Gender Recognition Bill: Lords Grand Committee (second day)

14 Jan 2004 : Column GC63

[The Deputy Chairman of Committees (Lord Carter) in the Chair.]

The Deputy Chairman of Committees (Lord Carter): Before we start this afternoon’s proceedings I shall say a word about the microphones. Hansard’s record of the Grand Committee’s proceedings is produced from a tape recording. It is very important that when speaking Members should speak as near as possible to a microphone. It may be necessary for some Members of the Committee, particularly those sitting at the second row of tables, to move from their seats to the nearest microphone before beginning to speak. It would also help the engineers who are making the recording if, as far as possible, Members could avoid either touching or moving the microphones.

If there is a Division on the Motion before the House we shall immediately have to adjourn for 10 minutes.

Clause 8 [Appeals etc.]:

[Amendments Nos. 47 and 48 not moved.]

Clause 8 agreed to.

Clause 9 [General]:

[Amendment No. 49 not moved.]

Baroness O’Cathain moved Amendment No. 50:

Page 5, line 13, after “purposes” insert “as if it were”

The noble Baroness said: Amendment No. 50 is grouped with Amendments Nos. 51 and 52. In essence, I am taking issue with the pretence that a man can become a woman for “all purposes”. Yesterday we touched on the fact that Clause 9 states that a person who has a gender recognition certificate,

“becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)”.

The Minister reminded the Committee of the judgment in the Goodwin case which says that we must legislate to give transsexuals the right to change their birth certificates and to marry.

Even if that is the case—some of us say that Parliament is still sovereign and we do not have to legislate just because an overseas court says so—it does not mean that this Bill has to go to the extremes chosen by the Government; for example, to attempt to say in law that a man is for all purposes a woman is patently

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absurd. Yesterday my noble friend Lord Tebbit undertook the admirable job of exposing the madness at the heart of the Bill, such as the extraordinary mental acrobatics that people are required to go through to pretend that a man is a woman and a woman is a man, despite all the evidence to the contrary.

These amendments would at least have the virtue of allowing some leeway for people’s consciences. Rather than being told by law that a man’s sex becomes that of a woman, under these amendments the law would say that the man’s sex becomes as if it were that of a woman. That recognises that there is a mental jump required from the factual reality to the legal reality. There must be room for many people who simply cannot, in all conscience, go along with that.

At the moment there is an example in the news of a BBC programme in which a transsexual man was referred to as a man. Press for Change, the transsexual rights group is campaigning for the BBC always to refer to transsexuals in their chosen gender. That is indicative of the Orwellian nightmare that the Bill encourages. Will people who refuse to call a transsexual man a woman routinely face that kind of hostility? Given what we established yesterday, which is that the Government believe that many people change their minds and revert to their real gender, or oscillate between the two, how are people to know which gender a person wants to be known as at any particular time? I say again that it is absurd to say that a man can become for all purposes a woman or vice versa.

Let us take the example of a woman who obtains a gender recognition certificate, but who does not undergo the surgery. She may be married and, under the Government’s proposals, may convert her marriage to a civil partnership. After she receives a certificate declaring that she is for all purposes a man, she and her husband may decide to have a baby; she becomes pregnant; she is booked into a hospital as Mr Smith—the first man to have a baby—and the hospital in all its dealings with her must treat her as a man. Are there not privacy issues for other women in a maternity ward having to share with a man? What about her employers? Presumably, they are not obliged to give her maternity leave as she is, for all purposes, a man. Men do not get maternity leave.

This is really lurid tabloid headline stuff, I agree, but the Government are leaving themselves wide open to that because they are so much in thrall to transsexual rights advocacy groups. The Government are taking into account their views, and theirs alone, in proposing the Bill. I hope that we shall begin to see some willingness on the part of the Government to think again. I beg to move.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): On our second day, I regret that I need to qualify or clarify one or two of the remarks made by the noble Baroness, Lady O’Cathain, who has made a very powerful contribution. I certainly did not say that the Government’s position was that many people change

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their minds or oscillate between the two; I was explicit in quoting the percentage as about 1 per cent. I do not see that as captured by the way in which the noble Baroness referred to my remarks.

I am sorry that I have to speak like this, but I would have hoped that it was reasonably apparent by now that, while it is right and proper for the Government to consult and involve groups with direct interests, we have gone out of our way in this Bill to consider its effects on wider society. The process of publishing a draft Bill was part of that effort, and this is a classic example of a Bill that has benefited from the draft Bill process. I would not use the term “bending over backwards”, but we have been seriously keen to engage with a variety of interests who have concerns. Where we may differ is in the fact that, as we have made clear, we see a duty to respond and legislate in law and a duty in terms of a civilised society to protect the rights of minorities. I regret that the noble Baroness and I, who have been on the same side on previous Bills, are not on the same side on this one—but that is how it is.

On the specifics of what she said, I shall explain why it is neither appropriate nor necessary to agree with her amendments. I could spend a lot of time, but it would not help her or others in the Committee if I repeated the good discussions that we had yesterday—and I thought that yesterday we had a first-class Committee day. Noble Lords know why we believe that it is necessary to legislate, why we are doing so, and the manner in which we are doing so.

Essentially, the Bill recognises a change of gender and gives it legal effect in certain circumstances and after a proper process. A person in law cannot be more than one gender: they are either male or female, and that is a fact of law. Therefore, although I know what the noble Baroness is getting at, the use of the words, “as if it were”, is a way of signalling her distaste for the Bill—and, perhaps, that of others. It adds nothing in the law, except perhaps to convey some gratuitous offence to other people. Therefore, I very much hope that she will not think it necessary to press for those words here and now, having well registered the areas in which she is out of harmony or sympathy with the Bill. They add nothing in law, but they do cause offence.

Baroness O’Cathain: Well, I thank the Minister. I did not say yesterday how grateful I was that he saw me last Monday and wrote to me. In view of the fact that I believe that we have a very good relationship, I am sorry that he would even consider that I would want to cause gratuitous offence to anyone. It is not in my nature, and I have never done it. It may be that I have offended people, but totally unwillingly—certainly not gratuitously.

