Gender Recognition Bill [Lords]

Public Bill Committee, 11 March 2004.

Standing Committee A

Gender Recognition Bill [Lords]

David Taylor (Labour/Co-operative, North West Leicestershire)

I remind hon. Members to turn off mobile phones and that the use of electronic equipment in the Committee is prohibited. I am happy for jackets to be removed.Clause 4 Successful applications

Clause 4 - Successful applications

David Taylor (Labour/Co-operative, North West Leicestershire)

I remind the Committee that with this we are discussing the following:

Amendment No. 30, in

clause 4, page 3, line 16, at end insert—

'( ) If subsection 3 and Schedule 2 apply, and the couple intend to live together as partners following an annulment or dissolution of marriage Schedule [Retained benefits following issue of interim gender recognition certificate: living together as partners] shall apply.'.

Amendment No. 32, in

clause 25, page 11, line 29, at end insert—

' ''live together as partners'' means—

(a) none of the provision of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;

(b) the couple live together;

(d) the couple maintain existing financial support for one another.'.

Amendment No. 33, in

clause 25, page 11, line 29, at end insert—

'( ) Two people may live together as partners irrespective of whether—

(a) they have been or remain for the time being legally married, or

(b) either of them has been issued with an interim gender recognition certificate or a gender recognition certificate.'.

New clause 3—Retained pension rights—

'(1) The Secretary of State may by order make regulations to allow a couple following annulment or dissolution of marriage under the provisions of Schedule 2 of this Act to retain the pension rights and benefits from any private pension scheme of which either party was a pre-existing member at the time of the issue of an interim gender recognition certificate, provided that both parties show that they intend to live together as partners following the divorce and that none of the circumstances provided for sections 1,11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply.

(2) For the purposes of subsection (1) above a private pension means—

(a) an occupational pension scheme,

(b) a personal pension scheme, or

New schedule 1—Retained benefits following issue of interim gender recognition certificate: living together as partners—

1 A person who is—

(a) married, and

(b) a member of a private pension scheme, and

may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners.

2 A person who is married to a person who—

(a) is a member of a private pension scheme, and

(b) has been issued with an interim gender recognition certificate,

3 In this Schedule—

''private pension scheme'' has the same meaning as in section [Retained pension rights](2);

''court'' means the court bearing the petition for divorce.

4 In this Act a couple ''live together as partners'' if—

(a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;

(b) hey intend to live together; and

5 Any award made under paragraphs 1 or 2 of this schedule shall be void if the circumstances set out in paragraph 4 cease to apply.

6 An appeal against any award made under paragraphs 1 or 2 of this schedule shall be heard by the court.

7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 cease to apply.

8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may—

(a) notwithstanding anything in paragraphs 5 or 6 above, make the award;

(b) rescind the award;

(d) otherwise deal with the case as it thinks fit.

9 An application for an award under this schedule may only be made—

(a) after the issue of an interim gender recognition certificate; and

(b) before the issue of a gender recognition certificate.'.

Tim Boswell (Conservative, Daventry)

I welcome you to the Chair, Mr. Taylor. I have not yet welcomed the Under-Secretary of State for Work and Pensions. We have had interesting dealings in the past on such comparatively straightforward matters as pension credit. I shall enjoy listening to what she has to say; she is always very reasonable in debate.

The hon. Member for City of York (Hugh Bayley) has performed a service to the Committee in raising these issues. Whatever view one may take about the

sanctity, or unbreakablility, of the principle that marriage should be between a man and a woman—we discussed that earlier, and have now dispatched the issue—it is clear that there will be serious practical problems for any couple in the situation that we are discussing. It is also clear—I make no bones about this—that there are real emotional and moral dilemmas involved. The hon. Gentleman is entirely right to raise this matter for discussion.

The clause may raise some wider issues about the status and purpose of the interim certificate, which at the moment seems to function simply as a gateway to annulment and has no other purpose. However, perhaps we should return to those issues later and concentrate now on the substance of the amendments.

As I understand it—I have read the record of the hon. Gentleman's speech, albeit rather cursorily—he is at a different stage of the process to me in relation to amendments that I have tabled on schedule 5, which we will debate in their turn. Those provisions are about—within an envelope; a settled arrangement, as it were—how various pecuniary benefits should be split among the parties to a relationship. The area of congruence is the general context that people may feel that they are being forced to divorce. The concept of forced divorce, unlike forced marriage, with which, sadly, some of us are familiar, is perhaps new. A practical set of problems will arise, typically when someone is receiving pension benefits. The amendment relates to the run-up to that period, during which certain rights may or may not be available to a couple.

We need not debate this issue now, but there is a often a degree of asymmetry in pensions arrangements between the position of a single pensioner and that of a single pensioner with dependents—typically, but not exclusively, a spouse. The existence of pension trustees and good practice over the years have meant that family responsibilities—to use shorthand—are acknowledged by giving people additional benefits. We do not want to reopen the idea that everybody lives absolutely to themselves, and that treatment of everyone should be identical and on all fours, irrespective of the number of dependents or relationships that they have.

There is an important distinction to be drawn between this debate and the debate on the principle, which was about the human rights of a transgendered person and the medical considerations that led up to the award of a certificate. In this instance, we are in the world of whether people are treated fairly.

As I understand it, the hon. Member for City of York is talking about a situation in which a couple, who might or might not contemplate divorce in these circumstances, wish to apply to a third party for the maintenance of their rights under the new arrangement, whether their marriage is annulled because an interim certificate has been issued and then they remarry, or they decide to live apart. Quite properly, they would have to make that decision. In either case, the world would change in the view of the pension trustee. If those persons were no longer married, even if for only a moment before they

reconstituted a civil partnership—I shall return to that shortly—the world would change and accrued rights could be lost.

It is not a matter of splitting a finite and determined pot but a matter of a potential loss of benefits to the couple, however disposed, as they were not previously separate persons in the same pension scheme who had never had a married relationship. I am thinking aloud about this. Suppose an individual in a pension scheme had never been married or was, perhaps, cohabiting but not necessarily in a partnership. They may have rights on account of dependency, for example, that would be lost under this arrangement. Perhaps we could debate that further. One can imagine a situation in which a pension scheme or a company benefit might be specific to a particular gender or might safeguard the position of someone of a particular gender; I do not know.

The hon. Gentleman brings to the Committee the position of a couple operating together, or operating with their several rights after the relationship is terminated, in relation to a third party such as a pension trustee or a company, if a company stands behind the pension scheme. That is not improper; it reflects good employment practice. There are two practical points to consider. First, company trustees should not use the occasion of someone's change of gender or any contingent event to break a settled arrangement or understanding; that is a general point. Secondly, even if they were inclined to do so, I cannot conceive that the situation would arise with enough frequency to make any practical difference. For example, a company pension scheme that was under severe pressure would not bail itself out by being nasty to transgendered people.

The issue, which is about fairness to individuals who have gone through a gender change, was properly brought to the Committee and should be considered by the Minister. Frankly, it would be much easier to consider it alongside a civil partnerships Bill. We have not seen such a Bill yet so we do not know what its provisions will include, although I have heard a whisper that there will not be an exact equivalence between marriage rights and the rights of those in a civil partnership. Even if there were, the arrangements in this Bill will result in a discontinuity in the relationship, if only for a day, as Lord Filkin said in another place, of someone with a gender recognition certificate who was married but who then undertakes a civil partnership. Therefore, their position may be affected.

There should be no consequences from a change of gender under the Bill, whatever the practice of the individual pension scheme and whatever the approach of the general law to specifying requirements in schemes. This debate is not about the general question whether persons who have gone through gender change should have a marriage certificate but about whether they should be treated equably in terms of third-party rights, which they may lose. The Government are intervening by legislating in an unusual situation.

I need say no more except that the hon. Member for City of York has made a good point. It is well worth

consideration, and I hope that the Minister will respond appropriately.

Lynne Jones (Labour, Birmingham, Selly Oak)

I apologise for not being in Committee when my hon. Friend the Member for City of York moved his amendment. I thank him for so doing because it raise many important issues, and I agree with him that it would have been preferable if the Bill had not required married couples who wished to remain married to divorce where the transsexual spouse also wishes to acquire their civil and human rights. However, the Minister knows that the matter was raised on Second Reading, and I intervened to suggest a very similar solution to the one proposed by the hon. Member for City of York, which is that a couple who wish to remain partners should retain their pension rights.

I appreciate that we are not discussing civil partnership legislation, and that may create some problems in drafting the legislation before us, but my hon. Friend appears to have come up with a solution. Whether or not the Government support the amendment, I hope that they will take away the issue and return with similar, if not identical proposals in a Government amendment. We can then deal with the difficult issue of couples who wish to remain together after going through the difficult and traumatic experience in which one spouse has had to face up to the fact that they are dysphoric in their birth gender and wishes to have a realignment to what they consider to be their correct gender.

Such couples are few and far between because sadly, if understandably, most marriages in such circumstances end in divorce. For those few who have demonstrated tremendous closeness and love of one another, it is heartbreaking that, in order to acquire rights under the proposed legislation, they should have to dissolve their marriage. In so doing, they should not face financial penalties.

Even if civil partnerships are introduced, the transition from marriage to partnership will be traumatic. The cost of splitting pensions is not without substance. There must be a way of preserving pension rights if the marriage is dissolved, because the Government seem determined to ensure that such marriages are dissolved. No doubt their decision will be challenged in the future.

I understand why the Government are against allowing such marriages to continue, but we must come up with a sympathetic solution so that those couples who wish to remain together are able to so do.

I wish to raise the case of a couple who have been in touch with me. They have remained together, in the sense that they see themselves as partners, but because one of them has undergone gender transition they could not live 24/7 with the other partner, so one of them has moved round the corner.

The couple are still together in one sense, and I would like to flag up the issue of what exactly living together as partners means. It is an issue for the next debate, and we need to define what we mean by partnership. That particular couple are financially dependent on one another, and do not want to get

divorced. They are living in more or less adjacent houses and maintaining a relationship.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise to the hon. Member for City of York and the Committee for the fact that I was not able to be here for the few minutes when he moved his amendment at the end of the last sitting, but I have taken the opportunity to read his excellent contribution. I am pleased to say that I strongly support the principle and the wording of the amendment, and I congratulate him on setting out in such detail formal proposals, rather than probing amendments, to the Government to ask them to change their view on the matter. I also congratulate him on the clear way in which he put his case both on Second Reading—when I was not the Front-Bench spokesman—and during the last sitting of the Committee.

The Government have a clear series of choices. We have already heard that they are not willing to consider the proposition put to them by the Joint Committee on Human Rights that people should not have to get divorced if they do not wish to do so to access their human rights. Later, we shall have a debate on amendment No. 71, when I intend to probe the Government on whether they are willing to make allowances for marriages that existed before the enactment of the measure. If there is a problem with a small number of what the Government call same-sex marriages, it may be less of an issue if they limit the provisions to marriages that existed before the legislation was introduced. We shall hear what the Government's choice is in that case. I am not optimistic that they will consider that sympathetically.

I suspect that the Government intend to reject the proposals in the amendment, but I put it to the Minister that there is a further option. If the Government have sympathy with the amendment but do not want a potentially unlimited number of cases, they could restrict the provisions to people in marriages that existed before the enactment of the Bill, as we suggest in amendment No. 71. That would ensure that people were not treated unfairly by a retrospective measure; at the time they entered into the marriage contract and made decisions on pension provision there was no threat to their pension rights from this sort of legislation, which requires divorce as a condition of seeking one's human rights. It would have been difficult for people to envisage that the Government would introduce such a measure, albeit with the encouragement of the European courts, and would penalise—not necessarily deliberately—the spouses of people seeking to access their human rights by applying for recognition of their new gender.

If the Under-Secretary rejects the amendment, I shall be grateful if she will clarify whether she is also ruling out making an allowance for those in pre-existing marriages. Will she explain, even in that limited number of cases, what she is willing to do? I also look forward to clarification of how the Government believe that the civil partnership legislation, which we have yet to see, will address the

concerns raised by all those who support the amendment.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman makes a reasonable case. It would also be helpful if the Under-Secretary clarified whether circumstances might be different in cases where, under the Bill, an existing marriage is annulled, as opposed to a divorce, which has other administrative routes and might not have anything to do with the Bill because there is a potential inequity if the marriage is severed anyway.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Perhaps I should clarify my comments. I was using the word ''divorce'' loosely. What I meant was that the marriage was ended as a result of an interim recognition certificate and the option of annulling the marriage. I want my comments to be read in that context. I am grateful to the hon. Gentleman for raising the further point that there may be separate issues around a divorce in any event. Clearly, the thinking behind the amendment is to provide justice when the marriage has ended on the basis of the transsexual person seeking the right legal to recognition in the new gender. I am grateful to the hon. Gentleman for clarifying that.

Shaun Woodward (Labour, St Helens South)

Like other members of the Committee, I apologise for not being present when the hon. Member for City of York spoke to his amendments.

I spoke about this matter on Second Reading and I want to make two points. First, I remind the Minister, although I know that she is aware of this, of the huge emotional pain that we are forcing on people. We are forcing that on them because we are saying that although we recognise that they should have their civil right to be recognised in their new gender, if they are to obtain a certificate that, legally and formally, properly recognises that new gender they must divorce. We may all have different views about the nature, sanctity and dissolubility of marriage, but we are talking about two people who may want to stay together.

The Bill will force such people to make the most painful choice between their human civil right to be recognised as the person they are or their marriage. I have no specific view on this except that the reward for two people who made a decision 15, 20, 30 or 40 years previously and have experienced the most extraordinarily difficult and emotional rollercoaster to arrive at that point is that they must divorce if they want to go through with the legal recognition.

My second point is that, in 50 years, we will look back on this period with perverse wonder because the position is absurd. To all intents and purposes, the Government are recognising same-sex marriage. If a couple married 30 years ago and the man transgendered and became a woman, the fact is that two women are living together in a marriage. We are saying that if someone wants the bit of paper—for those concerned it is almost everything because it is a fundamental human right—they must end the marriage. In the example that I gave, the marriage would be a same-sex one because once the

transgendering had taken place, those two people would be living together as wife and wife. It is useful to consider what we will say when we look back, 50 years on. We will say that we got ourselves into a ludicrous pickle over a certificate because, to all intents and purposes, there was a same-sex marriage after one partner transgendered.

Andrew Selous (Conservative, South West Bedfordshire)

I support all the contributions made in the Committee this morning, but I want to return to a point that I raised on Tuesday. I want all hon. Members to be careful about the use of the words ''gender'' and ''sex''. I support what the hon. Gentleman is saying and I do not want couples in this position to be forced to divorce to get their rights. However, in the hon. Gentleman's argument about same-sex marriage, I think that he must be more precise about his use of the words ''sex'' and ''gender'' because he has used the two interchangeably so far.

Shaun Woodward (Labour, St Helens South)

I am happy to help the hon. Gentleman with his confusion. I am using the terms precisely because, as the hon. Gentleman might be aware, I have lived through the experience with my own brother, now sister. If a couple marry in good faith as husband and wife, but the husband realises that it is right for him to transgender, to the outside world that is a case of woman and woman living together in a same-sex marriage—I use the term same-sex in relation to how we view same-sex marriage as a concept and to the Government's objections as to why it is not possible to recognise that position for the sake of the certificate.

The fact is that such marriages have already happened, and transgendering has enabled the couple to live together as woman and woman or man and man. The certificate will be a cause of pain, and I think that we will look back in 50 years and wonder why we caused so much pain to those people over a certificate. The operation allows the person to become a woman or a man, so the couple will be living together as woman and woman or man and man, but for the sake of the certificate we will cause them a huge amount of pain. The amendments may not be the right way to change that, but the principle is that we will visit enormous pain on these people, and before the Government set their position in stone, we need to be certain that it is the right thing to do.

Maria Eagle (Labour, Liverpool, Garston)

May I welcome you at long last to the Chair, Mr. Taylor? I have been waiting to do so for some time and it is nice to finally get the opportunity. If the brisk efficiency with which you and Mrs. Roe have been dealing with proceedings continues, I am sure that we will meet the timetables that the usual channels have agreed.

By way of an introduction, I should say that this is the most difficult aspect of the Bill. It is the most awkward issue to deal with and the most intractable to resolve. Powerful contributions have been made, first and foremost by my hon. Friend the Member for City of York, but also by my hon. Friends the Members for Birmingham, Selly Oak (Lynne Jones), and for St. Helens, South (Mr. Woodward) who have both been deeply involved on the issue and care passionately

about it. We have also heard thoughtful contributions from the hon. Members for Daventry (Mr. Boswell) and for Oxford, West and Abingdon (Dr. Harris). Those speeches show that, as I said, this is the toughest aspect of the Bill.

It may help the Committee if I set out the Government's understanding of the amendments. I congratulate my hon. Friend the Member for City of York on their quality—I would expect no less from two former social security Ministers, but I want to acknowledge that they are startlingly good.

Amendment No. 29 would allow individuals who have an interim gender recognition certificate, and whose existing marriage must be ended according to the Bill's provisions, to make an application under new clause 3 that would enable them to retain their pension rights, as well as benefits from private pension schemes of which they were a member when they received their interim certificate.

Amendment No. 30 would ensure that a person who obtained the interim gender recognition certificate, and who intended to live with their spouse or partner once the marriage had been brought to an end, was covered by new schedule 1, which would enable both former spouses to retain any private pension rights they had while they were married.

Amendment No. 32 provides a definition of the concept of living together as partners, which was also raised by my hon. Friend the Member for Birmingham, Selly Oak. It sets out a definition that requires the couple to live together. I am not totally convinced that the example given by my hon. Friend would meet that requirement, although that is a moot point. It would also require the couple to retain their responsibilities to any dependants, and to maintain financial support for each other.

Amendment. No. 33 would allow the term ''living together as partners'' to refer to two people regardless of whether they had been legally married, or whether they had gone through the gender recognition process. In fact, although the amendment purports to be trying to give that legal status to anyone, it would in practice apply only to those couples who divorced as a result of the gender recognition process.

My understanding of the amendments is that they deal with a very narrow group of people who are in pre-existing marriages, as the hon. Member for Oxford, West and Abingdon suggested. I am not sure that the hon. Member for Daventry though that that was the case.

Tim Boswell (Conservative, Daventry)

It is my understanding that, to reduce the population to groups, there is the transgendered population, which is fairly small anyway, and there is the transgendered married population, which is a matter of hundreds, not thousands. Although the application of these provisions may potentially be to all those people, they would actually apply only to those who would be likely to lose some element of their pension rights because their marriage was brought to

an end. We are looking at tens of people rather than hundreds or even thousands.

Maria Eagle (Labour, Liverpool, Garston)

There is a general understanding in the Committee of what these amendments refer to. New clause 3 would allow the Secretary of State to create special provisions for couples who divorced as a result of the gender recognition process to retain private pension rights that either spouse had when the interim gender recognition certificate was issued. In this group of amendments, that would be conditional on the couple intending to live together as partners after the divorce.

Finally, new schedule 1 would provide that those people who were married members of a private pension scheme, and who had received an interim gender recognition certificate, were able to make an application to the court to allow both of them to retain the rights and benefits of the private pension scheme following the end of their marriage, so long as they intended to continue to live together. If they stopped living together, those rights would cease.

