HC Deb 02 April 1971 vol 814 cc1827-54

11.9 a.m.

Mr. Alexander W. Lyon (York)

I beg to move Amendment No. 1, in page I, line 9, leave out "Marriage Act 1949" and insert "Marriage Acts 1949 to 1970".

This is a mere drafting Amendment, and it is introduced into the Bill at this stage to take account of the Marriage (Registrar General's Licence) Act, 1970, which is a piece of legislation designed to allow people to marry when the parties are not able to get to a normal place where marriages are solemnised and are not willing to obtain a licence from the Archbishop of Canterbury, in which case the licence will come from the Registrar General. Marriages of this nature are now included in the provisions of Section 49 of the Marriage Act, 1949, and the formalities have to be observed in order that they are not declared void. Therefore, it is only right and proper that this should be included in the Bill.

Amendment agreed to.

Mr. Alexander W. Lyon

I beg to move Amendment No. 2. in page 1, line 16 at end insert— (c) that the parties are not respectively male and female.

Mr. Speaker

It would be convenient to discuss at the same time Amendment No. 3, in page 1, line 16, at end insert— (c) that at the time of the marriage both parties were of the same sex but one or both held a reasonable belief that the marriage was between differing sexes.

Mr. Lyon

This is a much more substantial Amendment. The Bill was attached to the Law Commission report on the nullity of marriage. The Law Commission set out a working paper during preparation of the report asking for the opinions of interested parties on the matters raised therein. Those matters did not include any reference to the difficulties which arise in a marriage which has taken place between two parties who are trans-sexual or between one who is trans-sexual and one who is normal, the latter being the usual case.

At that stage, this feature of our changing social pattern had not emerged, largely because medical science had not identified such cases with any clarity. In the interim between the production of the working paper and the production of the report, two cases came before the courts, both before the same judge, one of which has been subsequently reported, both authoritatively in the Reports and much more widely in the newspapers.

The judge in that case, the Corbett case, took the view that it was right that the union should be declared void and a decree of nullity pronounced rather than the other course be taken, which was urged upon him by counsel, that he should made a declaration as to status.

The difference between the two is simply this. If two parties to a union which has been celebrated as a marriage are uncertain about the status, or if one of them is, they can go to the court and ask for a declaration as to whether they are male or female. The court, having examined the evidence, can make a declaration. There is power under the rules of the court. But, if it is decided that both parties to the union were of the same sex, there will then be no marriage and there will be no privileges flowing from the conception of marriage —namely, there could be no order for matrimonial relief in the form of maintenance.

If, on the other hand, the court decided that the proper course to take was to declare the marriage void and to pronounce a decree of nullity, it is possible, certainly in theory, for the court to go on to award matrimonial relief, under the old law to the wife and under the new law to the wife or the husband. So the position relates to whether it is desirable to take the course which might, in very unusual circumstances, allow the court to award matrimonial relief. Apart from that, this whole dispute has no more than symbolic significance.

Having considered the case of Corbett in its report, the Law Commission concluded that, on the whole, it preferred to deal with the situation as it had first assumed, namely, that there should be a declaration of status. But the Commission recognised that this was an area of social policy which fell to be decided by Parliament, and it was content to leave it in that position. It therefore drafted the Bill as it understood the law to be before Corbett. But the Bill in its present form, which is how I introduced it, is a change of the Corbett decision, a change of the law.

11.15 a.m.

What the Amendment seeks to do is put back the law into its present state as defined in the case of Corbett, which of course was only a judgment of first instance by a puisne judge, but none the less is the only authority on this issue in English law. So the first point on the Amendment is that it simply preserves the law as it is at the moment and does not make the change advocated by the Law Commission.

I considered long before putting down the Amendment, because it is in theory possible to argue that if two people are allowed to come together in a ceremony of marriage who are not respectively male and female, and the union shall continue until it is declared void, in a sense one is countenancing the idea of a homosexual relationship as a marriage, and that would be contrary to any understanding of the Churches about what is the nature of marriage. It would certainly counter what I regard as the proper basis of English marriage and it is certainly contrary to the view which has so far been upheld in the law about what is the proper basis of marriage.

This argument weighed with me until I reflected upon the position of bigamy. In English law, we do not recognise a polygamous marriage. There must be a marriage between one man and one woman. But we do recognise that if a bigamous relationship has been entered into, the way to deal with the matter is to ask a court not for a declaration of status but for a decree of nullity of marriage.

So again, in a sense, one is accepting the idea of a polygamous marriage until the matter is declared void. But this is totally academic, because a declaration that the marriage is void is a declaration that it has always been void and that it never had any legal effect. Therefore, we are in no sense, if we accept the Amendment, accepting the idea of a homosexual union.

The second argument which I put forward is this. In the Corbett case, which hon. Members who are interested will have read, the judge reviewed at some length the state of medical opinion about these very tragic cases, as he had had it presented to him by five of the distinguished consultants in this country who deal in this class of case. There are not many more in this country. This is a relatively specialised form of medicine. Therefore, the judge had the advantage of most of the English authority on this aspect of human behaviour.

He came to the conclusion that there were in medicine four different tests for deciding the nature of a person's sex. He applied those tests to the case in point and concluded that the so-called wife was in fact not a female but had always been a biological male and was not therefore capable of entering into the relationship of marriage. The judge said —I entirely agree—that his view of the relationship in English law was that a marriage is based on sex and not on gender and that, in order to have a proper marriage within the concept of English law, the two parties had to be of different sexes.

