MARRIAGE BETWEEN TRANSGENDERED PERSONS (Hansard, 25 May 2004)

§ Mr. Boswell
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to discuss new clause 7—Successful applications: married couples— `If an interim gender recognition certificate has been issued to a person under section 4(3) an application may be made to the Secretary of State to award a full gender recognition certificate without the provisions of Schedule 2 or section 5 having effect if—

(a) neither party to the marriage wish the marriage to be dissolved or annulled,

(b) both parties to the marriage can show they intend to continue living together, and

(c) the marriage took place before the date of Royal Assent of this Act.'.

§ Mr. Boswell
New clause 4 is tabled in my name and, I am pleased to say, that of the hon. Member for Birmingham, Selly Oak (Lynne Jones), who played a big part in the constructive discussions in Committee. I have remarked before—and I do so again—that the Bill brings together a remarkable range of issues. New clause 3 concerned the Olympics; new clause 4 concerns an entirely different and rather small problem. The problem has wider implications, however, and I shall 1503 discuss them and new clause 7, which my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) tabled, in a moment.
Hon. Members on both sides of the House share a strong wish to underpin the importance of marriage, and above all not to force persons lightly or wilfully to annul their marriages, unless it is strictly necessary. New clauses 4 and 7 have slightly different effects, but they are both designed to underline that principle.
New clause 4 would have a small numerical effect, but—this point was made in earlier debates—the principle is important for those concerned. New clause 4 relates to a limited number of real world cases, although it might apply in future. The Minister will be familiar with the arguments because, although we motored through the Bill in Committee, we discussed this point.
First and foremost, the matter concerns an issue of principle, which is to try to support marriage wherever it subsists and is seen to do so. We envisage a situation in which two persons marry as man and woman—whether they knew about these issues when they contemplated marriage is not my concern—and then both decide that they need gender reassignment, so they apply for gender recognition certificates. They both receive interim certificates, but are unable to convert them into full gender recognition certificates to give them legal effect unless and until they annul their marriage. Because they were married and wish to continue to be married—albeit with different genders—I cannot see any reason in principle why we cannot cater for that situation.
In Committee, I tweaked the Minister by saying that I thought that might be one of those issues that was invented here, or words to that effect. He made the valid point that concerns arose about mucking about—my phrase, not his—with the marriage certificate. I then tabled a new clause that made provision for rewriting the marriage certificate. The new procedure proposed in new clause 4 strikes down that objection by suggesting that both persons could apply to the gender recognition panel for full certificates at the same time as the issuing of a statement confirming the continuation of their marriage. That would be a more elegant and simple solution.
That deals with the technical argument, but the Minister will realise that there are wider concerns of a prudential nature in relation to inherited rights. In Committee he made the slightly surprising assertion, which I have checked again in theOfficial Report, that discontinuation of the marriage for 24 hours—its extinguishing and almost immediate reintroduction—would not invalidate any inherited rights. The only comparison that I can suggest is that of the late King Baudouin of Belgium, who stood down for 24 hours because of some legislation that he found objectionable and was then reinstated. I do not know whether that is treated as one reign or two in Belgian law, but that need not concern the House. In the context of British law, would the courts recognise the continuation of all the rights and duties in what is effectively a continuing relationship?
My new clause is based on the important point that persons should not be required to divorce or annul their marriage unless it is absolutely essential that they do so. 1504 That brings me to the new clause tabled by my hon. Friend the Member for Sutton Coldfield. He has been persuasive in arguing his case with me, but he needs to do so before the House, and I will consider what to do in the light of that.

§ Mr. Forth
I wonder whether my hon. Friend the Member for Daventry (Mr. Boswell) can help me through this, as I was not a member of the Committee. Do I understand him to say that the effect of his new clause would be that two people who were of different genders, and would now again be of different genders albeit reversed, could continue to be married; but that the effect of new clause 7, tabled by my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell), would be that two people of different genders who had been married—

§ Mr. Andrew Mitchell (Sutton Coldfield) (Con)
Are married.

§ Mr. Forth
I thank my hon. Friend for his correction. Would the effect be that two such people could now continue to be married when of the same gender? If so, the two new clauses would have quite different effects, because my hon. Friend the Member for Daventry wants to maintain different-sex marriage, whereas my hon. Friend the Member for Sutton Coldfield appears on the face of it to want to allow the sanctification of same-sex marriage.