Taken together, the amendments are intended to give special private pension rights to a married couple who have to divorce in order for one spouse to obtain a full gender recognition certificate. I understand, from everybody's contributions, the reasoning behind those special rights, which is that the state is in effect saying that, to obtain the certificate, couples have to divorce, whether or not they want to.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would be grateful if the Minister could help me to clarify my own contribution. I was unsure—rather like the hon. Member for Daventry, if he does not mind being numbered with me on this issue—whether I was right to say that the amendments potentially encompass people who have yet to marry, or whether they apply only to those who are married when the Bill is enacted. If one of the Minister's arguments is that this could be an unlimited—albeit a small, undefined—number of people, then at least if the measures were restricted to people already in this position, they could be counted and defined. The cost of the regulations could be assessed.

Maria Eagle (Labour, Liverpool, Garston)

At the risk of clarifying the hon. Gentleman's contribution, which I would not even begin to try to do, I should say that my understanding is that the amendments refers to existing marriages. Every member of the Committee will recognise that we are talking about a very small group of people.

As hon. Members have said, the amendments were tabled because the state is stepping in to insist on a divorce between parties who do not particularly want one but who must choose between legal recognition for one party's acquired gender and the desire to stay together as a married couple. I will not get into the debate whether the couple is a same-sex couple before the divorce or after the gender reassignment, because the issue was dealt with thoroughly in the other place. The hon. Member for South-West Bedfordshire (Andrew Selous) keeps wanting to have that debate again, and I understand that views differ, but getting sidetracked by such issues will not help us to deal with the amendments.

If the Government were to accept the amendments, some divorced couples would be treated differently from others. In effect, transsexual people would continue to be treated according to their birth gender for purposes such as pension provisions but not for other purposes. To deal with that, the Government would have to require pension schemes to treat transsexual people as if they were still married. That is the problem, and that is why I say that this is the most difficult part of the Bill. Such an approach would breach the Bill's fundamental principle, which is that once the new gender is granted legal recognition, a person must be treated as being of that gender for all purposes.

Tim Boswell (Conservative, Daventry)

I appreciate the Minister's explanation. Will she enlighten the Committee as to whether pension scheme trustees would have power to deal with the issue ex gratia as a matter of normal, although not necessarily universal, practice? I appreciate that that would not deal with the issue of principle, but it might at least soften the possible impact in practice.

Maria Eagle (Labour, Liverpool, Garston)

Yes, indeed. If the hon. Gentleman will bear with me, I shall come to that point.

We are talking about a very small group of people who face the specific dilemma that my hon. Friends have powerfully described. However, we would be treating differently other people who lived together, such as unmarried couples, same-sex couples and opposite-sex couples who divorce. That raises the potential for discrimination problems, and it could lead to legal action where transsexual couples decided that they wanted to be treated differently. I am not saying that that is the most important consideration, but it is a consideration.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Is the Minister saying that the Government have received legal advice to the effect that they would be likely to fall foul of applications related to article 14 of the European convention on human rights by people who did not get such benefits, or that that is just a possibility and that the Government did not seek legal advice when considering the amendments?

Maria Eagle (Labour, Liverpool, Garston)

No, I am saying that it is blindingly obvious that there could be problems. I have not seen legal advice; nor did I seek any before dealing with the amendments. I do not have legal advice that I could wave at the hon. Gentleman, but it is clear that there could be problems.

The Bill gives transsexual people full legal recognition for their acquired gender, and that is what they seek. We must recognise, however, that once legal recognition is granted, no choice remains about which gender people can be seen as, and they must be seen and treated as being of their new gender for all purposes. That is the basic problem thrown up by the amendments tabled by my hon. Friend the Member for City of York, despite the powerful and persuasive case that he made on his constituent's behalf. He sent us a letter about his constituent's case, and although it would not be right to discuss in detail the best way

forward for his constituent, I undertake to reply to his letter with further advice.

Tim Boswell (Conservative, Daventry)

I have been reflecting on the remarks of the hon. Member for Oxford, West and Abingdon: if it were possible to specify a class by legislation and to ensure that all its members were availed those rights, would a legal challenge on the basis of partiality under the European convention be less likely?

Maria Eagle (Labour, Liverpool, Garston)

I cannot answer that question immediately. I suspect not, but that is just my immediate thought as an ex-lawyer—if one can ever be said to be an ex-lawyer. It is not an authoritative Government view, but something on which I should have to reflect. However, there is no doubt about the other potential difficulties that would arise if we were to follow the proposed course of action.

The hon. Member for Daventry made some reference to that in his remarks about pension scheme trustees. He, like other members of the Committee, is aware that the rules of private pension schemes vary significantly. Trustees have the obligation to administer the scheme in accordance with those various rules and to provide benefits as set out in them. Many schemes confer discretionary powers on trustees. As a general rule, the Government do not seek to fetter the discretion of trustees in respect of individual pension schemes, except where they must.

Tim Boswell (Conservative, Daventry)

I have just one other point. I hope that the Minister will forgive me, but thoughts are coming thick and fast as she speaks, and they are not all criticisms. Will she reflect on, and perhaps report through the Under-Secretary of State for Constitutional Affairs, in debate on a later clause, whether there would be any obligation, if a relevant party had received a gender recognition certificate, to report that to actual or prospective pension trustees—or would that be one of those matters that they might never find out?

Maria Eagle (Labour, Liverpool, Garston)

I think that there is an obligation to report that, although I will let the hon. Gentleman know if I am wrong.

I was saying that we should not normally seek to fetter the discretion of trustees and that the amendments could not be implemented without, potentially, requiring changes to the rules of every private pension scheme. It is worth noting, however, that many private pension schemes already make provision in any event for some benefits, such as survivors' benefits, to benefit same-sex partners or unmarried heterosexual people who live together. Some schemes may already effectively do what the hon. Member for City of York was suggesting in respect of survivor benefits.

Tim Boswell (Conservative, Daventry)

It is worth having this rather staccato dialogue, because it brings out the necessary points. If the Minister cannot help us with the amendment, would it at least be worth considering entering into communication with the National Association of Pension Funds and trying, through its good offices, to advise pensions funds on what might be good practice?

Maria Eagle (Labour, Liverpool, Garston)

I shall, of course, take that idea on board.

I remind hon. Members that elsewhere—in the Room next door, I think—a Standing Committee is debating simplification of the rules for administering pension schemes. Some aspects of the Pensions Bill are controversial, but there is widespread support for the idea that pension schemes should not be overburdened with rules and regulations that can make it more difficult and expensive to administer them, and thus act as a disincentive to providing them at all or continuing with them in their present form. We must ensure that we do not cut across that, although the issue that we are dealing with in this Committee is of course important.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In his excellent Second Reading speech the hon. Member for St. Helens, South referred to a couple who had pension rights under the Police and Firemen's Pension Act 1997, which is, obviously, a statutory public sector pension scheme. Some of the advice and encouragement that the Minister and the hon. Member for Daventry have for private pension schemes could not really apply there, as it would require the Government to change the statute to enable it to apply to unmarried opposite-sex couples, or same-sex couples. What provision will be made for pension schemes in which responsibility for making changes to the rules rests with the Government?

Maria Eagle (Labour, Liverpool, Garston)

The hon. Gentleman makes the same point as I am trying to make—perhaps not so eloquently—which is that there are myriad schemes, all of which have different rules. Some of them are small, some large, some public sector and others not. Even though the amendments are elegant, it is not easy to make the changes that are being sought.

It is not clear that couples will always lose out, even in the few cases analogous to the constituency case raised by my hon. Friend the Member for City of York. They may lose out in some cases. It is difficult to generalise about pensions because myriad factors may affect entitlement, such as the age of the couple, their working history, the private pension already accrued, level of remuneration, accrual date, investment return, scheme rules and the provision for a survivor's pension. Those factors are so variable that it is not possible to make a general assumption that all the couples covered in the amendments will lose out. I am not trying to argue that all such couples will not not lose out—if I can use a double negative rather inelegantly.

Provisions already exist for private and state pensions. We will discuss the state pension and related issues under schedule 5, so I do not propose to deal with that in any great detail now. Provisions exist that entitle partners to a pension at retirement age, regardless of whether they remain as a couple or go their separate ways on divorce. Although I have great sympathy and understanding for my hon. Friend's constituents and their dilemma, and I take on board the powerful way that my hon. Friend the Member for St. Helens, South made his point, the Bill offers a choice, even though it is constrained in many

ways. It does not force couples, one of whom is transgender, to apply for the interim certificate. They should consider whether the implications of so doing would be financially catastrophic. They may be so, but that is unlikely in many cases. With the necessary financial advice, such couples should be able to decide on the best course of action.

In view of that difficult dilemma, the Government are not able to accept the amendments. That does not diminish in any way our understanding of the difficulties that this aspect of the Bill causes to a few transgender people who are in marriages. I hope that my hon. Friend the Member for City of York, if his constituents wish, will take up the opportunity for us to examine more closely the circumstances of their pension fund; it would not be right to go into details about that in Committee. With that assurance, I hope that my hon. Friend will feel able not to press his amendments to a vote. Although I do not expect him to agree with the Government's reasoning, I hope that he understands.

Hugh Bayley (Labour, City of York)

I start by playing tribute to the excellent job that by my hon. Friend the Minister does at the Department for Work and Pensions and the great thought, care and attention that she has given to this group of amendments.

My hon. Friend said that the amendments affect only a few people. That is true, but some—I suspect, all—of that small number will face severe financial consequences if we do not make provision for them in the Bill, or in some other way. She said that the way in which such couples are affected will depend on the individual nature of their pension schemes. That clearly is true.

However, I have never seen a situation in which a pension fund's assets for a particular member can be divided between two people so that they are given the same aggregate income as existed before pension splitting. The reason for that is simple: with a couple, the maximum number of primary beneficiaries to the scheme is two, but if the fund is split, that number grows to four. The amount that the pension provider can pay out is almost invariably less in aggregate than if pension splitting does not take place.

When I moved these amendments, I drew attention to the fact that there is an asymmetry in the Bill between the rights of the transsexual in a partnership and those of their partner. The transsexual partner is in a position to make the difficult decision on whether to give primacy to the right to recognition in their new gender or the right to marriage and the financial benefits that flow from it, but the other partner does not have that choice. The Bill should be changed in order to ensure that there is a proper balance of rights for both partners.

That problem will not go away: we will certainly return to it on Report, and, unless the needs of that small group of people are addressed, I believe that the problem will come back in the courts. Indeed, it may go right through our courts and back up to the European Court of Human Rights, because a case could be made that the human rights of the non-

transsexual spouse in a marriage, such as the right to privacy and the right to marry, are transgressed by the legislation.

My hon. Friend the Member for St. Helens, South spoke from personal knowledge and with great emotion. We must remember that the dry, grinding wheels of the law can crush the human spirit. Unless we change the Bill, we will bolt those grinding wheels on to the machine, and we should not do that.

This has been a constructive debate, which has been helped by Members from both sides of the Committee, and by the Minister. I have been provoked to think of a number of ways in which we might solve what is a serious problem for a few people. For example, can we find a private pension provider, or—better still, so that there is some competition—several such providers to provide pensions to couples in such a situation? If so, we should ensure that general pensions legislation provides for the accrued pension rights of any couple in that position who happen to be with a fund that does not make proper provision for both spouses in a divorce for reasons of gender recognition, so that they can transfer the rights from their existing pension provider to a new one without detriment. Perhaps the Minister could help with that.

It may also be possible to use the provisions in the forthcoming legislation on civil partnerships to allow someone for whom a divorce is required by the Bill, to establish a civil partnership at the moment that the divorce takes place, so that the pension provider can maintain the pension rights of both partners. That is something for the Government to consider further, and for us to return to at a later stage of the Bill.

When the hon. Member for Daventry asked about ex gratia payments made by pension fund trustees to people in that situation, I immediately wrote down the initials NAPF, and he came up with the same idea a few moments later. It would be helpful if the National Association of Pension Funds could make a statement to say that its recommendation or guidance to pension fund trustees is that in those rare circumstances, they ought to—through ex gratia, if not statutory, means—make provision for both partners in such a partnership. I wonder whether, either through an intervention or a statement after I resume my place, the Minister is prepared to ask the NAPF to meet her, myself and other interested Members—perhaps the hon. Member for Daventry—to consider that proposal further.

I am grateful for the comments made by other hon. Members. My hon. Friend the Member for Birmingham, Selly Oak spoke in favour. She asked about the definition of ''live together as partners''. In new schedule 1, which I moved, I provide a definition. In lay terms, it regards a couple as living together as partners if no grounds for divorce—other than the issue of an interim gender recognition certificate—apply, if that couple lives together and if they intend to retain their responsibilities for any dependants. I think particularly of children, but there may be other dependants. In other words, if they continue to live together as a couple as though they were married, they

are defined as living together. That definition is covered, I believe, by a great deal of social security statutory law and case law on living together.

I want to comment on the Minister's statement—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I listened to the hon. Gentleman's recommendation about engaging with the National Association of Pension Funds. Obviously there are questions about the public sector statutory pension schemes. Other than the civil service scheme, they do not deal with the issue of providing survivors' benefits for unmarried couples, and that scheme does it poorly, in my view. This group of people are judged to be unmarried, because they are, effectively, forced to unmarry. I would be grateful if he would comment on whether there is a duty on the Government to amend legislation to show the way in this respect.

Hugh Bayley (Labour, City of York)

I do not want to put too great a hurdle in front of the Government at this stage. Somebody correct me if I am wrong, but, as I recall, all the big pension providers, including the public sector ones, are members of the National Association of Pension Funds. So, if we asked the NAPF to give guidance to pension providers, that guidance would go to all pension providers, to local authorities and Government schemes such as the NHS and civil service schemes, as well as to the large pension providers.

Before I leave this point, I hope that somebody will nod. Yes, indeed. I am reassured that the NAPF covers both public and private sector pension providers.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am conscious that this is the hon. Gentleman's area, but mine only by interest. However, the NHS, the Ministry of Defence and the teacher and the police and fire schemes would all require statutory regulations to be passed, if they were to be amended, before they extended survivor benefits. There has been a long campaign to change that. The relevant changes have still not been brought forward, except in respect of the civil service. So, we require not just guidance but statutory change.

Hugh Bayley (Labour, City of York)

I do not disagree with the hon. Member for Oxford, West and Abingdon. I simply say that if I created, as a hurdle for the Government, a requirement to amend all the public sector pension schemes in order for them to agree with me, I suspect that I would fall at the first fence.

I propose to the Minister that there should be a discussion with the umbrella body, the National Association of Pension Funds, about its giving guidance to pension fund trustees that they consider making an ex gratia payment in the narrow circumstances of the small number of cases that would be involved.

There is, of course, an important but much wider question about pension entitlement for same-sex partners of those in public sector pension schemes. The hon. Member for Oxford, West and Abingdon (Dr. Harris) was absolutely right to raise it, but I do not believe that consideration of the interests of the small number of married couples who include a

transsexual person is the correct way to resolve that question.

Lynne Jones (Labour, Birmingham, Selly Oak)

Can my hon. Friend explain how an ex gratia payment would work? Does he envisage that the provider would calculate the value of the pension after it was split following the divorce, compare it with the value that it would have had if the marriage had been maintained and then provide a lump sum?

Hugh Bayley (Labour, City of York)

I would much rather there be statutory protection in the Bill that described exactly the responsibilities of pension fund trustees. However, the Government have practical objections to complicating pensions legislation further in respect of what would be a very small number of people. As they are not inclined to do that, a second best would be to agree, without statutory power, a code of practice or an understanding with pension providers that they would exercise their discretion in that small number of cases and continue to pay to a member of retirement age the pension that they would have paid to a married couple, even though in the circumstances the couple are not married.

There are occasional quirks of pension law that pension fund trustees deal with by exercising their discretion—for instance, where there is a dispute over the nature of the relationship between a pension fund member and dependents. There are circumstances in which pension fund trustees can be generous—perhaps a better way to describe it is that they go further than they are legally required to go—in order to meet their moral responsibilities to people who have spent a lifetime paying into a fund.

My hon. Friend the Under-Secretary said that the Government's principal objection to my amendments was that they would lead to certain divorced couples being treated differently from divorced couples generally. I hope that she will think further about that, as it is already the case. The Bill will require a small number of couples to divorce, whether or not they do not wish to, so that one member of the couple can obtain their human right to be recognised in their acquired gender. This situation is different and no precedent would be set because no other group of people under UK law are required to divorce.

Lynne Jones (Labour, Birmingham, Selly Oak)

It is inconceivable that any other group at any time in the future would come into this category.

Hugh Bayley (Labour, City of York)

I agree absolutely with my hon. Friend. The situation is so special that we need an Act of Parliament to deal with it. I cannot think of any other circumstance now or in the future that would be analogous in any way.

Richard Younger-Ross (Liberal Democrat, Teignbridge)

The case is even worse, because one of the partners in such a couple will have gone through quite a traumatic time in helping their partner to accept an agenda that may be difficult for them, to deal with coming out in their new gender, and to cope with the transition and the two years in their new gender. They will have had to take all that and bear any associated social problems. Having helped their partner get through the stage of being accepted and recognised in their new gender, they will then effectively be kicked in the teeth by the

Government, who will say, ''You have got to get divorced.''

Hugh Bayley (Labour, City of York)

In Committee and on Second Reading, Government and Opposition Members have expressed their deep reservations about those provisions. I have done so, and I would be happier if the exception was made to the law on marriage rather than the law on pension rights. However, the Government have made the case strongly that one cannot in any circumstances change the nature of marriage as a marriage between a man and a woman. We know that to be their position, which is why I have suggested another way to solve the social and financial consequences of that decision.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman made the point about the Minister's response on discrimination. It was interesting that she should pray in aid potential applications from other people pleading discrimination when the Government have chosen not to act on the advice of the Joint Committee on Human Rights or take up offers made by Lord Lester to tackle the issue of wider discrimination other than in employment and vocational training. The Government are in less of a position to argue vulnerability under article 14 when there is a big hole in, for example, housing legislation, which was a point made by the hon. Member for St. Helens, South on Second Reading.

David Taylor (Labour/Co-operative, North West Leicestershire)

Order. The debate is ranging too wide of the amendments under consideration. I ask Members to return to the focus of the amendments.

Hugh Bayley (Labour, City of York)

I hope that the Minister will reflect on comments that Members have made and consider whether she can provide further reassurance when she brings the Bill back to the Floor of the House.

I thank the Minister for what she said about my particular constituents. I am grateful to her for offering to examine their circumstances, and I will talk with them, because if we can find a solution in one particular case, perhaps a more generalised solution can be found for the small number of couples in a similar position.

All of us in Committee can do arithmetic. If I were to press the amendments, the Committee would be inclined to pass them. As politicians, however, we are wise enough to know that if we did that, they would be reversed before Third Reading, and I would rather debate on Third Reading not taking rights away from but safeguarding the rights of the spouses of transsexual people.

Several intelligent, laterally thought proposals have been made by Government and Opposition Members about how, through negotiations with the pensions industry, we might solve a real financial problem faced by that small group of people. I hope that the Minister can say something encouraging about that, preferably now if not on Third Reading. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hugh Bayley (Labour, City of York)

I beg to move amendment No. 31, in

clause 4, page 3, line 16, at end insert—

'( ) If subsection 3 and Schedule 2 apply, and the couple do not intend to live together as partners following an annulment or dissolution of marriage Schedule [Retained benefits following issue of interim gender recognition certificate: not living together as partners] shall apply'.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss the following:

New schedule 2—Retained benefits following issue of interim gender recognition certificate: not living together as partners—

1 A person—

(a) who is married to a person who—

(i) is a member of a private pension scheme, and

(ii) has been issued with an interim gender recognition certificate, and

(b) who intends not to live together as a partner with that person, may apply to the court to make an order.