I have had some conversation with some of the experts in this field. My information is that a biological male can never become a biological female. It is not possible to have a sex change in that way. However, if, because of the presence of certain physical factors and because of the psychological disposition of the patient, the patient is having difficulty living in society as if he were a male, it is possible to carry out a sexual operation in order to make it easier for him to live as a female. But he is still a biological male.

On that assumption it would never be possible, with my view of English marriage, which I suspect is the view of the vast majority, to have a marriage at all. That argument might suggest that we should go for a declaration of status. However, the present state of medical knowledge is disputed and may be changing. Some people believe that this kind of changeover, at least in psychological factors, is possible. Certainly, there are cases where even the physical factors are disputable and may in the end be open only to a balance of probabilities. That was not so in the one decided case which has been reported. But in the kind of case where there is some dispute, where in the end the judge has to decide on a balance of all the conflicting evidence, it may be a tragedy if he cannot decide the case in such a way as to give the putative wife some financial relief to help her in her distress. It may be that regretfully he has to come to the conclusion that she is not a female but that, none the less, the relationship and the understanding between the parties was such that in that very exceptional case—they must be very rare indeed—it is right that there should be some financial relief. Therefore, on grounds of principle we ought to go for a decree of nullity rather than for a declaration of status.

I end with the third argument I put forward for the Amendment which I put in Committee. This is related to the kind of publicity which can be aroused by this class of case. These physical factors may in the past have been treated as a ground for non-consummation of a marriage and for declaring the marriage void on that basis. If we leave it at least to be decided as a decree of nullity as a ground for making the marriage void or voidable, this class of case is likely to continue to be dealt with on the basis of non-consummation of the marriage.

If there is the possibility of raising this issue, in order that the jurisdiction is changed from one court to another, so that counsel in a case for the respondent where the allegation is that the marriage has not been consummated, is able to argue that it is really a trans-sexual case and that the form of relief prayed is quite wrong and that they ought to start again by asking for a declaration of status, the whole of the status of the individual will be raised in a totally unnecessary way. The matter could best be dealt with by allowing the petition to proceed as if it were in fact a petition for a degree of nullity on the ground that the marriage had not been consummated. There is less likelihood of these conflicts of jurisdiction arising and, therefore, publicity ensuing if the whole matter is dealt with by continuing to regard the marriage as void or voidable. Therefore, out of compassion for these unusual cases, I suggest that we ought to make this change.

Because the number of cases is so limited, whichever course we take is necessarily more of an academic argument than any other. My information is that there have been four English marriages which would raise this kind of problem. The figure is by no means great. It may be that the number will increase as medical knowledge increases, but it will never be a major social problem. However, for those who are in this position, it is a cause of great human distress.

To those people who suffer in this way who have written to me, perhaps I should add one point. The view has been urged upon me that the right way to deal with this matter is to say that the sex operation itself should be the deciding factor in determining whether a person is male or female. If, for instance, a biological male has had a sex operation to construct an artificial vagina, it is urged upon me that that fact is so significant that thereafter, whatever the state of that person's chromosomes, that person should be regarded for all purposes in law as a female.

With regret, I cannot take that view. In any event, it does not arise on this Amendment. All that the Amendment seeks is that, however we decide whether a person is male or female, once we have come to the conclusion that the party who was alleged to be a male is not a male, then the marriage can be declared void, and the legal effect of ascertaining the facts about the sex of a person cause us to take the course of declaring the marriage void rather than to go in for a declaration of status.

The way that a judge decides the sex of a particular person is and always will remain a question of fact. It will be a question of fact which will change with the change in medical opinion which will ensue in the coming years. If medical opinion were that the mere sex change operation was enough to change a person from a man to a woman or a woman to a man, that would be the end of the case; but because the medical evidence is not so clear cut the judge in the Corbett case took the view which he did and courts will continue to take the course which he took.

I urge upon those who have written to me and are concerned about the matter to appreciate that this is not a matter about which Parliament can legislate. In the final analysis it must depend upon the state of medical opinion. If in the end medical opinion is able to state with greater certainty who is male and who is female on tests which were not applied in the Corbett case, then some new court can apply those tests because the evidence will have changed and the question of fact, therefore, will also have changed.

If the Amendment is accepted we shall not be making a rule about how one determines who is male and who is female. All we are saying is that once one has come to the conclusion that the parties are not respectively male and female, then one can grant a decree of nullity. I put that point forward because of some of the letters which I have received and to make the position plain to those who are most affected.

Mr. Leo Abse (Pontypool)

My hon. Friend the Member for York (Mr. Alexander W. Lyon) has, I am sure, placed the House in his debt by the delicacy with which he has introduced this difficult subject. Certainly his comments will not fall on deaf ears in the outside community.

In London today in hundreds of our pubs, nightly, drag queens, to the applause of publicans and their customers, skittishly sing and dance on bar counters. No one today can pick up a newspaper without seeing a photograph of some young actress or woman pop star displaying her charms in varying versions of hot pants. The community, therefore, although it wards off its intimations of trans-sexualism by laughter and attempts to dissipate the disturbing implications of bisexuality in design and in fashion, will nevertheless well understand the problem which we are discussing today.

The subject matter of our discussion is neither so rare nor so esoteric as some would like to affect. We are, however, dealing with a group of people who cannot resolve, even imperfectly, their gender problems in the saloons and smoking rooms of licensed premises or overcome them in some trivial transvestite fashion indulgence.

11.30 a.m.

We are addressing ourselves to the problem of those who have a male sex but a female gender. Their personal identity problems are replete with anguish and their social relations bathed in agonising ambiguities. They live under a law which is too hidebound, too rigid and, perhaps, too frightened to acknowledge that not all the human race can be neatly divided into two—and only two—separate compartments.

