The response of Lord Filkin in the Lords to the lobby organised by the EA - February 2004

Gender Recognition Bill and faith communities

From Lord Filkin's repsonse to the second reading debate in the House of Lords

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Lord Filkin: Let me also mark that we have, through the process of reflection, discussion and consultation with faith communities that process has been both a duty and a privilege we have sought to listen and to move where we thought it was appropriate. We put into the Bill at First Reading an explicit exemption around marriage for ministers of the Church of England and the Church in Wales. For good reason when they perform a marriage ceremony, ministers of the Church of England and the Church in Wales are effecting a civil function as well as a religious one. The burdens on them are therefore explicitly strong. Without that exemption they would have been caught. We made that provision explicit so that clergymen were exempt in conscience, if they wished to be so, from any challenge to them if they did not wish to carry out a marriage.
Since the Bill was introduced, we have gone further and amended the provision to protect further those ministers otherwise obliged to solemnise marriages, extending the conscience clause to a situation where a clergyman reasonably believes that one of the parties to the marriage has been recognised in the acquired gender. We have listened to the arguments put to us and were open to the point that there might be circumstances where a clergyman had reasonable grounds for belief that the information had not been disclosed, and that they were protected in those circumstances if they said, "No, I am sorry, I do not wish to solemnise a marriage for you". In this case, we are talking about Anglican clergy. Therefore, we have been listening. I have been glad to meet the noble Baroness, Lady O'Cathain, and others, along with my officials to explore the issues.
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The issues turn on two sets of arguments: moral and legal. I shall be cautious about what I say about the moral arguments, because perhaps government Ministers should confine themselves to the law on such issues. The question of whether religious organisations ought to exclude transsexual people from participation in religious activities is certainly at bottom a moral argument. However, I say from the government Front Bench that one hopes as a society, given the importance that we place on tolerance, that in most situations religious organisations would not wish to discriminate against transsexuals but would recognise the humanity in them and welcome them as part of their faith community. I shall say no more on that.
It is therefore open to a religious community to decide whether it wishes I was surprised to hear it to say that it will refuse to administer Holy Communion to a human being in those circumstances. At heart, however, that is not a matter for me, but for them. It is a matter for me only in my private life, when I have opportunities elsewhere to argue those points.
On the legal arguments, I shall address first the solemnisation of marriage. The issue at heart is that no minister of religion other than an Anglican clergyman a Muslim or Baptist minister, for example is obliged by law to solemnise a marriage. Nothing in the Bill changes that; they are at perfect liberty to continue to refuse to solemnise a marriage of anyone whom they know or believe to be a transsexual. There is no catch to them as regards the freedom of action that they already have. I know from our many discussions that the noble Baroness, Lady O'Cathain, understands that point. Without boring the House by discussing the public function issue in detail, the reason is that, apart from in the Church of England or the Church of Wales, when solemnising a marriage, a cleric would not be considered to be exercising a public function. They are not public authorities in that context; therefore, they are not subject to the obligations of the Human Rights Act 1998.
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Lord Filkin: My Lords, at earlier stages, I signalled that employment was different and that it was a specific area. I acknowledge the point made by the noble Lord, Lord Lester, in that respect. In fact, if I had only waited: the present protection exists only in the realm of employment and vocational training. The moral of that is that it is always better to use one's speaking notes than to speak off the cuff.
It does not extend to participation in religious activities. In effect, it means that the freedom for religious organisations to discriminate against transsexuals sought by this amendment already exists. Many will say that it should not, but that is not what we are debating. In fact, the ability to discriminate is there in law already.

The Bill ensures that, as a consequence of recognition, a person is protected under sex discrimination law in the acquired gender. However, religious organisations, as in the many examples given, will not be discriminating against a person who has

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changed gender on grounds of his or her sex, but on the grounds that he or she is a transsexual person. We do not believe - we are strongly in our view - that sex discrimination law will restrict the freedom of religious organisations in this matter.