2 An order under paragraph 1 above may direct the administrators of the pension scheme that—

(a) the applicant for the order shall retain no less than 50 per cent.of the combined pension entitlement payable to the couple under the pension scheme following the annulment or dissolution of marriage, or

(b) that the level of pension entitlement payable to the applicant for the order shall be no less than 50 per cent.of the entitlement that the couple would have received under the pension scheme had they remained married, or

(c) the total value of the pension entitlement payable to both parties following the annulment or dissolution of marriage shall be no less than that entitlement that the couple would have received under the pension scheme had they remained married.

3 In this Schedule—

''private pension scheme'' has the same meaning as in section [Retained pension rights](2);

''court'' means the court hearing the petition for divorce.

4 In this Act—

''not to live together as partners'' means—

(a) any of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;

(b) the couple do not intend to live together;

5 Any award made under paragraph 2 of this schedule shall be void if the circumstances set out in paragraph 4 do not, or cease to apply.

6 An appeal against any award made under paragraph 2 of this schedule shall be heard by the court.

7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 do not, or cease to apply.

8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may—

(a) notwithstanding anything in paragraphs 5 or 6 above, make the award;

(b) rescind the award;

(d) otherwise deal with the case as it thinks fit.

9 An application for an award under this schedule may only be made—

(a) after the issue of an interim gender recognition certificate; and

(b) before the issue of a gender recognition certificate.'.

I remind Members to keep the debate relevant to the subject of the amendments.

Hugh Bayley (Labour, City of York)

The intention behind this group of amendments is similar to that behind the previous amendments, which is to protect the interests of the spouse of a transsexual person who has an interim gender recognition certificate and is seeking a full certificate. However, the measure would apply in different circumstances—circumstances in which the couple were no longer living together and therefore could not combine their personal finances.

New schedule 2, which sets out the key proposals in the amendments, would provide for pension splitting in circumstances in which a marriage was annulled or dissolved for the purpose of enabling one partner to obtain a full gender recognition certificate. The new schedule would require no less than 50 per cent. of the value of a pension fund to go to the non-transsexual spouse. It would also require the total value paid by the pension provider to be no less than if the marriage had not been dissolved.

Why is the measure needed? I suspect that the Minister will say that those who deal with divorce settlements are well used to dealing with pension splitting and that that is the most appropriate place to address the question. However, there are good reasons to include new schedule 2 or something similar in the Bill. First, it would signal that the Government gave equal weight to both spouses and their financial interests in the circumstances that I have described. I have said in previous debates that there is an asymmetry of rights in the Bill, and this measure would help to redress that.

Secondly, the measure would guarantee that 50 per cent. of the accrued pension rights went to the non-transsexual partner. Under the pension splitting arrangements, a divorce court may decide that an award of less than 50 per cent. can be made to one or other partner, and in many cases such an award is made. It could be made to the non-transsexual partner.

Thirdly, the measure redresses the imbalance of rights between the transsexual, who is in a position to choose whether to give precedence to gender recognition or to marriage, and the transsexual's partner, who does not have the same choice.

I have one further point, which is not contained in the wording of the amendment, but flows from it. The drafting of the amendment makes pension splitting dependent on divorce. However, it has occurred to me since drafting the amendment that in some instances, after the issuing of an interim gender recognition certificate, a couple may separate and live in different households, but not formally divorce. Such a case may be similar to the case raised by my hon. Friend the Member for Birmingham, Selly Oak.

Does the Minister think that some protection is needed in such cases for the spouse of the transsexual partner? I think that my hon. Friend the Member for Birmingham, Selly Oak suggested that, although a couple lived next door to one another, they might still pool their finances. I do not think that that will happen, but there may be a case in which a couple

separate, need to separate their finances and therefore need to go for pension splitting, but do not formally seek a divorce because they do not wish to break the vows that they made at the time of their marriage. In such circumstances, some protection may be needed for both the transsexual partner and the non-transsexual partner in a marriage.

Tim Boswell (Conservative, Daventry)

As the hon. Gentleman's remarks unfolded, he almost anticipated the point that I wish to raise. I have considerable general sympathy with the scope of what he is trying to do with the amendment. However, does he agree that the point is particularly important in the case of couples who are separating but not divorcing precisely because they have a strong religious or faith-based aversion to severing their marriage and therefore want to continue with at least some kind of association or are still pondering the matter—which we shall discuss under a later clause?

Hugh Bayley (Labour, City of York)

I am grateful to the hon. Gentleman. He underlines the fact that there is a further consideration, which is what happens when a couple separate but do not divorce. I hope that the Minister can respond to that as well.

We had a full and lengthy debate on the first group of amendments, and we do not need such a lengthy debate on this second group. Therefore, I shall keep my contribution short.

Lynne Jones (Labour, Birmingham, Selly Oak)

I should like to return to the case that I raised earlier of a couple who married in 1965. As the male partner puts it:

''I finally gave into my instincts in 1995 and became Fiona''.

Both people have occupational pensions and live adjacent to one another. They remain married and are good friends. They love each other dearly, although not in a physical way, and want to be in a position to look after one another. My reading of that is that they have financial ties and want to be able to continue the relationship, even although they are not living 24 hours a day, seven days a week in the same house. That is their particular situation.

I notice that the new schedule refers to people not having responsibility for their dependants. In most cases, even when couples divorce, they retain responsibility for their dependants, so I wonder why that reference is in the new schedule.

Maria Eagle (Labour, Liverpool, Garston)

The amendment and new schedule are related to the previous group, but as my hon. Friend the Member for City of York has clarified, they relate to couples who do not want to stay together once the gender recognition certificate is granted.

New schedule 2 is the important part of the proposal. It states that when a couple divorce because one spouse wishes to obtain a gender recognition certificate but do not intend to live together as partners, the spouse who does not obtain the certificate must receive no less than 50 per cent. of the private pension rights accrued by the couple. It would also provide that the spouse received no less than 50 per cent. of the entitlement that the couple would have received if they had remained married.

There are several technical points. Paragraph 2(b) of new schedule 2 proposes to share out future pension rights. I cannot get my head around how that could be done, as it is hard to work out the rights that someone would accrue in the future.

Hugh Bayley (Labour, City of York)

Will my hon. Friend give way?

Maria Eagle (Labour, Liverpool, Garston)

I would like to get through my point.

Hugh Bayley (Labour, City of York)

It is just that I cannot hear.

Maria Eagle (Labour, Liverpool, Garston)

I apologise—I shall try to speak up. I am not usually accused of not speaking loudly enough.

Paragraph 2(c) of the new schedule proposes that at the point of divorce, the couple should receive the benefits that they would have had if they had remained married. However, it must be remembered that, if a couple remained married, the spouse who is not the scheme member would not receive anything by right from the pension scheme until their spouse—the scheme member—dies. They may then be eligible for survival benefits. Therefore, at the point of divorce, a spouse who is not a scheme member would not receive anything under the proposed provision. There are technical issues on some of the proposals in the new schedule, although I do not want to overemphasise them.

My hon. Friend thought that I might refer to the current discretion of the courts, and he was right. The Bill does not make special provision for the private pension rights of an individual who has to divorce because their spouse wishes to obtain a gender recognition certificate because there are mechanisms to deal with the sharing of accrued private pension rights at the point of divorce. Currently when a couple divorce, they can apply to the court for a financial settlement. To reach a fair settlement, the court needs to know the value of all of the couple's financial assets, including accrued private pension rights. If the couple agree to share their pension, or the court makes a pension-sharing order, the value of any accrued private pension or state additional pension may be shared between the spouses as part of the settlement.

It is for the court, taking into account the circumstances and wishes of the couple, to decide how the pension ought to be apportioned, based on the assets of the couple. To propose that the spouse who does not obtain the gender recognition certificate should receive a certain percentage of the accrued pension rights ignores the fact that each case will be different and it ignore the wishes of the couple, for whom pension sharing may not be a suitable option. It also fetters the discretion of the court, which is in the best position to divide the assets in each instance.

Tim Boswell (Conservative, Daventry)

The Minister has consistently used the word ''divorce''. That is the typical circumstance, but in this Bill we are talking about annulment. Will she confirm that whatever she has said about divorces also applies when courts are considering decrees of annulment?

Maria Eagle (Labour, Liverpool, Garston)

Indeed it does. The hon. Gentleman keeps reminding me to be more precise in my language and I will try to take his advice to heart. We must all be careful about precision in this Committee.

I do not want to go over some of the points that have already been made about the similarities between this group of amendments and the previous group. Although I understand fully what my hon. Friend the Member for City of York seeks to do, his amendments cause technical problems and fetter the discretion of the courts. Although his reasons may be admirable, the amendments might not lead to the kind of justice that he seeks. I hope that, on the basis of that explanation, he will consider withdrawing his amendment.

Hugh Bayley (Labour, City of York)

First, I should say to my hon. Friend the Member for Birmingham, Selly Oak that I stand corrected. There clearly is a case—and there are probably other cases—of people who live in separate households but share their finances. She is right to say that the new schedule would not deal with their circumstances, and neither would new schedule 1, which would deal, to put it simply, with people living in the same household. It may be necessary for us to return to the situation of couples who do not divorce and who live in separate households but who share their finances to some extent.

Paragraph 4(c) of new schedule 2, about which my hon. Friend sought clarification, is included because I want to define in the new schedule people who are not living together as partners. In order to be included in that definition a couple would have to meet one of the conditions mentioned. A couple who did not retain their joint responsibilities for dependants, which they would have had as a married couple, would be regarded as a couple not living together as partners. I can see that my hon. Friend is thinking about that. If she wants to come back to me on that, she may.

My hon. Friend the Minister argues with impressive logic about the technical drafting deficiencies of the new schedule, and I am convinced on those grounds. She also makes a strong logical case for saying that the needs of the two individuals in those circumstances would be better dealt with by the court, which has a measure of discretion to apply to the circumstance concerned, than by statute. She makes the case well. On those grounds, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 71, in

clause 4, page 3, line 19, at end insert—

'( ) For the purposes of subsections (2) or (3) above a person shall only be deemed to be married if the marriage takes place after the date of commencement of section 1 of this Act.'.

It is not my intention to repeat the arguments from the previous debate on amendment No. 56. I want to refer to the report of the Joint Committee on Human Rights, which returned after the Government had given their response to discuss the need for couples to annul their marriage in order to access their legal rights. In the same way, it is reasonable for us briefly to return to the question following the Government's unwilling response to amendments Nos. 56 and 29, which related to clause 3. The problems that are created, not only emotionally, are reinforced for

married couples who are forced to annul their marriage in order for one of them to obtain the recognition that they require in securing their human rights. That includes the financial impact that it might have on either or both of them.

Amendment No. 71 would ensure that the provision for an interim certificate would apply only where the marriage has taken place after the date of enactment of the Bill. Effectively, people who are married before the Bill comes into force would be able to stay married. The difference between the amendment and amendment No. 56 is significant, as it would clearly limit the provisions to a specific number of people, who can be counted and known, and therefore does not open the door to the ongoing accrual of a category of married people. The amendment would establish a fairer test of whether the Government will recognise the serious consequences for the human rights of those people and their right to marriage and a private life.

We are now in a different position from when we first discussed the issue in more general terms under amendment No. 56. The Government have made it clear that they are not willing to make any provision for pensions justice for the spouse of a transgendered person, so we are talking about a limited number of people who have a specific problem with their financial security. On that basis, it is right that we should ask the Government to reflect on their position.

I want to return to what the Minister said previously to make it absolutely clear that he needs to set out more clearly the objections to what the Government consider to be same-sex marriage. In our second sitting, he accepted that we are discussing a small number of marriages. He said:

''We must be clear about that: in law, it would be a same-sex marriage.''

He went on to say that

''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.''—[Official Report, Standing Committee A, 9 March 2004; c. 66.]

We have not heard why the Government do not intend to change that. I want to give the Minister an opportunity to put that on record and to inform us of the fundamental objection to creating a small, and by definition limited, category of what he calls same-sex marriages. To say that they are not permitted under UK law and that the Government do not intend to change that is a circular argument. This is an opportunity to change the law and to permit what the Minister describes as the small category of same-sex marriages.

I want the Minister to consider the point that at the time of the marriage the contract was between a man and a woman. We are not discussing the state approving the bringing together in marriage of people of the same sex. I hope that the Minister will recognise that difference, because I have heard members of the Government say informally that that would be one way round the issue and I understand that they have actively considered that. It could not open the floodgates to same-sex marriage, because at

the time the marriage took place the couple were not of the same sex. The argument that people would undergo surgery or full gender transition simply to contract a same-sex marriage by deceit is incredible. There is no reason to assume that the amendment would open the floodgates or create a new category, especially in view of the way in which it is drafted.

I refer to the second report of the Joint Committee on Human Rights, which revisited the issue after the Government's response. The report rightly raised questions about the impact of the Civil Partnerships Bill, and states that

''we understand it to be the Government's current position that, even if a Civil Partnerships Bill is introduced to Parliament and passed in the current session, its operative provisions may not be brought into force before October 2005. In the meantime, we welcome the Government's intention to ensure, when drafting legislation on civil partnerships, that the interests of couples who are registering a civil partnership after having previously been married are borne in mind. We are particularly concerned about the impact on pensions of an enforced annulment of marriage.''

It continues:

''We take the view that nobody whose situation falls within the scope of the Gender Recognition Bill, designed to remove an incompatibility with human rights, should be worse off as a result of any delay in the introduction of a Civil Partnership Bill. We recommend that the Bill should be amended to provide effective protection for such people.''

The report goes on to discuss the need for civil partnerships to be available within the period in which an interim certificate is granted, an issue that we will debate under clause 5. The Minister could accept an amendment that has the same effect but with a time limit so that it would be revoked by the Civil Partnerships Bill. That would reassure those who fear that such a Bill may not come into force and thus provide for any gap before it does. The Minister will not be keen on that, but a time limit would be a further concession that would provide for what he considers to be a small and limited group of same-sex marriages until such time as a civil partnership provision was available for people in that position who wished to exercise their human rights.

I hope that I have made my position clear, even if the Minister does not accept it.

Tim Boswell (Conservative, Daventry)

With the greatest respect, I beg to differ from the hon. Member for Oxford, West and Abingdon and the Joint Committee on Human Rights. As the hon. Gentleman rightly said, the Committee has already considered the issue of principle as to whether same-sex marriages should be acceptable under these provisions, and I do not wish to reopen the matter. My view remains unchanged.

The difficulty inherent in the hon. Gentleman's proposal underlies several of our more prudential debates: in seeking to remove a problem caused by the Bill for one group, we may open the potential for discrimination against another group. It is entirely proper to consider what one might in pension terms call vested rights, but I am less certain about what might be termed rights of continuing marriage, because they would not override the principle of not having a same-sex marriage. In any case, the hon. Gentleman has opened up the possibility of further discrimination. He rightly says that such marriages

take place between a man and a woman—indeed, they would not have been valid were that not the case, even if ab initio entered into in good faith. However, he would create the possibility of unfairness in future cases by confining his relief to marriages that are terminated as a result of gender reassignment, because it may happen in future that two people of different genders marry in good faith, but one of them subsequently feels compelled to apply for gender reassignment and to avail themselves of the provisions of the Bill. It would be invidious to sort out one group's problems—although I accept that they are real—by giving it privileges that are not available to a future group.

The hon. Gentleman's solution—that the marriage might be annulled, but at a future date under future legislation whose nature we do not yet know—is fanciful and goes too far. However, I do not disrespect him for raising the issue.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am more than happy for the hon. Gentleman to take a different view, and I would never imply any disrespect towards him, particularly in this case. However, the point about the Civil Partnerships Bill is that the Government, in their response to the Joint Committee on Human Rights, prayed in aid the point that people would in future be able to escape under that legislation. He may not share that view, but the Government's defence against the Joint Committee's very important report was that such a vehicle would exist. It is therefore legitimate to use that vehicle as a way of engaging the Government in this debate.

Tim Boswell (Conservative, Daventry)

I am perfectly happy to go along with what the hon. Gentleman has just said. I, too, support the civil partnerships legislation in principle. I am anxious that it should be enacted and, as I said when considering this Bill on Second Reading, it is almost the only way of solving the dilemma with which the Committee has wrestled extensively. The only issue is whether we provide for a special procedure that annuls the marriage prospectively against the creation of a civil partnerships Bill, or whether we allow for this Bill's provisions, which would allow an interim certificate to be issued—possibly, as I intend to argue later, within an inadequate time scale of validity—and then create a civil partnerships Bill. The difference between us is procedural, but the issue of principle still divides us. However, we look forward to the Minister's response to the perfectly reasonable points that have been made.

Lynne Jones (Labour, Birmingham, Selly Oak)

In our debates since Tuesday afternoon, Members have grappled with the need to try to assist a very small number of couples, many of whom have lived together for decades. I cited the example of a 30-year marriage between two elderly people who are having to make what the Government have decided is a reasonable choice between preserving a very dear marriage and taking up the civil rights of the transsexual spouse. I agree with the Joint Committee, which believes that the Government are making people face an unreasonable choice.

The proposal advanced by the hon. Member for Oxford, West and Abingdon points one way forward, particularly if we can narrow the time scale to the

period between the enacting of the Bill and enactment of the civil partnerships legislation. I agree that the latter is some time away, and cannot be guaranteed. However, as the hon. Gentleman pointed out, the Government prayed in aid that Bill when arguing against accepting the recommendation of the Joint Committee. The proposal would not be discriminatory in the way described by the hon. Member for Daventry if it were to apply to all marriages in existence at the commencement of the Gender Recognition Act. A proportion of them would have a specific time to exercise that right, pending the introduction of civil partnerships.

Tim Boswell (Conservative, Daventry)

The difficulty with the complexity of such issues—I accept the hon. Lady's good will in the matter—is that one can think of points only as one goes along. The law of Britain provides for marriage between a man and a woman—but it is for life. The effect of the hon. Gentleman's sterling efforts to solve the problem would produce a concept of time-limited marriage, which might cause difficulty for the Minister.

Lynne Jones (Labour, Birmingham, Selly Oak)

I do not think that that is the case. During the interim, the couple will not have the choice of a civil partnership; it will not exist during that period. The circumstance is specific. We are trying to narrow the provisions so that they do not set a precedent for claims of discrimination; we must have regard to the fact that the Government's requirement for transsexual spouses to choose between their marriage and their civil rights in their reassigned gender may lead to such claims. It is a difficult issue. Once again, I urge the Government to see whether anything can be done to remove the necessity for that small number of couples to make a choice.

David Lammy (Labour, Tottenham)

We have had an extensive discussion, so I do not expect to keep the Committee long. As I have conceded, there will clearly be an emotional impact on the couples who have to end their marriages. In that sense, I say only that it will not be unexpected and that the couples in question will have had a long time to prepare for it. However, there is a practical impact, too. We heard this morning of the financial impact, but we must also consider any children and mutual rights and responsibilities. Clearly, courts will be able to consider such matters when dealing with annulment.

The Government are acutely aware of the proximity and nexus of the civil partnerships legislation. I indicated that the Government hope to come forward with it shortly. Hon. Members who are experienced in the ways of this place will know that when the Government say shortly, it means soon. We fully recognise that it is important that the two pieces of legislation coincide in this Session. I must tell the hon. Member for Oxford, West and Abingdon that a couple will be able to wait for that legislation—as I said, that will be shortly—and, beyond that, we shall go on to discuss the interim certificate, which will last for six months.