§ Mr. Boswell
As I understand it, my right hon. Friend has it exactly and puts it very clearly to the House. My difficulty with my hon. Friend's new clause is that it would arguably validate same-sex marriages. We could have a debate about same-sex marriages, although the House is perhaps not ready to do so. The Minister and other hon. Members will know that that matter is highly controversial, even in the United States—in one state, in particular. We could not fruitfully discuss it now, not least because Ministers have consistently said that they are against same-sex marriages and seek to underpin different-sex marriages.
My hon. Friend's new clause would facilitate the continuation of marriage in several situations about which he feels strongly because they may involve the maintenance of pension entitlement and so forth. We rehearsed that at length in Committee and to some extent this afternoon. However, his proposal could in effect lead to marriage between persons of the same gender. I would warm towards it more if we had tried to confine it to validating—retrospectively, if we wish-grandfather rights or grandmother rights to persons who are already married, on the grounds that there is no reason to break up such relationships. Like other hon. Members, I know serious people of repute who are in a continuing relationship, which is currently marriage but will not be.
However, in trying to limit the effect of new clause 7, my hon. Friend the Member for Sutton Coldfield has weakened the validity of his argument. There will be persons unknown to the House who will marry in future in a specific gender, subsequently wish to undergo gender reassignment arid perhaps wish their relationship to continue. Under the new clause, they would be 1505 precluded from doing so because they were not married before the Bill was passed. That is invidious and shows the weakness of principle behind my hon. Friend's point.
I readily concede to my hon. Friend and others who have put their names to new clause 7 the strong practical argument about the need to encourage continuing relationships and to protect the financial and other positions of vulnerable people if they choose to change the nature of their relationships. That is perfectly understandable and should not be sacrificed to a wider principle about preserving marriage between different genders.
However, I understand that the sensitivity of my hon. Friend's points, which are set out in the new clause and were mentioned in Committee, will be easier to bear because of the Civil Partnerships Bill. I outlined in Committee my impatience for that measure, which has now appeared. I also expressed my support for that measure in principle because we should persist with the doctrine that marriage should he between people of different and legally recognised genders but, if persons of the same gender wish to have a continuing, genuine relationship through civil partnership, we should also facilitate that. We say yes to relationships but no to marriage between persons of the same gender. In that spirit, I express advance reservations about new clause 7 but commend new clause 4 to the House.

§ Mr. Andrew Mitchell
I rise to support new clause 7. I am conscious that my hon. Friend the Member for Daventry (Mr. Boswell), speaking from the Front Bench, has hopped from foot to foot about the provision and I understand the reasons for that. Most of us who have considered the issue carefully will have been caught on the horns of the dilemma that he outlined so eloquently.
I did not serve on the Committee, although I have read the proceedings. Clearly, there was considerable support for the principles behind new clause 7. I bring no expertise to the issue of gender dysphoria—we are considering complex and deep matters—but, like several hon. Members, I have two constituents who are caught in the situation ghat new clause 7 tries to tackle. My experience of them rather than any expertise in the psychology or medicine of gender dysphoria has led me to table the new clause. I have their permission to discuss their circumstances in the House today.
My constituents, Joy and Christine Timbrell, have been married for some 30 years. They are devout Christians who have two grown-up children and many grandchildren. Under the Bill, either they will be obliged to divorce, which neither wishes to do, or Christine will remain wrongly gendered and unable to have the certificate to which the Bill refers and all that that implies. Against their will, their marriage will be "put asunder". That is wrong and an injustice to my constituents. I have therefore tabled new clause 7 in the hope that it can rectify a wrong. I greatly regret that the Government have decided to whip the Bill and this particular new clause. I believe that there would have been considerable support for my proposal across the House, and my decision whether to press it to a vote will depend in part on what the Minister says in his response and what the feeling in the House is at that point.
1506 4.45 pm
I took my two constituents to meet the Minister in the Lords with responsibility for the Bill, Lord Filkin. He was courteous and offered tea, biscuits and sympathy to my constituents. He was clear, however, in his total refusal to consider any change. I had gone along to listen to the arguments and to see what I thought, on behalf of my constituents, and it was clear that the Government were terrified by the opening of the door, as they see it, to same-sex marriages. The Minister's response, though courteous, was extraordinarily unimaginative, given that the Government have shown themselves willing to look at these issues. What I did not receive from the Minister was justice for my constituents.

§ Mr. Lammy
The hon. Gentleman has not said whether that meeting took place before or after the introduction of the Civil Partnership Bill, which many people consider to be very imaginative and timely legislation.