Nature does not obey man-made laws and, although this may be inconvenient to the lawyers, Law Commissioners and legislators, we would be unjust and unfair if we persisted in continuing to believe that nature is not often shamelessly untidy.

We have in our community a small group of people on whom nature has played a tragic trick and, because of this, they live in a twilight world and our laws can do little to rescue them from their fate. We would indeed be an insensitive Parliament if we allowed the passing of this Bill without amendment, for that would push these people yet further into a bewildering limbo. The Bill, in its present form, does just that.

I will illustrate the purpose behind the Amendment by giving a case which, though composite, has been built up from the correspondence I have had with psuedo-hermaphrodites over the years, from my own professional experience, from speaking to many people, including, like my hon. Friend the Member for York, discussions with doctors, and, in particular, from the work done by Dr. Stoller, a psychoanalyst and professor of psychiatry at the University of California.

In this composite case—in giving it I will try to explain the distinction between the two Amendments and the reason I believe the Bill must be amended—at birth the infant was unequivocally considered to be a girl. The child was born with completely normal-appearing genitalia and, because there was no reason to question this, the infant was named Flora and was raised by the parents without suspicion that they did not, in fact, have a normal girl. Not until Flora is 13, when an illness takes her into hospital, are the biological facts, hitherto hidden from view, revealed.

Flora has male chromosomes, cryptorchid testes, little vagina, no uterus or ovaries, some degree of male internal sexual apparatus, a bifid scrotum that looks identical with external lips, a penis which is identical in appearance to a clitoris and a severe hypospadias so that the urethra opens in the same position as in a normal girl.

Faced with this position, what are the doctors to do? Pretty Flora, like any young girl of 13, is now eagerly looking forward to womanhood, having been brought up like a girl to enjoy her dresses and revel in her dolls. If the doctors insist that she must be a boy, disastrous consequences will follow. Such a declaration by the doctors could, indeed, in some cases, be so disturbing that psychosis might ensue.

At best, even if all the available medical treatment is given to render Flora a more biologically normal male, one thing, cannot be done today. No normal-appearing or functional penis can be constructed. If the doctors insist on putting Flora into the bondage of her biology, she will be doomed to a terrible, humiliating and frustrating adulthood. She will be a man with no penis but with a woman's soul shaped in her early formative years.

The wise doctors, recoiling from inflicting such a tragedy, perform, under the National Health Service—this is often done by hospitals only a stone's throw from this place—an operation removing the testes and giving Flora an artificial, enlarged vagina, then giving her oestrogens so that she will not develop facial hair but will develop breasts and other subtcutaneous fat distribution typical of a woman.

The doctors have, of course, done the right thing, for a person like Flora, brought up to have no question about her gender, is bound to be attracted to those of the opposite sex. Long before chance happened to take her into hospital, she developed a heterosexual position and no psychiatric treatment will be likely to shift her interest. To confirm her as a man will only force her into homosexuality.

As a woman, Flora grows up to be an attractive young lady, and soon she is engaged to John. She is completely frank with him and, knowing all the facts—that he can have intercourse with her but not children—John marries her and they set up home. As Flora's feelings and gender are totally feminine, after a few years they decide to adopt, at her request, two children. Later, the faithless John has the seven-year itch and, although Flora has been a good wife, he wants to marry another woman.

Knowing the full facts of Flora's operation, all that John need do under the Bill as it stands is to make an application to the court, under the appropriate order, and then he may, with complete immunity, wash his hands of the marriage. She can be turned out of the matrimonial home and cannot claim one penny of support from her husband. It is probable that he can abandon his responsibilities to the children, as the adoption is probably invalid. This must surely be an affront to all who wish to see justice done under the Bill, and this is why we say the Measure must be amended.

The Law Commissioners said on page 16 of their Report: We appreciate, however, that there may be the rare case in which one party has some of the sexual characteristics of both male and female and in which there may be genuine doubt which characteristics predominate or, indeed, in which one party believed at the time of the marriage that he or she was of the opposite sex. It may be thought that in these tragic cases the courts should be empowered to grant the normal range of financial provision and that the courts can be relied upon to distinguish cases of this sort, where such relief is appropriate, from those in which it is not. If this view is taken by Parliament Clause 1 of the draft Bill appended to this Report will require amendment. This is the attitude which my hon. Friend the Member for York and I are taking. If there are those who suggest that, in putting forward a plea for the Bill to be amended in the way I have suggested, I have cited an extravagant case simply to insist that such an Amendment be made, I challenge that view.

Though, as my hon. Friend the Member for York pointed out, only a few sex-change operations have come before the courts, this type of operation is by no means as rare as it used to be. One need only read the Ormrod judgment to see the facts and to appreciate how doctors are doing their best in seeking to reconcile to their fate many people who are in this tragic position.

In any event, who can doubt what my hon. Friend the Member for York said in Committee, that many cases annulled in the past on grounds of physical incapacity were often cases of a trans-sexual nature? We can certainly assume that with the legal profession alerted to the character of pseudo-hermaphrodism, if the opportunity were created by the Bill to avoid making any payment by obtaining a declaration, as would be the case, lawyers quite clearly and properly would be advising their clients that rather than ask for annulment the opportunity should be exploited to ask for a declaration where no financial relief would be available.