On the principal point that the hon. Gentleman raised, as I have said, the Government's position is not that same-sex marriages are not permitted under UK law and that we do not intend to change that, but that marriage is distinctly for opposite-sex couples. That is perhaps the principle that divides us. Although I am sympathetic to much of what he has said, that is the Government's position.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would be grateful if the Minister clarified whether he thinks that there is any distinction to be made between the point at which the marriage took place—at the time, between a man and a woman—and subsequent events. Should that not satisfy Government policy?

David Lammy (Labour, Tottenham)

We have gone over that ground. The Government's position is that on acquiring the new gender one is in a new gender for the purposes of the law. That is the hurdle that the hon. Gentleman is unable to get over, and on that basis I am unable to accept the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall be brief. I am grateful that the amendment was selected because I have been able to argue narrowly so that we do not repeat the debate on amendment No. 56. I want to respond to just two points from the debate.

The hon. Member for Daventry argued that the proposal was invidious because it would discriminate against other groups of people who would not be able to remain married in such circumstances. In order to argue discrimination under article 14, one has to engage another of the human rights articles, and it is hard to see that any other is satisfactorily engaged. The hon. Gentleman cannot have it both ways. If a gay couple demanded the right to be a same-sex couple, they would have to argue under article 8 or article 12, and European jurisprudence is clear that public policy can permit Governments to reserve marriage for relationships between men and women.

So, if the Government are secure in arguing that they do not have to accede to amendment No. 71 or amendment No. 56 on the basis of a challenge under article 14 together with article 8 or 12, which is presumably their view because they would never want to enact something that they felt liable to successful challenge, it is very hard for those who share that to claim—I notice that the Minister did not—that accepting the amendment would strengthen a similar claim made by, for example, a gay couple wishing to get married.

Tim Boswell (Conservative, Daventry)

With respect to the hon. Gentleman, he may have slightly misunderstood my argument, but for the avoidance of doubt I will put it again. My concern lies in the comparison between the position of an existing couple, where one of the parties has transgendered and wishes to stay married, as in the terms of his amendment, and that of a future marriage between a man and a woman that has been entered into in good faith, in which subsequently a transgender situation arises. They would not be able to avail themselves of the same right.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I wrote down that point but I could not read my scribbling of the word ''future''. I want to deal with the general point because the same argument applied. The hon. Member for Birmingham, Selly Oak clearly said that it is more reasonable to assume that once the legislation has been enacted and people know that there is not a lifetime of not being able to obtain recognition ahead of them, might if they have any doubts at the time that they get married—many will—pause when deciding whether it is appropriate to marry in their original gender rather than first seek treatment and take advantage of the other measures in the Bill. So, there is a difference.

The argument that such people cannot just rely on discrimination, as another human rights convention article must be engaged, still applies. It is hard to see that, if the Government are right in feeling that they do not have to concede the point the basis of article 8 or 12, there would be a case to be made under article 8 or 12 by that category of people in the future. That does not mean that the Government cannot accept the amendment; they just choose not to do so on the basis that it is a fundamental breach of human rights. The point is interesting, but it is difficult to argue on the grounds of discrimination given that some of us feel that, if anything, such people are still discriminated against in relation to the provision of goods and services. Hopefully, we will be able to debate that later.

I am grateful to the Minister for his response. It is disappointing that he did not agree to change his position, but I would like to deal with the question of ''shortly''. We were told several years ago, for example, that the Government's alcohol strategy would be published shortly. He knows that even a Government with a large majority in both Houses cannot be certain of their timetable. There is a worry that the civil partnerships legislation will not emerge shortly as many of us would like. The Government have not accepted the point of the proposal, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Taylor (Labour/Co-operative, North West Leicestershire)

We have had extensive debate on the principles and detail of almost all aspects of clause 4, so I hope that any contributions to the stand part debate will be limited and focused.

Clause 4 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 5 - Subsequent issue of full certificates

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 65, in

clause 5, page 3, line 31, leave out from '(1))' to end of line 32.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss the following:

Amendment No. 54, in

clause 5, page 3, line 32, leave out 'six months' and insert 'two years'.

Amendment No. 69, in

clause 5, page 3, line 34, leave out 'within that period'.

Amendment No. 67, in

clause 5, page 3, line 35, leave out from 'certificate' to '(3)' in line 36.

Amendment No. 66, in

clause 5, page 3, line 35, leave out from 'certificate' to end of line 39.

Amendment No. 52, in

clause 5, page 3, line 36, leave out from 'time' to end of line 39.

Amendment No. 61, in

clause 5, page 3, line 36, leave out

'within the period specified in subsection 3'.

Amendment No. 11, in

clause 5, page 3, line 38, leave out 'six months' and insert 'two years'.

Amendment No. 68, in

clause 5, page 3, line 38, leave out subsection (3).

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We come to this important group of amendments earlier than we had envisaged. Even the Government Whip, the hon. Member for Lewisham, East (Ms Prentice), will accept that it is not reasonable to complete my remarks in one and a half minutes.

Ms Bridget Prentice (Lewisham, East) (Lab) indicated assent.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful that the hon. Lady concedes that.

Maria Eagle (Labour, Liverpool, Garston)

The hon. Gentleman could if he tried.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister says that I could if I tried; I could move the amendment formally but I will not. It is worth briefly setting out what my amendments in the group would do, but I will leave it to others, such as the hon. Members for Birmingham, Selly Oak and for Daventry, to explain their positions.

The legislation includes several time periods involved with interim and full certificates. The first, which my amendment and others would not amend, is the six-month period after an interim certificate is issued during which someone may seek annulment of the marriage on the basis of the issuing of the certificate. The second, as set out in subsection (2), is the six-month period during which a marriage can be dissolved or annulled otherwise than through the procedure granted by the issue of an interim gender recognition certificate. That time period also applies in subsection (2)(b) if the person's spouse dies. The third, as set out in subsection (3), is the six months during which someone may make an application for a full gender recognition certificate—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Clause 5 - Subsequent issue of full certificates

Marion Roe (Conservative, Broxbourne)

I remind the Committee that with this we are discussing the following amendments:

No. 54, in

clause 5, page 3, line 32, leave out 'six months' and insert 'two years'.

No. 69, in

clause 5, page 3, line 34, leave out 'within that period'.

No. 67, in

clause 5, page 3, line 35, leave out from 'certificate' to '(3)' in line 36.

No. 66, in

clause 5, page 3, line 35, leave out from 'certificate' to end of line 39.

No. 52, in

clause 5, page 3, line 36, leave out from 'time' to end of line 39.

No. 61, in

clause 5, page 3, line 36, leave out

'within the period specified in subsection 3'.

No. 11, in

clause 5, page 3, line 38, leave out 'six months' and insert 'two years'.

No. 68, in

clause 5, page 3, line 38, leave out subsection (3).

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I welcome you back to the Chair, Mrs. Roe. I was just setting out the fact that three time periods are involved in the legislation relating to an interim certificate. The third is that between the ending of a marriage by the death of the person's spouse or by dissolution or annulment other than on the ground mentioned in subsection (1), which relates to the decree of nullity based on the interim gender recognition certificate having been issued, and the seeking of a full gender recognition certificate.

My amendments, along with amendments Nos. 69 and 52, on which I might offer support, although perhaps not to both, would ensure that there are no time limits in any event other than the first. No one is arguing that there should not be some time limit for granting the decree of nullity on the ground that an interim gender recognition certificate has been issued—otherwise, a sword of Damocles would hang over the marriage.

My amendments, however, support the argument that, thereafter, there is no reason why the person with the interim gender recognition certificate, even though none of the human rights of recognition go with it, should be under a time limit. Since there are no rights accorded, no damage would be done to the Government in extending the period for which someone could hold the certificate.

Lynne Jones (Labour, Birmingham, Selly Oak)

It is true that no specific rights are attached other than the right to have the marriage annulled before applying for a further certificate. However, recipients of such an interim certificate may regard it as having some value, perhaps as a document that at least says that the Government recognise that those recipients have a right to full recognition if their marriage is dissolved. I hope that the Government might consider that aspect. If, for understandable reasons, people do not wish to dissolve their marriage, having the interim gender recognition certificate may be some comfort to them while they remain married to their spouse.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I endorse that fully. That is why the amendment, and the others in the group, recognise that someone may be happy to have that interim recognition certificate and go no further. That is why a time limit does not appear to me to be necessary.

The narrower point I was making was that the Government might argue that there should be a time limit because they want to limit some rights to six months. The six-month period would apply to dissolution other than by annulment on the basis of the interim recognition certificate, so there is some reason for that limit. Another six-month limit can also be involved, but I am arguing that there does not appear to be any reason for limits of six months and six months; there is no reason why they could not be longer.

The Government may argue that, 10 years later, the marriage may be dissolved or annulled through normal divorce or annulment proceedings, or by death. An application could be made some time after that for a full recognition certificate. The end of the marriage may happen earlier, but if my amendments were accepted there could be an application 10 years down the line. By then, the person may not intend to continue to live in the new gender. That may or may not be true in any given case, but the same argument might apply to consideration of a full recognition certificate. Unless the Government intend to build in an automatic review after a specific period, it seems illogical to say there must be a short time limit on the grant of an interim recognition certificate, assuming the same tests are applied, because of something that may happen down the line.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman is making a compelling argument. As I understand it—I would be grateful if he confirmed that I am correct—he is simply stating that one diagnosis of gender dysphoria and re-assignation, confirmed by a gender recognition panel and the issuing of a certificate, whether full or interim, will continue

indefinitely because it is assumed that it will not normally be reversed, at least without returning to the panel.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Indeed, that is a good summary of the situation. The argument for subsequent action should not apply because the decision will already have been made. Given what I said about discrimination issues this morning, although I do not want to stress this too much, one could argue that it would be unfair on someone who was married—who had to go through that extra stage—to include some additional test, unless it is in the Bill, thereby requiring more time for the panel to make a further judgment on conversion of the interim certificate to a full certificate.

It seems reasonable that there should be one test; otherwise, inequity will be created in the system. I do not feel that I need to say any more: the default situation should be no time limit other than for the purpose of annulling the marriage on the basis of the interim certificate. It is for the Minister to make the case for a time limit of six months, followed by a further six months, in the first instance.

Lynne Jones (Labour, Birmingham, Selly Oak)

On Second Reading, I made the point that the draft Bill did not allow for any expiry time for the interim gender recognition certificate. Having studied the Bill in more detail, I now realise that it is necessary to provide a time limit for the special annulment arrangements that the interim gender recognition certificate provides for. If there is to be that special provision, it should not persist indefinitely because the other spouse would have a sword of Damocles hanging over their head indefinitely.

The specific annulment provision should be time-limited and I now support that proposal. However, I concur with the gist of the argument made by the hon. Member for Oxford, West and Abingdon (Dr. Harris). My amendments Nos. 54, 69 and 52 differ from his specific proposal in that amendment No. 54 would extend the time limit of six months to two years for ending the marriage through the procedures available to anyone when, sadly, a marriage breaks down.

Amendment No. 54 is probing. I do not believe that it is necessary to have any such time limit, although it may be useful for the other partner. However, it should be greater than six months. The marriage can end at any time, but in most cases that we are concerned about—marriages that have subsisted for a long time—it is highly unlikely that the marriage would be dissolved other than to take up the rights given in this legislation, if the couple decided that that was of overriding importance rather than remaining married. That is obviously a difficult decision.

We have spent a lot of time dwelling on the difficulties—the very real difficulties—of those very few people. We started by discussing whether it should be necessary for their marriages to be dissolved at all. Then we discussed the question whether, if those marriages have to be dissolved, the people involved

should have some retained pension rights that recognise that they are being forced to dissolve the marriage against their will.

We have not managed to get the Government to move on those two issues, so we come to this proposal, which would be very helpful to such couples. It would mean that the person who had their gender dysphoria corrected and was living in their acquired—what they would regard as their correct—gender possessed at least some official recognition of their new civil status. However, if they chose to remain married, they would not be entitled to take up their full rights. None the less, such a document may have great significance for and be of great value to that individual.

Should, sadly, the marriage end because the non-transgendered spouse dies, there should be no time limit involved. If, for example, somebody was living with a partner who was terminally ill, but it was not clear when they were going to die, what dilemma would that person face in a time-limited situation? They would have to make a decision on whether to dissolve their marriage, which they do not want to do, lest their spouse survive beyond the six-month or the two-year period.

I ask the Government seriously to consider the amendments. Although I have suggested a period of two years, that is a compromise over ending marriages other than by the special annulment procedure. Having thought through the arguments, I cannot see any point in having any time limit on the interim certificate, other than in respect of the specific issue of the special annulment procedure. I hope that the Government respond positively to the ideas that have been put forward.

Tim Boswell (Conservative, Daventry)

I have considerable sympathy with the points that have been made and I do not need to rehearse them.

This aspect was once described as putting a pistol to the head of people who already have a very difficult decision to make. I am sure that the Minister does not want to do that and that he wants people to have a reasonable time for consideration. It will be obvious to anyone who has studied the amendments carefully—not for the first time in the Committee I have misplaced my amendment paper, but I hope I have not mislaid my thoughts about them—that there should be reasonable thinking time for people to consider whether to take this dramatic step.

I will listen with interest to the Minister, but I take it that the argument for having a time limit at all is that he does not want such a situation to continue indefinitely. I echo the point that I have already made in an intervention, which is that the diagnosis is, in a sense, indelible, unquestionable and almost irreversible, except at the behest of an application by a party for further diagnosis or a reversal, as it were, which is not likely in my view. Therefore, in theory, there should be no bounds on the interim certificate. It is, in one sense, a useless document, unless and until it is used as the vehicle for obtaining an annulment.

I will make two points on the issue of the choice of time. My thinking is coincident with, if not expressed in the same way as, that of the hon. Member for

Birmingham, Selly Oak (Lynne Jones). Two years is a reasonable waiting period. My thinking was simply drawn by analogy with the requirement for two years of living in the acquired gender before the issue of a certificate in normal circumstances. The Minister may want to ponder on that.

The second, supporting reason is that it is likely that we will know where we are with civil partnerships within the two-year period and it will make the transition less objectionable and difficult for those caught up in it.

I would like to make two wider points now rather than speak on clause stand part. I am mindful of the constraints of the amendment. I sympathise again with the comments of the hon. Lady on the validity of certificates. At this point, or by ingenuity, at another point, the Minister may wish to say whether interim certificates have any validity other than as a vehicle for obtaining an annulment. If the diagnosis exists, the Committee may wish to consider issues related to discrimination legislation or other private rights.

If one likes legislation, one often walks along the Corridor thinking of things that one has not thought of before. In this case, polygamy is the final point that I throw out to the Minister on which I have no conclusion. [Interruption.] I see the Under-Secretary of State for Work and Pensions responding to that point. That is because she and I had some interesting discussions about it on the State Pension Credit Bill.

The clause refers to the death of one spouse during the two-year period, and that is the typical western pattern. I do not seek to open a debate on the matter now, but the Minister knows from our exchanges on pension credits that we must acknowledge the facts about polygamy. The issue is about UK certificates and how they work, but I would appreciate the assurance of the Minister with responsibility for constitutional affairs that there will be no difficulty with them.

It has not been the practice of this Committee, but when one raises an issue such as polygamy, it is easy to caricature it and say that it is all games. Sadly, something that may seem notional or even fanciful can be the real experience of an individual. The last thing that we want to do is make life difficult for them. The purpose behind the amendments and the thinking that has informed members of all parties is that we do not want to put people in a position where they have to make agonising choices in a hurry. The agony may be prolonged if the process is open-ended, but we should give people a reasonable degree of thinking time before they have to come to such difficult decisions.

David Lammy (Labour, Tottenham)

I begin by welcoming you again to the Chair, Mrs. Roe, as we continue to consider complex, interesting and important issues. Since the amendments were tabled, we have considered further time limits on interim certificates, and I have spoken with Press for Change and my hon. Friend the Member for Birmingham, Selly Oak.

I must set out why we have proposed such measures and why we would need some convincing reasons to change our position. With time limits there are two separate issues. What time limit should there be on using an interim certificate to annul an existing marriage? There should be a time limit, and the interim certificate creates a sort of uncertainty. It allows the marriage to be ended and it should not therefore retain that power indefinitely. That, in a sense, is the conundrum. For the transsexual in an existing marriage, there is an issue about when the discussions and decisions will go on in that family. The Government have had a long discussion about the result for that family if they are, ultimately, successful with the gender recognition panel in a same-sex marriage, and it is our view that it is most likely that that discussion will go on prior to the application to the gender recognition panel.

I would have thought that those people who have been in an existing relationship would all go through the fast-track procedure. Hon. Members will know that we amended the Bill in the House of Lords to extend the period in which fast-track applications can take place to two years. I have talked about civil partnerships, but that will cover any gap between the commencement of the Bill and the civil partnerships legislation. Those couples will go through the fast-track procedure. They will certainly have time to think about the implications. It is likely that, by the time that they get their interim certificate, they will be able to move forward, because they will presumably have accepted that they wish to annul their marriage and get the full gender recognition certificate. That was the Government's thinking.

There is some concern that we might leave people uncertain if we were to issue an interim certificate that was not time-limited. We believe that the maximum of six months allowed at present between the issue of an interim certificate and the commencement of proceedings for dissolution is reasonable. I reiterate that we accept that a couple who are faced with the prospect of ending their marriage may have to put a number of practical arrangements in place. However, picking up the point made by the hon. Member for Daventry, the only purpose of the interim certificate is to allow the marriage to be dissolved.

We expect that a couple who have been together for some time will have had those discussions a long time before they make that application, succeed in that application and get the interim certificate. If a couple need to take time to discuss the issues further or to make practical arrangements, they should probably take it before the initial application is made. As I have said, the Government have extended the fast-track application to two years to allow them to do that.

That is how the Government have sought to deal with the mischief that has, quite properly, been outlined by my hon. Friend the Member for Birmingham, Selly Oak and the hon. Member for Oxford, West and Abingdon. We are sensitive to the point, but in considering whether to extend that time limit, we are concerned about the uncertainty factor.

Lynne Jones (Labour, Birmingham, Selly Oak)

I do not think that anybody in the Room disagrees with the point that my hon. Friend made. Indeed, those who have spoken to the amendments have all made exactly that point. The question is whether the purpose of the interim gender recognition certificate is purely to allow the annulment, or whether it could have a wider purpose that would not lead to any administrative or other consequential problems. It is that point that I think that all those who have spoken to the amendments wish the Government to address.

David Lammy (Labour, Tottenham)

We return to the point that the Government's intention was that the interim certificate would have a functionary purpose for someone who would have their marriage annulled and move on to full gender recognition. My hon. Friend will know because we have talked about this—I know the position of Press for Change—that there is the question of whether the interim certificate could have some other purpose beyond that. The Government would have to consider carefully what that other purpose would be.

There are three contexts in relation to those with existing marriages. There are those who will have been together for some time—we talked about this on Tuesday—who will look into the future, look at what the Government propose in relation to civil partnerships and consider the implications for their finances and other things, which we have discussed at length. They might have been together for 30 or 40 years. They might say, ''Actually, this isn't for me.'' We have to allow for that. That is perfectly reasonable. There will also be those who say, ''This is very much for me. We have talked about it. We have looked at the issues. We will go on to get our interim certificate to annul our marriage and move on to the situation in which the acquired gender is recognised.'' That is why we are introducing the legislation. We hope that couples will feel able to do that. The third option will involve couples going their separate ways.