§ Mr. Mitchell
The Minister makes a fair point, but neither I nor my constituents believe that that Bill will make any difference in this case. Nor do I believe that it will make any difference to the force of the arguments in support of my new clause.
I wish to make five points. First, I sincerely believe that my new clause is not about same-sex marriage. Each marriage covered by the provision will have been contracted by two people of the opposite sex. The measure would not pave the way for a marriage to be solemnised between two people of the same gender. It would allow only for a marriage solemnised between a male and a female to continue if, at a later stage, a spouse sought to have a new gender recognised. People who enter into a valid marriage contract in good faith should not have to divorce in order to have their new gender recognised and endorsed.
Secondly, when a couple wish to separate that is a different matter, as my amendment recognises. When they do not, the innocent party—that might be someone who is deeply religious, as in the case of my constituents—is effectively being forced to separate by the Bill. The innocent party in the case that I have described has rights too, and the House should be sensible of them.
My third argument is that I have further limited my new clause to cover only those married at the time of Royal Assent. Some argue that it should go further, but I am seeking to define it very narrowly, so that only those who are caught in this position and who are married today would be affected. It is difficult to know how many people would be affected, because people often keep very quiet in such circumstances. Perhaps 30 couples would be affected, and I urge the House to bear that in mind when considering the new clause.

§ Mr. Andrew Robathan (Blaby) (Con)
I thank my hon. Friend for giving way, and I apologise for not being here for the beginning of his speech, but I did watch it on the monitor. He is making some extremely good points. 1507 I was prompted to come down because I want to ask him whether he agrees that he is illustrating that the details of the Bill have just not been thought through.

§ Mr. Mitchell
If my hon. Friend will forgive me, I do not wish to be drawn on the wider issues. I wish to focus on my new clause, which I hope will commend itself to him.
My fourth argument is that the new clause could well save the Government from falling foul of human rights legislation. As my hon. Friend the Member for Daventry pointed out in Committee, couples forced to divorce may well have a case under the Human Rights Act 1998. The Joint Committee on Human Rights urged the Government to "reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate". The Bill places some people in the truly dreadful position of having to choose between their marriage—their relationship with their family, their children, and their grandchildren—and their right to have their new gender recognised. Different sets of rights are being traded off against each other. I urge the House to bear in mind the position of the wider family in the circumstances, for example, of my constituents, which I described earlier.
Fifthly, I return to the terms of the marriage contract. These couples married according to the laws of the United Kingdom as they then stood. There were certain grounds for annulment and certain grounds for divorce. The state could sanction divorce where love had broken down, or annul where there was no intention of lifelong commitment. Where those characteristics of marriage remain—that is, love and lifelong commitment—it is wrong for a law that is effectively retrospective to introduce new grounds upon which the marriage may be dissolved.

§ Mr. Lammy
The hon. Gentleman rightly cites love and commitment as fundamental to marriage, but does he recognise that many people watching and listening to the debate believe that marriage is also a union between a man and a woman? Should one partner who is gender dysphoric change gender, the marriage is in a different situation.

§ Mr. Mitchell
With the greatest respect, I sincerely believe the Minister is completely wrong. We are not talking about a new marriage contracted between people of the same sex; we are talking about a marriage originally contracted between a man and a woman, for better and for worse. The fact that the change has taken place does not annul or destroy the terms upon which the marriage was contracted.

§ Mr. Lammy
The hon. Gentleman makes an important point. Does he also acknowledge that the couple have a choice? The Government do not require them to proceed down the road of gender recognition. They have a choice. They can choose not to, and there will be some couples who choose not to.

§ Mr. Mitchell
With respect to the Minister again, I covered that point in the earlier part of my speech where 1508 I dealt with the way in which rights were being traded against other rights. If he looks back at my earlier remarks inHansard, he will see that I addressed that point precisely. Couples should not be put in that position. My constituents should not have to make that dreadful choice.
A group of marriages that have not gone wrong, which are loving and based on years of commitment, will be prejudiced by the Bill. It would be wrong for the House to put asunder those whom God hath joined together. Over many years marriages survive many changes. Some marriages experience extraordinary changes in circumstances, in sickness and in health. A relationship that survives a gender change is by any definition extremely strong. I invite the Minister to improve the Bill, to stand up for the sanctity of marriage, far from undermining it, and to defend the rights and freedoms of a very small minority who will suffer as a result of the Bill as drafted and should not have to do so.