The purpose of the amendments and all my contributions to this Bill, including those at Second Reading, is not to cause offence to anybody. I have absolutely no problem at all with transsexuals—that is their choice. What I do have a problem with is getting my mind round the idea that, when God created man

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and woman he created that man and woman, and that a man cannot be a woman and a woman cannot be a man. That is the whole essence of the Bill, of course. However, having said that, we go further. Without wishing to go over old ground, as I said yesterday, my reason for getting involved in this Bill is that I am concerned that the House of Lords should continue to carry out its rightful responsibilities in ensuring that any legislation proposed—whether Private Member’s Bill, public Bill or government Bill—is gone over properly by those who feel deeply about issues based on experience and expertise. I have no expertise regarding transsexuals but I do have experience—as do we all—in social relations and experience of being an employer and employee. I am also a committed member of the Church. From that basis it is absolutely right that we should speak about these subjects.

Based on that experience, I have a horrible feeling that, if this Bill as it stands becomes law, the law of unintended consequences will come in in spades. The problem is that we do not know. Yesterday, we heard that the medical evidence was unproven—or, if not unproven, then unsubstantiated or not thoroughly accepted, although I cannot for the life of me remember the phrase. The fact that we have that view means that we are leaving ourselves wide open to create laws that have problems in their very nature and right from the very start. That is what I seek to point out. I do not seek to create gratuitous offence. I feel very deeply about this issue.

I will read what the Minister said. I know that I cannot press the amendment because we are in Grand Committee, but I want to place my feelings on record and I cannot promise that I will not return to the matter on Report. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 51, 52 and 53 not moved.]

Clause 9 agreed to.

Clause 10 [Registration]:

[Amendments Nos. 54 and 55 not moved.]

Clause 10 agreed to.

Schedule 3 [Registration]:

Baroness O’Cathain moved Amendment No. 55A:

Page 17, line 18, leave out “not”

The noble Baroness said: I was asked at the last minute to speak to the amendments of the noble Lord, Lord Tebbit. On many issues—not all, but certainly in some of the descriptive prose that he used yesterday—I have disassociated myself right from the start. However, these amendments require birth certificates to disclose sex change. The amendments focus our attention again on the question of third parties, to which I briefly referred just now.

The Minister says quite openly that this Bill is primarily about the rights of transsexuals. That came out loud and clear yesterday. Yesterday, it was indicated that even the children and spouses of such people are to be regarded as having no rights under this gender recognition legislation. I hope that the Minister

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will reconsider what he said about that and will think much more deeply about the other people who are affected by this.

The amendments would make sure that other people would be entitled to know about a person’s sex change. They reverse the approach taken by the Bill. Rather than compelling the General Register Office to keep a person’s sex change secret, they require that all birth certificates should be marked to indicate a sex change has taken place and to allow the gender recognition register to be open to public inspection. I share the view of the noble Lord, Lord Tebbit. There is a public interest in people being allowed to discover if a gender recognition certification has taken place. There are circumstances in which it is important to know for a whole variety of personal reasons and reasons of moral or religious conviction. I will have more to say about that later.

I know that the Minister is not going to accept these amendments. My noble friend Lord Tebbit yesterday referred to his mind-reading skills and I think his premonition that the Minister would not accept his amendments applies to all of them. But I should like the Minister to answer this question: does the Goodwin judgment specifically require the United Kingdom to make it impossible for third parties to discover whether a person has changed his gender in law? I beg to move.

3.45 p.m.

Lord Filkin: I shall speak generally and then return to the specific question at the end of my speech. At the heart of the Bill is the Government’s clear view that, irrespective of what the courts say, it is right to allow people, who—there is clear evidence—profoundly believe that they are of another gender to that of their birth gender, to live their lives in peace and quiet. Therefore, we spoke yesterday about the process by which that is validated.

The second part of the situation is also relevant. That is, trying to ensure that the person who has made a gender change, and has had that recognised by the state, is then able to live in privacy and quiet without harassment. That seems to me and to the Government to be an important objective of the Bill. If one wants a clear example of why that is so, I refer to the article in the Guardian on Monday. It reported on the tragic case of a young woman who committed suicide after experiencing about 15 years of harassment by others in her community because she had changed her gender. It is an unfortunate fact that some people behave in that way and cause misery to people who through no fault of their own are living their lives as they believe it to be true and right.

That is a good enough reason why we think that the provision is necessary. It is absolutely crucial that we allow people the freedom to live their lives in private when it is right to do so. There is no general advantage for such issues to be publicised which allows those who might cause mischief and misery the freedom to do so.

However, there must be exceptions to that position. We talked about one at Second Reading; we talked about another yesterday. The first limit is that clearly

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the detection and the prevention of crime make it essential that the criminal investigation agencies are able to find out whether there has been a change of name. I hope I spoke clearly enough on that issue at Second Reading; such that the original birth record will be accessible to the police and the Criminal Records Bureau, so that there is no possibility of people being able to avoid crime or being brought to justice as a second consequence.

The second exception we talked about was how we believed that it was perfectly possible for children and grandchildren, knowing the name and birth date of the parent or grandparent who had undergone a sex change, to be able to obtain a copy of the birth certificate. Therefore, we could not see a need to put anything on the face of the Bill, as that seemed perfectly possible. We agreed with the spokesman for the Opposition when he signalled why he believed that there were circumstances when a child or grandchild might want to do so.

To put the provision in such a way would make the information accessible at large to anyone who wished to cause mischief and misery. We believe that that is wrong.

Baroness O’Cathain: I thank the Minister. My noble friend Lord Tebbit was quite right about mind-reading skills. I know that he will probably be disappointed by the noble Lord’s reply. I can see the point of the two exceptions; first, the Criminal Records Bureau and the police; and, secondly, the one regarding children and grandchildren. We spoke about that yesterday. Will either of those exceptions be on the face of the Bill?

Lord Filkin: No, because there is no need. One does not put again into legislation what is already in legislation.

Baroness O’Cathain: I shall check on that. It is not that for one moment do I think that the Minister is trying to pull the wool over my eyes, but it is something on which I need to be clear. I am sure that my noble friend Lord Tebbit will also wish to be clear on that. He apologises for being unable to be here today. I should have mentioned that at the beginning. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 56:

Page 17, line 19, at end insert “for 75 years after the initial date of an entry”

The noble Baroness said: In moving Amendment No. 56, I wish to speak also to Amendments Nos. 58, 66, 68, 70 and 72, all of which cover the same point. Amendments Nos. 56, 58, 66, 68, 70 and 72 concern information held in the gender recognition register in England, Wales, Scotland and Northern Ireland. As the Bill stands, there is no time limit on when details held in the register can be made public. As such, presumably the register would remain secret indefinitely. Even historians searching birth registers in hundreds of years’ time or families attempting to trace their ancestors would encounter problems as the

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details pertaining to an entry in the gender recognition register would be inaccessible to them. That is not the case for other records such as Cabinet records, war records and census returns which all become available after a designated length of time. We have suggested a period of 75 years after the initial date of entry. Surely the same logic applies to the gender recognition register. I beg to move.