Shaun Woodward (Labour, St Helens South)

It is important to correct an assumption that might be creeping in. I know that the Minister does not remotely intend this. The idea that a couple will consider the certificate and say, ''Well, this is for me,'' or ''This isn't for me'', is nonsense. We are talking about people who are being forced into a terrible choice, and we are putting it on them to have to make that choice. They are choosing between their civil and human rights and their marriage.

We must be extremely careful about going down the road of thinking in a certain way, and that is what worries me a little about why the Government are in the position in which they find themselves. I challenge the Minister to get his officials to find someone who is transgendered who would fit the image that he describes and would say, ''This isn't for me,'' or ''This is for me.'' I do not think that such a person exists.

David Lammy (Labour, Tottenham)

I hope that my hon. Friend will forgive me if my language is not as clear as it could be. I simply put the argument as I did because of the discussions that we have had both here and in the House of Lords

about same-sex relationships and the fact of the dissolution of a marriage. Very difficult, real choices will be involved and there will be couples who decide that the arrangement is not for them. If my language is not as clear or diplomatic as it could be, I ask my hon. Friend, with his great experience in this area, to forgive me.

Lynne Jones (Labour, Birmingham, Selly Oak)

I urge my hon. Friend to consider the position of some of these people. I have an e-mail from Judy Aldridge, who was the ''I'' in the case of Goodwin and ''I'', which went to Strasbourg. She says:

''Did you know but on the 11th of next month it will be fifteen years since I started my journey to Strasbourg?''

She has been involved in campaigning for the rights of transsexual people for 30 years. People who have fought for many years to get their rights recognised may have to face the decision, having won their case, of whether to say, ''No, this isn't for me'', because the Government are asking them to choose between their right to retain their partnership and their right to achieve their civil status. Notwithstanding the six months for the annulment, I ask my hon. Friend seriously to consider whether the interim certificate could be given greater status. I remind him of my point about a situation in which one partner in a marriage is terminally ill, and the dilemma that that could pose if the time limit were imposed.

David Lammy (Labour, Tottenham)

My hon. Friend gives an example and she makes her points well, but she will understand that when considering the legislation and the few people involved, the Government have to be clear about the overall benefit and purpose of the legislation. We have had discussions here and in the House of Lords about these hard choices, but the Government's position is clear. We shall continue to think carefully about these issues but, as I said earlier, the arguments and concern about uncertainty mean that that is as much of an indication as I wish to give today.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before the Minister finishes—I had the impression that he was moving towards the end—could he explain the justification, not for the first time limit of six months, which none of us opposes, as the hon. Member for Birmingham, Selly Oak said, but for the time limit thereafter of six months for taking action to convert the interim certificate into a full gender recognition certificate. Why six months? Why not three months, two years or no limit? The Minister has not addressed the key question that the amendments are designed to probe.

David Lammy (Labour, Tottenham)

As I have said, the Government have to settle on a position. We do not want uncertainty around the decision to annul the marriage to go on for longer than six months. That is why we took that position.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I think that there has been a misunderstanding. There are at least two six-month periods in the Bill. Six months is, in effect, provided for in subsection (1). Once someone gets the interim

certificate, they have six months in which to make use of it to get a decree of nullity. However, I draw the Minister's attention to subsection (2), which states:

''If an interim gender recognition certificate has been issued to a person'',

there is a period of six months in which time the marriage can be annulled for another reason, or six months for the person's spouse to die, if I may put it like that. Then there is another six months in subsection (3) after the date that the marriage is dissolved in which to apply for a full gender recognition certificate. It is those periods that we are questioning. We understand the Government's position on the initial six months in subsection (1).

David Lammy (Labour, Tottenham)

Forgive me. There is a second issue to which the hon. Gentleman rightly refers; that is, the possibility of using the interim certificate to proceed to a full certificate when the marriage ends by some means other than annulment on the basis of the interim certificate itself. At present, the Bill provides that a person who has an interim certificate may proceed to apply for a full certificate only if the marriage ends within six months of the issue of the interim certificate. Again, we considered the matter further but were convinced that, balancing all the issues, the time limit is appropriate. Once the marriage has ended, the interim certificate is a ground for issue of the full certificate; that is, recognition in the acquired gender. It is the issue of the full certificate, not the interim certificate, which provides recognition in the acquired gender. If a person has a valid interim certificate, and is able to demonstrate that their existing marriage has ended, the panel has no discretion over the issue of a full certificate. We believe that placing a time limit on the interim certificate is a reasonable safeguard and that it protects the integrity of the panel's decision.

Tim Boswell (Conservative, Daventry)

Will the Minister consider the position of a person who had an interim certificate, but because of some family disagreement or because they were unable to make up their mind, did not make use of it in the time period? It would be open to them to apply for another certificate. Presumably, they could tender exactly the same evidence to the gender recognition panel as they had done before. The panel would decide either to grant a full certificate—if the marriage had come to an end, which is hardly relevant in this case—or to issue a further interim certificate. Will he confirm that that would happen? That might be a clumsy and expensive procedure, but it would presumably be a way out if a person were unable to make a decision beforehand.

David Lammy (Labour, Tottenham)

Yes, I think that that probably would happen on the current arrangements. As I have said, we hear the arguments, but, if we are to make a change, we must be sure that we get it right.

Lynne Jones (Labour, Birmingham, Selly Oak)

There is an exception to the point made by the hon. Member for Daventry. That is that those who are eligible for the fast-track procedure would have to go through the whole process again and submit a greater volume of evidence. That might be

difficult, because many of those people will have had their surgery or gone through the medical process many years previously and may not have the necessary documentation.

I am pleased that the Government extended the fast-track procedure to two years by amendment in the House of Lords; none the less the Minister has not explained why the six-month time limit is necessary in the case of the ending of the marriage through procedures that are available to anybody—other than the special annulment process or death. I still cannot see any reason why the interim certificate should not be valid for such cases.

David Lammy (Labour, Tottenham)

I think that I said to my hon. Friend that in considering the issue, perhaps the Government looked at the number of people involved and the few existing marriages. Therefore, one gets into hypothetical scenarios about the issue. My hon. Friend can come back to us if she believes that there are live examples that we have not considered.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have two points, but will make only one in this intervention. I will seek to catch the Minister's eye to make a further intervention before he finishes.

In the text that he read, which, I accept, starts to address the point of the amendments, he referred to six months being, in the Government's opinion, ''a reasonable safeguard''. Those are his words. Will he say what it is a reasonable safeguard against?

David Lammy (Labour, Tottenham)

I have said as much as I can to the hon. Gentleman. I talked about the period that we think is reasonable and about uncertainty. The Government came to a decision, but have been concerned to listen to the arguments. That is why I met Press for Change last week. I do not think that I can say much more on the issue, except that, of course, we will continue to consider it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Let me give the Minister a specific example.

A person seeks to use the fast-track procedure in the confidence that the Civil Partnerships Bill will deliver satisfactory arrangements on financial security and status. That must be done in two years. The Civil Partnerships Bill does not emerge in two years from enactment, or its powers are not clear, or it becomes clear that the Civil Partnerships Bill will not give the couple the financial status and preservation that they want. They might want to continue with the interim recognition certificate, since have it, and not proceed to divorce on any grounds. Why should they not be able to do so in those circumstances?

David Lammy (Labour, Tottenham)

That goes back to my initial point, which is that the Government hope to introduce civil partnerships legislation shortly, so the hon. Gentleman is at least pre-judging its outcome. Given the context, people will be able to consider what is available to them, consider their personal circumstances, and make a decision on that basis. Even though I see that the hon. Gentleman is not entirely satisfied with what I have to say, there is no more to add at this stage.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In a sense, this debate has been a little disappointing because although I was not privy to the conversations that the Minister had with Press for Change, there were rumours that the Government were considering making concessions. I hope that it is not too late, and in that spirit I will respond to the issues that have been raised. I invite the hon. Members for Birmingham, Selly Oak and for Daventry to intervene if they do not agree with my position, but I think there has been a commonality of view.

All three of us recognise the purpose of having an initial six-month period because of the sword of Damocles effect. We do not disagree with the first stretch of the Minister's contribution. The issues relate to the other two time periods, and I will deal with them in reverse order. The Minister said that if a marriage had ended for another reason, by death or by the annulment implied in subsection (1), and the interim certificate were granted to enable its conversion into a full certificate after the marriage end, six months would be reasonable as well, given the similar Sword of Damocles effect. The purpose of the certificate is to allow immediate conversion at the point of the marriage.

I accept that there might be a reason for the six-month period. However, the Minister has not addressed the period mentioned in subsection (2)(a), which states a period of six months for a dissolution or annulment by other means once an interim gender recognition certificate has been issued. There does not seem to be the same Sword of Damocles effect, because if the person does not intend to use the certificate—the Bill does not force them—to annul the marriage through the decree of annulment based on the certificate having been issued, there is no pressure on the relationship.

The hon. Member for Birmingham, Selly Oak gave a good example of a circumstance in which someone is very ill or terminally ill but the illness does not result in death within six months. What do they do?

The Minister and the Government have not addressed the middle time period. I hope that the Minister has an open mind. He said that he intends to use the interim recognition certificate to allow only annulment because that is its point. We all agree that that is its original usage, but some people in a very difficult position who have had sympathy but no change out of the Government might find more comfort with a different usage. Therefore, the Government need to justify why they are sticking with the original intention to issue the interim certificate only for rapid dissolution of the marriage and a switch to a full recognition certificate.

A considerable number of the 150 to 200 married couples are not happy about having to end their marriages. The only reason that they do not apply for a full recognition certificate is that marriage issue. If they feel that the interim certificate gives them some form of status—even if it does not have any legality attached to it, which is a separate issue—why not allow them to have one? Those people's problems have had little acknowledgement from the Government.

The Minister said that he thought that a six-month period—that is, the later six-month period, not the one that we all agree on—was a reasonable safeguard, but not what it was a reasonable safeguard against. The Government should consider allowing people to hold the interim certificate for a longer or, indeed, an indefinite period. They have not provided any reason why that is not be possible.

Tim Boswell (Conservative, Daventry)

In the spirit of the hon. Gentleman's interventions this morning, does he not agree that, given the genesis of the whole business, pre-existing marriages should be considered as special cases? The same issues will probably not recur in subsequent marriages. Unlike my arguments this morning, I have sympathy with him in this prudential case. At the risk of complicating matters by introducing a fourth loop into the qualifications or the algorithm, will Ministers consider whether, in the case of pre-existing marriages, that arrangement could continue, if not indefinitely, then at least for longer than is anticipated?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That would at least be something. We are talking about people who are married as of now. It is hard to envisage the same problem arising in future. I would be happy for a concession to be limited to those people. That would not be a legislative difficulty because we could state that the marriage must have taken place before the enactment of the Bill. Indeed, it could be timed to correspond with European judgments and so on.

In respect of the second period of six months for the dissolution or annulment of marriage on other grounds, the default is that people need not be rushed into that, even though they hold an interim certificate. The Government have to show reason—that is, explain what the reasonable safeguard is against—before not allowing that to happen. Those people are not getting a good deal.

There is broad agreement between the hon. Members for Daventry and for Birmingham, Selly Oak and myself: the matter should be pursued. I hope that the Minister will allow us to do that at a later date, although we are running out of stages in which we can attempt that. At the very least, we must ask him to write to us, setting out why the request that we have made should not pertain, and what he thinks the current wording is a reasonable safeguard against. I hope he will do that. A quick letter might be enough to advise us how much comfort we can take when we discuss the matter on Report. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Errors in certificates

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 12, in

clause 6, page 4, line 21, at end add

'and may not charge for the issue of a corrected certificate if the need arose because of official error'.

Marion Roe (Conservative, Broxbourne)

With this we may discuss amendment No. 13, in

clause 7, page 4, line 27, leave out 'an' and insert 'a reasonable'.

Tim Boswell (Conservative, Daventry)

I sense that we now move on to easier territory conceptually, and I hope that I can be commensurately brief. Clauses 6 and 7 are practical nuts-and-bolts issues concerning the issue of certificates.

Amendment No. 12 can be dispatched immediately. It is hardly conceivable that the Ministers will object to its principle. If an official makes a mistake in implementing a gender recognition certificate, it is unreasonable to charge the recipient for the issue of that certificate. Considering that principle led me to have wider thoughts about the nature of errors that might occur in certificates, such as simple copying errors or something more radical. I suspect that some might relate to the transcription of names.

Not much has been said about what will appear on the gender recognition certificate. For example, someone christened Fred who has changed gender and is now a woman, might want to appear as Freda or whatever on the gender recognition certificate. The name by itself is a potential source of error. That brings me to a slightly wider question.

There is extensive provision in the schedules, which we need not bother with now, for compilation of the gender recognition registry. If an error is made, whether official or non-official—perhaps something is filed inaccurately with the registrar, for example—will there be an audit trail through the whole process of initial birth registration, the error-laden register and the final gender recognition certificate that makes the correction? That may be of concern, not least because we will want to consider the ability to trace people's identity in an unequivocal way.

Amendment No. 13 would require the Secretary of State to charge a reasonable fee. The Under-Secretary will know better than I do, because he is a lawyer and I am not, that Ministers and officials are always obliged to be reasonable, and I am sure that they try to be so. I am pleased that the Under-Secretary for the Department for Work and Pensions, with her legal knowledge, is nodding. I do not mind that thought. Occasionally, I am led to quote from ''The Judge Over Your Shoulder'', which, if not my Bible, is at least something that I read from time to time.

In the spirit of the debate, the Under-Secretary for the Department for Constitutional Affairs will wish to be fair and sensible about the fees that will be charged. Briefings that we received from Press for Change and others indicate that a fee in what one might call the normal case would be £700. I do not ask the Under-Secretary to give a precise figure now, but he could help the Committee by giving some idea of the charges that are likely to be involved.

David Lammy (Labour, Tottenham)

I did not hear the hon. Gentleman properly. Did he say £700?

Tim Boswell (Conservative, Daventry)

My understanding, which is subject to correction, is that the ballpark figure for an application to a gender recognition panel would be in

the order of £700. I am not sure whether that is right. I would be grateful if the Under-Secretary could clarify it.

Clearly, there will be several charges. It occurred to me since I drafted the amendment that there will be a charge for the panel—goodness knows, they are professional people who are perfectly entitled to charge out their time at the proper rate—but possibly also for the certificate itself, which is not part of the panel's deliberation. There is an interesting question about the charges that would be required if both an interim certificate is issued and a full gender recognition certificate after the administrative process that we have just discussed, and if there is court determination of annulment. Those are important issues.

We would all agree that fees are entirely proper but that they should not be unconscionable. They should be proportionate and affordable so that people in modest circumstances, including retired people in long-standing relationships, can meet the cost.

I did have two other points to raise, but they have collapsed into one. The Under-Secretary may want to say a little—I am conscious that he is receiving assistance—about the transition from interim to full certificate, about persons who reapply, in which case the evidence is already in place, and about the fast track.

I do not wish to press this point with intensity. The Under-Secretary may also want to say something about the provision for a non-refundable fee. I fully understand that we do not want to encourage frivolous applications or applications that have not been fully considered. That is not in the spirit of the proposals, nor do I anticipate that such applications are likely. I accept that it is proper to charge a fee to reflect the costs of the procedure. However, I can imagine problems of hardship if things are taken literally.

If there were administrative shortages, which I do not anticipate, or some other reason why the matter could not be determined within a reasonable period, and people had to sit around for three years waiting for the official process to take place—I am not saying that they will, and I hope to goodness that they will not—it would be entirely reasonable to say, ''Look, I've paid up front. When is my problem going to be resolved?'' There could also be cases in which the evidence, including professional certification, which had been obtained at great cost, went missing and had to be reprovided.

The Under-Secretary might want to consider that. Sadly, there could be cases in which an applicant makes an application in good faith and the evidence is tabled but the applicant dies before it is considered by the panel. I feel slightly less intensely about that for applicants who withdraw applications, but we could have a range of hardship cases.

I am sure that the Under-Secretary will not want to give the Committee the impression that he has any wish to bear down on people more than is necessary to meet the costs of the operation. It will help to have an idea of roughly what he anticipates those costs will be. It will also help if we have an understanding across the

Committee that fees could be waived in hardship cases. In that way, we would help people whose circumstances are difficult enough not to feel that they are being treated unfairly by the administration process and the law.

David Lammy (Labour, Tottenham)

The purpose of clause 6 is to make it possible for the person or the Secretary of State to apply for a correction to the gender recognition certificate. Clause 7(2) allows the Secretary of State to prescribe, by an order that is subject to the negative procedure, the level of fees that should be charged for making applications to the gender recognition panel. Applications for corrected gender recognition certificates would be included in such an order. Clause 7(2) also provides that the order may prescribe circumstances in which no fee will be payable and it seems entirely reasonable that if an incorrect certificate has been issued due to official error, the applicant should not have to pay for a corrected replacement.

It is unnecessary to amend the Bill, as I am sure the hon. Gentleman will understand, because we can achieve the desired outcome by ensuring that the fees order covers the situation. I commend that alternative solution and give an assurance that the statutory instrument will cater for the eventuality in question.

On amendment No. 13, clause 7 allows the Secretary of State, after consultation with Scottish Ministers and the Department of Finance and Personnel in Northern Ireland, to determine the level of fees that should be charged for making applications to the gender recognition panel. It is quite normal for people to pay for a range of services, including passports, birth and marriage certificates, driving licences and applications within the civil courts. I am afraid that it is too early to say what rate of fees would be appropriate, but we are looking, among other things, at the cost of processing an application and levels of fees for comparable applications in other areas. I am pleased to say categorically that the fees will be nowhere near £700.

As part of our consideration of the level of fees we shall consider whether there should be appropriate exemptions and in what circumstances. The Government are alive to the concerns of the transsexual community and others that a future, less progressive Government could increase the fee to an extent that made legal recognition a practical impossibility. We are also mindful of our legal obligation under the European convention on human rights to ensure access to justice. I wanted to put that on the record.

As a consequence of those key issues and given that other court fees are set by order, subject to the negative procedure, the Government introduced an amendment on Report in another place to provide that the fees for an application to the gender recognition panel should be set in the same way. I believe that that provides the safeguard that the hon. Gentleman is seeking in his amendment. I do not believe that the

amendment is necessary. Parliament will have a future opportunity to assess whether the fee prescribed by the Secretary of State is reasonable.

Tim Boswell (Conservative, Daventry)

I make that about one all. The Minister made some slightly barbed comments and perhaps he knows something that I do not. I would like to share with people in and outside the Committee the possibility of a change of Government. For some reason, he seemed to be under the misapprehension that they might be less progressive than the present Government.

On the other side, the Criminal Records Bureau does not provide an entirely happy precedent for such situations, but that is private grief for the Minister and perhaps some of his colleagues in other Departments so I will not go on about that.

It must be sensible and the spirit of the whole Committee suggests that it would be reasonable, with proper understanding of the difficulties involved, to meet those concerns. The Minister has made a real attempt to do so and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Appeals etc.

Tim Boswell (Conservative, Daventry)

I have two points to make—one general, the other narrow.

My general point is to check my understanding with the Minister. The clause provides for appeals on a point of law against the outcome of the gender recognition panel's deliberations, and that is at least an advance on the Government's thinking in relation to immigration procedures, but we must not go into that territory this afternoon. The basic point is that if there is an argument about the facts or determination on the facts, there would be no appeal and the applicant would have to reapply and perhaps provide supplementary evidence to the panel. I just want confirmation of that.

My second point, which is very small—the Minister will defer to my lack of formal legal knowledge—concerns the reference in clause 8(1) to

''the High Court or Court of Session''.

