Joint Committee On Human Rights Written Evidence

6. Submission from the Equal Opportunities Commission

  By way of explanation the response of the Equal Opportunities Commission ("EOC") to the Draft Gender Recognition Bill has been numbered in paragraphs which correspond with the clause numbers indicated within the Gender Recognition Bill.

  The Equal Opportunities Commission is the statutory body established under the Sex Discrimination Act 1975 by virtue of section 53 of that Act with the following duties:

    —  To work toward the elimination of discrimination

    —  To promote equality of opportunity between men and women

    —  To promote equality of opportunity, in the field of employment and of vocational training for persons who intend to undergo, are undergoing or have undergone gender reassignment

    —  To keep under review the working of the Sex Discrimination Act and the Equal Pay Act 1970 and, when they are so required by the Secretary of State or otherwise think it necessary, draw up and submit to the Secretary of State proposals for amending them

  On this basis the Equal Opportunities Commission is responding to the proposed content of the Gender Recognition Bill. It should be borne in mind that under section 75 of the Sex Discrimination Act 1975 the Equal Opportunities Commission has assisted a number of trans gender individuals in claims in the Employment Tribunals, County Courts, Employment Appeal Tribunals and the Court of Appeal. Therefore the experience of the Equal Opportunities Commission is not insignificant in this area.

Clause 2

  It is important that the Bill recognises the complexity of gender reassignment treatment. The individual undergoing the process of gender reassignment may not be able to undergo surgical or hormonal procedures as a result of health concerns or personal reasons, delay due to waiting lists, unavailability of treatment, costs, etc.

  The EOC is strongly of the view that application for gender recognition certificate should not require an individual to have undergone surgery as a pre-requisite for gaining a gender recognition certificate.

  Section 1 of the Bill indicates that an application for a gender recognition certificate must be granted if the applicant has:

    —  sl(4) (a)  Had or has gender dysphoria

    —  s1(4)(b)  Has lived in the acquired gender throughout the period of two years ending with a date upon which the application is made

    —  s1(4)(c)  Intends to continue to live in the acquired gender until death, and

    —  s1(4)(d)  Complies with the requirements imposed by and any requirements imposed by the Panel under, section 2.

  Guidance should be appended to the Bill to clarify that those individuals applying in accordance with section 1(1 )(a) of the Bill, and so complying with sections 2(1), 2(2) and 2(4) of the Bill are not required to have undergone surgery or medical treatment such as hormone therapy to make an application for and be granted a gender recognition certificate so as to clarify the individual making the application is not required to have undergone surgery or hormone treatment.

  Furthermore the EOC recognises the need for medical evidence as regards the diagnosis of gender dysphoria. However, the EOC would like clarification of what information is required to satisfy the term "diagnosis". Guidance should be given as to what is required concerning the diagnosis of gender dysphoria and the issues to be addressed by a medical expert. Medical personnel who have treated the individual for gender dysphoria at a later stage are unlikely to be aware of the initial diagnosis so would be excluded from providing a report under the current provisions. Such a preclusion seems unnecessary and it is suggested that it is sufficient for those medical personnel who are involved in later treatment to comment on the previous records detailing the diagnosis.

  Often those suffering from gender dysphoria and undergoing gender reassignment often have been in contact with the medical profession for a number of detailed assessments and reports. Therefore it is the EOC's view that should a suitable report already have been produced, there is no requirement for the individual to undergo a further medical examination by an additional expert for the purposes of obtaining a report for a gender recognition certificate.

  There is a concern that if the reports already obtained by the individual, during the course of their having or having had gender dysphoria, are not to be used, either the individual will be prejudiced due to a backlog of work by those able to prepare the reports required under clause 2 of the Bill and by the costs of obtaining those additional reports.

Clause 3

  The current provisions in the Bill for an interim gender recognition certificate effectively deny the individual full legal recognition should they be married to someone, prior to their transition, who is of the sex to which they transition.

  Transgender individuals who wish to obtain full gender recognition, in these circumstances, are thus required to annul their marriage with their spouse. The implications of such a requirement infringe the human rights of the individual to a private life.

  If the spouse of the individual undergoing gender reassignment remains married to the transitioning individual after transition the requirement to annul the marriage prejudices both individuals. A great deal of emotional support has been given by both individuals to each other along with the security financially of being a married couple. Should this provision remain provisions must be included so as to offset any detriment suffered by each party, by way of finances and benefits, by the requirement that the marriage must be annulled in order for the transgender individual to gain the legal recognition to which they are entitled.