§ Lynne Jones
I support both new clauses, although if new clause 7 were accepted, new clause 4 would be unnecessary. I thank the hon. Member for Daventry (Mr. Boswell) for moving new clause 4. An existing marriage of transsexual people should be permitted if they subsequently have their correct gender recognised through the process laid down in the Bill. I cannot for the life of me understand why the Government are not prepared to accept new clause 4.
I have some understanding of the Government's reservations in relation to new clause 7, because they believe that it would set a precedent for same-sex marriages. I would argue that that is not the case. We are speaking of a very small number of people—unique people, who were married at a time when the transsexual person may have been trying not to come to terms with the fact that they suffered from gender dysphoria. That was quite common in the past but is much less common now, when that is a recognised condition for which medical treatment is available, and society is much more accepting of such people than it was.
As the hon. Member for Sutton Coldfield (Mr. Mitchell) has said, denying such people the right to gender recognition and the right to continue with their marriage provides a choice, but it also requires them to deny themselves one set of rights in order to acquire another. Many trans-couples have written to the Minister and his colleague in the House of Lords setting out their concerns; for example, Janet and Sarah Wood, who demand the right to retain their marriage and to have Sarah's correct gender recognised. Clearly, the hon. Gentleman's new clause would allow for that.
Even at this late stage, I ask the Government to consider whether that small number of cases should not be allowed to go through. It would be a time-expired phenomenon, as, rightly, the new clause requires that the marriage should have taken place before Royal Assent to the Act. It is therefore clear that, when the marriage took place, the persons involved were man and woman, and the person who subsequently had to accept that they are transgendered married in all good faith. That person was trying to take on board the implications of their birth gender before finally coming to the conclusion—which often seems like a matter of life and death—that they could no longer live in their 1509 birth gender, and had to accept that the only way for them to go forward in their life was to have gender reassignment.
All those couples, as the hon. Gentleman pointed out, will have demonstrated their strong commitment to each other and many will have strong religious principles in relation to their marriage vows. They should be allowed to uphold those principles in a manner that does not affect anyone else and that causes no harm to any other person, and they should be allowed to enjoy the rights that will be given through this laudable legislation.

§ Angela Watkinson (Upminster) (Con)
I apologise for not having been present to hear the earlier stages of this debate. Does the hon. Lady agree that there is a difference between undergoing gender reassignment treatment and acquiring a gender recognition certificate, and that when there are pre-existing marriages in which one partner undergoes gender reassignment, it is open to that person not to apply for the certificate if they wish their marriage to remain legal?

§ Lynne Jones
Of course it is open to them not to apply for their human rights, but cases have gone to the European Court of Human Rights and such people have human rights. I believe that it is their right to apply for their correct gender to be recognised under the Bill and at the same time they should be able to maintain their commitment to the person to whom they are married, and in many cases, to the vows that they made when they married.

Mr. David Bendel (Newbury) (LD)
Is it not the case that, if there is any point in passing this Bill at all, there must also be a point in passing this Bill for people who wish their marriages to remain? All the other things that the Bill will provide are just as important for them as for those who are happy to get divorced if, for example, they later want to go to a job interview.

§ Lynne Jones
Sadly, most marriages fail when one spouse "transitions". We are talking about a very small number of very strong, binding marriages. The hon. Gentleman is right: why should a party to such a marriage forgo human rights granted in the European Court and now granted more widely in the Bill?

§ Mr. Lammy
My hon. Friend has spoken throughout with the passion that we all expect of her. However, the right granted in article 12 of the European convention on human rights is the right to marry someone of the opposite sex. Strasbourg made it clear that it did not recognise same-sex marriage.[Interruption.]

§ Lynne Jones
As the hon. Member for Sutton Coldfield says from a sedentary position, when the marriages took place the parties were of opposite sexes and believed that they were. The point is that the human right to obtain a gender recognition certificate is clearly not the right to marry, but the right to privacy under article 8, whereby a transgendered person should be able to acquire a birth certificate in his or her corrected gender.

§ Dr. Evan Harris (Oxford, West and Abingdon) (LD)
A Statutory Instrument Committee considering the 1510 exciting subject of clinical trials directives prevented me from participating earlier. I am pleased to do so now. I feel that the excellent contribution of the hon. Member for Sutton Coldfield (Mr. Mitchell) exemplified what is best about the House when issues such as this are discussed. When there is a mixture of views within and across parties, thoughtful speeches are made and a coalition develops, in which Members whose perspectives may differ nevertheless seek the same changes in legislation.
This subject was debated at length on Second Reading, on an occasion that both the hon. Member for Daventry (Mr. Boswell) and I remember well. It may be useful to recall some of the Government's arguments then, to see whether we can flush out some more detail.
The hon. Member for Sutton Coldfield, my hon. Friend the Member for Winchester (Mr. Oaten) and I—all of whom have put our names to new clause 7—are not alone. We have the support of the Joint Committee on Human Rights, which has argued that it was perfectly possible for the Government not to insist that couples divorce in order to obtain their rights under the European convention. The Government have employed several arguments. The first is that people have a choice—that they are not being forced to end their marriages and can choose not to. As has been said, that is a terrible choice. It seems unreasonable to force people to choose between a human right recognised in case law and their marriages.
In fact, the Government had a choice. Even while believing that they could not sanction the bringing together in marriage of people of the same gender, they could have taken the view that the marriage was between people of different genders at the time when the contract was made and that subsequent events should not mean that it should end without good reason. Instead of seeking to impose difficult choices on others, the Government should have recognised that they had a political choice to make.
We have yet to hear from the right hon. Member for Bromley and Chislehurst (Mr. Forth), but I cannot imagine what terrible political consequences there might have been for the Government had they conceded that the small number of people who will have married before Royal Assent need not divorce to gain access to their full human rights. Indeed, they would have been supported by Liberal Democrats, some Conservatives and, I know, some Labour Members.