Lord Carlile of Berriew: If this amendment is accepted in principle, a period of 75 years is not enough. I do not know how many 100 year-olds there are in this country now but I am fairly confident that the noble Baroness, Lady Hollis, will be able to tell me the current number. It will run into four figures. In 75 years’ time that may include people who receive their certificate and are still alive. There are two self-evident ways of dealing with that. One is to have a longer period of years and the other is to exclude people who are still living.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): The noble Lord, Lord Carlile, made a helpful contribution that anticipated what I was going to say.

A consultation period on civil registration records as such finished at the end of October 2003, a major part of which sought views on the ways in which records of births, deaths and marriages should be held and accessed.

Under the current system records are held in separate registers which hold “snapshots” of life events, but nothing more. The gender recognition register is being set up within this framework. It is proposed to move to a system where records are updated to provide a thorough life record for each individual.

Currently, no civil registration registers are open for public inspection or search once they are filed and access to information in the records is available only by identifying the record you want and buying a certificate. It is proposed that records will be computerised and open access will be provided to historic records—wearing my historian’s hat I am obviously rather pleased about that—while more modern records will be available, but that access to certain fields, such as addresses, will be restricted to the individual to whom the record relates or to their family, for example.

Many of the responses to the consultation have been about the proposed provisions for access to records and when and to whom they should be made available.

We need to provide a consistent framework for records so that those relating to minority groups—they may concern ethnicity or other such matters—do not stand out from others and raise questions about why some records are treated differently. We need to make sure, therefore, that the provisions for access contained in this Bill are considered alongside those for other registration issues. I invite the noble Baroness to consider that.

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These issues require further consideration. It may be that rather than seeking to amend this Bill, and in order to ensure that records in the gender recognition register are treated in the same way as records relating to other minority groups, changes should be made at the same time as the wider review and in the same manner as changes to those records. That would be done by an order under the Regulatory Reform Act which will be considered by parliamentary committees later this year. I hope that the noble Baroness will accept that.

As the noble Lord, Lord Carlile, said, regarding the other matter that was mentioned, more difficult issues arise in relation to the link between a person’s original birth record and the record made in the gender recognition register. I accept that the 75-year rule would mean that disclosure would normally occur at about the age of 93 onwards. I accept that there may not be so many people from the transsexual community who would fall into that group. None the less all the research carried out in recent months on increasing longevity suggests that more may fall into that group. More to the point, someone in their 60s in good health will not know whether they will live beyond the age of 93 or 94. The proposition of the noble Lord, Lord Carlile, may be a useful way forward. We shall reflect on that. However, in the light of my comments, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Buscombe: I thank the Minister very much for her full and helpful reply. I am also grateful for the contribution of the noble Lord, Lord Carlile. I very much take on board his optimistic approach. Of course, it is true that people are living longer and, in a sense, I believe that his suggestion is very helpful. However, given what the Minister said concerning this whole issue, I agree that consistency is vital. I hear what she says and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 to 59A not moved.]

4 p.m.

Baroness O’Cathain moved Amendment No. 60:

Page 18, line 28, at end insert “unless the certified copy is for the purposes of—

(a) section 5B (marriages involving person of acquired gender) of The Marriage Act 1949 (c. 76);
(b) determining an application for membership of a religious organisation or association; or
(c) section 19 (ministers of religion etc) of the Sex Discrimination Act 1975 (c. 65),
in which case the certified copy must disclose that fact.”

The noble Baroness said: Amendment No. 60 is grouped with Amendments Nos. 97 and 101 and Amendment No. 100 in the name of the right reverend Prelate. They all deal with the right to know and to disclose a person’s true sex for the purposes of marriage or of membership or employment within a religious group. They relate to Schedule 3 and Clause 21.

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The Bill takes away the ability of a Church to know whether a person who presents himself for marriage, membership or even employment in the Church is of the sex that he claims to be. The same is obviously true for mosques, synagogues and temples. My Amendment No. 60 seeks to amend paragraph 5 of Schedule 3 in order to deal with that. I should say that, for now, my amendments deal only with England and Wales. If I return to this matter on Report, I shall remedy that omission.

In the Bill, the privacy of a transsexual is paramount. The amendment of my noble friend Lord Tebbit in the previous group addressed the fact that the general position of the Bill is that the privacy of the person obtaining a gender recognition certificate is paramount. Hence, paragraph 3 of Schedule 3 prevents the gender recognition register being open to public inspection. In particular, as we discussed in the previous grouping, paragraphs 5 and 6 prevent birth certificates drawn up from the gender recognition register having any feature which would make them look different from real birth certificates. They cannot be marked or annotated in any way. The new birth certificates cannot allow such a marking because, of course, that would reveal that they do not reflect the true birth sex.

Transsexuals who obtain a gender recognition certificate are assumed to want to keep their birth sex secret, and these provisions help them to do just that. Perhaps it is true that, for most purposes, that will not matter. But for some people and some purposes it is crucial that the real sex is known. Marriage is the first heading. For example, the Government already acknowledge that there is a specific issue of conscience for Anglican clergy in relation to marriage. Church teaching requires them only to marry opposite-sex couples. Therefore, paragraph 3 of Schedule 4 creates a conscience clause for clergy of the Church of England and the Church in Wales by inserting a new Section 5B in the Marriage Act 1949. Anglican clergy are under a legal obligation to marry people in their parish who meet the statutory criteria for marriage. Section 5B relieves them of that obligation where a candidate for marriage has a gender recognition certificate.

It is contrary to the doctrines of the Church to marry people who are biologically of the same sex. For 2,000 years, the Church has understood marriage to be the union of a man and a woman. It is therefore profoundly wrong to require a Church minister, whose job it is to uphold that teaching, to officiate at a same-sex marriage; hence, the conscience clause.

