Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Monday 24th June 2013 Lords Chamber

[Baroness Gould of Potternewton]

My Lords, I put my name to these amendments, having initiated this debate at Second Reading, because I believe that the Bill is morally wrong. I appreciate that these are complex issues—the issue that we are discussing is particularly complex, as the noble Baroness, Lady Barker, illustrated—which are difficult to resolve, but the difference they can make to a transperson’s life cannot be underestimated. I illustrate this by referring to an e-mail I received after my speech at Second Reading. It was from a transperson who said that she cried tears of joy. I am sure that she was not crying tears of joy at my speech but at the fact that somebody had addressed an issue about which she felt so strongly and which was affecting her life. That is terribly important.

As the noble Baroness, Lady Barker, also said, the Bill identifies two anomalies which govern transpeople’s lives. The legislation provides for the removal of the requirement for married transpeople who wish to apply for gender recognition to be single at the point of gender recognition. Further, a concession has been made as regards spouses’ survivor pensions, which removes a further major concern for many transpeople.

The passing of this amendment would get rid of a third anomaly for transpeople in existing marriages. As it stands, the Bill removes the obligation on a transperson being in an existing marriage, although it does require a civil partnership to be converted to a marriage before application, as otherwise an opposite-sex civil partnership would be created. However, the Bill has now introduced the concept that the non-transitioning spouse must give formal consent. It adds the requirement that spouses now have to consent to the change of their partner. No other area in law—this is a change to the structure of law—requires spousal consent to any change within a marriage. There is no need for spousal consent to end a marriage, move abroad, financially destabilise the family, apply for distant jobs, or for medical treatment. Formal spousal consent that can veto a partner’s gender recognition is a new concept in law.

The assumption in marriage law is that spousal consent is assumed. If the spouse does not consent to the partner’s actions, the spouse has the opportunity to initiate divorce proceedings. What we have now certainly goes against the view of most spouses. It may have been objected to by some but until 2003-04 it was routine for gender identity clinics to require spousal consent for the treatment of married transpeople, until it was pointed out that this was potentially a breach of the transperson’s human rights. We have the same problem again here.

The amendment has been carefully crafted. Its value is that the determination of someone’s gender will be a matter for the individual concerned and the state. No other individual is involved. A spouse may choose to expedite the applicant’s full gender recognition by including a statutory declaration of consent. However, a spouse cannot prevent an applicant’s full gender recognition by more than a year by withholding that consent. That is important. They still have rights but they are limited. In respect of interim gender recognition certificates, the Gender Recognition Act currently allows the gender recognition panel to issue interim gender recognition certificates to those transpeople who were married or in civil partnerships at the point of application.

The amendment allows an applicant in an existing marriage or civil partnership to apply for an interim gender recognition certificate, which would allow annulment or divorce proceedings to commence if required. Further, it would allow an individual who has been granted an interim gender recognition certificate to change their gender under the Act, after a predetermined period has elapsed. The Bill makes no distinction between marriages where both spouses wish it to continue and marriages where divorce proceedings have commenced. Therefore, we seem to have created the ludicrous situation that in the absence of a decree absolute, the divorcing spouse will still be required to give consent to the transperson’s gender recognition, no matter how long it has taken to get to that point in the divorce. Marriages can break down when a transperson reveals themselves to be trans. There are many points at which either spouse may decide that the marriage can no longer continue, such as the point of revelation, when treatment commences, when the transperson goes public, the point of name change or when transformation surgery occurs. All these can result in acrimonious proceedings that can drift on for many years. Known cases have gone from 17 months to six years. The amendment would avoid that situation.

The requirement for spousal consent creates one further flashpoint for couples in what is already a difficult situation. The amendment overcomes that problem as spouses can no longer obstruct but only delay by a known timescale someone’s gender recognition. That is the crux of the amendment. All the objections raised in the Commons seem to have been satisfied. It is fair to both partners and does not disadvantage the spouse. Again, it is utterly wrong in principle to hand someone’s right of identity to someone else who may be hostile to that person. It is irrelevant whether it is a widespread problem or not. That argument should not be used when talking about justice and fairness for any individual. I trust that it will not be used as an explanation for opposing the amendment. I approached this amendment with some hope, and I have enormous respect for the way in which the Minister has responded to opposition to the Bill. She has listened and responded to many of the points raised. But, on this occasion, I feel that that listening has stopped. Many people, not only transpeople, will feel betrayed and discriminated against, and there will certainly be no tears of joy if this amendment is not accepted. It is discrimination in a Bill that is designed to do just the reverse.

When the Gender Recognition Act was passed in 2004, there was no mention of spousal consent. I would be grateful if the Minister could tell the House why this has suddenly emerged. Can she give evidence of spouses having requested a veto? I understand that some spouses have said that they want to be informed, but being informed is substantially different from consent. It would also be helpful to know the view of the gender recognition panel, because now there will be additional documentation for the panel to process, and that will certainly have financial implications.

