the fast-track procedure, but who may not have done so because of the marriage bar. Again, I have considerable sympathy for those applicants and hope that they will now feel able to apply for gender recognition.

Although I cannot accept the new clause as drafted, I am willing to consider whether something can be done to assist the transsexual people who transitioned a long time ago, who may be concerned that they will be unable to produce the medical evidence from the required medical practitioner. In doing so, we must be sure that we do not just reintroduce a fast-track process solely for those who were married at the time the 2004 Act came into force. That would be completely unfair to other transsexual people who transitioned many years ago and who did not seek gender recognition for family or other reasons. I therefore ask hon. Members to withdraw the amendments.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon 3:30 pm, 7th March 2013

Before I call Kate Green, Mr Gilbert may wish to come back briefly on that.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

Thank you, Mr Streeter. I am reassured by some of what the Minister has said. I look forward to further information from the Government in due course.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I, too, took comfort from the Minister’s response on new clauses 17 and 14, and I will not press new clause 17 to a Division.

On amendment 13, although I appreciate what the Minister said, and I understand the concerns that she has expressed, it seems that if the reinstatement of a marriage were disadvantageous to a couple, they could choose not to do that. Perhaps the amendment as worded would not permit that choice to rest with the couple, but it causes me concern that they will face disappointment, as marriages that were ended only because the law insisted that they were ended cannot be reinstated now that the law is catching up with modern-day mores.

I want to press amendment 13 to a Division. I recognise the concerns that the Ministers will have, but it is important, as an expression of our concern for this small group of people, that we divide the Committee on the amendment.

Sitting suspended for a Division in the House.

On resuming—

Question put, That the amendment be made.

The Committee divided: Ayes 3, Noes 9.

Division number 7 Decision Time — Schedule 5 - Change of gender of married persons or civil partners

Aye: 3 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Schedule 5 agreed to.

Clause 13 ordered to stand part of the Bill.