Joint Committee On Human Rights Nineteenth Report

4 Conclusion and summary of recommendations


111. Generally, we welcome the efforts of the Government to legislate in a principled way on this difficult and complex topic. We consider that the structure of the Draft Bill is capable of remedying the incompatibilities identified in recent decisions of the European Court of Human Rights and the House of Lords between domestic law and the Convention rights in relation to the legal treatment of people with gender dysphoria.

112. However, in a number of respects we consider that the provisions of the Draft Bill require further consideration to ensure that they will succeed in removing the incompatibilities while also avoiding further human rights difficulties. We draw attention in particular to the following recommendations.

Summary of Recommendations

Recognition of 'acquired gender'

1.  We conclude that the Draft Bill represents a sensitive and sensible compromise by allowing pre-operative transsexual people to have their acquired gender recognised, with the Gender Recognition Panel providing a safeguard against premature or frivolous applications. In our view, the absence of a requirement for people to undergo surgical or medical reshaping of their bodies before applying makes it sensible to speak of gender rather than sex in the Draft Bill. (Paragraph 29)

2.  We recommend that a further paragraph should be added to clause 5 of the Draft Bill, making it clear that where under any legislation it is necessary to decide the sex of a person who has an acquired gender, or to say whether that person is a man or a woman or male or female, the question must be answered in accordance with the person's acquired gender, except to the extent that the Draft Bill or the legislation in question provides otherwise expressly or by necessary implication. Without such a provision, we fear that there is a significant risk of the Draft Bill failing to achieve some of its purposes. (Paragraph 34)

The effect of a recognised change of gender

3.  On balance, we are not convinced that the difficulties which influence the Government's approach to recognition of previously invalid marriages are insuperable, or that the suggestion that some retrospective effect for recognition of acquired gender would lead to same-sex marriage being legally recognised is correct. We recommend that the Government should give further thought to the possibility of giving retrospective recognition to a person's acquired gender from the date at which the person can show that he or she would have satisfied the requirements of clause 2 of the Bill had it been in force, at least for the purpose of deciding whether a marriage was void when entered into after that date. (Paragraph 42)

4.  We consider that such considerations apply even more strongly to anyone who has entered into a ceremony of marriage since 11 July 2002 when the European Court of Human Rights gave judgment in Goodwin v. United Kingdom and I. v. United Kingdom. Since then, it has been well established that the UK has been in breach of international law by refusing to recognise the acquired gender for the purpose of marriage. There seems to us to be a particularly strong case for providing in the legislation for retrospective recognition of the acquired gender of a transsexual party to these marriages, and thus for the validity of the marriages themselves. We recommend that the legislation should include such provision. (Paragraph 43)

5.  We recommend that the legislation should provide for the successful litigants in Strasbourg and in the House of Lords, and others who had commenced similar proceedings by 11 July 2002 when the Strasbourg judgments were delivered, to have their acquired genders recognised by law from the earliest time at which they can show that they met the criteria for recognition set out in the legislation. Where they entered into marriages after that time, the legislation should provide for the validity of those marriages notwithstanding section 11(c) of the Matrimonial Causes Act 1973. (Paragraph 48)

The demands of certainty and procedures for recognising an acquired gender

6.  On balance we accept that it is appropriate to ask for details of treatment to modify sexual characteristics where such treatment has been or is being received or is planned. (Paragraph 65)

7.  When the whole set of safeguards is taken into consideration, we consider that the interest of transsexual people in confidentiality and their right to respect for private life under ECHR Article 8.2 would be properly safeguarded by the measures contained in the Draft Bill. (Paragraph 73)

Parties to marriages who acquire a new gender after marriage

8.  We recommend that the Government should reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate. (Paragraph 89)

9.  If the Government decides as a matter of principle that the requirement should remain part of the legislation, we recommend that transitional provision should be made to ensure that the requirement will not apply to applications made to Gender Recognition Panels until such time as the relevant provisions of the proposed civil partnership legislation are in force to allow the parties to the marriage to enter into such a partnership with legal consequences. (Paragraph 90)

10.  We recommend that the gender recognition legislation should relieve the parties to the marriage of any adverse financial and fiscal consequences of the ending of the marriage by reason of the provisions of the legislation, as long as the parties enter into a civil partnership within a reasonable time if and when the civil partnership legislation is in force. (Paragraph 91)

Anti-discrimination law

11.  To make absolutely sure that the legislation would achieve its intended effect, we recommend that it should expressly state that 'sex' in the Sex Discrimination Act 1975 is to be interpreted as including the acquired gender of a person who has obtained a full gender recognition certificate. (Paragraph 94)

12.  We recommend that the legislation should include provisions amending the sex discrimination legislation to make it unlawful to discriminate against people in the fields of education, housing and the provision of goods, facilities and services on the ground that they have undergone, are undergoing or plan to undergo sex reassignment. The government should consider whether it would be appropriate to limit protection to people who have obtained a full gender recognition certificate, bearing in mind that there is no such limitation in the provisions of section 2A of the Sex Discrimination Act 1975 which applies to employment and vocational training. (Paragraph 103)

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