However, the clause has serious limitations. Leaving aside for now the fact that it caters only for Anglican clergy—I shall come to that later in my Amendment No. 80—it has another, rather fatal weakness: it assumes that a clergyman knows that he is being asked to marry a transsexual. The reality is that, unless he knows the couple’s history or unless the couple declare it, the minister has no way of knowing whether a woman who comes to be married, in fact, used to be a man, and vice versa. It is therefore possible that he

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could unwittingly marry two people of the same biological sex. This leads to all kinds of possible scenarios that put the minister in a difficult position.

For example, a minister is approached by a couple who have recently moved into the area. They ask him to perform the wedding ceremony; he carries out his usual formalities, including checking birth certificates, before performing the ceremony. Several years later he meets them again. He inquires if they have had any children. They explain quietly that this is physically impossible because one of them used to be a man. The minister is appalled to discover that he has been duped in this way and that he has taken part in what he believes to be a sacrilegious wedding ceremony.

In a second example, a minister is asked to marry a middle-aged couple. He is suspicious about the true sex of the female, because of her masculine appearance. He asks to see the birth certificate, which confirms that she is female. He makes the arrangements, but he is still unsure and plucks up the courage to ask the woman if she is really a man. The woman is furious, as is her fiancé, and they storm out of the church vowing never to come back. A month later the minister receives a writ in the post, suing for damages for the emotional trauma of the cancellation of the ceremony, and making particular reference to the outrageous claims that she was a man.

In a third example, a minister of a rural parish is asked by a couple to perform their wedding ceremony. They greatly admire the location of the church—which is a wonderful site of scenic beauty—and they have long planned to marry there. He asks for birth certificates and explains that as a matter of course, because of the Gender Recognition Act, he always asks couples to declare whether either of them has changed sex. They both laugh and confirm that the birth certificates reflect their true sex. The minister carries out the wedding. At the end of the ceremony, the bride whispers in his ear that she used to be a man, but she did not want to tell him in case it prevented them from getting married in their favourite church.

It is all very well worrying about the rights of transsexuals, but what will the Bill do to protect the rights of ministers like these? My amendment seeks to address this problem head on by creating a specific exception to the rule that birth certificates should not disclose where there has been a gender recognition certificate. Where a minister specifically seeks to obtain a copy of a birth certificate—I say “specifically” for the purpose of exercising his freedom of conscience under Section 5B of the Marriage Act 1949, my amendment would require that the certificate of a person who changed sex must be marked. It must indicate that it does not reflect the person’s birth sex, it does not require the registrar to disclose their birth name or anything else about them. They must ensure that the certificate contains some indicator of the fact that it relates to an entry in the gender recognition registry. The person entitled to the certificate knows that this person is therefore not biologically of the sex indicated on the certificate. The second point of this amendment is church membership and employment.

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My amendment would create the same right to know for two further purposes: first, determining an application for membership of a religious organisation; and, secondly, employment in a religious organisation. In both cases the same issues of profound religious conviction arise. As I said earlier, Christianity, or God, teaches that a person’s sex is determined by God at conception. Undergoing a sex change represents a desecration of the image of God in that individual and a rejection of God’s providence. Many Churches believe that a person who chooses to live this way is committing a serious sin. They simply cannot smile and accept it.

Clearly, Churches have a well-earned reputation for welcoming all comers as visitors to their services. Christians are to follow the example of Christ, who came to call sinners to repentance. You can hardly do that if you close your doors to all except those who already believe. Actual membership of the Church is different. That is reserved for those who share the Church’s beliefs, for those who are baptised or are intending to be baptised as Christians. At the moment, if the Church has doubts about whether an applicant is telling the truth about his sex, they can request a birth certificate. If he is telling the truth, the birth certificate will confirm it. Where a person is a transsexual, this forces the issue. Either he admits it, or no birth certificate is produced, in which case the Church must assume the worst. Under this Bill, the person who wants to deceive the Church about his sex has the assistance of the Registrar General. He can produce the birth certificate, which shows his chosen sex. There will be no right for a church to know whether a person who comes forward for membership has had a sex change operation.

The same is true for employment. The Bill will deprive Churches of their ability to exercise their right to refuse to employ transsexuals under section 19 of the Sex Discrimination Act 1975. Section 19 protects the ability of religious bodies to preserve their integrity by only employing staff who personally uphold the teachings of the faith in relation to transsexualism.

Once again, under this Bill a religious organisation has no way of knowing the true sex of a job applicant if he chooses to lie. It is possible that an organisation could appoint a man as a minister, only to discover a month later that he used to be a woman. This would be profoundly distressing for the congregation; it would be just as distressing, if not more so, than discovering that the minister is a practising adulterer. In the case of adultery, the guilty minister gets no assistance from the state for concealing his sin; he cannot get a certificate declaring him not to be an adulterer. However, the transsexual who wants to hide his past, knowing that if his past were known there would be a difficulty, would get every assistance from this legislation. Hence my amendment would allow Church officers to approach the general register office and obtain a certificate that reveals that there has been a sex change. My Amendment No. 97 deals with what he can do with that information, but we will come to that in a moment.

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What about the right to privacy? The Minister will object that mandatory disclosure of a person’s true sex affects the transsexual’s right to privacy under Article 8 of the European Convention on Human Rights. It does qualify the right of privacy as it is now understood in relation to transsexuals, but Article 8 is qualified in many ways that are necessary for the good functioning of society. For example, a church is entitled to apply to the Criminal Records Bureau for access to criminal record information to help root out volunteers and employees who might be unsuitable.

Article 8 states that limitations on the right are allowed where necessary,

“for the protection of the rights and freedoms of others”.

Surely it is permissible to allow limited disclosure of a person’s true sex to protect the rights and freedoms of Churches and other religious bodies? Surely we can protect their Article 9 right to exercise their religious conscience? The Government also clearly believe that ministers should have the freedom to refuse to marry transsexuals—hence Section 5B of the Marriage Act 1949. Surely we can protect that freedom too? Allowing a minister who performs marriages to know if one of the parties has changed sex is essential for protecting his rights and his freedoms. Otherwise, the state is colluding with transsexuals to deceive Church ministers into acting against their beliefs.

A second objection to my amendment may be the fear that once a Church has a copy of a marked certificate, they can go around showing it to all and sundry, further breaching the privacy of the transsexual. This brings me neatly on to my Amendment No. 97. Under Clause 21, a person who, while acting in an official capacity, acquires knowledge of a person’s gender history is forbidden from disclosing it to anyone. If he does so, he is committing a criminal offence liable to a fine of up to £5,000.