§ Mr. Lammy
The hon. Gentleman in a sense makes the Government's point for us. He is right to say that the Government had a choice, and that choice centred around marriage for opposite-sex couples and civil partnerships for same-sex couples. The situation is difficult indeed for transsexual people in pre-existing marriages, but the Government have nevertheless made their choice.

§ Dr. Harris
I accept that the Government have made their choice, and they have done so on the basis of further arguments that I shall briefly explore.

§ Mr. Boswell
I am grateful to the hon. Gentleman for giving way and for the moderate way in which he is putting his case. Does he agree that, by the logic of his 1511 position, transsexual couples who wished to sever their relationship would not be able to do so by seeking annulment on the grounds of gender reassignment and the acquisition of a certificate? They would have to find other grounds for a divorce.

§ Dr. Harris
I do not believe that that is the intention or consequence of the new clause. It is a relatively narrow clause that provides only for the relevant sections of the legislation not to apply in certain cases. I certainly believe that it is possible to frame legislation to meet my requirements.
Another Government argument, and the only one that the Minister used in Committee, runs as follows, "We need to be clear that if existing marriages were not required to end, 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.] That is not a reason, but a statement of the Government's position. I sought in Committee to identify why the Government were not seeking to change that position, because it was tautological to state that they were not going to change the law because it was the law.
In fairness, today the Minister has twice clarified in interventions his belief that marriage and the state of marriage, rather than entry into marriage, must be restricted to those of different genders. Again, that is a political judgment. The question that we must ask, for the small number of people for whom he is making a provision that will cause upset and distress, is why he is sticking by that narrow, specific interpretation. Those people would not be hurting anyone else. Were what we seek to be allowed, as it is in other parts of the world, the sky would not fall in and disaster would not occur. I do not even believe that there would be one of those moral panics that we have from time to time. The Minister must explain not only the basis for the decision, but the political reasons behind it. There does not seem to be clamour on all sides for the Government to take the view that they have taken.
Finally, I turn to civil partnerships. As I said in Committee, my party welcomes civil partnerships as far as they go, but it does not appear that such partnerships will give rights equal to those that marriage provides. They are not with us yet, as we put this piece of legislation on to the statute book, and they are not the same as marriage for many people. Many people have chosen to get married because of the personal implications that that has for them. For those reasons, as the hon. Member for Sutton Coldfield said, although civil partnerships are welcome as far as they go, they do not let the Government fully off the hook on this issue. I applaud him for tabling new clause 7, and if he is not satisfied with the Minister's reply—which is for him to judge, but I suspect that he will not be—I hope that Liberal Democrat Members will join him in the Lobby in support of it.

§ Mr. Forth
This debate shows all too well the convolutions into which the legislation is taking us. My hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) illustrated that, unwittingly but all too 1512 well, by the way in which he had to try to justify his new clause 7. I can see the logic in the argument of my hon. Friend the Member for Daventry (Mr. Boswell), albeit that new clause 5 would affect an extremely small number of people, but it is new clause 7 on which I shall say a few words.
Two issues have emerged from the debate. One, which always bothers me somewhat, is where we set out to alter the law and challenge long-standing conventions and social arrangements for the sake of very small groups of people in society. It is argued that it is self-evidently beneficial to identify ever-smaller groups of people and change the law to help them. Yet in some instances—this could be one—doing so endangers, challenges or undermines something of long standing that is very important to society. In this case, we are talking about marriage.

§ Mr. Andrew Mitchell
If I might have the temerity to differ with my right hon. Friend, it is the Government who are seeking to challenge convention and to change the law. The very small group of people whom we have been talking about will be forced by this legislation to get divorced, and I am seeking to ensure that that change does not take place.

§ Mr. Forth
As ever, my hon. Friend anticipates my next point, which concerns choice. Life is full of choices and we all have to make them from time to time. Some are very difficult and others less so, but to arrange the law simply so that people can avoid making very difficult choices is not a sound basis on which to work. However difficult it might be for the individuals, whom we are talking about, to change the law in the way proposed by my hon. Friend, so that they will not have to make a very difficult and painful choice, is not a good basis on which to argue for a change in the law, particularly if it would lead—as I fear his new clause would—to what would amount to the sanctification of same-sex marriage. That would be the inevitable result.
This is exactly the issue that we must confront. However well intentioned, my hon. Friend's new clause would challenge marriage as we have understood it and as the Government continue to understand it, I am glad to hear; I hope that Conservative Front Benchers take the same view—and it would say to people that we are now in the business of trying to eliminate difficult choices from life and of easing their path, whatever the result might be.

