Joint Committee On Human Rights Written Evidence

1b.Response to the Clerk's Letter from the Department for Constitutional Affairs

  Thank you for your letter of 21 October, and for advising me that the Committee provisionally takes the view that the Draft Bill is likely to achieve its objective in removing for the future the incompatibilties with Convention rights established by the European Court of Human Rights.

  I welcome the opportunity to set out in more detail the position on the issues that you have raised and I shall deal with your questions in order.


  You raised a question, in relation to clause 1(1)(b), which would allow a person to apply for a gender recognition certificate on the ground that he or she is "recognised under the law of a country or territory outside the United Kingdom as having changed gender". As you suggest, the intention is that this should provide a straightforward mechanism to protect the effective enjoyment of rights under ECHR Articles 8 and 12 for those overseas citizens that live and work in the UK.

  The criteria the Government will use to decide which countries and territories should be "approved countries and territories" for the purpose of clause 1(5) are straightforward: we will "approve" those countries and territories that have criteria equivalent to our own for granting legal recognition to transsexual people. It is important that only those people who have received recognition from a system as robust as our own receive recognition in the UK.

  In drafting terms, it would have been possible to re-iterate the criteria themselves, rather than provide a list of "approved countries and territories". However, it was felt preferable to list such countries and territories, for reasons of certainty (to avoid different agencies applying the criteria differently) and clarity for all those reading and using the legislation.


  The nature of gender dysphoria is such that a person is driven to live in the other gender and to assume the sexual characteristics of the other gender. We therefore feel that evidence of what treatment has been undergone is indicative of whether a person has or has had gender dysphoria and that it is crucial to establishing whether a person intends to live permanently in the acquired gender. We accept that there may be other items of evidence that contribute to establishing that intention and our decision not to require particular treatments (for example, surgery) reflects that view. However, as having some medical treatment is so integral to having gender dysphoria, both in the eyes of the transsexual person and the medical profession, we felt it necessary to ask for evidence of treatment.

  Indeed, we have even come under pressure from some transsexual people and medics to include a requirement for surgery. Many see surgery as being integral to the process of reassignment and are not convinced that a person truly has gender dysphoria unless they have surgery. We do not want to take that line; we also see obvious exceptions to it, for example, that someone does not have surgery for health reasons or on religious grounds, or because the surgery for female-to-male transsexual people is not especially well-developed. We do, however, feel that evidence of treatment, per se, is both proportionate and useful.

  We have also taken considerable steps to lessen the evidence burden. Hence, the evidence of treatment can come from a general practitioner, it need not come from a professional working in the field of gender dysphoria. We have discussed the evidence requirements in some detail with trans groups and the medical profession who have indicated, that the evidence requirements are not particularly onerous. Indeed, the evidence requirements are less strict that those of any other European country.


  In the case of Bellinger v Bellinger, the Lords of Appeal were sympathetic to Mrs Bellinger and were "profoundly conscious of the humanitarian considerations underlying her claim". However, their Lordships' judgment supported the Government's enduring position that the English law does not recognise same sex marriage. To validate retrospectively existing marriages contracted between two people who were, at the time, legally of the same gender, would, however narrowly, give legal recognition to same sex marriage.

  In Goodwin v UK, the Strasbourg Court in Goodwin v UK, recognising that its interpretation of the application of Convention rights to transsexuals had evolved significantly over the years,. made it clear that its judgment was prospective in force. Similarly, in Bellinger v Bellinger it was the "continuing obstacle" to the Bellingers' right to marry posed by section 11(c) of the Matrimonial Causes Act 1973 which the House of Lords found to be incompatible with Mrs Bellinger's convention rights—not failure to accord recognition to the original "marriage".

  The aim of the Bill is to give transsexual people the right to live legally in their acquired gender, and this of course includes the right to marry in that gender. A Gender Recognition Certificate—which will confer legal recognition—will be issued by the Panel according to the evidence put before it about how the applicant lives now. Certificates will be prospective from the day of issue; the Bill makes no provision for retrospective recognition of the acquired gender.

  The Government has made clear its commitment to enabling those transsexual people who wish to be recognised legally in their acquired gender to have that opportunity. However, it will not make special allowances about the previous rights and responsibilities of transsexual people, which do not apply to other groups in society.


  The consequence of the grant of a gender recognition certificate will be that the applicant is, from that time, recognised in law as being of the opposite gender to his or her birth gender. If the applicant was married, this would mean that the marriage would become a marriage between two people of the same gender. English law does not recognise same-sex marriage, and the Government has made it clear that it does not propose to change this. The right to marry under Article 12 of the Convention only applies to "men and women of marriageable age", and the Strasbourg Courts have, accordingly, not recognised same-sex marriage. The fact that recognition of a transsexual person might require a previous marriage to come to an end was recognised by the Strasbourg Court in Goodwin v UK when it noted "it is for the Contracting State to determine inter alia the conditions . . . under which past marriages cease to be valid".

  We recognise that requiring the annulment or dissolution of a marriage as a condition for the granting of a final gender recognition certificate is an interference with the private life of applicants under Article 8(1). However, we consider that this is justifiable under Article 8(2). We consider that it is legitimate to preserve the status of marriage as a union of an opposite-sex couple, and that this meets a pressing social need. This requires us to insist that those seeking recognition in the acquired gender accept all the necessary consequences of doing so.

