An issue that has been the subject of very little comment in the debate about the Government’s proposals on same-sex marriage is the existing provision concerning the clergy opt-out from conducting the marriages of persons who have undergone gender reassignment. The inclusion of this specific opt-out has implications for the general proscription on clergy of the Church of England and Church in Wales in relation to conducting same-sex marriage.
Generally, Section 9(1) of the Gender Recognition Act 2004 provides that:
“[w]here a full gender recognition certificate is issued to a person, the person’s gender 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)”.
Clergy of the Church of England and of the Church in Wales are under a general duty at common law to marry parishioners. As with the marriage of divorced persons, this was problematic for some on grounds of conscience; and the Gender Recognition Act inserted a new section 5B into the Marriage Act 1949 to make specific provision to allow parish clergy in England and Wales to refuse to solemnise the marriage of any person whom they reasonably believed to be of an “acquired gender” – notwithstanding the “for all purposes” provision of section 9(1). [Note: section 5B of the 1949 Act has yet to be incorporated into the text on the Statute Law Database.]
Furthermore, religious marriages are not covered by the gender reassignment provisions of the Sex Discrimination Act 1975, as amended by the Sex Discrimination (Amendment of Legislation) Regulations 2008, because inserted section 35ZA of that Act expressly excludes the provision of
“… goods, facilities and services (not normally provided on a commercial basis) at a place (permanently or for the time being) occupied or used for the purposes of an organised religion”.
When first presented to Parliament, the Bill that became the Equality Act 2010 did not contain an equivalent exclusion and concern was expressed that marriage might be regarded as a “service” under the terms of the original clause 29(1) or, if not, as the exercise of a public function under clause 29(6). Since gender reassignment was one of the protected characteristics under the legislation [see section 7 of the 2010 Act], that would have made it unlawful to decline to solemnise the marriage of a person on the ground that he or she had undergone gender reassignment and that that person’s gender had become the “acquired gender” under the Gender Recognition Act 2004. Consequently, it would have been unlawful for ministers of religion to decline to marry couples of the same chromosomal sex, even though to do so might be contrary to their theology of marriage.
After reconsidering the matter, the Government Equalities Office accepted that there was a problem; and the Equality Act 2010 as enacted preserves the conscientious opt-out for clergy of the Church of England and the Church in Wales. Moreover, the new provision extended the opt-out to other religious officiants or approved celebrants, both in England and Wales and in Scotland: see Equality Act 2010 Schedule 3 (Services and public functions: exceptions) Part 6 (Marriage).
In comparison to the saving relating to the remarriage of divorced persons under the Matrimonial Causes Act 1965 s 8(2)(a), the proposed provisions on gender reassignment appear unbelievably obscure and technical. Furthermore, in their practical application one might also ask on what basis a cleric might “reasonably believe” that a prospective party to a marriage had undergone gender reassignment unless he or she had known that person beforehand.
But be it ever so obscure, it is nevertheless a very rare example of a religious opt-out from a common law duty on clergy of the Church of England and the Church in Wales (and, possibly, an obligation on other religious celebrants under the domestic equalities legislation and Article 12 ECHR) – and one to which, so far as I am aware, there has not yet been a legal challenge. (It is possible, however, that the opt-out has never been challenged because no-one has ever sought to invoke it.)
However, the effect of the current law is that clergy of the Church of England and of the Church in Wales have discretion as to whether or not to marry divorced persons with living partners or couples of the same chromosomal sex but are not obliged to do either of those things if it offends their consciences to do so. So if a valid, workable conscientious opt-out can be provided for remarriage after divorce and for the marriage of transsexuals, is it absolutely necessary for the Government to propose a general ban on the marriage of same-sex couples by the Church of England and the Church in Wales?
As the Archbishop of Wales pointed out in an interview on Radio Wales, the Government’s proposed blanket ban
“… seems to exclude the possibility in the future. There are those of us who think it ought to be a free choice and this increases the hurdles for people to pass. [The Church] will have to get the legislation changed in Parliament and change its canon law – and it might be harder to change the law of the land than canon law. In my personal opinion it’s a great pity it’s illegal for us not to even have the possibility to do it. It should be left for us to opt in or opt out.”
All of which leaves one wondering whether the Government thought to consult the Church in Wales before making yesterday’s announcement.