The Court of Session is a Scottish court and we are legislating for the United Kingdom. The High Court, typically, covers England and Wales. As we are legislating also for Northern Ireland, can the Minister confirm that the reference in the clause to ''the High Court'' embraces Northern Ireland and that we are covering the whole of the United Kingdom as he and I intend?

David Lammy (Labour, Tottenham)

In response to the last question, yes, that is the intention; in response to the first, yes, the applicant will be able to reapply.

Question put and agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9 - General

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 18, in

clause 9, page 5, line 16, after 'purposes', insert

'including legislation relating to discrimination'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss amendment No. 44, in

clause 9, page 5, line 16, after 'purposes', insert 'defined by this Act'.

Tim Boswell (Conservative, Daventry)

In a sense, this is the most important clause in the Bill. We have been dealing with the machinery for determining how we lead up to this and we now come to the change of legal gender and status. In one sense, I have no difficulty with that. I know that one of my hon. Friends has, and I want to listen to his arguments on the matter very carefully. I also need to hear from the Minister how it will operate in practice.

First of all, I need to make a point that may pave the way for later discussions. The main concern of the Bill is legal status: the right to a private life, which is found in article 8 of the convention, and the right to marry. Those rights are secured by the Bill, as is the related issue of discrimination. The explanatory notes state that a person having been born a male

''would, in law, become a woman for all purposes.''

The notes go on to say:

''She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.''

The first part of my amendment is designed to confirm that the legal changes are what philosophers would call ontological in relation to the status of a person as a man or woman, and are recognised by their gender recognition certificate, which would function as a birth certificate for them in their acquired gender and relate to the important issues of their ability to marry and not to be discriminated against in their new gender.

It is entirely consistent with my position on the Bill that I have no problem with those concepts, but the amendments would enable us to go a little wider. Ministers should explain the other legal purposes that might be involved and what might be excluded—we shall examine that when discussing subsequent clauses and the ''small print'' that limits the broad condition.

My hon. Friend the Member for South-West Bedfordshire (Andrew Selous) will obviously want to speak on the matter. I know that concern has been expressed, particularly in faith communities. We shall want to discuss whether the rights in the Bill, including safeguards for ministers of religion, are sufficient, or whether there will be unanticipated consequences. The group of amendments deals with discrimination. I am

happy for the Minister to respond in those terms. I may want to make wider points about the drafting of the clause in the next group.

Andrew Selous (Conservative, South West Bedfordshire)

Amendment No. 44 would clarify exactly what rights are established by the Bill for transsexuals, and for many other organisations. It seeks to balance the legitimate and proper rights that the Bill will give to transsexuals with the rights of others, because I believe that they will be very severely and, in some cases, very negatively impacted by the Bill's proposals.

I will illustrate my points by taking three different examples. If we look carefully, we will see that whereas ''gender'' is used in just about every other area of the Bill, ''sex'' is distinctly used twice in subsection (1). In another place, Professor Lord Chan, a professor of medicine, drew attention to the serious issues surrounding the transfusion of blood. Certain people can be adversely affected by the transfusion of female blood. He said:

''Let us take the example of a person who says that he is male and is in fact female from the point of view of the chromosomes. We know of a rare but dangerous syndrome of people who have been transfused with blood from women and there is a transfusion reaction.''

He continues,

''it has been recorded in the United Kingdom in about 50 cases. On medical grounds there is a need for a person who has received a gender recognition certificate to disclose what their sex was at birth.'' —[Official Report, House of Lords, 29 January 2004; Vol. 657, c. 413-414.]

If we take subsection (1) literally, as I see it, it will not be possible for the National Blood Service or a hospital to find out the original birth sex, or chromosomal identity, of the person giving blood. If a person gets an adverse reaction because of that, serious legal cases will result. That is an extremely important point. It may happen only in a minority of cases, but we have discussed several issues that may occur only in a minority of cases and we must consider it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am interested in the example. Certainly, one can suffer an acute reaction because of an antibody found in the blood of some women who have been through pregnancy. Would one solution to the hypothetical problem not be to ask the donor under medical confidence whether they have been pregnant, as one is asked, controversially, about one's sexuality? I do not believe that the Bill prevents that being inquired into during that procedure if it is felt medically necessary—of which I am not certain. Perhaps we should be exploring that rather than undermining the clause.

Andrew Selous (Conservative, South West Bedfordshire)

I am not sure that the amendment seeks to undermine the clause; rather it seeks its precise meaning. The hon. Gentleman makes the sensible point that there are other issues, such as what would happen if the person did not give a full and accurate answer to the question of sexuality. If we are discussing receiving an adverse reaction from a blood transfusion, the National Blood Service and hospitals need to ascertain a definitive answer to such questions.

Lynne Jones (Labour, Birmingham, Selly Oak)

Will the hon. Gentleman give way?

Andrew Selous (Conservative, South West Bedfordshire)

No; I shall continue, if I may, and return to the hon. Lady.

I wish to move on to a second example, which I want to treat sensitively and not in any way trivialise or sensationalise. Let us consider the case of gender-specific changing areas in public baths or swimming pools, which many of us have in our constituencies. I tabled new clause 6 and hope that we reach it later, so I will not talk about the issue at length. As I read clause 6, it makes no provision for the managers of public swimming pools to have the power to set up arrangements in a way that will not cause gross offence. Taking the example of somebody who has a gender recognition certificate—[Interruption.] The Under-Secretary of State for Work and Pensions seems to mock me, but I ask her to hear me out, because I think that the issue will be of concern to many people.

Let us take the case of somebody who becomes a legal female as a result of the Bill, but has had no sex-reassignment surgery. That person is in the public changing areas of the local public swimming pool and there are women and young girls—daughters with their mothers—in that area. As I read the Bill, the management of that public swimming pool will not be able to do anything about that. I see hon. Members shaking their heads. If they give me clarification and reassurance on the issue, I will be delighted.

Maria Eagle (Labour, Liverpool, Garston)

The hon. Gentleman appears to be suggesting that transsexual people are just exhibitionists who want to cause offence. Frankly, that is ridiculous.

Andrew Selous (Conservative, South West Bedfordshire)

Absolutely not; I resent that suggestion. I am not talking about anybody trying to give offence.

Lynne Jones (Labour, Birmingham, Selly Oak)

Will the hon. Gentleman give way?

Andrew Selous (Conservative, South West Bedfordshire)

Let me respond to the Minister's point.

The fact is that public baths and swimming pools in this country have public changing areas. I think that the presence of somebody who is legally a woman but has not had any sex-reassignment surgery in an area where there are young girls and their mothers is a serious issue that the Bill does not address. Frankly, I think that our constituents will think that as well.

Lynne Jones (Labour, Birmingham, Selly Oak)

There is legislation on the statute book relating to anti-discrimination against transsexuals in employment. When we drafted that, the same issues were raised about whether a transsexual person should be required to use, for want of anything else, the disabled persons' toilet in their place of work. That was ruled out and it would now be regarded as discriminatory. Since that legislation was introduced, there have been no problems with it. I concur with my hon. Friend the Under-Secretary that the scenario that the hon. Gentleman raised is ridiculous and anathema to the transsexual community.

Andrew Selous (Conservative, South West Bedfordshire)

I am not talking about the transsexual community, but about the rest of our constituents, who might go into a public changing area. That is different from the example of toilets. In a public changing area, there are showers and people walk around fully naked in the normal course of events as they go to have a shower or change in a communal area. That is an issue that has not been addressed and needs to be thought about. I use it by way of example and do not want to dwell on it. In fact, we will come to it later when discussing new clause 6. If any members of the Committee or the Under-Secretary can reassure me, I would be delighted. I have not received any reassurance, or heard any proper arguments against what I am saying.

The last example that I shall cite, on which I also do not want to dwell at length because we will come to it in a later series of amendments, is that of religious bodies in general. I mean religious bodies of all faiths, as well as all denominations of Christianity, the Free-ers and the established churches. There is a genuine fear that vexatious litigation could arise out of clause 9(1). Hon. Members may be aware of a recent case in south Wales, in which Diane Parry sued the local Baptist church, which won the case. The judge said at the time that he believed that Diane Parry would have won had the Bill been in force. I ask the Minister on what basis he can say that Diane Parry would not win her case if the Bill were enacted? I will ask that question again when we discuss other amendments.

The question was asked by the right hon. Member for Swansea, East (Donald Anderson) on Second Reading and I do not believe that he was fully satisfied with the Minister's answer. I know of two current legal cases involving other churches. It may be part of the law of unintended consequences, but I am sure that it is not what the Government intend. Press for Change is concerned about the matter and do not want religious bodies to come up against such vexatious litigation, which will waste a lot of time. I do not believe that that is what the Government want; Ministers should know that there are not only real worries but that legal cases are being prepared.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend for giving way and for having acknowledged that it would not be in the interests of the transsexual community, or its wish, for such vexatious litigation to be pursued.

To clarify matters, will my hon. Friend tell me whether, in his understanding, the problem with the legislation would be specific to faith communities? Does he believe that faith communities might be targeted by vexatious persons seeking to make a point and that in fact the legislation would be of general application, although in practice it might end up a considerable threat to the churches and other faith communities?

Andrew Selous (Conservative, South West Bedfordshire)

I think that all faiths are worried about aspects of the Bill. I gave three different examples: blood transfusions; gender-specific changing areas; and religious bodies. The religious bodies have genuine and serious concerns, which they feel are not adequately addressed in the Bill as drafted.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am interested in what the hon. Gentleman says. I know that many people share his anxieties and it is right that we debate them. I would be grateful if he briefly expanded on his reference to Second Reading, as he did not set out the facts of the case. If he will clarify the issue, it will help us to judge the validity of his argument.

Andrew Selous (Conservative, South West Bedfordshire)

My knowledge of the case is that Diane Parry was a man; her adopted gender is that of a lady. She attended a church in Wales and was insistent on certain rights within that church that were thought to be pastorally insensitive in respect of other members of the congregation. It is a delicate matter relating to a private area of life and it is not for us to judge how any church or faith should conduct their services or the life of the church. The whole thing led to great distress on the part of the congregation and it resulted in an extensive and lengthy court case. There are at least two other cases that are under way.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We may come to this in relation to discrimination, but if it was an issue of employment or vocational training, it is probably already covered. If Diane Parry was seeking the right to worship in the church, if anything that is a goods and services issue, and I do not understand the suggestion that she would have a case even after the Bill becomes law—sadly. I am still a little uncertain about the relevance of the case. I hope that, if the hon. Gentleman thinks that there will be a whole series of such cases, we will be able to get further details when we discuss discrimination.

Andrew Selous (Conservative, South West Bedfordshire)

There are further cases. The relevance of the case is the fact that Churches are not wealthy organisations. They have got other things to do; they do not want to spend their time in the courts. People who go to church and put money in the collection plate on a Sunday do not want it to disappear in expensive lawyers' fees—even if the Church wins the case, as it was able to in this instance. There is real doubt about whether it would have won the case if the Bill had been law. The case is valid and serious.

I want to respond to a point raised by the hon. Member for Birmingham, Selly Oak. I do not think that she is correct about the use of public changing facilities. I am informed that issues have arisen and caused concern in relation to gender-specific changing areas.

Maria Eagle (Labour, Liverpool, Garston)

The only difference that the Bill could make to a case such as the one that the hon. Gentleman mentioned—I still do not quite understand the facts as he put them—is in respect of whether the applicant in the case was recognised legally as a woman. Is he really arguing that in some instances somebody who has a gender recognition certificate following the enactment of the Bill should not be recognised as a woman?

Andrew Selous (Conservative, South West Bedfordshire)

No, I am not arguing that. The Minister tries to put the case too simply. When it comes to the conduct of religious activity, all members of religious bodies sometimes have to accept the discipline and pastoral guidance of the leaders of those bodies. Diane Parry was unwilling to accept that and

launched an expensive legal case. Current legal opinion is that she would have won that case had the Bill been law. I have to tell Ministers and members of the Committee that there are massive concerns about the issue. It will not go away and they will find their postbags filling up with letters about it from large numbers of their constituents between now and Third Reading.

Lynne Jones (Labour, Birmingham, Selly Oak)

Will the hon. Gentleman explain what he meant by pastoral practices? I think that the Committee is still in the dark about exactly what it was that this individual was prevented from doing that resulted in litigation. Obviously, it is undesirable to require litigation, but I am intrigued about what she was seeking a remedy for.

Andrew Selous (Conservative, South West Bedfordshire)

One of the things that she wanted to do was preach in the church. The pastoral team at the church in south Wales was not happy for her to do so at the time. That should be decided by the local leadership of any church, and it was one of the issues on which she took the Church to court. Some Committee members may seek to belittle the matter, but I can tell them that it is one of real concern. There are cases outstanding in law, and the issue will be increasingly focused on during the next few weeks.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Some interesting issues have been raised by the hon. Gentleman. Amendment No. 18, tabled by the hon. Member for Daventry, is unnecessary and tautological. I know that he was using it to probe some of the issues, but I think that we shall have interesting debates on amendments Nos. 16 and 17 that will be more productive.

To respond to the hon. Member for South-West Bedfordshire, we will get a chance when debating new clause 6 to deal with changing room issues if we wish to do so. I am happy to leave it until then, and would encourage other hon. Members to do so because it may not be necessary to deal with it now.

The facts set out by the hon. Gentleman on legal cases are important. It seems to me that if preaching in church—I understand that that may be only one of the issues—were employment, it is likely that the Church would be covered by the genuine occupational exemptions under the Sex Discrimination Act 1975. The 1999 regulations cover transpeople, but where there is a religious vocational element, they do not force employers to take on transpeople—nor, indeed, would they force the Catholic Church to have women priests. There is a vocational exemption.

The right to non-discrimination already exists. It is not predicated on the holding of the certificate. That is one issue dealt with by the next group of amendments. One can already access protection against discrimination in employment and vocational training—before the Bill comes into force. One of the worries is that such protection, which has had to be fought for in case law, particularly in the case of P v. S and Cornwall county council, may be felt to be lost, because everything will revolve around a later stage of the transition: the possession of a full certificate.

I have not read the judgment—I will be happy to do so before Tuesday if there is an opportunity to debate it then—but I do not understand why the judge would say that the possession of a certificate will make a difference to the strength of the case, particularly if it is a question not of employment but of access to worship. I am not an expert in the field, but that might be considered an issue of goods and services. For example, a church may say, ''You cannot come in and use our facilities in public worship because of your status.'' Churches will be allowed to continue to do that because the Government are not willing to extend to transsexuals, or gay and lesbian people, the rights under the Sex Discrimination Act 1975 and the Race Relations Act 1976, which prevent private and public bodies discriminating on the grounds of racial equality.

The hon. Member for South-West Bedfordshire is entitled to make his point, and I would not criticise him for doing so. When any change in law takes place, it is a worry that there may be litigation, but 'twas ever thus. It is a good thing that people who may wish to discriminate, for good reasons or bad, are forced and advised in advance to consider whether they are wise to do so, and to examine whether they have the protection of the law, regardless of what their conscience dictates. That applies to race relations, where people have strong views, and should apply in the case of discrimination on all grounds.

If we get a chance to discuss discrimination later on, we will be in a position to judge whether the matter is one of serious concern. At the moment, I cannot see how it could be, even from the point of view of those who have raised objections. I do not think that the Bill changes much in respect of litigation in matters of discrimination.

David Lammy (Labour, Tottenham)

I shall attempt to cool down some Committee members. Understandably, many have been concerned by what has been said.

We have made it clear that the Bill's basic principle is that the issuing of a gender recognition certificate will mean that a person's gender becomes, for all purposes in law, the acquired gender. We believe that that takes account of legislation relating to discrimination. For that reason, amendment No. 18 is unnecessary. Clause 9 refers to sex as well as gender. Hence, although discrimination legislation is in terms of sex rather than gender, clause 9 would nevertheless mean that the acquired gender or sex of a person would apply.

I turn to amendment No. 44. The basic principle in clause 9 allows for relative simplicity in the Bill. Clause 9 contains a general proposition about the effect of the issuing of a full gender recognition certificate, and hence avoids the need to spell out each and every instance in law for which gender is relevant. I have no doubt that the hon. Member for South-West Bedfordshire is uncomfortable with the basic principle of the Bill, and his concerns are genuinely felt and

sincerely held. He may not accept that a person who changes gender under the process in the Bill has, in some sense, truly changed gender.

Andrew Selous (Conservative, South West Bedfordshire)

May I clarify one or two matters? I support the fact that the Bill tries to address genuine grievances and concerns where transsexuals are concerned. I am extremely unhappy about a number of the ways in which it attempts to do so. I fully accept that someone can adopt a different gender, but there are genuine difficulties regarding the course that the Bill takes regarding chromosomal birth sex, and those are shared by a wide number of people. I would be interested to hear the Minister respond to the points that were made on blood transfusion.

David Lammy (Labour, Tottenham)

As I have said, I have sought to be generous, but it will be the case that the person has changed in the law. That is all that the Bill seeks to establish. I ask the hon. Gentleman, more gently than I might when not in Committee, what he is really saying when he expounds on the subject of changing rooms. Is he saying that there should be signs above changing rooms saying, ''No transsexuals''? I say to him quite intently that for many reasons we have moved a long way from such signs.

Andrew Selous (Conservative, South West Bedfordshire)

The Minister is being less than his normal courteous self. I do not know whether he has had a chance to look at new clause 6—and it would be inappropriate for me to dwell on it—but if he has taken the trouble to read it, he will have found that the last part states:,

''providing reasonable provision is made for transsexuals.''

I am talking purely about the offence that, understandably, could be perceived, particularly by very young girls with their mothers in changing rooms, if they came across a lady who had adopted a female gender, but who was physically male because she had not had sex-reassignment surgery. That is a valid point. Committee members who have young daughters will identify with that concern.

David Lammy (Labour, Tottenham)

The points were well made by my hon. Friend the Under-Secretary of State for Work and Pensions and my hon. Friend the Member for Birmingham, Selly Oak. The natural conclusion of what the hon. Gentleman has said is that there should be some other third category or some sign that reads, ''Not for you, no transsexuals.'' That is the logical conclusion of what he has said, and I find that offensive.

The effect of the amendment would be that the acquired gender would count only for the purposes defined in the Bill. The hon. Gentleman's amendment is, effectively, a wrecking one because the gender recognition certificate and the acquired gender would apply solely for the purposes of the Bill—hence be worth only the piece of paper that the certificate is on.

The amendment would either create an unworkable mess of law and practice or require the Bill to set out all the purposes for which gender is relevant. That would require the Bill to be lengthened considerably, and given the number of times that sex and gender are referred to in our legislation, it would be very difficult,

if not impossible, for it to be comprehensive. The result would be that the transsexual person would, in practice, be considered to have two genders at the same time—albeit for different purposes. That would be an impossible position for anyone.

On the hon. Gentleman's blood example, the National Blood Service has considered the issue and does not believe that there is a problem at all. I am advised that blood does not need to be identified by gender. I am sure that we will be able to have a further discussion about church matters.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As it happens, there is a proposal for gender-specific provision because of the very rare condition of transfusion-related acute lung injury. Therefore, the matter is under review, and I believe that there is a trial in Newcastle. Nevertheless, I agree with the Under-Secretary that blood is not a problem, as it is possible to ask people who donate blood whether they have had a pregnancy, for example, and that information is subject to normal medical confidentiality. It may be possible to clarify to the satisfaction of us all that if such checks proved necessary, there would not be an obstacle under the disclosure rules.

David Lammy (Labour, Tottenham)

The advice that I have given is from the Department of Health, but I am grateful for the intervention of the hon. Gentleman, who clearly has experience in such matters.

