Joint Committee On Human Rights Written Evidence

7. Submission from the Evangelical Alliance


  1.1  The draft Bill is a well-meaning attempt by the Government to respond to the many calls that have come out of Brussels to improve the lot of transsexual people in Great Britain. The Evangelical Alliance wishes to make clear from the start that it is unequivocally supportive of the need to recognise fundamental human rights of transsexual people.

  1.2  The need for positive action has become imperative following the decision of the House of Lords in Bellinger that, insofar as it fails to enable transsexual people to enter into legal marriages with persons who are ostensibly of the opposite presenting sex, UK law is inconsistent with provisions of the European Convention on Human Rights.

  1.3  The Evangelical Alliance wishes to make certain observations on the human rights implications of the draft Bill.

  1.4  The broad position which the Alliance adopts is this:

  1.4.1  The Bill addresses the perceived disadvantages suffered by transsexual people, largely from the point of view of transsexual people themselves. This is perhaps not surprising since it is a first response to criticisms from Europe.

  1.4.2  However, any change in status of or privileges enjoyed by transsexual people is bound to have a "fall-out" effect on third parties with whom they are connected, not least members of their own families.

  1.4.3  Unless this side effect is thoroughly measured and evaluated, and unless appropriate safeguards are put in place (something we consider the present draft Bill does not achieve), it is highly probable that advancing the lot of transsexual people will violate the human rights of those third parties.

  1.5  For convenience, throughout this paper a transsexual person is referred to as "he" or "him". This should not be taken to imply on our part any assumption about the gender in which such a person is or should be recognised. For "he" or "him", therefore, read "she" and "her" as appropriate to the context.


  2.1  In our view, the Bill engages the following human rights:

  2.1.1  The right of fair trial (Article 6)

  2.1.2  The right to respect for private life (Article 8)

  2.1.3  The right to respect for family life (ditto)

  2.1.4  The right of freedom of thought, conscience and religion, including the right to manifest that religion or belief in worship, teaching, practice and observance (Article 9)

  2.1.5  The right of freedom of expression (Article 10)

  2.1.6  The right to marry according to national laws (Article 12)

  2.1.7  The enjoyment of these rights without discrimination on the grounds of sex (Article 14)

  2.2  We further consider that, in the measures it proposes, the Bill seeks to improve the lot of transsexual people in respect of their rights under Article 8, Article 12 and Article 14 of the Convention.

  2.3  We do not think however that much thought has been given to the rival and/or balancing rights of other members of the community, in particular:

  2.3.1  The right that other members of a transsexual person's family enjoy under Article 8 to respect for their private and family life;

  2.3.2  The right of employers, family members, and other members of the community under Article 10 to receive and transmit truthful information about a transsexual person without interference by public authority in their freedom to exercise that right; and

  2.3.3  The right of ministers of religion and church congregations to practice tenets of their religion which, for example, stipulate that a marriage is valid in God's eyes only if it takes place between a man and a woman (Article 9).


  3.1  At first it may seem odd that a purely private application relating to the personal attributes of an individual should engage Article 6 at all. As we argue in the next section, however, an application for a Gender Recognition Certificate does not only affect the applicant. On the contrary, as the name implies, it requires third parties to recognise' the change of gender as a matter of law. This means that those who are near and dear to a transsexual person, for example, can no longer regard him as they once did, but are under compulsion to accept the new identity, under legal sanctions.

  3.2  It may be asked why any third party should be required as a matter of Law to recognise a person's new (acquired) identity, without at the very least having the opportunity to voice objections. And as is well known (and specifically acknowledged both by the European Court of Human Rights in the Goodwin case and by the House of Lords in the Bellinger case), there is no objective evidence accepted by the medical or scientific community at large to suggest that a person is able to actually change their sex. The failure to provide any forum for hearing those objections is a fatal weakness at the heart of this Bill. It implies that Parliament considers it acceptable to employ the law to introduce methods of thought control to railroad family members and other third parties into submission. This would represent a highly alarming development in the use of the law.

