The State we're in
The Rt Revd Michael Scott-Joynt Bishop of Winchester, gives a first-hand commentary from his seat in the Lords, and a hard-hitting critique as a bishop of the effect upon marriage of recent parliamentary legislation
The Civil Partnerships Act 2004 comes into effect on 5 December this year. Throughout its passage through Parliament, the government asserted that it was not legislating for ‘gay marriage;’ and the Act avoids defining anywhere the character of the relationship upon which those becoming, by their signatures alone, ‘civil partners’ will enter. But gay couples are booking the date; and meetings and websites trumpet that there will be clergy of the Church of England among them seeking the publicity that will, they hope, embarrass their bishops and establish,de facto at least, change in the Church’s teaching and discipline.
The House of Bishops is on the point of publishing (I write in mid-July) a carefully considered, orthodox Pastoral Statement on Civil Partnerships; but on 29 May a substantially inaccurate preview of a draft of this Statement appeared in theSunday Times – and caused consternation as it was circulated around the Anglican Communion among people many of whom can have no understanding of the cultural and legislative world through which we in the UK are now living. (But many of our own people have not woken up to its character either!)
Four months later, on 6 April 2006, the Gender Recognition Act 2004 will come into effect. People who are transgendered may be less prepared to seek publicity; but here too Christians are widely perceived as having failed to catch up with the ways in which society is moving; and here too the Church of England and its House of Bishops do not speak with one voice.
In this article I shall review the provisions of each of these two cousin-Acts, and those of the Equality Bill that is currently before Parliament and which effectively summarizes much of the thinking that underlies and energizes them – offering reflections as I go, and building on the series of fine articles with which Nicholas Turner has already done much to keep readers of New Directions informed about these developments.
The Civil Partnerships Act 2004was designed to meet the needs of ‘same-sex couples in supportive relationships (who) cannot marry but deserve the opportunity of legal recognition.’ It provides for such couples who are not within the ‘prohibited degrees of relationship’ to register their relationship in a Register Office as a Civil Partnership (CP). The Act closely and exhaustively replicates for CPs virtually every provision in law that relates to marriage.
In June 2004, members of the House of Lords, myself among them, sought by amendment to extend the provisions of the (then) Bill to couples (whether of the same sex or of opposite sexes) who are within the ‘prohibited degrees’ (e.g. two sisters, or a father and daughter) and who have lived under the same roof for twelve years. The amendment was carried in the face of government and Liberal Democrat opposition; but the government announced the same day that the amendment so radically altered the Bill’s concept of a CP that it could not proceed with the Bill while the amendment stood part of it – effectively admitting that after all the Bill was drawn up only in the interest of those in same-sex, and sexual, relationships. In due course the Commons removed our amendment and the Lords refused to allow its return.
I recognize that people in same-sex relationships can face some significant disadvantages and injustices which it is right that the government should seek to legislate to rectify – but not by replicating virtually every provision that relates to marriage. To me the CP Act undermines the distinctiveness and fundamental importance to society of marriage by effectively equating same-sex relationships with it, notwithstanding the government’s repeated assertions that this was not its intention.
It is, I judge, this dishonesty at the heart of the CP Act 2004 which will render the Church of England so wide open to mischievous misrepresentation when the Act comes into force in December.
The Gender Recognition Act was designed to meet the needs of people who suffer from gender dysphoria, the agonizingly distressing conviction that they are women when their bodies are male or that they are men when their bodies are female, by providing them ‘with the opportunity to enjoy the rights and responsibilities appropriate to their acquired gender and to leave behind the vulnerable position which they presently have to endure.’ Government was required to bring forward legislation by judgements of the European Court of Human Rights and of the Law Lords.
Here is the Act’s ‘fundamental proposition:’ ‘Where a full gender recognition certificate is issued to a person, the person’s gender becomesfor all purposes (my italics) 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 Act provides for a process through which people who have gender dysphoria, and who fulfil a number of other requirements which do not necessarily include gender re-assignment surgery, may apply for such a gender recognition certificate. An applicant who is married may only be granted an ‘interim’ certificate until she or he is divorced. The Registrar General will issue a birth certificate in the person’s new name and gender; the link between that new birth certificate and the original birth certificate will be confidential; and, except in strictly limited circumstances, disclosure of a person’s gender history will be prohibited, and subject to legal penalties.
A cleric of the Church of England or of the Church in Wales ‘is not obliged to solemnize the marriage of a person if (she or he) reasonably believes that the person’s gender has become the acquired gender under the GR Act 2004.’
A subsequent (2005) order has allowed similar exemptions to ministers of other churches and of other faiths who have the privilege of solemnizing marriages; but neither with regard to marriages of transgendered people, nor with regard to the registering of Civil Partnerships, has Parliament been prepared to admit any conscientious exemption for Registrars, insisting that they are Crown servants who must obey the law or face the consequences for their employment.
During the passage of the Bill through the House of Lords, some bishops worked with other peers to attempt to insert into the Bill a more just balance between the human rights of transsexual people and those of members of their families, or of religious bodies and their members – but unsuccessfully.
Some of us were also unsuccessful in seeking to remove from the Bill the requirement that a transgendered person must choose between remaining married and gaining a gender recognition certificate; I know now of at least nine couples deeply distressed by this requirement.
Those who suffer the acute, chronic and distressing effects of gender dysphoria should receive the greatest possible sympathy from society and from the law, and in the Churches.