  We are concerned to limit, as far as possible, the disruption to the couple's relationship that this rule will require. You will be aware of the Government's proposals for a civil partnership registration scheme which would give legal recognition to same-sex couple relationships. The consultation period has recently ended and the Government will soon be publishing a summary of the responses received. As part of the civil partnership proposals, it is our objective to enable transsexual people whose marriage is ended only because of the issue of an interim gender recognition certificate to establish if they wish a civil partnership within days of the formal ending of the marriage.


  You have raised the exemption in clause 14(4)(d) relating to disclosure of information "in the course of official duties". We too have become concerned by the potential scope of this formation, and we share your fear that it might have left the door open for unwarranted disclosure. Consequently, we have instructed for 14(4)(d) to be removed and it will not appear in the Bill as presented for Introduction.


  The Government considers that a power to make exceptions to the disclosure of protected information provisions in clause 14 is necessary. We have sought to give as much protection to "protected information" as possible by providing that the definition of acquiring such information in an official capacity is as wide as possible, and that the exceptions are limited. As noted above, we intend to reduce the scope of the exceptions permitted in the Bill. However, this increases the risk that a justified disclosure might become a criminal offence.

  It is difficult to target the power more closely at the mischief at which it is aimed. Those exemptions to the disclosure provisions that can, at this time, be foreseen, have already been delineated in clause 14(4). We do not consider that it is possible to set out all the circumstances in which such disclosure would be considered justified in the Bill. New schemes and arrangements for gathering and sharing information will continue to develop in any society. It is only reasonable that there be some provision to deal with future contingencies without having to resort to amending primary legislation.

  The negative resolution procedure was felt to be an appropriate level of parliamentary control over such an order. The 1973 Joint Committee on Delegated Legislation recommended that affirmative resolution procedure was only appropriate for:


    Powers substantially affecting provisions of Acts of Parliament;


    Powers to impose or increase taxation; and


    Other powers of special importance, for example, those creating serious criminal offences.

  It is not felt that this order-making power fell under any of these categories (as set out in paragraph 78 of the Second Report of the Joint Committee on Delegated Powers "the Brooke Report"), and therefore the negative resolution procedure is thought to provide an appropriate level of parliamentary scrutiny.


  It is incorrect to suggest that the draft Bill would make it lawful to discriminate against persons on the grounds that they were transsexual persons (of whatever acquired gender). Discrimination on the grounds that a person intends to undergo, is undergoing or has undergone gender reassignment is and will remain unlawful, in relation to employment and vocational training, under the Sex Discrimination Act 1975 (as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999).

  On the contrary, the further amendments to the Sex Discrimination Act which are proposed in the draft Bill would strengthen this protection by ensuring that, once a person has been recognised in the acquired gender, the exceptions in the Sex Discrimination Act (where discrimination may currently be lawful as a result of a genuine occupational qualification) cease to be available. Discrimination against them on grounds of their transsexual status in the situations covered by the legislation will then be unlawful in all circumstances without exception.

  The Bill does not give transsexual people protection against discrimination in the provision of goods or services on the grounds of their gender reassignment. As the Committee recognises, however, they will benefit from all the legal rights, including protection from discrimination, given to anyone of their acquired gender. This appeared to the Government to be the pressing need in this area.

  Once a robust and credible gender recognition system is in place and the effects of legal recognition in the acquired gender become more apparent, the question of whether transsexual people need further legal protection can be properly explored. The Government is committed to securing social inclusion and basic rights for all and the draft Bill is an important reflection of this commitment.


  There are no firm figures on the number of transsexual people in the UK. The Inland Revenue and Department for Work and Pensions have around 4,000 cases marked as "nationally sensitive" because the individual has stated that he or she is transsexual. Groups representing the community estimate that there are 5,000 transsexual people in the United Kingdom. Transsexual people can change their name and gender on passports and driving licences. Figures from the Passport Agency and DVLA also suggest that the population is close to 5,000.

  The Government assumes that the vast majority of those 5,000 transsexual people will qualify for the "fast-track" procedure under clause 19. We therefore anticipate 5,000 applications in the first year, although the number of these that will come in the first six months is unknown (though likely to be high). After this initial rush of applications, the Panel is likely to receive between 200 and 300 applications each year.


  Clause 11 is indeed a further exception to the proposition in clause 5, but this does not relate to retrospectivity. Rather, clause 11 embodies an exception to the prospective effect that the legislation generally has. It makes provision for a person recognised in an acquired gender to be considered, for the purposes of peerages and lineal property only, in his or her birth gender.

  In terms of the policy behind clause 11, by stating that where a peerage is concerned a transsexual person is considered in his or her birth gender we avoid anomalies of succession. Without clause 11, it is conceivable that, for example, a female-to-male transsexual could bypass the first-born son and inherit a title of honour. Unless otherwise specified, clause 11 removes the incentive to switch genders for this purpose. In 2002 the Government agreed that it would be inappropriate to allow the adopted children of peers to inherit a peerage or associated property from their adoptive parents. Clause 11 may be seen as an extension of that policy.

  I note that you think it likely that that the Committee will want to hear oral evidence from Lord Filkin. I would be grateful if you could confirm, as early as possible, when that is likely to be so that we can get the date in his diary. It is clear that the Committee will not now report by the end of October but we are keen to do all we can to enable it to do so as soon as possible.

Belinda Crowe

Head of Gender Recognition Division

28 October 2003

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