Anti-discrimination protection for transsexual people does not extend into the area of the provision of benefits, facilities and services. The hon. Member for Oxford, West and Abingdon alluded to that. As I said earlier, we will be considering the extension of protection in the context of EU sex discrimination measures. The law already provides freedom for religious organisations to manifest their members' beliefs in such respects, and we do not expect the provisions of the Bill to alter that. I know that some Christians and members of other faith groups have no difficulty at all in admitting transsexual people to their congregations but that others object. The Bill does not change that situation.

Andrew Selous (Conservative, South West Bedfordshire)

Let me make it absolutely clear that I do not seek in any way to prevent transsexuals from being part of faith communities. It is absolutely right that they should be. I would want them to be fully involved in the life of churches, as I made clear on Second Reading. However, members of churches must accept the ethos, pastoral oversight and, occasionally, discipline from the pastors concerned. Sometimes issues will arise from that perspective; that is a serious point. The matter has been raised by the Evangelical Alliance, among others. It represents more than 1 million Christians in this country and has had fed up to it concerns from its grass-roots members.

David Lammy (Labour, Tottenham)

On the basis of what I have said, I ask the hon. Gentleman to withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for his clarification. In a sense, we have had a skirmish, which has been a dry run for future debates on specific issues. The Minister will know that I agree with him about the Bill's general principle. We will, however, need to test the operation and the implications of the Bill. I understand his point. Indeed, the purpose of my amendment was partly to reinforce the case for opposing discrimination. I have no problem with that. We do, however, need to be as constructive as possible, as feelings are running high in Committee and elsewhere. It may help the process if I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 14, in

clause 9, page 5, line 17, leave out 'sex' and insert 'gender'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendment: No. 15, in

clause 9, page 5, line 18, leave out 'sex' and insert 'gender'.

Tim Boswell (Conservative, Daventry)

In a sense, this is a cardinal issue, which generated a great deal of heat in another place. As the Minister knows, it is not my style on the whole to cook things too much in advance. I want to introduce some general considerations into the debate and see how the debate flows on them. They relate partly to what might be termed good housekeeping under the Bill and through the operation of the law. The Minister will realise that those considerations underlie concerns that I have expressed in my probing of the Bill's operation.

My hon. Friend the Member for South-West Bedfordshire will be more sure than I am about an absolute distinction between the sexes. There is still a view about that. There is also the subsidiary but equally important issue about whether there is a continuing and coherent distinction between the definitions of sex and of gender. Those are, of course, separate issues that could overlap. The medical jury is still out on the former issue. A single chromosomal test seems to me to be insufficient to determine the matter, and there are cases in which we shall never be wholly certain. However, we know that many people in the transsexual community strongly believe that they need to make a change in order to answer to their underlying identity, which I respect and which I believe members of Committee generally also respect. I remind the Committee that, without exception, there has been a warm pastoral welcome for transsexuals, including in many of the faith communities that my hon. Friend stands up for. The issue is how this is interpreted in detail.

I am conscious of the Committee's time, but the Minister needs to spend a moment explaining the basic philosophical issue. I suspect that the words ''sex'' and ''gender'' have been used interchangeably to some extent, even if they are conceptually different.

During consideration of another Bill, I found by chance a recent article in The Times Higher Educational Supplement, of all places, which referred

to an academic study that suggested that that had happened, and that for several reasons there had been creep, if I may put it that way, towards the use of the word ''gender'', partly because the word ''sex'' has sexy implications, and partly because it was believed to define unduly. Another reason was that people tended to use the word ''gender''. I do not know whether that is politically correct or not, but I suspect that people do tend to use the words loosely outside this place. The Minister referred to that earlier when he talked about the old phrase ''a sex change''.

My first question to the Minister is whether he believes that there is a coherent and important distinction between ''sex'' and ''gender''? If he wants to answer that question, does he believe there to be a total and definable distinction between the male and female sexes? He may see that as a separate issue. He can hardly fail to remember the debates in another place about that question. I agree with a point that he made in response to another amendment that the Bill is about legal concepts and the legal handling of persons in relation to their acquired gender. We do not argue about that. I think that we need the Minister to give us some understanding of how it will work in practice.

Although, in a way, the wording is clear, it starts by talking about gender, and in subsection (1) starts referring to sex. With great respect to everyone, including the draftspeople, that seems a non sequitur. We have moved from one to the other without defining the difference. That may be because they are interchangeable. It may be also—I suspect that this is the real reason—because the Minister wants to use inclusionist language.

We already have the Sex Discrimination Act 1975. I do not argue about the principle behind that Act, with which I agree. However, if we do not refer to sex as well as gender we may not be able to use those concepts. I think that it would be helpful to the Committee if, in a calm and dispassionate way, the Minister could pick his way through the issue.

To summarise the questions, is there, in the Government's view at least—the Committee cannot speak for the Almighty, but people may feel strongly about the issue and are entitled to different views—a difference between sex and sex, between male and female? Is there an absolute difference? Is there a difference between sex and gender? Will the Bill be comprehensive in dealing with those issues, so that persons who have acquired a new gender do not miss out on rights that they would have acquired had they acquired a new sex as well? Might somebody challenge their rights in respect of that change?

That sounds like a series of tutorial questions. We need to have that underlying set of issues clarified, not only because they are serious and deep issues about identity, but because they are important to the operation of this law. We do not want to get ourselves into confusion about terms. Frankly, when I tabled the amendment, I was concerned about the apparent shift from one concept to another, and I seek the Minister's help in clarifying that.

Lynne Jones (Labour, Birmingham, Selly Oak)

The hon. Member for Daventry moved his amendment in a sensitive way. He attempted to probe an important issue, which, I am sure, would have been raised by other Members if he had not raised it.

Earlier, the hon. Member for South-West Bedfordshire stated that, in his view, biological sex cannot be changed. Unfortunately, when he said that, I was unable to be in Committee. He made some remarks about the aetiology of transsexualism. Our knowledge of the causes of transsexulism is not complete, but it is likely that it is multifactorial. The important point is that members of the transcommunity feel that they should be recognised in their gender identity, irrespective of the cause of that phenomenon.

It is important to note that, based on existing knowledge, the experts in the field of transsexualism take the view that it should be regarded as an intersex condition. While it may be true that the sexual identity of the majority of people is clear and can be based on their chromosomes and gonadal identity, that it is not the case for a significant number of people—different groups of people, indeed, of which transsexuals may be one.

Andrew Selous (Conservative, South West Bedfordshire)

We are returning to a point raised by the hon. Member for Colne Valley (Kali Mountford) at the start of the Second Reading debate. People with intersex conditions, who have what I think is sometimes referred to as ''ambiguous genitalia'' are, as I understand it, a separate group of people and quite rare. They are distinct from those people who wish to adopt a different gender. I believe that I am correct in making that point.

Lynne Jones (Labour, Birmingham, Selly Oak)

There is the question of how one might regard sexual identity. Sexual identity is not just about gonadal and chromosomal identity; there are other factors in that determination, such as brain identity and the reaction of a particular organism or cells to hormonal influences.

Events pre-birth and at puberty may change a person's sex, and I refer the hon. Gentleman to the current medical viewpoint. I have a document from the parliamentary forum on transsexualism, which is authored by eminent clinicians, including Dr. Domenico de Ceglie of the Tavistock and Portman NHS Trust, who is an expert in sexual identity in children; Mr. James Dalrymple; Professor Louis Gooren, University of Amsterdam; Professor Richard Green of Charing Cross hospital; Professor John Murray of the Johns Hopkins hospital in the United States; and Dr. Russell Reid.

The parliamentary forum has been advised by many of those eminent individuals and is now advised by Dr. Kevan Wylie, who is a consultant in sexual medicine and a consultant psychiatrist at the Porterbrook clinic at the Michael Carlisle centre in Sheffield, and organiser of the Royal College of Psychiatrists gender disorder working group. I can say with confidence that transsexualism should be regarded as an intersex condition.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall briefly support what the hon. Lady has just said. I suggest to the hon. Member for Daventry that in the intelligent way he put his question, he has answered it, because in Committee we have been spared the debate that the House of Lords had on Lord Tebbit's amendment, arguing that two people, each with XX chromosomes, or XY chromosomes and the same external genitalia should not be allowed to marry subsequent to the passage of the Bill.

I commend the Hansard record of that debate because it clarifies the three gross criteria that one could use to determine physical sex: chromosomes, gonads and external genitalia—and they may not match in a small minority of people. That is all immaterial, however, because the Bill seeks to judge the legal gender for the purposes of achieving those rights and subsequently being able to marry and achieve other rights in the new acquired gender. Subsection (1) makes it absolutely clear that for legal purposes the person's sex will change to the acquired sex as the legal gender changes. That is so there is no different legislation with different terminology that might imply that different rights are accessible.

The hon. Member for Daventry hit the nail on the head by saying that there has been a change of terminology. Gender has crept into legal terminology where previously it was sex, or perhaps the other way round, or it varied—I am not an expert on 18th and 19th century legislation. Who knows what terms they would have used?

For our purposes, the key point is that the legally acquired gender changes the legal sex for the purposes of law. As long as the panel is satisfied that a gender recognition certificate is appropriate, it does not matter what the external genitalia are, or what the chromosomal make-up is, even if it is clear and consistent with the gonads or the external genitalia—all of which can vary.

The hon. Member for South-West Bedfordshire and Lord Tebbit could never be satisfied; there will always be people whom they cannot categorise satisfactorily. The hon. Gentleman and Lord Tebbit would need a separate amendment to legislate for each phenotype, genotype and mixture of the two.

Andrew Selous (Conservative, South West Bedfordshire)

I also pray in aid Professor Lord Chan, who thinks the same way as I do on these issues, and is widely respected in another place. With reference to the debate that we have just had, I say to the hon. Gentleman that there is confusion about intersex conditions and transsexualism, which is basically gender dysphoria. The hon. Member for Birmingham, Selly Oak read out a list of experts and I question whether they would genuinely say that an intersex condition is the same as transsexualism.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is not the point. I presume that the hon. Gentleman is a supporter of the thinking of Lord Tebbit, and my point is that that approach is fatally flawed because sex cannot be defined physically according to gonadal or external genitalia appearance or chromosomes. That is not an option, even if the

Government were minded to adopt it. If a Government of the hon. Gentleman's party were making law, they would find it impossible to legislate on that basis. The Bill provides a legal gender and the clause makes it clear that when acquiring a legal gender one is also changing sex, if that is necessary, to that of a man for the purposes of other legislation. It is entirely appropriate that the Bill should do so and I support the Minister in resisting the amendment.

David Lammy (Labour, Tottenham)

I am grateful to the hon. Member for Daventry for the way in which he introduced the amendment and the important issues behind it. My hon. Friend the Member for Birmingham, Selly Oak dealt very well with some of the medical and scientific points supporting the amendment and the hon. Member for Oxford, West and Abingdon stole some of my thunder.

The basic principle of the Bill in clause 9 is that the issue of a gender recognition certificate will mean that a person's gender will become, for all purposes, the acquired ''gender''. For example, an applicant who was born male would in law become a woman. There are many places in law where the word ''sex'' is used rather than gender. Clearly, it would be ludicrous if a person were treated as being a female whenever the law referred to gender, but male whenever it referred to sex.

The Joint Committee on Human Rights highlighted the potential for uncertainty as to what a transsexual person would be considered to be in law. In response to that, the Government inserted an explicit mention of sex as well as gender in clause 9. Amendments Nos. 14 and 15 would remove that reference and could then lead to a situation that the Joint Committee feared—that is, a person being treated as male for some purposes and female for others, depending on whether the law refers to ''gender'' or ''sex''.

Amendment No. 18 proposes to take care of that problem in relation to sex discrimination law. However, the law includes references to sex in many other places; there are literally thousands of other references. For example, in reply to the points raised by the hon. Member for Daventry, some provisions require certain tribunals, such as social security appeal tribunals and disability appeal tribunals, to have at least one member of the same sex as the claimant. A number of provisions also require a person to disclose his or her sex or to give information in relation to another person's sex—for example, section 92 of the Road Traffic Act 1988 and section 11 of the Public Health (Control of Disease) Act 1984. A search of legislation showed that there are 2,288 references to ''a woman'' and 7,061 references to ''a man''. That may have something to do with the advances that women have made since the 1960s for all sorts of historical reasons. That is what we have sought to deal with by establishing gender and sex in clause 9.

Clause 9 makes it clear that, wherever it is necessary to decide the sex in law of a person who has an acquired gender, or to say whether that person is a man or a woman, male or female, the question must be answered in accordance with the person's acquired

gender. The clause therefore deals fully with the Joint Committee's concern, and for that reason I hope that the hon. Gentleman will withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I thank the Minister for that clarification. In legal and operational terms—and, indeed, in explaining the origin of the changes that were made—it is entirely persuasive.

I am sure it is equally clear to the Minister that there are people who feel, on the grounds of their own belief and commitment, that that change cannot take place; or they may have reservations about the nature of that change; or they may seek to draw an objective distinction between sex and gender. I do not feel that I am placed to resolve those matters. I leave it to the good sense of the Almighty. I realise that many people feel strongly about those matters, and they are entitled to do so.

Whatever the underlying views of the legal definition issue may be, if no practical circumstances arise from it—and I suspect that they do not, other than the danger that there might be some silly irregularity with people changing gender almost capriciously because of the way that the legislation was drafted in the past—I will go along with the Minister's explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 16, in

clause 9, page 5, line 19, leave out subsection (2).

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Amendment No. 17, in

clause 9, page 5, line 23, leave out subsection (3).

Tim Boswell (Conservative, Daventry)

There are possibly three time references here.

A full gender recognition certificate becomes valid at a point in time, and at that point the gender of the person becomes the acquired gender. That is straightforward.

However, things will have happened in the past. The first part of subsection (2) clearly states that the proposed legislation

''does not affect things done, or events occurring before, the certificate is issued''.

The explanatory notes confirm that. We cannot rewrite the history of the person involved and we do not seek to do so. If they did something as a man, the fact that they subsequently acquired the gender of a woman is irrelevant to the act that took place.

Will the Minister give me further clarification on what the second part of subsection (2) means? That is the purpose of amendment No. 16. The explanatory notes are not wholly pellucid. I think it is meant to recognise that, although the gender change took place at a moment in time, enactments that refer to people in their different genders were already in place; and because those refer to a particular gender, and the person that we have in mind was not of that gender at

that time, those enactments would not apply to them until after the date of the gender recognition certificate. At that point, they will have changed gender, and that continuing legislation might now be applicable to them.

I cannot imagine a real-world case, but I can synthesise one that may be helpful to members of the Committee as we relax from these difficult concepts. Imagine a situation where it is said that no male shall be prosecuted for speeding if they exceed the speed limit by less than 15 per cent. I am not canvassing that idea to members of the Committee. If a person had previously been female, they could not have availed themselves of that legislation; but if they then became a man, they could do so from the date of their change. I say that only jocularly because I would be grateful if the Minister would explain how things would work.

Amendment No. 17 relates to subsection (3), which is again a little time-neutral, and is potentially more worrying. I think that I am right in saying that their lordships would describe this as a Henry VIII clause, which means that the Government can change primary legislation when they need to do so. Their lordships tend to get rather excited about that—perhaps not always with bad reason. We should not give the Government unbridled powers to change legislation unless there is a very good reason for that.

I understand what is going on. The complexity of legislation that refers to different genders—the Minister touched on this—is so great that however extensive the search through the evidence, something may come up and it may be necessary to change something in another enactment because it is giving rise to difficulty, or some other change in subordinate legislation may required. I do not know how that will work. The issue comes up again in clause 23, which contains explicit powers to modify statutory provisions. I hope that the Minister, if he can take us through this and explain what is going on, will satisfy me and I shall be able to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would like to raise a question about subsection (3) now, rather than under clause stand part, since amendment No. 17 seeks to delete it. I have concerns about the watering down, whether deliberate or, as I hope, unintentional, of protection against discrimination in relation to subsection (3) taken with clause 14 on discrimination, which in turn introduces schedule 6. Schedule 6 refers to discrimination being unlawful on the basis of someone being given a new gender under the Bill—that is to say, being in possession of a full gender recognition certificate. Clause 9(3) states:

''Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.''

Of course, schedule 6 will be a provision in the Act.

Let me just explain the basis of my concern. It is important that I get some satisfaction in relation to it. The problem is that there has been previous case law, such as P v. S and Cornwall County Council in the European Court of Justice, that provides that people who are transsexuals are protected against discrimination in relation to employment under the Sex Discrimination Act 1975 by virtue of that

jurisprudence. P v. S and Cornwall County Council took place in 1996 and a full gender recognition certificate was not required. Indeed, the rights to non-discrimination were acquired at some point during the transition. How far along might be a question to be decided in relation to the facts of each case. Nevertheless, clearly they were acquired before the achievement of the full gender recognition certificate. Something similar happened in the case of KB in the European Court of Justice.

The concern is that we may be seen to be going backwards. Clearly, we are subordinate to European law, but, where there is case law, it is not entirely clear what the situation would be. The concern is that because schedule 6 refers to amending the 1975 Act to provide protection from discrimination

''against a person whose gender has become the acquired gender under the Gender Recognition Act 2004''

in several places, that might mean that there is perceived to be some rowing back, and that, if not in law—each case could be tested again in the European Court of Justice or in our courts—at least in understanding, some people may feel that the right to lack of discrimination, at least in employment and vocational training, is only achieved when a full certificate is granted.

Perhaps it would be opportune for the Under-Secretary not only to clarify that point—I would be happy if he says that he wants to clarify it at a later stage of consideration of the Bill—but also to reassure us that that is not the effect or intention of clause 9(3). Otherwise, the clause may be a barrier to the courts taking a wider view of protecting people against discrimination, as the European courts sought to do in the cases that I mentioned.

David Lammy (Labour, Tottenham)

Amendment No. 16 would delete subsection (2). The Government believe strongly that the laws relating to legal status, and to marriage, benefits and pensions, should have prospective effect only. All kinds of very complicated issues would be raised if the Bill were to have retrospective effect. Hon. Members know that Governments of different complexions frequently make that point when legislation is discussed in Committees.

If a change of gender was retrospective, the existing marriages of transsexual people could be void. If the change of gender counts back in time, it might be argued that the person was of the acquired gender at the time of the marriage. Without subsection (2), therefore, a transsexual person might find not that the marriage has to end before recognition is given, but that if recognition is given the marriage never existed at all. As such, we cannot provide retrospective recognition for some purposes and not for others. Our laws should be clear, have general effect and only be prospective in nature.

Amendment No. 17 would remove subsection (3), which provides for exceptions to the general principles of recognition in the acquired gender. The Bill provides that once a person is recognised in the acquired gender, he or she becomes that gender in law.

That is the effect of subsection (1), which is, perhaps, a central part of the Bill. We do not envisage the need for many exceptions to the general principle, but there may be the need for some. Clause 16 provides an example of such an exception. It preserves the hereditary principle and states that the acquired gender of a person is not to count for the descent of peerages or titles. That caused some discussion in another place.

The Joint Committee on Human Rights asked whether subsection (3) should apply only to future enactments. It was concerned that it would allow the general principle in subsection (1) to be qualified by the interpretation of past enactments. The Government do not believe that that is the case, and the Joint Committee has accepted our view. Subsection (1) refers to the effect of a change of gender in law. It will not be possible for that to happen before the Bill is enacted. No past enactment could have referred to a person who has been issued with a gender recognition certificate and thus changed gender in law, and therefore no past enactment could qualify the rights of a person who has changed gender. Clause 9(3) has effect only in relation to future enactments or other provisions in the Bill, such as clause 16.