In what way, then, if we all agree, as I hope we do, that some amendment is necessary, should we so amend the Bill as to prevent further hardship falling on these unfortunate people? My own personal predilection is that if a man has knowingly married a man with a female gender, who has been assisted by an operation, and if both parties go into the marriage with their eyes open, that marriage should be ended only by divorce obtainable by way of one of the guide rules which bind a court to conclude a marriage is irretrievably broken down.

Some would object to that view, as they would to my hon. Friend's Amendment, because although he has sought with great skill to meet the objection, the fact is that the objection can be taken, and was to some degree pointed out in Committee by the Solicitor-General that it leads to a marriage being possible in some respects between parties of the same sex. The Solicitor-General said, in a striking phrase, that it was out of consonance with reality.

That would not dismay me, because one of the purposes of the homosexual Act of which I had the privilege to be sponsor and of which the right hon. and learned Attorney-General was generous enough to act as a co-sponsor, was to create a situation in which two men could live permanently together without fearing prattling informers bringing down the criminal law upon them. The purpose was to prevent needless homosexual promiscuity taking place out of a fear that if a permanent relationship were established the criminal law would be attracted.

Therefore, I do not boggle at the idea of a marriage between homosexuals, but I agree with my hon. Friend the Member for Bradford, East (Mr. Edward Lyons), who indicated in Committee that in his judgment there are objections to such a notion being explicity or implicitly introduced as a side-effect to a Nullity Bill—

Mr. Alexander W. Lyon

I did not deal with my hon. Friend's Amendment earlier because I wanted him to have the opportunity to deal with it in his own way but, if I may, I shall seek to deal with it later, and I should like him to meet one point. As I read it, his Amendment suggests that if both parties knew that they were of the same sex they would be locked in marriage and the marriage could not be declared void, and that, accordingly, we would be recognising a homosexual relationship entered into in full knowledge by both parties. Although I think that I know his answer, I should like him to meet that point.

11.45 a.m.

Mr. Abse

I intend to deal with that matter, and I am obliged to my hon. Friend for emphasising the need to do so.

I was saying that I would certainly be prepared to accept my hon. Friend's Amendment rather than be prepared to agree to the Bill as it stands, and I hope that on that we shall all be agreed. What I am attempting by my Amendment is to meet the argument of the Solicitor-General to the extent that at least by my Amendment no marriage would even by implication ever come into existence if, for example, two homosexuals knowingly deceived the registrar by one of them deliberately masquerading as a woman.

Some would say that it would be an abuse of our procedures if one of the parties in such a marriage could ask for an annulment, and could also ask, though obviously it would be unlikely to be given, to receive financial relief from the other party. If my Amendment, or an Amendment similar in form, were accepted, the deliberate deceiver would not he able to manipulate the courts at all and, to take the point put to me by my hon. Friend, if one very idiosyncratically did, in those circumstances, want a declaration, what would there be to prevent him from using the order which is in existence? He would be able to do so, and the court, if it wanted to, could make a declaration although in such a case a homosexual would be in no difficulty because there was no marriage, and if he took it into his head and was capable of marrying he would be guilty of no offence. He would not have committed bigamy.

Although I am glad that my hon. Friend has put the point, I do not think that his is a valid objection to the form of my Amendment. What my Amendment seeks to do is to deal with the genuine cases, if I may so describe them, where there is genuine confusion, and a genuine belief on the part of one or both parties that they are female and consider themselves female, as distinct from those who would be totally masquerading. For those who are not masquerading there should be an opportunity to go to the court for annulment and financial relief.

My hon. Friend put forward the view that, after all, there are no objections to this because in the case of a bigamous marriage we allow an annulment. My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who has been kind enough to intimate to me privately some view he held which I thought tended to coincide with the view of my hon. Friend the Member for York, also said, as I understood him, privately—if he will forgive my indicating it, with his usual courtesy—that he could see no objection because, after all, what is the difference between a marriage void because of age, consanguinity, or bigamy and one void because both parties are homosexual males?

That is the point that my hon. Friend the Member for York was putting and which was in the mind of my hon. and learned Friend, but that is not the view which the Solicitor-General took. More than that, it was not the view which was first brought with great perspicacity to the notice of the Committee by my hon. Friend the Member for Bradford, East.

More than that, it was not the view of Ormrod, J., who explicitly said that there was a distinction. Finding that there was a great difference in the marriage of two males, he spoke of it in terms which are to be found in page 1327 of the Weekly Law Reports. He said that a matrimonial relationship between petitioner and respondent was a legal impossibility at all times and in all circumstances whereas, said the judge, a marriage void on grounds of bigamy or non-age—taking exactly the point made by my hon. Friend the Member for York—or a failure of third party consent might in other circumstances have been a valid marriage. That is my view. I agree with the judge.

But I see that there is a problem. It is because I see that problem that I have put down the Amendment. It is to meet that possibility.

If the House decides to accept the Amendment of my hon. Friend the Member for York, it is important that we go into it with our eyes open and understand what we are doing, that we understand that there may be the implication that homosexuals can marry, that we understand that this may be objected to by some but that we take the view that it is beneficial to deal with these hard cases in the manner proposed by my hon. Friend. I have no objection to that as long as it is understood here and understood in another place, where this matter is bound to be discussed.

There is a second reason, apart from all the reasons advanced by my hon. Friend, as to why others may take a different view from him. That is why I have put down the Amendment in the form that I have. The Amendment is, bluntly, intended to weaken rather than to corroborate or strengthen the doctrine expounded with such skill by Mr. Justice Ormerod in the Corbett v. Ashley case, for he there expounded the view which has been adopted by my hon. Friend today and which I do not accept, namely, that marriage is a relationship which depends on sex and not on gender. The judge insisted that sex and gender must not be confused and he made his judgment, as the sponsor of the Bill has said, finding April Ashley a male by applying only the biological tests and ignoring psychological factors.