Amendment No. 97 does not seek to wreck this clause, even though in principle it is outrageous to criminalise voluntary agencies and private employers who dare to talk about a person’s sex change. Amendment No. 97 merely provides limited exceptions to this criminal offence—exceptions which mirror exactly Amendment No. 60, which is why it is grouped with it. It would allow very limited disclosure for the same three defined purposes, that is exercising a right of conscience under Section 5B of the Marriage Act 1949, determining an application for membership of a religious group, or exercising a right of religious conscience under Section 19 of the Sex Discrimination Act not to employ a transsexual.

Amendment No. 97 is necessary to make Amendment No. 60 workable. If a minister is entitled to a marked birth certificate for the purpose of his right of conscience about marrying transsexuals, he should also be entitled to disclose that certificate if it is necessary to do so. If his superiors in the Church threaten him with disciplinary action for refusing to marry someone in the parish, he can tell them about the certificate. However, he and his superiors would be breaking the law if they disclosed that information for

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any other reason. If the minister published the information in the parish newsletter, that would not be protected, since there is no necessity to do so for the purposes of his right of conscience, and that, of course, everyone would accept.

Clause 21 creates the prospect of one particularly bizarre scenario. Let us say that a minister is counselling a troubled young man who tells him that he wants a sex change. The minister advises him against it, but the young man goes ahead, and gets a gender recognition certificate. Several years later, he turns up on the minister’s doorstep, looking every inch like a woman, with his fiancé. The two want the minister to marry them. It becomes apparent that the groom has no idea that his bride-to-be is really a man, yet the minister would presumably be committing a criminal offence if he told him. Under Clause 21(3)(a), he could be deemed to have acquired the information about the person’s true sex,

“in connection with the functions of a . . . voluntary organisation”.

He is therefore banned from telling anyone. That cannot be right. There must be an exception for marriage.

There must also be an exception for the Church membership or employment situation. Otherwise, the Church official who discovers that a person has changed sex would be committing a criminal offence if he told another Church official. So if he obtained a marked certificate under my Amendment No. 60, he would be committing an offence to mention it when taking part in discussions about whether to employ the person in question or allow them into membership of the Church. The applicant could even tell the Church official himself about his sex change, but then remind him he would be committing an offence if he told any of the other people involved in the decision-making process.

Amendment No. 101 to Clause 21 protects the Church from discrimination claims where an applicant for ordination will not give permission to disclose his change of sex. The amendment draws attention to a particular problem faced by Churches as a result of the Bill and Clause 21 in particular. It focuses specifically on ordination. It stems from Clause 21(4)(b), which allows disclosure of information about a person’s true sex if the person concerned gives permission. The amendment aims to protect Churches from legal action for discrimination if the applicant refuses such permission.

As I said, it is a matter of profound religious conviction that Churches continue to have the freedom to ordain as ministers of their Churches people who personally uphold the Church’s basic teachings. It would be outrageous if Clause 21 prevented discussion of a person’s sex change if he was applying for ordination in that Church.

In many Baptist churches, for example, the whole membership is involved in discussions about ordination. The membership as a whole must agree to put a person forward. Would it not be totally outrageous if one of the church leaders was

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criminalised for disclosing the fact that the man who is seeking ordination is really a woman? Would it not be appalling if the transsexual were able to say to the church leader, “I have admitted to you that I’ve had a sex change. But if you dare tell anyone else, I will call the police”?

The Minister will say that transsexuals will not put themselves and others through the embarrassment of forcing such an issue. However, I am afraid that he does not recognise that not everyone is as honest and magnanimous as he is. Is it not often part of “gender dysphoria” to want to do just that? And the right to conceal is a thread which runs throughout the whole of the Bill. The combination of the Bill, the Goodwin judgment, the Sex Discrimination Act and the Human Rights Act is going to create a legal minefield for the Churches. There are already transsexuals pursuing legal action against the Churches. Only today I have seen a letter from solicitors acting for a transsexual man who are threatening the Church with legal action for no longer allowing him to be a preacher in the Church. That is happening and—guess what—the letter mentions the Gender Recognition Bill.

The Minister needs to realise that he is putting Churches in the firing line with this Bill. This amendment would not give the Church an unconditional right to disclose the person’s true sex—it would still require the applicant’s permission—but it would at least protect the Church from legal action for discrimination if the candidate refused that permission. I beg to move.

4.15 p.m.

The Lord Bishop of Winchester: I support the thrust of the three amendments to which the noble Baroness has spoken if not some of the details of her argumentation. I should also like to broaden the question, as she did in some of her comments, from the Churches to the faiths more widely. Members of the Committee who were present on 18 December will remember a number of references to a letter received by a number of us from a representative of the Islamic Medical Association of the United Kingdom expressing a number of similar kinds of anxieties.

I am speaking specifically to Amendment No. 100. The drafting of the amendment, although linked to my Amendment No. 84 to Schedule 6, in fact deals with a separate matter—the question of permitting disclosure of information about a person’s change of gender where they are seeking acceptance for training, recognition as a minister or appointment to a post within a Church or other faith community. I share the Government’s sense that in almost every case a person in that condition would often wish to be frank and open with the religious body in question.

[The Sitting was suspended for a Division in the House from 4.15 to 4.25 p.m.]

The Lord Bishop of Winchester: My instructions are to take up precisely where I left off. I cannot remember whether I was in mid-sentence, but I shall do my best to take that advice.

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Under the Bill as it stands, one cannot guarantee that a person would be as frank and open as I am sure they would be in general. We seem to be without the Minister.

The Deputy Chairman of Committees: The 10 minutes are up.

The Lord Bishop of Winchester: Thank you.

I appreciate why the Government have included provisions to protect a transgendered person’s privacy. However, this seems to be another of those moments when, as in so many other matters of human rights, there is a balance to be struck between different rights and different interests. One of the key questions running through the debate yesterday and today concerns the striking of that balance—indeed, whether the Government admit that there is a balance to be struck at all and whether other rights beside those of the transsexual person should be taken into account.

Whatever the Bill provides, it must be at the least very likely that where a transgendered person is engaged in public ministry in a religious body, information about his or her past will sooner or later become known to other members of that body. The Minister will remember that, on 18 December at Second Reading, I noted the very tricky question of professional directories. Unless elements are to be expunged from professional directories, they will themselves make clear the previous history of a transgendered person. That makes it all the more important for those involved in deciding on appointments and the like to know the true position at the outset, and to know it rather than imagine or infer it. Such people should not be put in the position of reaching decisions to which they and others—including those to whom the transgendered person would be ministering—would have strong doctrinal objections if they had known the facts.

