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

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

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

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

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

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

11.15 a.m.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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