In the present developing knowledge of depth psychology, I doubt the wisdom of such an approach. However inadequate or whatever other blemishes it may have, the wording of my Amendment, by stressing the "reasonable belief" of one of the parties, could prevent the congealing of the Ormrod doctrine. If one reads that judgment—it is a brilliant judgment—one finds that it explores the geography of the problem but not the history of the problem. If we accept an Amendment which totally corroborates the Ormrod judgment without qualification, we are in danger of the law pulling itself away from and not towards medical science, because in the case which I have cited as an example, my Flora case, that girl was rightly given the opportunity, by surgeons and psychiatrists, to become a resolved human being. That girl had the right to her gender, and the right to marry. They were trying to enable such a person in such a dilemma to live out her life as a human being. But if the Ormrod doctrine were applied strictly, that in the Flora case she was a male because biological tests proved her to be a male, what one is saying to the doctors, psychiatrists and surgeons is that although they are treating the patient and giving the best opportunity for her to live out her life as a human being, we at law will condemn her to be a non-person. I find that unacceptable.

I do not believe—and it is an important ethical principle—that we as lawyers should be trying to have law which sabotages the work which surgeons and psychiatrists are doing to enable a person happily to become reconciled to her fate. Therefore, although I recognise that my Amendment does little more than to weaken a little the Ormrod doctrine, it at least takes cognisance of the possibility that one may have to consider gender as well as sex.

Mr. S. C. Silkin (Dulwich)

It seems that, looking at my hon. Friend's Amendment and that of my hon. Friend the Member for York (Mr. Alexander W. Lyon), the position is quite the opposite. The Amendment of my hon. Friend the Member for York says nothing about either sex or gender but leaves that question entirely open by referring to "male and female"; whereas my hon. Friend's Amendment specifically refers to sex, and I understood him to say that we ought to leave open the case for gender.

Mr. Abse

That is right. My Amendment seeks to do it by laying the emphasis upon the reasonable belief, whereas my hon. Friend's Amendment is that they are not "respectively male and female", and as he rightly pointed out, he was giving support to the Ormrod text, and that is why, with complete frankness, my hon. Friend said that the only way to approach it is by examining the biological characteristics and ignoring the gender. If a person believes that she is a woman, even if the biologically male characteristics are present, such a person should be acknowledged as a person and should not be placed in this limbo.

Mr. Richard Body (Holland with Boston)

I am sure that the whole House was very moved by the description of the Flora case, and obviously great hardship would have fallen to her had that adoption order been proved invalid. With his great experience, can the hon. Gentleman say whether that adoption order was valid or not?

Mr. Abse

I was seeking to put a composite case and I was drawing together certain strands of cases which have come into my correspondence, and apparently may have come to the notice of the hon. Gentleman. It would not be fair to say more beyond that there are cases within my knowledge where a child has been taken into a family, although a formal adoption has not taken place. I am pointing out that if the present trend continues, in which there are many sex operations continuing and developing as my hon. Friend has pointed out—it is an expanding trend, because people are now coming out more with their problems instead of less —this is the problem that we shall have to face, the possibility that a person of a female gender would naturally want to have children.

Mr. Body

Was that adoption order valid? As I understand it, if it were valid, she might have obtained some financial relief.

Mr. Abse

I said with care, and the hon. Gentleman was clearly listening to me with care, that it probably would be invalid. I think it would be, because, involved as I am at present on the Houghton Committee on Adoption, I doubt that it can possibly be regarded as an adoption if the two parties were decided, as they would have been decided in the terms of the Ormrod judgment —both to be males.

Mr. Peter Archer (Rowley Regis and Tipton)

Can the hon. Gentleman assist us as to his argument? As I understand it, he wants to distinguish between being of the female sex and being a woman, because there is the possibility of other factors entering into it. His Amendment relates to the reasonable belief in holding a particular sex. Does he equate that with Flora believing that she was a woman?

Mr. Abse

Yes, she would believe that she was a woman and believe herself to be of the female sex. If one wanted to strengthen my argument to bring in the concept of gender, so be it. But these women—as we have seen in the cases which have had great notoriety, even when they are a long way from the type of cases which I have suggested, such as that of Flora—continue to protest that they are women and they believe themselves to be women. Therefore, in that sense, the Amendment would seek to meet the difficulty.

I do not know what view the Attorney-General will take. I hope that he will take an attitude of benevolent neutrality and that the House will, whatever diversity of views it may express on the merits or demerits of the Amendment, will be of one accord that an Amendment must be inserted and that we cannot accept the Bill as it is; because it must be unjust that financial relief could never be available to a male of the female gender who found that the marriage she believed herself to have entered into was ended because she was a biological male. The fact is that such people already suffer enough through our laws, from their great difficulties in obtaining fresh certificates of birth to their well-founded anxieties that they may fall foul of the Justice of the Peace Act, 1361, which unfortunately is over-frequently used against them.

I hope that the arguments which have been advanced and the general opinion expressed in the House will enable the Attorney-General to give a little benevolent encouragement to all of us who want a nullity decree and financial relief and not a declaration to be made available in a particular section of cases.

12 noon.

Mr. Edward Lyons (Bradford, East)

I, too, am grateful to my hon. Friend the Member for York (Mr. Alexander W. Lyon) for introducing the Bill and also for having tabled the Amendment.