§ Richard Younger-Ross
On a doctrinal point, is it not true that many faiths and Churches would not in any case recognise a divorce under these circumstances, because we are talking about a sacrament that is taken, and which is there for life?

§ Mr. Forth
That is an argument against the Bill itself, which I shall be voting against on Third Reading, as it happens. The more that we consider the Bill and its ramifications, the mole that it appears to be nonsense. I suspect that that was true in Committee and it has certainly been true this afternoon. One such nonsense the hon. Gentleman has just illustrated all too well. Whether or not one is a person of religion or faith—

§ Richard Younger-Ross
I am sorry, but the right hon. Gentleman is being inconsistent. He says that he will 1513 vote against the new clause and against the Bill on Third Reading, but surely the consistent thing to do would be to vote for the new clause, which supports the doctrinal position.

§ Mr. Forth
No, it would not. Sadly, I anticipate that this dreadful Bill will get on to the statute book, in which case my position is completely consistent. Although I will vote against the Bill, I have the slight feeling that I could be in a minority.[Interruption.] Oh yes, I have a feeling for these things. I have been in this place long enough to know when I am probably going to be outvoted. Today might be one of those occasions, in which case I shall carry the principle through to my hon. Friend's new clause.

§ Mr. Andrew Mitchell
I am in a double embarrassment, for I fear that I might have to agree with the hon. Member for Teignbridge (Richard Younger-Ross). Is he not right in saying that it is perfectly possible to take the view of the Bill that my right hon. Friend takes while supporting my new clause? My right hon. Friend says that I am seeking to change the law, but it is the Government who are requiring the couples whom I described to make this dreadful choice between not receiving the certificate or getting divorced. That is the dilemma that they face.
My right hon. Friend also say—shuddering as he does so—that my new clause could be a back-door way of supporting same-sex marriage, but I am not supporting same-sex marriage. All these people were married as man and woman, and that fact should be considered pertinent. Nothing should change it thereafter.

§ Mr. Forth
Surely my hon. Friend recognises that, if a person is acknowledged to be of a new gender and if the marriage continues, the effect will be to have same-sex marriages. He cannot wriggle around by talking about the position before, during or after it happens: same-sex marriage will inevitably result.

§ Mr. Mitchell
rose—

§ Mr. Bercow
rose—

§ Mr. Forth
I give way to my excitable hon. Friend.

§ Mr. Bercow
The hon. Member for Teignbridge (Richard Younger-Ross) should understand one thing about my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth)—that his consistent view is that the world has been going progressively downhill since at least the 11th century and probably some hundreds of years before that. May I ask my right hon. Friend, in the best possible spirit, what a concession to a small group of people, whom many would judge deserving of it, can possibly do to undermine the great, valued and prized institution of marriage that he supports so much? Why does benefit to one group damage a great institution? Surely it is capable of sustaining itself, even in the event of the passage of new clause 4.

§ Mr. Forth
I am grateful to my hon. Friend, but why he picked on the 11th century, I do not know. If pressed, 1514 I might well go much further back, but we will leave that debate for another day, Madam Deputy Speaker, because I know you disapprove of such digressions. We are here talking about slippery slopes and thin ends of wedges, with which my hon. Friend is as familiar as the rest of us. The sad truth is that every time we try to accommodate this or that group within society, we are in danger of undermining or challenging some of our long-standing and cherished traditions. For me, the new clause proposed by my hon. Friend the Member for Sutton Coldfield is, sad to say, an example of that, so I shall be unable to support it. On this occasion—I will not say these words very often, but they are appropriate now—I will be happy to support the Government.

§ Richard Younger-Ross
We have heard how far back the right hon. Member for Bromley and Chislehurst (Mr. Forth) might like to go back. My first parliamentary foray was in the old parliamentary constituency of Chislehurst, so I well know that there are caves located there.
The Government have challenged much religious thinking in introducing the Bill, but they may have become somewhat doctrinal in their position on new clause 7. When we could smell the smoke earlier, I wondered whether the fires of hell were opening up to consume those who were in favour of the Bill. On reflection, that is not the case, because much of the Bill is very Christian and religious. It recognises the genuine problems and the dilemma faced by transgender people.
The new clause helps people who are in an invidious position. People who have been married in church, taken vows and made a sacrament or people of other faiths who have taken vows and committed themselves for life—"till death do us part"—will be faced with the dilemma of whether to change gender or not. If I changed my gender, I would have to get divorced and break the vow that I had made in church. As we discussed earlier, there are some inter-sex people and some whose gender may have been incorrectly prescribed at birth. Those people may not necessarily be committing a blasphemy, as some have claimed, because the marriage may not be between people of the same gender. The marriage may be between people of opposite genders, but it becomes a problem of legal necessity purely because of the gender on a birth certificate.