Amendment No. 100 is related to but, strictly speaking, different from Amendment No. 84 to Schedule 6, to which we will come later. The object of the amendment is to ensure that making those facts known to those who need to know them does not fall foul of the ban in Clause 21 on disclosing information required in an official capacity. My example is from the Church of England, but I hope that Members of the Committee will understand that I am thinking just as much—although I do not have the terminology—both of other Christian traditions and, where appropriate, of communities of other faiths.

In the Church of England, for example, if a transgendered person was a member of the clergy or a lay minister seeking to move from one diocese to another, this amendment would allow his or her present bishop to provide essential information in strict confidence to the bishop of the new diocese. That is all the more important because Clause 21 does not merely give rise to a civil remedy; it creates a criminal offence. I am sure that that is something that all religions would take very seriously.

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I recognise that this is a complex area and that the Minister may say that it could best be dealt with by an order under subsection 5 of Clause 21, to which my later amendment relates, rather than by the Bill itself. If that is the preferred way forward, the Church of England would not wish to stand in the way. However, if the Bill were to pass without any express provision on this very significant and important area, I am sure that the Minister will appreciate our concern to have some explicit reassurance at this stage that the matter will be addressed and by whom.

4.30 p.m.

Baroness Hollis of Heigham: On a very quick point, I should be grateful if the noble Baroness, Lady O’Cathain, could in due course give me a copy of the letter she cited towards the end of her speech. That would be very helpful.

On a second point, I am slightly inconvenienced—I do not know whether other Members of the Committee are—by the fact that many of these arguments cut across other and related amendments, particularly Amendment No. 79. In retrospect, I think it might have been more helpful if we had been able to group them together. Many of the issues, particularly issues of conscience, cut across the amendments. Slicing the amendments in this way makes the Government appear less helpful than we intended to be.

Like other Members of the Committee, I accept that there are people in certain religious organisations who dispute the Bill’s fundamental proposition that a person should be able to change gender in law. That proposition raises issues of religious conscience as far as they are concerned.

The noble Baroness, Lady O’Cathain, was rightly very clear on the issue. They do not feel able, for example, to solemnise the marriage of individuals seeking to marry in their acquired gender; and that those recognised in their acquired gender should be admitted to membership or to be able to hold office in a religious organisation. It may be—I will defer to the right reverend Prelate on the matter—that these issues are not so very different from some of those previously raised around the conscience issues of divorce.

It would be puzzling—and this is where I am somewhat disconcerted—knowing the views of a religious minister or religious organisation, if a transsexual person who was an adherent of that same religious faith were to seek to force the conscience of a co-believer; or indeed, knowing the views of that minister or organisation, if a transsexual person were to conceal the fact that he or she had been recognised in the acquired gender. I think that when such issues arise between members of a religious community—issues of conscience—the state should have as minimal a role as possible.

An amendment is proposed to Schedule 3 to enable a religious organisation to receive a birth certificate which makes plain whether it had been compiled from the gender recognition register. That is entirely inappropriate. The very purpose of the gender

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recognition register is to enable the issue of a new birth certificate that does not violate the privacy of the transsexual person. The very personal fact that a person has changed gender should not be made apparent on the face of this public record. My noble friend has said on several occasions that we are protecting privacy here.

In any case, if a religious minister or organisation needs to know whether a person is or is not a transsexual person, the solution would be to ask the person, particularly if their co-religionist is within a specific faith. There is nothing in the Bill to prevent the question being asked. I do not understand why we should assume that a person who is asked this question—a person who is a member of the same religious community—will refuse to answer or will lie, particularly to his priest. Essentially, I cannot believe that a member of a faith group will base his faith on bad faith. That is what the amendment impugns.

Officials have discussed the issues in this area at length with, most recently, officials from the Church of England. There are practical ways in which the information required by a minister or organisation can be requested and obtained. Following on from those discussions, I agree in principle that the “conscience clause” in relation to marriage should be reworked slightly. In a moment I shall turn to Amendment No. 75, tabled by the right reverend Prelate, and I hope to say something that may move the discussion forward. Were we able to group that with this amendment, we could take the point on board now.

I also agree in principle that where information about a person’s gender history is obtained by one member of a religious organisation, there may be a need—for example, in relation to appointments—to disclose that information to others involved in the appointments process. Primarily, there is no reason why the consent of the person concerned should not be obtained. The onward disclosure of information would then be permitted.

The question of whether there is a residual need for any other exemptions to the disclosure provisions depends on the detail of, for example, the appointments process in different religious communities. My noble friend’s officials are in close contact with representatives from religious organisations, including officials from the Church of England, and I think that the matters of detail which will have to be entered into in order to get satisfactory answers in this area are not for today. I know that the noble Baroness raised a series of possibly—I think she would accept—worse case scenarios. I accept that the law must be able to look at those and see what would be the responsible situation. I invite her to say that this is best conducted in discussion with officials from the Church of England and other appropriate organisations to see how they might be resolved.

Officials will continue to examine these issues in conjunction with representatives from religious organisations. Any further disclosure protection that is needed will be provided in secondary legislation. The Committee will, however, appreciate that the

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Government are bound by their obligations under European Human Rights law to protect the privacy of transsexual people. Any further exemptions in secondary legislation will have to be consistent with those obligations.

So my answer is really in three parts. First, I am assuming a congruence between the faith of a person and the good faith of that person when working within a religious organisation, seeking to marry within that Church or indeed to become an ordinand of that Church. I cannot concede that a believer would wish to construct his vocation on bad faith. That is so profoundly implausible that I find it hard to understand as a serious argument.

Secondly, I absolutely accept the argument of the—what I would call—“conscience clause”, that ministers have the right to refuse to marry people and that there are particular responsibilities and obligations on the Church of England, given its pastoral and established status. The issue of conscience will be further opened up in Amendment No. 79. But my understanding is that if a minister has a reasonable belief that someone is a transsexual who refuses to confirm or deny it, and as a result feels unable to pursue a marriage ceremony, that that would be a legitimate response and protected by the conscience clause.