I had the privilege of serving on the Standing Committee that considered the Bill. At that time the Amendment which was applicable to the marriage of transsexuals sought to deal with these cases under the category of voidable marriage. I objected to that, because it seemed to me that if we were to allow a situation where the parties to a marriage, both of whom might be men, or both of whom might be women, could decide whether it was void or valid, which is the meaning of a "voidable marriage", we would allow homosexual marriages and lesbian marriages by the back door.

It seemed to me, as I said in Committee, that it was not right that that should creep into the law as a result of a Private Member's Bill which perhaps had not attracted the attention of the whole House or of the nation to the degree that such a fundamental change in British law merited. I am therefore delighted that the Amendment includes under the heading of a void marriage entitling to a decree of nullity a purported marriage between a couple one of whom is a trans-sexual where it is clear that both parties to the marriage were originally of the same sex.

These people are a very tragic group. Although it is possible for the public to have a morbid interest in the subject, this should not prevent us from giving consideration to the plight of these people. In the Corbett case one of the distinguished consultants who gave evidence said that he had no fewer than 190 trans-sexual patients. That perhaps gives an indication of the scope of the problem rather different from the figure of four cases which have reached the courts, which was mentioned by my hon. Friend the Member for York.

Society has been dealing with the problem of trans-sexuals on an extempore ad hoc basis. For example, Mr. Justice Ormrod, in his extremely distinguished and utterly classic judgment in the Corbett case, came down to this test—that the sex of the parties at birth must be looked at. That was the only test that he applied, and that is the law of England at present.

Other Departments of State have taken a different view. For example, it emerged in the Corbett case that the Ministry of Social Security had recognised the "wife" as a woman for social security purposes. In other words, the Ministry of Social Security has recognised that a person born a man may become a widow and, what is more, may obtain a pension at 60, the pension age for a woman, although 65 is the pension age for a man.

That illustrates some of the difficulties that society faces in dealing with this problem. Therefore, we must be very careful in considering into which category transsexuals should be put.

Further, there are moral difficulties. For example, it is the law of England that if a married man has sexual intercourse with a woman not his wife, that is adultery and matrimonial relief can be obtained. As a result of the judgment in the Corbett case, sexual relations between a man and an alleged woman who was formerly a man is not adultery.

There can be no moral distinction, because it is apparent that a man may have sexual relations with a person whom he believes to be a woman—a person with an artificial vagina. Morally and in intent he is committing adultery; he believes that he is committing adultery. The law says, "No, you are not committing adultery. It is not a ground for divorce, because the person you believed to be a woman was a man." Morally that position is indefensible. That is another difficulty—it is not adultery.

Trans-sexuals themselves experience intense embarrassment as they go about their daily lives. If they go to hospital the problem arises of which ward to place them in—a female ward or a male ward. When they wish to go to a public toilet, they are faced with the same problem. They are constantly embarrassed and constantly concerned. Rightly or wrongly, they may feel that they are committing a criminal offence; for example, if a person originally a man who now considers himself to be a woman goes into a place which is reserved for women and their toilet necessities.

Society is faced with a choice of continuing to deal with this matter on various different bases or regulating the law to ensure that there is a uniform code for trans-sexuals, that they must behave according to their original admitted sex or that they can in certain circumstances behave as members of the opposite sex. I would favour, because it is more humane, this latter view.

Although a trans-sexual is a male in terms of chromosomes and is a male gonadally—that is, without ovaries—and perhaps a male genitally, he is a female psychologically and socially.

The law has scarcely begun to cater for people in this complex and sad class. I took the view on recently reading the entire judgment in the Corbett case that the judge was right and that the law as he stated it should be retained. In his judgment he declared English law. He said that where two people are in effect of the same sex at birth, the marriage is void. He so declared with a nullity decree.

The Bill provides that in future nullity will be granted but only on specific grounds which the Bill lists. Unamended, the list will not include the ground found by Mr. Justice Ormrod and thereby a ground which became part of English law. In other words, if the Bill is passed unamended it will delete from English law the judge-made case law of Mr. Justice Ormrod in the Corbett case. The Bill would have the effect of reducing the grounds for nullity in British law. I know that my hon. Friend the Member for York would not wish to see the law of nullity contracted in that way, and I think he is right.

We are faced with two Amendments, and I should say where I stand on those two Amendments. My hon. Friend the Member for Pontypool (Mr. Abse) flattered me by quoting, to some degree, from arguments that I had adduced in Committee on this point, but it is fair to add that I was then dealing with a proposal to introduce this provision under the head of voidable marriage. We are now dealing with the matter under a different head. My hon. Friend will remember that I said then that I could not support a situation in which people of the same sex could be allowed to marry. There would have to be much greater consideration of what was involved.

The Amendment in the name of my hon. Friend the Member for Pontypool says that it shall be a ground on which to declare a marriage void (c) that at the time of the marriage both parties were of the same sex but one or both held a reasonable belief that the marriage was between differing sexes. That means, as I understand it, that if both parties were of the same sex but neither held a reasonable belief that the marriage was between different sexes—neither of them was under any illusion and both believed themselves to be of the same sex—that would be a valid marriage. I submit that, perhaps unintentionally, my hon. Friend is committing the same sin which my hon. Friend the Member for York also unintentionally sought to commit in Committee. It is letting in homosexual and lesbian marriages by the back door.