  3.3  No man is an island. A psychologically disturbed pre-operative transsexual is nevertheless surrounded by a delicate web of caring relationships consisting of family and friends, and also by social and work acquaintances. Any of those may have valid and reasoned objections why the person in question should not go through with Gender Recognition. Unless it is possible (which manifestly it is not) to dismiss all those objections a priori as irrational and senseless, justice requires that they be heard. And Article 6 requires sufficient procedural safeguards to be in place to make that right effective.

  3.4  Moreover it goes without saying that Article 6 safeguards are illusory unless the hearing is, in principle, conducted in public. We say "in principle" because it is possible, under English law and in accordance with the Convention, to exclude the public from part or all of the trial process where it concerns sensitive medical or personal matters that may be thought to be highly confidential. But even so:

  3.4.1  This cannot exclude people who are properly parties to the litigation, because they have an interest in its outcome;

  3.4.2  Even where the public is excluded from part or all of the trial, the transcript of judgement must nevertheless be available to the Press (if necessary, protected by anonymisation).

  3.5  This leads us to another fundamental, and in our view fatal, weakness in the Bill, namely the presumption (apparent from the way clauses 1 to 4 are cast, and from the structure of the Bill as a whole) that Gender Recognition is essentially a private secretive process which is required to take place behind closed doors, with an embargo on information except that which is necessarily communicated to selected professionals. We believe this thinking is misconceived, especially when, as is well known, the true identity of the vast majority of transsexual people is readily apparent to others and therefore creates a situation where recourse to legal fiction is necessary to enforce an interpretation which is manifestly at odds with the facts and natural human perception.

  3.6  In English law, all questions relating to the legal status of individuals are determined, and evidenced, in a public way. Whether it is a person's birth, death, marriage, divorce, or their passport, nationality, or driving licence, all these matters are open to inspection at any time by persons having a legitimate interest (which in the examples cited, is everyone).

  3.7  We consider that a change of gender from apparent male to apparent female or vice versa is something which goes to the root of a person's identity and legal status. Indeed, so much is implied by the process of formal recognition for which the Bill is designed. Gender Recognition would not be much use if it did not translate into an external legal status.

  3.8  Since the end result of this process is so evidently public, and affects the mutual rights and obligations of the whole of society (not to mention those nearest and dearest to the transsexual), it is impossible to regard the procedure for Gender Recognition as a purely private matter akin to, say, inspecting a person's medical record (which for obvious reasons is treated as confidential). On the contrary, it is a public declaration by the person in question that he no longer wishes be regarded as male, or female, as the case may be. It is hard to imagine anything more public.

  3.9  Clauses 1 to 4 of the Bill need to be radically amended, first of all, to allow the Press and other third parties to attend hearings and/or receive copies of the judgement of the Panel (subject to the provisos already mentioned); and secondly, to accommodate the right of third parties with an interest, eg family members, to become parties and to voice their objections in a way which is consistent with the right of fair trial.

  3.10  Although we cite family members as an example, there may be others who are directly in the frame for the right of fair trial, depending on the circumstances. This group could include, for example, employers and insurers. There is also mounting evidence that certain sports bodies and clubs are feeling threatened by the participation of transgendered people—where the transgendered person may or may not have undergone gender reassignment surgery. For example, women in sport are particularly affected since the potential physical advantage of the transgendered "woman" takes away any sense of fair competition against biological women. There is direct evidence already of events organised, eg for women's cycling, where competitors have withdrawn from the event when they have found out that a transgendered person is riding. Organisers would prefer that they ride in their own category, but are afraid of being accused of discrimination. There must therefore be a mechanism for:—

  3.10.1  Publicising the fact that an application for Gender Recognition is due to take place;

  3.10.2  Allowing third parties to intervene on showing proper cause for doing so;

  3.10.3  Allowing for the disqualification of transgendered persons from seeking to impose their acquired gender where this adversely affects the rights of others.