Thirdly, I remind the Committee that we are also subject to the European Convention on Human Rights. Although we cannot go down the line pursued by the noble Baroness in some respects, my noble friend has made it clear that he is happy to continue to discuss with the faith communities how best to reconcile the European obligations with particular concern for British organisations, so that we treat people decently while respecting conscience.

Lord Carlile of Berriew: We have listened to an interesting debate on an important subject, opened with some emphasis, which we well understand, by the noble Baroness, Lady O’Cathain.

The Committee is encouraged to hear from the right reverend Prelate the Bishop of Winchester that he believes that Clause 21(5) provides an opening for the law to be amended on a realistic basis. It may or may not be that any additional orders will be made available before the Bill is enacted. But I believe that Ministers should and would be sensitive to considerations of whether further orders were required under Clause 21(5). No group of transsexual people would wish in any way to inhibit the proper exercise of Clause 21(5) if it was thought necessary.

I am encouraged too to hear that the Minister believes that the conscience clause needs to be looked at again. I have a great deal of sympathy with ministers of religions other than the established Church who may wish to be placed in a similar position to ministers of the Church of England and the disestablished Anglican Church in Wales. I remind the Committee that it is disestablished and that Wales is very proud of Lloyd George’s achievement in securing that position about 100 years ago.

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I agree also with the Minister that the criminal provisions, which have caused some difficulty certainly for some of my noble friends who are not present today, need to be looked at; so that, in appropriate circumstances where disclosure is given in a particular function, it could be forwarded to someone else exercising the same capacity, with the risk of a criminal offence being committed by the original recipient of the information. That would just be bad law. It probably would never be enforced, which makes it even worse bad law—if one can have such a thing.

I have, however, been troubled by some of the arguments I have heard during the debate. In my view, we have had a slight muddle between conscience, which I understand to be a subjective matter, and an attempt to turn conscience into an objective concept. This debate could open up a very long discourse on the difference between, and the relative importance of, faith and doctrine. I shall not go down that road. I share the Minister’s view that it is extremely unlikely, save in the world of those who could defraud any of us, that any conscientious transsexual is going to try to force a minister of any religion—any clerk in holy orders—into doing anything that they would not wish. That is to break the faith which underlines not only their religious belief, but the whole objective behind the legislation.

I remind the noble Baroness, Lady O’Cathain, that religious organisations have to put up with many things that are contrary to their subjective consciences, of which they can know nothing. For example, it must be commonplace for people who have committed adultery to marry in church. No register of adultery is kept, so that fact can never be discovered. There must be many clerks in various forms of holy orders who marry women who have undergone abortions, but there is no register as such of abortions. Of course, if one could look into a woman’s private medical records one could find out whether she had undergone an abortion. I am unaware of any attempt in recent years to amend any legislation to give a doctor, who may be conscientiously opposed to carrying out an abortion, the opportunity to examine medical records that he may not have in his possession—for example, the records of charitable organisations that carry out such procedures.

Indeed, there may be clerks in holy orders with conscientious objections to marrying women who have undergone abortions, but they have no register to turn to. No one is suggesting, so far as I am aware, that they should be able to look at the medical records of the women they are about to marry just in case they may have had an abortion.

The Lord Bishop of Winchester: The last examples that the noble Lord has given are quite outwith the matter. The legal situation, which is what we are

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talking about, is simply quite different. Therefore, the parallels he adduces, either with adultery or abortion, do not relate to the matter in hand.

Lord Carlile of Berriew: I very respectfully disagree with the right reverend Prelate. I think the matter is right on the point. If a clerk in holy orders conducts the marriage of a woman who has had an abortion and he finds out about it afterwards, he may well have a great concern that he has been forced to act outwith his conscience; but he has no right to find out whether the woman has had that procedure carried out.

The noble Baroness, Lady O’Cathain, in my view—I say this with great respect—used such words as “duped” and “deceived” in a totally inappropriate context. The legislation seeks to give a changed legal status to people whose change of gender has been recognised. The nature of marriage is that in law it is a contract between a person who in law is a man and a person who in law is a woman. If a person chooses to go to a clerk in holy orders and says, “I am a man”, and he is in law a man, I am afraid that in law he is deceiving no one; and the Churches faithfully apply the law.

Of course the conscience clause, with appropriate information provided, gives clergy the privilege to break the law on the basis of their consciences. In my view that is something that should be considered as privilege. So I support what the Minister has said; I think that there is a little room for manoeuvre on legal grounds, which the noble Baroness mentioned during her speech; but we should not allow ourselves to be emotionally moved by the use of verbs and adjectives that talk of fraud, deceit and lack of conscientious behaviour by people who are likely to behave perfectly properly at almost all times.

7.45 p.m.

Baroness Turner of Camden: I have listened to the debate with a great deal of interest. I know little about religion, but I am interested, as my noble friends know, in employment. In moving the amendment the noble Baroness made reference to employment, as did the right reverend Prelate, who referred to appointments. What concerns me is that Churches, like many large organisations, employ great numbers of people. I think that it would be quite inappropriate if individuals applying for employment were to be subjected to a loss of the privacy which is otherwise guaranteed by the legislation and be forced to disclose personal information for positions with religious organisations.

I know the amendment refers to ordination, which is quite separate. But, on the other hand, I would be very unhappy if that position were extended in any way to appointments other than ordination and to ordinary employment within religious organisations. That would be totally inappropriate. I am sure that my noble friend will have regard to that issue.

The Lord Bishop of Chester: Perhaps I may ask the Minister a specific question in relation to ordination and not employment. I think that there is a clear

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distinction between the two cases. In the Church of England various bishops hold different views on the matter. Suppose a priest who has changed gender applies for a job in another diocese. Would it be lawful for the bishop of the first district, in the consultations which naturally take place between bishops on appointments, to disclose the fact to the second bishop that the priest in question—for whom he has been asked to provide a reference—has a gender recognition certificate? Or would the bishop be in danger of committing a criminal offence if he passed information on to fellow bishops?

Baroness Hollis of Heigham: I shall comment briefly on two points. First, I want to say how much I agree with my noble friend Lady Turner. Clearly, employees within a religious organisation could be running the local teashop provided in the cathedral vestry, for example. I am quite sure that the right reverend Prelates do not mean to suggest that as a result this consideration comes into play. I think their concern is primarily on ordination. As the noble Lord, Lord Carlile, indicated, we wish to make clear the Church’s exact position on that.