The transperson potentially gains significantly by gender recognition and therefore may lose significantly by not being able to achieve it. The spouse loses nothing by their partner gaining gender recognition and gains nothing by withholding consent. Does the Minister not see that this is really to do with equity of rights? Leaving the Bill as it stands and without this amendment will mean that the Government are saying to the trans community, “Somehow or other, you seem to be second-class citizens”. It will establish a precedent which may be used elsewhere. I appeal to the Minister to rethink her opposition to this amendment because I am sure that the issue will not go away. It is a matter of principle, and if her opposition has anything to do with the wording of the amendment, we would be very happy to bring it back on Report with new wording.

[Baroness Butler-Sloss]

I, too, support these amendments. When I was a family judge, I tried a number of what for me were the saddest of all cases: where one spouse had entered into a transgender situation, particularly before the Gender Recognition Act brought justice to those people. However, that left the other spouse confused and distressed. I remember a particular case in which the wife sat at the back of the court in floods of tears when what was being discussed was how the father could become an auntie because he was in the process of changing his gender.

These are incredibly sad cases for both parties, but particularly for those who are left behind under the Gender Recognition Act. I agree totally with the noble Baroness, Lady Gould, that those who change their gender require fairness, proper human rights and recognition, but this House also needs to remember those who are left behind. However, in doing that, there is no point in retaining a marriage that cannot exist unless it exists in a new dimension.

The two points made to me by the noble Baroness, Lady Barker, shortly before the House sat today are extremely important. The first is that there should be a notification of the fact that the gender recognition spouse is making this application. I understand that the spouse who is left behind does not necessarily know that the application is being made. That is an injustice to that person, and it is one of the important elements in this group of amendments. The second point is this: if people cannot bring themselves to be married as a same-sex couple, as they will be able to in the future when this Bill becomes law, because the left-behind spouse cannot tolerate that, they really should not allow the marriage to continue indefinitely. It does not help either party that it should run on. The suggestion in this group of amendments—that there should be a cut-off point at six months, as there is in every other part of this—seems only just. People can then get on with bringing the marriage, which would by definition have failed, to an end. For these reasons, again, I support these amendments.

--- Later in debate ---

[Baroness Stowell of Beeston]

Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.

This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.

[Baroness Butler-Sloss]

I would like to ask the Minister about notification. Clearly, nothing can happen until the interim certificate is provided. I understand that at the moment it is possible for the spouse not to know anything about the gender reassignment application. The sooner the other spouse knows about it the better, because mediation may be required. One does not want the parties to be in dispute, if possible. The shock to the person who finds that, for instance, her husband is no longer going to be her husband is enormous. The quicker she knows about it the better, in order to help finish the marriage decently and quietly. I understood the Minister to say that this could not be done because other proceedings had to come first. I am asking only for notification at the earliest possible stage that an application is being made. There can be nothing wrong with that, because it will do nothing other than make it certain that both spouses know what is going on.

--- Later in debate ---

[Lord Lloyd of Berwick]

In the absence of the noble Baroness, Lady O’Cathain, I will speak very briefly in support of this humane amendment.

I imagine that we all can think of couples who fall into one or other of these two paragraphs. As regards family members, I remember a much loved bishop, a Bishop of Lewes. It was many years ago. I believed him to be a happily married man. It was only after he died that I discovered that the woman who I had believed to be his wife was his sister. I can conceive of no reason, as the noble Baroness, Lady Deech, has said, why those two should not have enjoyed the benefits of a civil partnership. The same applies to the unpaid carer. In our village there is a man who suffered a severe riding accident many years ago, as a result of which he is paralysed. He has been looked after with the utmost loyalty by the young man who previously looked after his horse. Once again, I can think of no reason why those two should not enjoy the benefits of being parties to a civil partnership.

It is clear to me that the amendment passed by this House nine years ago should have been accepted by the Government and by the Commons. We cannot do much about it in this Bill but we can at least open the door. I hope that we shall.

[Baroness Butler-Sloss]

My Lords, perhaps I may make two extremely short points. First, as the previous two speakers have said, the door is now open. It is very interesting that on previous Bills the suggestion was made that this was not the right place. However, of all places, a review of civil partnership actually opens the door for what this House very properly voted in favour of before I joined it. Secondly, the effect on the Government of the day—I appreciate that there have been two Governments of opposite views, who have gone the same way on this—would be to defer the inheritance tax and not necessarily to lose it. It would not necessarily cost the Government very much money in the end. I hope that this will be looked at with more sympathy than it has been in the past.

[Lord Cormack]

My Lords, I strongly support the amendment moved by the noble Baroness, Lady Deech. Indeed, it was the rejection of the sisters amendment that led me to vote against the Third Reading of the Civil Partnership Bill in another place. I thought it was discriminating and unfair to concentrate entirely on sexual relationships and not to recognise the sort of close relationship and affinity to which the noble Baroness has referred.

Nine years ago, we were told that it was inappropriate to put it in that Bill—and somebody interjects, sotto voce, that it was. Well, nine years have gone by and the commonly recognised discrimination, which has been recognised by the noble Lord, Lord Alli, and others, has not been put right. We have an opportunity in this Bill to put it right. Although I hope that we do not come to a Division in Committee on this, if we do not have a satisfactory answer from my noble and learned friend Lord Wallace, I hope that the noble Baroness, Lady Deech, and my noble friend Lady O’Cathain will consider retabling this or a similar amendment on Report—one on which we can vote.