§ Mr. Lammy
For the record, I must correct the hon. Gentleman. The inter-sex condition is clinically different from gender dysphoria and it is important that he is aware of that. Also, the Bill requires transsexual people to end their marriages in law, but the marriages could continue for religious purposes, as it were. Some religions do not recognise divorce for civil purposes.

§ Richard Younger-Ross
I made the same point in an intervention on the right hon. Member for Bromley and Chislehurst. However, if religions can accept that marriages can carry on in those circumstances, why cannot the law do the same? Why are we creating an anomaly and putting a very small number of people in a totally invidious position? People who have felt trapped in the wrong body from an early age are under immense pressure. The Bill means that their inner man or woman 1515 can now be recognised, but at the very high cost of divorce. That leaves them between a rock and a hard place.

§ Mr. Lammy
The hon. Gentleman makes a good point and it is true that such people are in a difficult position. However, let us take the example of a woman with gender dysphoria who meets the Bill's criteria, satisfies the panel and subsequently becomes a man. To all intents and purposes, that person then is a man and must accept what goes with that status. Therefore, if that person is in a pre-existing relationship, the civil partnership route may represent the best option. A marriage may be so important that a person may decide not to apply for the full gender recognition certificate. I accept that such judgments are difficult to make, but the Government are not forcing people down any route.

§ Richard Younger-Ross
I do not accept that the Government are not forcing people down any route. People will be told what they can do, but then the door will be slammed in their faces. We must remember that the people involved are under great pressure. They may have felt since the age of five that they were in the wrong body, and gone through life with that feeling. If they are in their 50s, they may have had an operation 20 years ago, and lived as man and man, or woman and woman, for many years. All of a sudden, however, the Bill will mean that their relationship, and the fact that they live with each other, cannot be recognised as marriage any longer.
That is cruel, and un-Christian, and I think it is wrong in doctrinal terms.

§ Mr. Bercow
I endorse the hon. Gentleman's argument, but does he agree that the slippery slope or thin end of the wedge argument is discredited in respect of new clause 4, as a result of the publication of the Civil Partnership Bill that is going through another place at present? The Government have made it clear that their commitment is to civil partnerships for same-sex couples, but not to same-sex marriage. Indeed, they specifically and unequivocally oppose the creation of same-sex marriages, so the canard that the hon. Gentleman raises will not run.

§ Richard Younger-Ross
The hon. Gentleman makes his point well, as he did earlier. However, there is no thin end of the wedge in this case, because the number of people involved is so limited. Moreover, new clause 7 is time-limited and applies only to marriages entered into before the legislation is granted Royal Assent. I hope that hon. Members who oppose the Bill will accept that new clause 7 would be a proper amendment to make to the Bill. People who might have opposing views on the Bill could unite to defeat the Government, who have taken an incorrect doctrinal and legal standpoint.

§ Mr. Lammy
Never did I think that I would be on the same side as the right hon. Member for Bromley and Chislehurst (Mr. Forth), but on this occasion I am. The issue of existing marriages is a difficult one and we discussed it at length on Second Reading and in 1516 Committee. I have made the Government's view clear again today, and little would be gained from repeating all the arguments.
The new clause is similar to the one moved by the hon. Member for Oxford, West and Abingdon (Dr. Harris) in Committee and it would allow for the marriages of those couples who were married before the date of Royal Assent to continue. I accept the argument that was made in Committee that such an amendment would naturally limit the number of couples whose marriages would subsist. However, we cannot escape the fact that those marriages would be same-sex marriages, and they are not permitted under UK law. It is as simple as that.
The decision has been difficult to make. As Lord Filkin said in the other place, it is hard to look someone in the eye and say no. The hon. Member for Buckingham (Mr. Bercow) made the point squarely, however, when he said that this is a matter of principle for the Government. I look forward to the debates, in which I shall take part, on the Civil Partnership Bill, but marriage as an institution is for opposite-sex couples.
We do not deny that the Bill will have an impact on the couples in question. However, in deciding whether to seek legal recognition of their acquired gender, people will have to take all the implications of the change into account, including the effect on an existing marriage. That may be difficult, but we are talking about adults—the Bill will only affect those over the age of 18—and they will have to think the issues through. As I said in Committee, the Bill will have an emotional impact on those couples who have to end their marriages, but that will not be unexpected. Couples will have had a long time to prepare for it. Indeed, many couples in that situation have already made their decisions.
We have also considered the practical impact of the Bill on finances, arrangements for children and mutual rights and responsibilities. As I said earlier, the courts will be able to decide on some of the issues that arise, especially in cases of contention between the two parties.
The Government seek to safeguard the nature of marriage as an institution for opposite-sex couples. We do not believe that it is acceptable to create even a small category of same-sex marriages. At the same time, we are working hard to ensure a smooth transition into civil partnership for couples who want to stay together. Indeed, schedule 3 of the Civil Partnership Bill is devoted to providing couples who have to end their marriage with the means to form a civil partnership on the same day as the dissolution of their marriage.
5.30 pm
New clause 4 raises an issue that we also discussed in Committee. I said then that the Government had not provided for the situation of two transsexual people who are married to one another, as the circumstances were extremely remote. I have to tell the hon. Member for Daventry (Mr. Boswell) that that remains our position.
For the new clause to have effect, there would have to be a situation in which two transsexual people were married to one another, and both were able to satisfy the criteria for recognition in the acquired gender at the same time. We must also bear in mind the fact that the 1517 total number of transsexual people in the UK is only about 5,000, and that only between 100 and 200 of them are in existing marriages.
There are only two ways in which the situation to be addressed by the proposal could arise. The first is that two people who married each other in their birth gender, without any feelings of gender dysphoria, were subsequently both diagnosed with gender dysphoria and began to live in the other gender. Given the low incidence of that, it is incredible to suppose that two people who were married to each other would both be diagnosed with gender dysphoria.
The second possibility, however, is that two people who were both already living in an acquired gender would marry one another. They would thus be an opposite-sex couple, but would need to marry in the gender in which they were no longer living. The person living as a man would have to present as a woman, as that would remain his gender in law, and the person living as a woman would present as a man. We do not expect that transsexual people will do that. Hence, again, we find that the possibility raised by the new clause is incredibly remote.
Nevertheless, if that possibility were to arise, and both spouses wanted to change gender at about the same time, we think that that would be such a major change in the nature of their marriage—with the identities of the man and wife in the couple swapping over—that it is not unreasonable to require the marriage to end, and for a new marriage to be contracted afterwards.