The new Amendment of my hon. Friend the Member for York does no such thing. I appreciate that his Amendment may embarrass cases of what have been called inter-sex. We must be careful when talking about trans-sexuals to distinguish between those who come within the category of inter-sex and those who clearly were born male or female and have changed their sex by a subsequent operation. In the Corbett case the judge found that he was dealing with a person born a man who was changed by operation. Inter-sex cases are those with hormonal abnormality—people who were genuinely in doubt from the beginning, in basic ways, as to their true sex. Certainly in relation to the Corbett case and most of the cases with which we are dealing, the sex has been changed by operation because the man wants to become a woman psychologically and socially.

Mr. Abse

I have been seeking to follow my hon. Friend's argument in so far as he suggests that, by the back door, unwittingly, my hon. Friend the Member for York (Mr. Alexander W. Lyon) and I are trying to get lesbian or homosexual marriages. Surely the point is that if, as he says, both the parties did not believe they were of differing sexes, they would not need an Amendment to enable them to go to the court for annulment. Neither do I believe that they should. These people should not have an opportunity to manipulate the court to obtain an annulment if, knowingly and willingly, two homosexuals get married.

Mr. Lyons

I understand the point advocated by my hon. Friend. I had thought that the idea of homosexual marriages was involved in this Amendment unwittingly. I now understand that it is an intentional effect of the Amendment, that where two people of the same sex—

Mr. Abse

Not at all; it is the opposite.

Mr. Lyons

Well, we disagree. Speaking from some legal experience, as I know my hon. Friend does, and as I understand this Amendment, it means that if two people of the same sex marry, neither of them under an illusion about the sex of the other, they cannot get a decree of nullity, which must mean that they remain married.

Mr. Abse

It means nothing of the kind. It means that the marriage obviously has not come into existence. If they want to obtain a declaration, they should do so. I am sure that my hon. Friend would help the House if he directed his attention to the problem instead of to some misinterpretation of my Amendment.

12.15 p.m.

Mr. Lyons

The last thing I would wish to do is to misinterpret the Amendment or the intentions of my hon. Friend, but I have given my views on what I consider to be the purport of the Amendment. If I am wrong, no doubt the Attorney-General will say so, likewise my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin).

In the Corbett case, the judge dealt with an example of a man of 50 with a wife and four children who perhaps divorces his wife and then undergoes an operation for a change of sex. Even if he does not divorce his wife but undergoes a change of sex, if he is to be regarded as a woman the bizarre result is that the four children have no father but two mothers, and one gets terribly complex and, in some instances idiotic cases of this kind. We cannot have that. That is why the judge was driven to hold as he did, that one must look at the sex at birth.

One hopes that as the years go by the law will learn to accommodate people of this kind in a humane, merciful and understanding way. It emerged from the medical evidence in the Corbett case that these people cannot be treated successfully by any known psychiatric method. They are, in effect, incurable. That is how I read the case. Therefore, they are not to be blamed. It is very sad for them, but society must have a situation where the family comes prominently into consideration. The family is based on the union of man and woman. A woman effectively, I suppose, is thought to have the capacity to procreate. In those circumstances, I support the law as laid down in the Corbett case. I support the Amendment in the name of my hon. Friend the Member for York, which will ensure that the law, as laid down by the judge in that case, goes into the new Measure.

The Attorney-General (Sir Peter Rawlinson)

The sponsor of this extremely useful Bill, the hon. Member for York (Mr. Alexander W. Lyon), has moved an Amendment with that clarity which we always associate with his participation in legal matters. I hope he will not think me condescending when I say that he did so with extreme lucidity and convincingly.

The benevolent neutrality for which the hon. Member for Pontypool (Mr. Abse) called will, so far as I am concerned, go a little further than neutrality: Although I agree with what was said by the hon. Member for York—that the Law Commission recommended that the proper mode of process in these cases should be by declaration, under Supreme Court Order No. 15, Rule 16—nevertheless I believe that the law is obliged to provide for the unusual and the very rare.

What is quite clear is that we are discussing under these Amendments the unusual and the very rare. I do not think anybody who has participated in the debate holds any brief for those who go through some form of ceremony knowing full well that it is a deceit or masquerade. We are dealing here with cases of a genuine though extraordinary nature which, in my view, the law should do its best to cover.

The hon. Member for York referred to the judgment of Mr. Justice Ormrod which, as he rightly pointed out. was based upon the bulk of the expert evidence now available to us. It was based also upon fact. The composite case which the hon. Member for Pontypool raised was very different on its facts from the Corbett case. I shall not rehearse those facts—it would be to no one's interest or advantage to do so—but I am sure that all hon. Members present will know the difference in those facts.

Mr. Justice Ormrod, on the present state of expert medical evidence and on the facts presented to him, came to the conclusion that the validity of a marriage must depend solely upon whether the respondent—it was the respondent in that case—was or was not a woman, and that that should be decided on purely biological criteria. Having regard to the present state of medical and scientific knowledge, I should regard that as a conclusion which must be accepted; the judgment of Mr. Justice Ormrod in that case, to which tribute has already been paid, clearly set out what is and should be the present law.

The learned judge dealt with the physical and psychological factors, but there does not seem to be any relevant formula which can be devised to reflect the doubts and considerations involved, and I turn, therefore, to the proposal made by the hon. Member for York. I have shared the concern which the hon. Gentleman felt about whether it was right to introduce into the Bill the consideration raised by his Amendment, but, like him—I express a purely personal view —I have come to the conclusion that it is better to incorporate his Amendment. The court will have power in these extraordinary cases—I emphase again how extraordinary they must be—to give financial relief in appropriate circumstances. Also, there will be the preferential form of proceedings which could be presented if we have the Amendment in the Bill.