  3.11  The structure for such publicity, intervention and protection is non-existent in the Bill as it stands, which requires radical overhaul if it is to comply with Article 6.


  4.1  No man is an island. Every change in the persona of a transsexual person affects those around him. For a very limited number of such people (eg the sexual partners of the transsexual) there may be a net gain. However, for the overwhelming majority of friends, acquaintances and especially members of the family, it will represent a loss as experience and case studies confirm.

  4.2  This section focuses on family members as such.

  4.3  Family members who may be affected by a person's decision to apply for a Gender Recognition Certificate include:

  4.3.1  His spouse;

  4.3.2  His children;

  4.3.3  His parents;

  4.3.4  His siblings;

  4.3.5  His grandparents, in-laws and other members of the extended family.

  4.4  Indeed, it is hard to imagine any member of the family who is not affected in some way.

  4.5  All these persons, but particularly members of the immediate family, may suffer a deterioration in the quality of their family life as the result of losing a person they have known and loved. (Of course, the person may not be "lost" in an absolute sense. Nevertheless, as case evidence confirms, their assertion of a new gender identity is highly likely to sever relationships and cause alienation within the family).

  4.6  The most obvious case is children. At its most basic level, the right to family life means the right to have a mother and father. This right may not come into being where artificial means of reproduction are employed such that a child never knows his true father. But where the relationship of mother, father and child exists, any interruption in the continuity of that family relationship—especially where it is mandated by the State—interferes most certainly and directly with the children's family life and so amounts to a violation of their right of respect to family life under Article 8. In addition the paradoxical and confusing outcomes of ambiguous gender presentation result in the contradictory categories for example of female "fathers" and male "mothers". Children have a right to enjoy conventional family life in line with the universal common sense understood by the overwhelming majority of society. A change of gender will therefore not affect parenthood. This could create some inevitable dilemmas as to whether a person's true gender should be revealed (a) to children themselves, (b) the court, (c) to the public in consequence of the decision being reported, or the public being admitted to the hearing.

  4.7  Next, take spouses. Sadly, divorce is prevalent in the UK and Europe but this cannot alter the fact that, by definition, marriage is the union for life of one man and one woman. Article 12 confirms that the right of men and women to marry one another is a basic human right, and furthermore one which is absolute and unqualified, unlike some of the other Convention rights.

  4.8  It necessarily follows that the State cannot interfere with the right to remain married for life (unless the marriage is ended at the petition of one of the spouses). In other words, a spouse can end a marriage, but the State cannot.

  4.9  Clause 3 of the Bill violates this right by providing that if the necessary medical and lifestyle criteria are established under clause 1, the Panel must issue a gender recognition certificate to the applicant, which is to be known as an "interim" certificate where the applicant is married.

  4.10  The issue of an interim certificate implies that it is already a foregone conclusion that the marriage is at an end, which will translate into reality when in due course the marriage is dissolved or annulled through the divorce courts.

  4.11  Put this way, clause 3 is a monumental assumption and exhibits a callous and high-handed attitude to marriage on the part of the legislature. Inevitably, the issue of an interim certificate will be seen by the divorce courts as terminating the marriage whether or not the other spouse wishes to rely on it as a ground of divorce. In other words, clause 3 amounts in effect to a state-imposed dissolution of the marriage. This invades the fundamental right of the other spouse to be, and remain, married; not to mention the Article 12 right to marry itself.

  4.1 2  Further illustrations of how family members may be affected are otiose. But it goes without saying that parents, grandparents, brothers, sisters, uncles, aunts, nephews and nieces: all may be gravely distressed at "losing" a member of the family who wishes to act out what many will inevitably have no option but to regard as his transsexual fantasies. It is notable that the draft Bill makes no mention of any responsibility of the State to provide for the care and management of those many family members suffering the inevitable trauma of a transsexual person undergoing gender recognition procedures, with or without accompanying surgery.