The more detailed questions are much better explored in discussion. However, on the specific points raised by the right reverend Prelate, if the consent of the ordinand or the priest moving from one diocese to another has been granted the answer is that it would be lawful. Otherwise, it is a matter that will be considered in secondary legislation.

Does the right reverend Prelate expect a priest moving to another diocese not to reveal that information to his bishop? As the noble Lord, Lord Carlile, said, the whole of the Bill is based on trying to defend a concept of integrity that transsexual people wish to pursue in their lives. We are discussing the integrity of a priest moving from one diocese to another, presumably knowing the views of both bishops. Is there any suggestion that if the bishop were to ask that a priest might feel it appropriate to lie?

The Lord Bishop of Chester: I take a specific case that arises all the time. When a priest moves from one diocese to another, he deals with two bishops. I can understand that it would be natural for the bishop in the first diocese to ask the priest concerned for his consent to pass on the information that he had been subject to a gender recognition certificate. The point is that we are creating a criminal offence. It is a serious matter if the bishop is going to be prevented from passing that matter on where permission has not been given.

The amendment seeks to avoid criminalising a bishop going about his ordinary business in advising a fellow bishop on the appointment of a priest. We are a little sensitive to—I agree—the unlikely case because the Bill creates a criminal offence.

Baroness Hollis of Heigham: At the moment it would be an offence if that information were given without consent; in other words, it would run contrary to this provision. Again, there is no reason why the issue

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should not be pursued as part of other discussions and, if necessary, as I said, the amendment of secondary legislation.

The Lord Bishop of Chester: I thank the Minister for that assurance. There is a real issue that should be pursued.

The Lord Bishop of Winchester: I thank the Minister for the assurances she has given that the officials and the Minister in charge are prepared to continue with the very considerable and detailed work. She has also undertaken that the discussions may appropriately be widened to include representatives of other Churches and other faiths. I welcome both what she and the noble Lord, Lord Carlile, said. I have every intention of pursuing these issues. They are delicate, detailed and important.

Baroness O’Cathain: I have listened with not surprise but pleasure at the conciliatory nature of the Minister’s comments. At least I have not been gratuitously offensive, even though I used the word “duped”. Her answer generally has to be welcomed, but, like the curate’s egg—which I think is very appropriate—it is good in parts.

The Minister made three points, the first of which is that the faith of persons would not permit them to act in anything other than good faith. Sadly, we are all fairly frail human beings and there have been cases where that has not occurred. It is wonderful that she feels so positive about people of faith. We have had discussions privately on faith in the past. I hate to disabuse the noble Baroness, but actually people of faith are not necessarily of good faith all the time.

Secondly, the Minister’s acceptance that the argument of the conscience clause should be looked at again was very positive. I thought—as I mentioned during the course of the debate to the right reverend Prelate—that that was good and that it gives us an opportunity and opening before Report for the issue to be examined away from the heat of Grand Committee. I am sure that some progress can be made.

Of course, the noble Baroness reminded me gently that the issue was subject to human rights legislation. I agree. However, as I said, it depends on how far one goes along those lines. I have a horrible feeling on this issue, as I do with many issues that come before the House that deal with the European Union or the European Court of Human Rights. And, by the way, I voted the right way in the Division—probably the wrong way for my party, but it was the right way. We tend to fall into gold-plating time and time again. I think that that would be generally accepted. People will not necessarily do that with this Bill, but, generally speaking, we have done so. That is something that we must bear in mind.

With the assurance that we can have further discussions, in a way which I have found very helpful, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60A to 63 not moved.]

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Lord Goodhart moved Amendment No. 64:

Page 20, line 12, leave out from “passed” to end of line 15.

The noble Lord said: I hope to be brief.

Amendment No. 64 deals with another point raised by the Select Committee on Delegated Powers and Regulatory Reform. The Regulatory Reform Act creates a general power to amend other statutes by secondary legislation. The Regulatory Reform Act procedure cannot be applied to another Act within two years of its enactment. It is also subject to an elaborate procedure of consultation and scrutiny. Schedule 3(11)(a) eliminates the two-year limbo period in relation to the Bill.

For reasons given in paragraphs 10 and 11 of its report, the Delegated Powers and Regulatory Reform Committee has no objection to that proposal. However, it objects to paragraph 11(b), which eliminates the first-stage scrutiny procedure and converts a regulatory reform order into what is in effect a simple affirmative resolution procedure. The purpose of the amendment is to remove paragraph 11(b) and to require the normal scrutiny procedure to be applied.

We were told yesterday that the Government intended to accept this recommendation of the Delegated Powers and Regulatory Reform Committee, so I think I need say no more. I beg to move.

Baroness Buscombe: Amendment No. 65 seeks to achieve the same thing as Amendment No. 64, tabled by the noble Lord, Lord Goodhart. I am pleased to hear from him that the Government are minded to accept the recommendation of the Delegated Powers and Regulatory Reform Committee. I hope to hear from the Minister that it is our amendment that has been accepted.

Baroness Hollis of Heigham: I shall be brief in saying that the Government have indeed listened, and were persuaded that the noble Baroness, Lady Buscombe, and the noble Lord, Lord Goodhart, had a very good case even before they heard it. As a result, the Government will introduce amendments on Report which we hope will please the House.

Lord Goodhart: I am grateful for that confirmation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 to 76 not moved.]

Schedule 3 agreed to.

Clause 11 [Marriage]:

Baroness Buscombe moved Amendment No. 77:

Page 5, line 39, at end insert—

”( ) A registrar or other public official empowered to conduct or solemnise marriage ceremonies may refuse on grounds of religious principle or conscience to conduct or solemnise a marriage between two persons, if he has reasonable grounds to believe that one of the persons seeking to take part in the marriage is in possession of a gender recognition certificate and that the ceremony would involve two persons born of the same sex.

14 Jan 2004 : Column GC86

( ) No person who has refused to conduct a marriage ceremony on the grounds set out in this section may be subject to any disciplinary procedure on the grounds of the exercise of his religious principle or conscience.”

The noble Baroness said: Schedule 4(3) provides a conscience clause for a clergyman, such that he is not,

“obliged to solemnise the marriage of a person whose gender has become the acquired gender under the”

terms set out in the Bill. Any member of the clergy who feels that the marriage should not occur because of a strong belief that it is not possible to change one’s gender and as a consequence the marriage would be a same-sex marriage is not required to undertake the ceremony against his or her wishes. That is only right.

It seems unfortunate, however, not to extend that right towards registrars