I feel, therefore, that Amendment No. 2 meets the concern, in the present state of scientific and medical knowledge, of all those who acknowledge that there are these rare and remarkable cases.

In speaking to his Amendment, the hon. Member for Pontypool accepted that its wording did not carry out all he had in mind when presenting his argument. I understood him really to wish to put to the House an argument related to the circumstances which he outlined. There are drafting defects in his Amendment, although it served the hon. Gentleman's purpose in bringing the matter before the House.

In my view, grave difficulties are presented by Amendment No. 3. It would introduce the additional issue of belief which would be very difficult to prove in practice, and which would not afford a particularly appropriate basis for distinguishing between cases for declaration and cases for nullity; it might, indeed, exclude some nullity cases altogether. The words of the Amendment are to the effect that it is not the petitioner's "belief", and it would, therefore, be possible for a party who did not hold the belief to petition and claim for financial relief.

As I say, I have come down in favour of Amendment No. 2, moved by the hon. Member for York. There may be those who do not wish this subject to be covered. Indeed, my hon. and learned Friend the Solicitor-General remained strictly neutral on this issue in Committee. However, I have revealed to the House my own personal view. I do not think that there is a satisfactory halfway house. We must decide either on the hon. Gentleman's Amendment or not at all. In my view, the hon. Member for York, who recited the argument with great persuasion, has presented a proposal which will meet these extraordinary and tragic cases, which are few in number but which, I believe, it is the duty of the law to do its best to provide for.

Mr. S. C. Silkin

Like the Attorney-General, I shall be brief, and the more so because there is business to follow which, I am sure my hon. Friend the Member for York (Mr. Alexander W. Lyon) will agree, some might regard as almost as interesting and as significant as the matters which we are now discussing.

Like the right hon. and learned Gentleman, I agree with my hon. Friend the Member for York, and I do so both for the reasons which he persuasively advanced and for one or two other reasons which I regard as important.

First, this is a codifying Bill, intended to codify the existing law, not to alter it. The existing law includes the law as defined by Mr. Justice Ormrod in Corbett v. Corbett. Therefore, the Bill would be departing from its purpose if it overturned that law simply by not including the matters which my hon. Friend seeks to include by his Amendment.

Second, that argument is much strengthened by a great deal of what was said so persuasively by my hon. Friend the Member for Pontypool (Mr. Abse). He reminded us that the state of medical science on these matters is still uncertain, that it may well change, and that there are very few who can claim great knowledge, experience and expertise in the matters we are discussing. Who knows? —in 10 or 20 years, quite different considerations may apply.

It seems to me, therefore, that, with that state of uncertainty in medical science, it would be wrong to take a decision in this House—a House which, unhappily, is somewhat thinly attended today—on what is basically a matter of medical science which flew in the face of at least the present evidence which was reviewed and dealt with by Mr. Justice Ormrod in the Corbett case.

Third, my hon. Friend's Amendment is extremely carefully drafted, proposing to add the words that the parties are not respectively male and female". He says nothing about being of the same sex, the same gender, or anything of that kind, but he uses those neutral terms, leaving it open for some future court on evidence other than that which was before Mr. Justice Ormrod to define precisely what "male" and "female" mean, and whether one ought to have regard to sex and gender in the changing state of medical knowledge at the particular time, thus leaving it open for changing medical knowledge to take effect by way of evidence in the courts.

Those three points seem to me to be points of great force and persuasion in the decision whether we should leave the law as it is, as my hon. Friend's Amendment does, or today, on a Friday morning in a thinly attended House, seek to alter the law on the basis of a medical science which must remain obscure. I support my hon. Friend.

Mr. Alexander W. Lyon

I hope that my hon. Friend the Member for Pontypool (Mr. Abse) will agree to withdraw his Amendment in the light of what the Attorney-General has said and in the light of other recommendations.

Mr. Speaker

The hon. Member's Amendment has not been moved. The only Amendment technically before the House is that in the name of the hon. Member for York (Mr. Alexander W. Lyon).

Mr. Lyon

I merely wanted to say in reply to my hon. Friend's argument against my intervention that the fact that two legal Members assumed from the wording of his Amendment that it would be possible to have a homosexual relationship in which both parties knew about it indicates the difficulties which might arise from his Amendment.

My hon. Friend the Member for Bradford, East (Mr. Edward Lyons) referred to the difficulties which arose in other areas of the law when transsexuals were affected, particularly in relation to National Insurance and other social situations. I remind him and those affected of the words of the learned judge in the Corbett case when he said: I have dealt by implication with the statement that because the respondent wife is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purpose of marriage. The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental. These statements in effect confuse sex with gender. Marriage is a relationship which depends on sex, not on gender. I heard what my hon. Friend the Member for Pontypool had to say about that, but I agree with the learned judge.

A compassionate society ought to be able to allow to exist situations where biological males who believe that they are female and act as though they are female are treated in circumstances when it makes no difference to anyone else as female. They ought to be admitted to a female ward in a hospital and dealt with as if female for the purpose of social insurance. They ought to be dealt with as female in all social situations where that treatment is both compassionate and does not affect anyone else materially.

But when such people enter into a relationship with another person which relationship as marriage, even the most compassionate society should say, "Here we cannot go with you; here we must draw the line; although we understand and sympathise with your distress, we find it impossible here to be that compassionate, because here the relationship also affects intimately some other member of society whose rights and feelings have to be considered."

It is for that reason that I agree that the judge that we ought to make a distinction between the social insurance situation and the marriage situation, and that is why I have moved the Amendment.

Amendment agreed to.

Bill read the Third time and passed.

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