§ Mr. Boswell
I am following the Minister's argument with interest and will comment on it in a moment, but can he tell the House whether the seamless procedure envisaged for what would become, under the Bill, a same-sex couple to move front marriage to civil partnership would be available in the annulment of a marriage between persons of different genders who had both received gender recognition certificates, so that they could remarry almost immediately in their acquired gender?

§ Mr. Lammy
We would expect registrars to look sympathetically on applications for a reduced notice period. It would thus be possible for the couple to remarry on the very next day. There could be a gap of 24 hours during which the relationship had no legal status, but given that the existence of such marriages is an incredibly remote possibility, the Government do not believe that such a 24-hour period would be too problematic.
Based on a fundamental principle, the Government stand by the requirement that marriage is for opposite-sex couples. I realise that the hon. Gentleman's proposal is well intentioned towards transgendered people who are together, but the Government's position is that such a possibility is remote, and in those circumstances, we believe that ending such a marriage and beginning afresh would not be unreasonable. On that basis, I am unable to accept the new clause.

§ Mr. Boswell
I am somewhat disappointed in the Minister's response. His essential argument was that this is a such a small and unlikely set of circumstances that we should not even contemplate legislating, 1518 although he sought to dress that up later by saying that it amounted to a radical change in the marriage. I understand that there is at least some significance in that view, but the point is that there is no change of gender.

§ Lynne Jones
I disagree with the hon. Gentleman, because the most likely scenario when two trans-people are in a legal marriage is that they will have known each other in their transgender identity, so they will have known when they contracted the marriage that, for legal purposes, the trans-woman was married as a man and that, for the same reasons, the trans-man was married as a woman.

§ Mr. Boswell
I am sensitive to that point. That is quite possible. Indeed, in seeking to minimise the intellectual problem that the Minister had, he sought to minimise the numbers involved. They are more than zero already and, clearly, they will be in the future. At least we heard some assurances about the ability to put such things right within 24 hours—not an ideal arrangement, but it has at least arisen during the passage of the Bill through the House.

§ Mr. Andrew Mitchell
Following what my hon. Friend has said, I have listened very carefully to what the Minister said about new clause 7. There is a difference of principle between him and those hon. Members from all three main parties who have spoken to new clause 7. There is a great difference between getting married and the rules on same-sex marriages, on which he and I agree, and what happens during a happy marriage. On those grounds, if I am able to, I shall seek to divide the House on new clause 7.

§ Mr. Boswell
Before I sit down to allow the House to reach a conclusion on the matter, I wish to say that I do not propose press new clause 4 to a Division, in the light of what my hon. Friend has said, although he will equally understand that, because of the reservations that have been expressed not just by Labour Members but by my right hon. and hon. Friends, I may not be able to follow him into the Lobby. In the light of those exchanges, for the avoidance of doubt and to facilitate my hon. Friend if he wishes to persist in pressing new clause 7 to a Division, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.