  5.1  A minister of religion who is asked to many two people has the right to know whether the people he is marrying are male and female. For if not, he is brought into conflict with the tenets of his belief, and (in the case of a clergyman of the established church) the Canons of the Church of England, which declare that the marriage is not valid in God's eyes unless they are (biological) man and (biological) woman.

  5.2  So far from the Bill providing a conscience exception, it prevents a clergyman from even knowing whether he is conducting a proper marriage. This violates the freedom of thought, conscience and religion under Article 9. The Bill also offers a potential unsavoury recipe for suspicion and confrontation where clergymen and nonconformist ministers suspect (rightly or wrongly) that they are being requested to marry two people of the same-sex, yet are presented with denials and an apparent birth certificate which contradicts the senses. This exception is acknowledged as a valid attempt to meet the requirements of the religious conscience, but unless access to the original records is made available it would appear to be in many cases practically unworkable, and may open a minister of religion to unnecessary legal actions.

  5.3  We consider that the members of the congregation of such a church are also entitled under the Convention, to hold and practise their beliefs, and accordingly they have as much right as the clergyman to know the true sex and gender of the intending married couple. This would apply in many situations, but especially in those frequent instances, for example, in Baptist churches, where the entire membership is customarily involved in the appointment of a new minister. As things stand, unless a transsexual applicant gave permission for his true gender to be disclosed (many will not agree to this claiming right to privacy) church officials would apparently be guilty of prohibited disclosure under the terms of the Bill for complying with the doctrines and practices of their own church.


  6.1  We have already commented on how, in many respects, the Bill misguidedly seeks to turn gender recognition into a secret process.

  6.2  It necessarily follows from our observations that the status of an individual is a public matter in respect of which the public has a right to know the truth.

  6.3  It has already been made clear, and we have rehearsed the evidence frequently elsewhere, that it is universally accepted that a person cannot de facto change their sex. Any attempt by this Bill, therefore, to suppress the facts, whether in the shape of an altered birth certificate and other registration documents (Schedule 2), or prohibitions on the disclosure of information (clause 14), is in direct violation of Article 10 of the Convention.

  6.4  Furthermore we see immense practical difficulties in the way of suppressing information of this kind. After all, a person's family and friends would know, and cannot be prevented from telling their story. So how would restrictions on publication and/or Press reporting work in practice? They would fail at every turn. Also, experience has shown that in the vast majority of cases transsexual peoples' true identity is easily recognised. In our view, to conceal the truth will inevitably make life more, rather than less, difficult for transsexual people, and alternative means of handling their particular needs should be considered, as we have previously argued with Government. In the final analysis the fundamental human right to believe fact and truth must be protected and in this Bill recourse to legal fiction in an effort to meet the needs of transsexual people seems to us both unworkable and likely to produce the opposite of what is intended.


  7.1  The right of a man and woman to many is expressly asserted in the Convention in terms that are absolute (Art 12).

  7.2  This necessarily implies the right of one party to the marriage to know the sex and gender of the other, and vice versa.

  7.3  We do not see how a suppression of this information, which is in effect what the Bill proposes, can possibly be consistent with Article 12.


  8.1  We take it that one of the main aims of the Bill is to end or limit discrimination against transsexual people by removing some of the latent obstacles to recognition in the gender of their choice.