The hon. Member for Oxford, West and Abingdon raised a further question posed by the Joint Committee, which asked what was meant by ''subordinate legislation'' in subsection (3). It was concerned that a local authority might use it to limit the rights of transsexual people. It is clear, however, that all public bodies are bound by their obligations under articles 8 and 12 of the European convention on human rights to provide transsexual people with recognition and the right to marry in the acquired gender.

Tim Boswell (Conservative, Daventry)

As I understood the argument made by the hon. Member for Oxford, West and Abingdon, the right conveyed by article 8 is not exclusive. It could not have bitten on people who had acquired a new gender because that is not possible until the Bill becomes law, although there have been cases of anti-discrimination. The implication of what the Minister says is that before the issue of a full gender recognition certificate, it would still be possible to take cases, if they were covered by European legislation, to the European Court of Human Rights on grounds of discrimination, notwithstanding the fact that the full process had not been concluded.

David Lammy (Labour, Tottenham)

The hon. Gentleman jumps ahead of me, but if I make some progress he will find that we are travelling in the same direction.

If, to use the Joint Committee's example, a local authority were to pass byelaws limiting the extent to which a person was treated in the acquired gender, they could be challenged under provisions in the European convention on human rights. Subsection (3) does not impede such a challenge. The reason for including ''or any subordinate legislation'' is to cover any limited exceptions that may need to be made to the general proposition in subsection (1). There may be instances in which it is appropriate to make such an

exception in subordinate legislation, and any exception would have to be consistent with the European convention.

If subordinate legislation were used to change the rights and responsibilities of men and women, and if there were a justification for treating a person recognised in their acquired gender differently from any other person of that gender, it would be odd and deeply impractical if the exception had to be made in primary legislation. It might mean that the altered rights and responsibilities would take effect at different times—at one time for men and women, and another for men and women recognised in their acquired gender. In its second progress report, published earlier this year, the Joint Committee therefore said that subsection (3) does not pose a significant risk to the rights of transsexual people.

Discrimination protection will exist prior to the issue of the gender recognition certificate for things that it already covers, such as employment and vocational training. Schedule 6 discontinues some of the exceptions for people who have recognition, so the Bill enhances protection in existing areas. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clause 10 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 11 ordered to stand part of the Bill.

Schedule 4 - Effect on marriage

Andrew Selous (Conservative, South West Bedfordshire)

I beg to move amendment No. 42, in

schedule 4, page 26, line 27, leave out from 'clergyman' to 'reasonably' in line 28 and insert

'or any minister of a recognised religious body is not obliged to permit the marriage of a person to be solemnised in the church, chapel or other religious building of which he or she is a minister, if the minister'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following: Amendment No. 43, in

schedule 4, page 26, line 34, at end insert—

'(3) A registrar of births, marriages and deaths is not obliged to solemnise the marriage of a person if the registrar reasonably believes that the person's gender has become the acquired gender under the Gender Recognition Act 2004.'.

Amendment No. 45, in

clause 22, page 9, line 37, at end insert—

'( ) the disclosure is made within the context of a recognised religious body for the purpose of maintaining its procedures, practices, ethos and beliefs.'.

New clause 5—Religious bodies—

No. NC5, to move the following Clause:—

'Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.'.

Andrew Selous (Conservative, South West Bedfordshire)

This group of amendments is primarily concerned with matters of interest to faith communities. Amendment No. 42 seeks to extend the provisions of schedule 4(1)(3). It would extend the protection given to clergymen to ministers of any recognised religious body with regard to the requirement to marry people. There remains confusion about the precise status of churches and all religious bodies as regards marriage. On 20 May 1998, the then Secretary of State for the Home Department, the right hon. Member for Blackburn (Mr. Straw), said in the House, at column 1017, that churches were viewed as public authorities as far as marriages are concerned. There is, therefore, a worry that the Bill, without specifically extending the scope of the schedule, as amendment No. 42 seeks to do, could subject ministers and celebrants to human rights legislation for declining to conduct the marriages of same-sex transsexual people.

There is also concern about the use of the buildings of religious bodies to celebrate what those religious communities regard as same-sex marriages. I do not want to rehearse the debate about what is a same-sex marriage. I applaud the Government's intention, although I think that they have got it the wrong way round. They are adamant that same-sex marriage should not happen and have gone to considerable lengths to establish that principle throughout the Bill.

Let us just accept that many people of all faiths share that view, but from the perspective of sex rather than gender. Therefore, they find themselves in a position of conscience and would have great difficulty if required to marry people. The members of those religious bodies would be concerned about the use of the buildings in such cases.

Shaun Woodward (Labour, St Helens South)

When the hon. Gentleman talks about the buildings that ''they'' use, I do not understand. Perhaps he could explain what he means by ''they'' and what this use is that so worries him and his colleagues.

Andrew Selous (Conservative, South West Bedfordshire)

As far as Christian organisations are concerned—I do not use the word ''church'', because that can have a specific context; for example, the Free Churches meet in many different types of buildings—I am talking about the buildings used for worship or meeting by any religious body. There should be no difficulty with this. For Christians, those are mainly, but not exclusively, churches.

Many people of faith would be concerned if they felt that a same-sex marriage had been celebrated or taken place in somewhere that is holy and special to them. They might feel violated and upset by that. There needs to be joint respect as far as the Bill is concerned. It rightly—I applaud its intention—gives rights to transsexuals, but what about the rights and sensitivities of people of faith? The sanctuary of a Baptist chapel, for example, would be regarded by the congregations concerned as a special and holy place. The fact that what they regard as a same-sex marriage

may be celebrated there against the will of that congregation is capable of causing genuine offence. I ask the Committee to accept that that is so.

In the spirit of a Bill that is trying to ensure that people's rights are protected, I hope we have fair and genuine regard for the rights of faith communities.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am listening carefully and do not deny what the hon. Gentleman says. People will feel offended in the same way that many people feel offended if a church is attended by homosexuals. It is their right, if one likes, to hold that view, and their sensitivities may be offended. However, in a free society that respects rights, the question is where the balance lies. We have to recognise that a balance has to be struck—the same idea applies to free speech. People have to recognise that the stronger their views, the more likely they are to be offended by something. That applies to me also, and I respect the right of the hon. Gentleman and that of the people he knows in evangelical congregations to feel strongly about the same things I do, but we have to get the balance right. The Bill does that.

Andrew Selous (Conservative, South West Bedfordshire)

I disagree because we have to respect the freedom of association of all sorts of different groups in our society. That should be extended to faith groups as well. The hon. Gentleman digresses when he mentions homosexuals. I welcome them in all faith communities and do not think that there is any difficulty with that.

I ask the hon. Gentleman to take it from me that there are genuine concerns about the provisions among a large number of people of faith, including those from the Christian faith and the Muslim community. It is fair that their views are respected. I am sure that there will be a variety of opinions among religious bodies throughout the country. It will be possible for transsexuals to find some religious bodies that will not have a problem with celebrating a same-sex marriage, as other religious bodies might see it.

Amendment No. 43 deals with an issue of conscience for registrars. There is a precedent in that the Government do not oblige—it is a different case but there are similarities—doctors and nurses to take part in abortions if they do not want to. The Government have not ruled out the possibility of an uncompliant registrar being sacked. I do not think that the issue would be a problem for the Government. I am sure that they could find registrars who would not have a conscience problem in recognising a marriage that other registrars have personal difficulties with. However, the human rights that should extend to everyone should extend to registrars if they have genuine difficulty in carrying out some of the things that they will be required to do under the Bill. Human rights legislation should protect them in the same way that it protects other groups.

New clause 5 is tremendously important. I hope that it will find sympathy in the Committee. Considerable care was taken with its drafting. It states:

''Nothing in this Act shall prejudice the rights of individual recognised religious bodies to regulate their procedures and practices in accordance with their ethos and beliefs.''

Churches should be able to regulate their own affairs locally throughout the country. Where there is a wide range of religious view and opinion, different regulations, ethos and practices should be allowed to flourish throughout the country in different ways.

The hon. Member for St. Helens, South (Mr. Woodward) mentioned the Manchester metro church. The amendment would allow it to regulate its affairs just as it likes. Is it too much to ask that churches and religious bodies are allowed to regulate their affairs as they see fit? That is a basic tenet of British freedom which I hope we will preserve by supporting the new clause.

I want to read out part of a letter I received this morning. It is not from one of my constituents, but from someone from Welwyn Garden City. Other Committee members may have received the letter as well. He writes on this Bill:

''Because of the adverse effect many Christians believe it will have on the scriptural integrity of their organisations, may I ask you to consider excluding all religious groups from its constraints''.

That is typical of a large number of letters that I receive, and I have no doubt that other hon. Members receive similar letters.

Shaun Woodward (Labour, St Helens South)

I just want to ensure that that comment does not pass without at least one question being asked. The letter that the hon. Gentleman just read out included the phrase ''adverse effect'' as if that were a given. He might want to consider that one reason why I hope that the Minister will resist such amendments is that we do not believe that there are adverse effects. We think that a fair balance is being achieved, as the hon. Member for Oxford, West and Abingdon said.

Andrew Selous (Conservative, South West Bedfordshire)

I put back to the hon. Gentleman the point I made about the Manchester metro church—if that is its correct name—being able to regulate its affairs as it sees fit. Many religious bodies—not exclusively Christian ones, but Muslim as well—wish to exercise their own ethos and pastoral practices when it comes to welcoming and introducing transsexuals into their communities. That should be left to local discretion.

I do not understand how or why that threatens anyone. It is an essential proviso to ensure that the Bill is genuinely fair and has due regard for the sensibilities of people of faith as well as properly protecting the rights and interests of transsexual people. I hope that the amendment will receive support.

There is an issue about whether article 9 of the Human Rights Act 1998, which protects freedom of thought, conscience and religion, could be called into question if the new clause is not included and churches' freedom to decide and implement their own religious beliefs and consciences are called into question by legal cases that are brought as a result of the Bill's provisions.

Amendment No. 45 would add another category to clause 22, under which disclosure may be made legally without the imposition of a £5,000 fine. The clause lists a number of organisations and instances for which that is the case. A week or so ago I spoke to the senior pastor of my church who felt that it was important for pastoral sensitivity and for integrating transsexuals into the church community that he should be able to tell other members of the pastoral team that a new member of the congregation was a transsexual. I have been told that transsexuals often believe that the only way in which they can be fully integrated into a church community is for the knowledge of what they have undergone to be shared with the pastoral team and perhaps members of the wider congregation. That should not be regarded as a threat or a concern. The vast number of pastors that I know would want to do that for the very best of reasons. There is serious concern in faith communities throughout the country that they could be criminalised if they wanted to share that information with other members of their pastoral team.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

If the hon. Gentleman is arguing that members of a church and the organisation of a church have a right to know, for good or bad reasons, such personal information, would they have the right to know, and would the state and the NHS have the right to divulge, the past medical history of women who had had abortions? For some churches, that might be a significant matter when considering appointment or how they deal with those people pastorally.

Andrew Selous (Conservative, South West Bedfordshire)

The hon. Gentleman tempts me down a side road that is not relevant—

David Lammy (Labour, Tottenham)

It is essential.

Andrew Selous (Conservative, South West Bedfordshire)

But it is not covered by my amendment. Indeed, I would not have thought that it was in order to discuss it, Mrs. Roe. I am concentrating on the amendments and the new clause.

For the membership of a religious body and the pastoral responsibilities of the leadership of religious bodies, the amendment is important and useful and would be genuinely helpful in a pastoral context.

Shaun Woodward (Labour, St Helens South)

It is important that the hon. Gentleman understands the question that the hon. Member for Oxford, West and Abingdon asked because, for us to understand the point of his amendments, we must understand the context in which he suggests them. What troubles some of us as we listen to him—it certainly troubles me—is that for the best of motives, and I say this with enormous respect, there is a danger in not answering the question about the personal history of people held by the NHS, and abortions were specifically mentioned.

Why should transsexuals be specifically picked on and why are they a separate group from the rest of society? The purpose of the question asked by the hon. Member for Oxford, West and Abingdon was to understand why that group must be singled out for special treatment. It troubles some of us in the context

of balance and fairness that the hon. Member for South-West Bedfordshire does not seem to be prepared to extend that special privilege to others who might be part of those church groups.

Andrew Selous (Conservative, South West Bedfordshire)

I apologise to the Committee if I responded inadequately to the earlier intervention. I shall try to give it more serious consideration, as the hon. Gentleman has raised it again.

There are probably several aspects of people's previous life histories that may have to be disclosed to faith communities, and that can be disclosed usefully. Let me give a personal illustration from my own church background, as the hon. Gentleman has tempted me down that route. I grew up in the Church of England. Recently, not on any doctrinal grounds, I joined a local Baptist church in my constituency, largely because it has a very good Sunday school for my children. That was my prime motivation. However, as part of formally becoming a church member, my wife and I were visited in our home by some of the church elders. They discussed our understanding of the Christian faith and asked about our previous church history. It was done gently and sensitively. If we had had any problems with it, we could have said no, but that was part of the membership process.

I do not know what the hon. Gentleman's church background is, if any. To be honest, the church elders' visit was a slight surprise to me, as I come from an Anglican background where that sort of thing does not happen, but there are many styles of churchmanship in this country, particularly in the free and non-conformist Churches. I cannot speak for other faiths such as Islam, but I do not think that it is too much to ask that this Committee accept that the issues we are dealing with are serious, important and sensitive for people of faith.

The Under-Secretary has argued time and again that we cannot have same-sex marriage. The hon. Member for St. Helens, South may disagree with him, but that is the position that the Government formally take. This issue is of concern to many people of faith, who may see it from a different perspective than that coming out of the arguments that we have had on sex and gender, which I do not want to go over again.

I hope that that gives the hon. Gentleman a flavour of the context of my amendments. There are things that are necessarily personal and private. I have shared part of my own experience—something that I generally do not try to do in this place—in the hope that it may be helpful. I ask the Committee to consider the amendments and the new clause sympathetically. There really is nothing hostile about them. They are intended to protect some of the most decent, caring and public-spirited people in our communities, and to respect the ethos of their organisations.

Let local discretion flourish. Do not the three parties represented here believe in what is called the new localism? Let local churches and faith communities run their own affairs. I do not think that that is asking too much. I do not understand why the heavy hand of

the state needs to interfere in what I am sure the hon. Member for Oxford, West and Abingdon would argue very strongly is a private and personal activity.

Hugh Bayley (Labour, City of York)

I am grateful to the hon. Gentleman for giving way, especially when he is making a complicated and difficult argument, but surely the issue is a matter of personal privacy. Why should it be the case, under any circumstances, that a very personal matter for the transsexual concerned should be shared in a public way with members of a religious or any other body? One reason why we are considering this legislation is because transsexuals took our Government to the European Court of Human Rights, as their right to privacy had been transgressed. Surely, if we amended the Bill in the way that the hon. Gentleman suggests, we would be legislating once again for the gender history of transsexuals, which they wish to be a private matter, to be made public. Surely, that would be in breach of the European convention on human rights.

Andrew Selous (Conservative, South West Bedfordshire)

The hon. Gentleman's point relates solely to amendment No. 45 and not to my other two amendments or my new clause 5. I understand where he is coming from, but I have discussed the matter at length with the pastor of my church, who I know would want to welcome transsexuals to his church to hear the gospel, as he would say. He operates as part of a team. How would he know about a transsexual in the first place? It could be that the transsexual person had told him. He might have pastoral staff. Churches are organised in different ways. They may have youth workers and people who oversee the church's home groups. Such people are used to dealing with private and confidential information about members of their congregation. There is no singling out or separation of transsexuals. They are not treated as different or put in a separate box. They will have private and personal information about things that people have done which they share with the pastoral team. Transsexuals may talk voluntarily to members of faith organisations. This is part and parcel of what happens in many different faith communities.

David Lammy (Labour, Tottenham)

The hon. Gentleman gives a very good example of the practice of the local Baptist church of which he recently became a member. Does he accept that he consented to sharing private information with the church? Under our provisions, no problem would arise if a transsexual consented to sharing private information because they wanted to be part of a faith.

Andrew Selous (Conservative, South West Bedfordshire)

I understand the Minister's point, but I return to the example of my church, because it is the one that I know best. The information that was shared initially by one or two people who checked me out for my beliefs and suitability would probably have then been shared with the senior pastor and a very small team of elders, as they are called. My reading of the Bill suggests that they would be subject to a £5,000 fine if they did so. I would be happy to consider any constraints that the Minister might want to place on

the provision so that information definitely does not go outside the church and is shared only within the pastoral team or other group.

Angela Watkinson (Conservative, Upminster)

I want to be helpful. Acceptance of a transsexual in their acquired gender, irrespective of the fact that they have a gender recognition certificate in law, strikes at the very heart of the Bill. There will, however, always be some people who do not accept that anyone can change their birth gender. Those people will always regard a transsexual as being of their birth gender, irrespective of the fact that they have been through the gender reassignment process. That group of people will include some Church ministers. As I listened to my hon. Friend, I thought of a circumstance in which it would be important for a minister to disclose this confidential information. If a couple approached a minister to marry them, and the minister believed that one of them was a transsexual and that the other person was not aware of it, does my hon. Friend believe that it would be justified to disclose that information in that circumstance?

Andrew Selous (Conservative, South West Bedfordshire)

I am extremely grateful to my hon. Friend for making that point. The circumstance that she describes illustrates the reason for my new clause and three amendments. The case that she cites is of concern to a number of people, whether people of faith or not. I am grateful to my hon. Friend, who has done the Committee a great service by giving the sort of example that the amendments would help to deal with.

Lynne Jones (Labour, Birmingham, Selly Oak)

The hon. Member for Upminster (Angela Watkinson) raises an important example, but it is up to a member of a religious organisation to refuse, if they so choose, to marry a couple in their church. The provision in the Bill merely applies to clergy from the established Church, who have particular obligations in respect of civil procedures.

Andrew Selous (Conservative, South West Bedfordshire)

I repeat the comments that I made a few moments ago. We have had the Diane Parry case in south Wales. I know categorically of two other legal cases facing churches and, as sure as night follows day, there will be many more legal cases that will affect religious bodies.

I repeat the point made by the Secretary of State for Foreign and Commonwealth Affairs about Churches being public authorities as far as marriage is concerned. There are genuine fears that, under human rights legislation, nonconformist and other ministers, whom amendment No. 42 tries to deal with, could find themselves subject to litigation as a result of the Bill if it is not amended.

There is also the issue of the use of Church buildings and buildings used by religious bodies. That seems to be protected in Wales; it is not protected in England and it is not protected as far as the nonconformist Churches are concerned.

Angela Watkinson (Conservative, Upminster)

The nub of my point was that under the Bill, the minister would not have the freedom to disclose his reasons for refusing to marry without incurring a fine.

Andrew Selous (Conservative, South West Bedfordshire)

My hon. Friend makes a further good point. The more we consider and debate this issue, the more we could find further reasons to view sympathetically the amendments and the new clause.

I say to the Minister that the issue will not go away. There is nothing malicious about this; I genuinely see it as an attempt to give balance to the Bill. Everyone has rights. People of faith have rights and faith organisations have rights, and by their very nature

they are different from the state and from secular society. I hope that there will be a genuine acknowledgement of that point by the Minister—if not now, when the Bill is debated on Report.

Debate adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at twenty-eight minutes past five o'clock till Tuesday 16 March at half-past Nine o'clock.