Clause 4

  The requirement at section 4(1) of the Bill that an application must be made in a form and manner specified by the Secretary of State must not be cumbersome so as to discourage applications but must include only that which is necessary, relevant and proportionate for the application.

  Section 4(2) of the Bill provides that the applicant for the gender recognition certificate must pay a non-refundable fee in respect of the application. Often individuals have funded their treatment privately and therefore any additional fees should be restricted to the minimal level to cover administration of the provision of the gender recognition certificate. The EOC is of the view that the fixed fee be made clear at the outset which is subject to inflationary increases only.

Clause 9

  Section 9 of the Bill removes the exemptions from jobs with genuine occupational qualifications. However, there is no recognition that once a gender recognition certificate has been obtained, the individual may still be discriminated against on grounds of having undergone gender reassignment, as well as potentially being discriminated against upon grounds of their being male or female. The Bill should include provisions so that even where a gender recognition certificate has been gained the individual has recourse and redress for discrimination on grounds of having undergone gender reassignment.

  It should be clarified in the Bill that those individuals who have gained the gender recognition certificate will then be protected by S29 of the Sex Discrimination Act 1975. The Bill should be amended so as to ensure that those individuals who have not yet gained a gender recognition certificate are protected by S29 of the Sex Discrimination Act. A failure to do so results in disparate discrimination of those undergoing gender reassignment who have not yet gained a Gender Recognition Certificate.

  An issue which often arises is the point at which the employment protection at S2A of the Sex Discrimination Act becomes effective. Often individuals undergo the real life test without necessarily undergoing immediate medical treatment although they may be under medical supervision. In these circumstances it is suggested that the SDA be amended to ensure and clarify that individuals will be protected and treated in accordance with the gender to which they transition when they undertake the real life test which includes steps such as changing dress, changing their name by deed pole, changing records, etc.

Clause 14

  This section of the Bill protects the individual, who has made an application for a gender recognition certificate which has been granted, from disclosure of the act of applying for the certificate. The protection afforded by this section does not extend to the information contained within the application nor the circumstances where the application is made but a certificate is not granted. A requirement for non disclosure should include information within the application, the fact that an application has been made irrespective of whether the application is successful or not.

  This imposes a duty of non disclosure on individuals who have come into contact with the application and employers and prospective employers of the individual making the application. It also impose the duty on those providing business or professional services but it does not cover the provision of all goods, facilities and services. The Bill should be amended so as to encompass the provision of all goods, facilities and services to the individual.

  As regards the exemptions under clause 14(4) there are a number of inappropriate exemptions. For example whether or not an individual can be identified from disclosure of information does not excuse the disclosure of the information as it is an entirely subjective judgment of whether someone can be identified or not. Those individuals who are living or employed in particular areas that may be more easily identified by those in that area than by the person who discloses the information. Additionally, it is not acceptable once an application has been made the information should be disclosed whether or not the application has been granted. It should also be made clear that even if an application is not granted, that information should not be disclosed.

  Should the disclosure of information within the course of official duties occur, the definition of official duties must be clarified as "official duties" may be entirely subjective giving rise to disclosure of information in appropriate circumstances.

  Any disclosure pursuant to clause 14 must be stated to be necessary, relevant and proportionate to the need which requires the disclosure.

Clause 19

  The Bill provides that those who meet the requirements of clause 1 and 2 should be granted a gender recognition certificate. One of these requirements is for the individual to have lived in the acquired gender for two years prior to the application to apply a time period of six years for the fast track process. The Bill's provisions should be consistent in that those who have lived in their acquired, gender for two years and meet the requirements of section 19 should also be allowed to "fast track" their applications. The time limit of six months from the implementation of the Bill for fast track applications is too short as many people may have to obtain medical reports which may take longer than six months, thus precluding them from the benefit of the fast track process.

Schedule 1

  It is of great concern to the EOC that little attention has been paid to the training and experience of those persons who are eligible to sit as members of the Gender Recognition Panels. It is strongly suggested that any individuals selected to sit on a gender recognition panel must either have had experience, qualifications within the gender reassignment field or receive appropriate training as to what is involved in the gender reassignment process. The Bill should be amended to reflect this requirement.

11 September 2003

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 4 December 2003