  8.2  While this may be a laudable aim as far as it goes, it is only one of many balancing aims that a statute of this nature should seek to encompass. We do not deny that transsexual people should receive sympathy, support and counselling, nor that they should be protected from harassment and victimisation, if necessary by clear and strong statutory provisions. But the way in which the Bill seeks to achieve this, by in effect legislating a new status and suppressing all truth and evidence to the contrary, is we think taking a sledgehammer to crack a nut. Furthermore, the danger of doing so is that it rides roughshod over the rights of a large sector of the population, who are entitled to form and hold their own views and beliefs about transsexual people, and to relate to them either in their gender of choice, or as the individuals they always knew, or know and believe them to be. So to elevate freedom from discrimination to the overriding objective of the Bill, is to injure many other interests and rights, which in many cases, on account of their delicate nature, tend to go unseen. No attempt has been made within the Bill, for example, to advise employers or owners of public services on how to cope with the inevitable response of staff or clients to obviously transsexual people (with or without gender reassignment surgery) using gender specific facilities.

  8.2.1  By way of a further specific example, there is no apparent third party protection offered by the draft Bill involving the need for disclosure when a doctor/medical practitioner has themselves acquired a different gender. We already know the police will not allow transsexual officers to conduct personal searches. But where transsexual doctors are examining patients of the "opposite" sex it is a fundamental human right, that those patients should be made aware, and have the opportunity to decline without fear of prosecution. Muslim women, for example, always insist on female doctors for examinations.


  9.1  Change of gender is a change of status which, by its nature, needs to be publicly acknowledged.

  9.2  This cannot happen if, as the Bill presently seeks to do, the process is a secret one, in which information is suppressed.

  9.3  Nor is it right to favour the interests of transsexual people while riding roughshod over the interests and concerns of family members of the transsexual and other interested parties.

  9.4  So far from the Bill catering for or holding in balance those interests, it does not even provide a mechanism whereby they may be consulted let alone heard.

  9.5  The Bill assumes without any foundation whatsoever that it is possible to change sex, a proposition that to say the least raises a host of scientific, medical, factual, philosophical and theological questions. it further suggests that gender is a status that can be self-determined and bought for money. To the vast majority of right-thinking people in Great Britain, gender is manifestly predetermined by biological sex, and the idea of an optional crossover is as offensive as it is absurd. It is advisable nonetheless for societal acceptance of some form of recognition, short of a change of actual status, for those individuals who have a psychological need to live as a member of the opposite sex. The Convention right of privacy may safeguard individuals in this category from prurient enquiry. The Bill should be addressing this need for sensible recognition and/or safety, not striking at the roots of sex and gender.

  Furthermore, it appears from the draft Bill that marriage is no longer to be based on biological sex, but on "gender" (as defined for the purposes of this legislation). That is a huge constitutional change that goes well beyond the remit of this Bill. If gender is to be divorced from sex, as the Bill implies, then why retain any distinction at all between the sexes? Though the Evangelical Alliance clearly does not take such a view, it is logical to ask why not abolish marriage altogether—or make it available to anyone of whatever (optional) sex? For if gender, not sex, defines marriage (as the Bill in effect provides), then biological sex has effectively become redundant save only as a mechanism for reproduction, if that.

  As to altering the records, and in particular birth certificates, this ranks as one of the most obnoxious features of the Bill: because it obliges registrars to state, and everyone else to accept, what is plainly a falsehood, viz, that someone was (by implication) born a member of the opposite sex. It virtually amounts in many peoples' minds to what could be regarded as institutionalised deception. Should anyone who knows the facts venture to state them in public, he or she may commit a criminal offence and be open to a suit for libel. The Bill criminalises truth-telling, and thus undermines the whole basis for the rule of law.

  The Bill does not guarantee impartiality over issues of sex and gender. For example, medical reports are required from, and the Recognition Panel is to comprise, experts who gain their living by diagnosing the condition known as gender dysphoria, and by encouraging the carrying out of cosmetic plastic surgery to "correct" it. Such people have an interest in changing a person's gender. By contrast, those who may have an interest in ensuring that a person's gender remains the same (spouses, members of the family, etc), are not allowed to participate in, let alone judge, the case.

  In our view, therefore, the Bill therefore violates a large number of human rights and cannot be considered compatible with the Convention.

29 September 2003

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