But because I have heard or read nothing that convinces me that the sex of any of us can be changed (and there is a quite substantial body of academic and medical, as well as Christian and other faith, opinion that it cannot be, and that gender re-assignment is not in general an appropriate response to gender dysphoria), I disagree with the Act’s ‘fundamental proposition’ quoted above, the effect of which is to permit people to marry in their acquired gender. When the Act takes effect, the words ‘woman’ and ‘man’ will no longer consistently mean what they have always meant; and Parliament will have introduced marriage between two people of the same sex, notwithstanding the government’s protestations that it intends nothing of the sort.
I much regret that neither the Church of England’s House of Bishops nor the General Synod has come to a mind about gender dysphoria, about the provisions of the Gender Recognition Act, or about the admissibility of clergy and licensed lay workers for gender re-assignment.
There are a very small number of transgendered clergy and ordinands, and it remains to be tested, for instance, whether a bishop may refuse to accept a transgendered person, on this ground, as a candidate for ordination, or a patron or a bishop such a person for preferment (though the order mentioned above provides some hope that such decisions may be legally taken).
The convictions and the thinking that have informed the government’s approach both to Civil Partnerships and to Gender Recognition are clearly expressed in the Equality Bill which has just completed its Committee Stage in the House of Lords – as they were in its precursor, Lord Lester’s ‘stalking horse’ Equality Bill 2003.
The present Bill is designed to replace the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission with a single Commission for Equality and Human Rights, which will have added to it oversight of the other three strands of employment equality legislation – concerning religion and belief, sexual orientation and age.
The Bill’s heart is its Clause 3, entitled ‘Fundamental Duty:’ ‘The Commission shall exercise its functions with a view to the creation of a society in which (a) people’s ability to achieve their potential is not limited by prejudice or discrimination, (b) there is respect for and protection of each individual’s human rights, (c) there is respect for the dignity and worth of each individual, (d) each individual has an equal opportunity to participate in society, and (e) there is mutual respect between communities based on understanding and valuing of diversity and on shared respect for equality and human rights.’
‘Communities’ are defined in clause 11.2 as groups or classes of persons ‘irrespective of whether they regard themselves as a community who share a common attribute in respect of any of the following matters – age, gender, proposed, commenced or completed reassignment of gender, race, religion or belief and sexual orientation.’
At Second Reading in the Upper House, and again at Committee Stage, Clause 3 with its language of ‘with a view to the creation of a society’ has received especially strong and critical attention, though it has also been robustly defended by Lord Lester and others. Particularly noteworthy is the critique by the Lords’ Select Committee on the Constitution (21 June 2005):
‘This is language of a generality and depth that is seldom found in Acts of Parliament, and their interpretation will require the making of far-reaching and sensitive decisions that will turn on the Commission’s political, social and cultural perceptions. When made by Parliament or by ministers, such decisions are subject to established forms of democratic accountability. If these decisions are to be made across a broad field by an autonomous or semi-autonomous Commission, questions arise about the Commission’s accountability.’
In the House on 6 July, amendments were proposed offering ‘encouraging’ or ‘recognizing the importance of’ in place of ‘with a view to the creation of a society in which.’ The Minister, Baroness Ashton of Upholland, agreed to give this part of the clause further thought in consultation with those who had expressed concern about it.
There is much else in the Bill’s detailed outworking of this ‘fundamental duty’ which in my judgement requires very keen scrutiny indeed from the viewpoint of the orthodox practice of Christian faith, and of other faiths. And the Bill as a whole reveals clearly what appear to be the dominant ‘political, social and cultural perceptions’ of ‘the State we’re in’ which many Christians seem reluctant to recognize for what they are, and with which we have been slow to engage adequately.
It is worth reflecting on the reasons for this reluctance and slowness that may lie deep in the initial formation of many English Anglicans.
Brought up in a culture assumed to be basically Christian, even Anglican, many are taking time to learn to swim against a prevailing tide, to be ‘counter-cultural’. Reared in a faith that was related mainly to domestic and individual living, many still find familiar and acceptable the secular conviction that religious beliefs have no place in the public domain and no claim on people’s private lives.
Many, too, are simply not equipped to withstand the prevailing attitudes around them. We are a church many of whose members, and indeed lay leaders, do not regularly and expectantly read Scripture.
Nor have we thought of ourselves as a church with any clear body of teaching about belief and behaviour, readily located and authoritative, and some have prided themselves that in this respect we are not as some other churches are.
Many, therefore, have not spotted the effects upon the public doctrine of marriage, and upon attitudes to marriage in the media, of the liberalizing reforms of the 1970s with regard to sexual behaviour as these have taken root in the recent decades. So thoughtful, liberal Christian people can assert, in the House of Lords as well as elsewhere, alongside their thoughtful liberal friends who are not believers, that no damage is done to the public standing of marriage by, for instance, the CP and GR Acts. Politicians refuse to sustain, advocate or defend the ‘holy estate of matrimony’ for fear that to do so would be to discriminate against those who for any of a range of reasons have not married, or against these people’s children; and I could not find the word ‘marriage’ anywhere in either the Labour or the Conservative manifestos for the recent election!
None of this of course is to argue against compassionate care, by the churches as well as by society and government more widely, for people in all those kinds of distress that are caused by marital or family breakdown, or by their own or others’ sexual behaviour, or by the attitudes to all these that prevail today.
But what we must not do is to give way to the strong pressures to be active and vocal only about this compassionate care, while soft-pedalling to the point of extinction Christian advocacy of marriage.
It is imperative that the Church remains clear, for the sake of generations to come, what marriage is and what it is not.
If marriage, the mutual exclusive commitment to each other for life of a man and a woman, is indeed ‘fundamental to human flourishing,’ as Christians and very many others believe it to be, then we owe it both to those growing up today and to future generations to resist anything that may have the effect of equating even the most loving and committed same-sex relationships with marriage.
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