Joint Committee On Human Rights Written Evidence

8.Submission from Gender Identity Research and Education Society (GIRES)

  GIRES, as a Charity which is dedicated to the welfare of trans individuals, congratulates those, particularly Press for Change, who have worked so hard to bring the proposed legislation to this point. We wholeheartedly support all the good work that has been done.

  GIRES also endorses the analysis of the Draft Bill, prepared by The Gender Trust. In view of that, we have endeavoured to keep our own responses as brief as clarity will allow, and to focus on some of the most important features which are causing concern.

  1.  The term "acquired" gender is misleading. This may not seem to be a substantive point, but vocabulary is important in shaping the way that people think about issues. "Gender identity" is not something you acquire, but rather an innate psychological identification as male or female, which pre-exists the transition process. An individual undergoing that process adopts the opposite gender role and aligns the phenotype (to a greater or lesser degree) with the core gender identity. So it isn't the gender identity that changes. In fact, physical characteristics are brought into line with the core gender identity, and an appropriate gender role is adopted (see Gender Dysphoria document attached)[2]. The terms used need to reflect that reality. Since the Bill refers to Gender Recognition, perhaps "newly recognised gender" would be more appropriate.

  2.  Gender Dysphoria (GD) is not synonymous with Transsexualism (see Definition and Synopsis of the Etiology of Adult Gender Identity and Transsexualism attached). This document is endorsed by many scientific and medical experts in the field, listed at the end of its text)[3]. GD refers specifically to the personal experience of the dissonance between the phenotype and associated gender role, on the one hand, and the innate gender identity on the other hand. It is only when this dissonance is profound and persistent that it leads to a need to transition to the opposite gender role, and may then be regarded as transsexualism.

  We respectfully propose that these two elements be incorporated throughout the text, where appropriate, as follows: text to replace original


  (1)  A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of—

    (a)  living according to the opposite gender role or

    (a)  being recognised under the law of a country or territory outside the United Kingdom as having changed gender status

  (2)  In this Act "the newly recognised gender ", in relation to a person by whom an application under subsection (1) is made, means—

    (a)  if the application is made under paragraph (a) of that subsection, the gender role in which the person is living, or

    (b)  if the application is made under paragraph (b) of that subsection, the gender status to which the person is recognised as having changed.

  (3)  An application under subsection (1) is to be determined by a Gender Recognition Panel.

  (4)  In the case of an application under subsection (l)(a), the Panel must grant the application if satisfied that the applicant—

    (a)  is experiencing or has experienced gender dysphoria,

    (b)  has lived according to the newly recognised gender throughout the period of two years ending with the date on which the application is made,

    (c)  intends to continue to live in the newly recognised gender until death. and

    (d)  complies with the requirements imposed by, and any requirements imposed by the Panel under, section 2, and otherwise must reject it.


  Existing marriages which were contracted before the transition of one partner, should be protected. In this, of course, we almost certainly echo the feelings of the entire trans community. The argument for ending these marriages is that they are regarded as single-sex relationships and, accordingly would be incompatible with the law. Application for a Gender Recognition document would, therefore, have to be accompanied by divorce. We would oppose this as it obliges trans individuals and their spouses, either to end their marriage, or it obliges the trans partners to remain assigned to the wrong gender at a time when others are claiming their new status as a fundamental human right. Many will undoubtedly choose to remain married and will forgo the opportunity to obtain legal status in their core gender identity.

  This Bill is responding, quite properly, to the breach of human rights which hitherto has existed, in that trans individuals have been unable to have a document which recognised their innate gender identity. That is clearly now accepted as unjust and unequal treatment. But forcing a choice between two unacceptable propositions is, in and of itself, an abuse of human rights. The law would be giving with one hand, and removing with the other, an essential element of equality and dignity; the law would therefore, in these cases, be inconsistent, either with Article 8 or with Article 12 of the Human Rights Act. The net result is that two otherwise identical people, one married, one not, will have different employment rights. The trans person who remains married cannot avoid the 1999 employment restrictions, which the unmarried person escapes (Sex Discrimination [Gender Reassignment] Regulations 1999 [SI 1999/I 102]). Trans people, in pre-existing marriages, therefore without a gender recognition certificate, may be regarded as a risk to vulnerable people, whereas those with such a certificate, whose marriages are rendered void, will not be so regarded.

  In order to obtain essential protections against these kinds of discrimination in the workplace, a married trans person must end an otherwise successful marriage, to the considerable detriment, emotional and financial, to the spouse and children of that marriage. It seems wholly inappropriate, in an age when society generally exhibits such a lamentable lack of stability in family life, that families who seek to remain a unit, should be destabilised in this way.

  It is noteworthy, that Judge Chisholm discusses such a situation, "in order to be as thorough as possible". He poses the question, "what would be the position if the marriage law were to recognise the reassignment? The marriage would, I think, still be valid: its validity would be determined as at the date of the marriage, and I would not think it would become invalid by reason of the reassignment" (re Kevin, validity of marriage of transsexual (sic) 2001, paragraphs 302, 303). It is open to the government to follow this reasoning.


  There are even more cogent reasons for not ending existing marriages such as that of Elizabeth Bellinger, who had already transitioned when she and her partner celebrated their wedding. Their union is now, according to the Draft Bill, to be regarded as void. The Bellingers will, under the proposed new regulations, be able to marry each other "again". The failure to acknowledge the whole of the pre-existing marriage is, as with the marriages dealt with in paragraph 4, a breach of human rights. It is quite possible for the government to circumvent any Corbett arguments by taking the line argued by Judge Chisholm in re Kevin, a trans man (validity of marriage of transsexual (sic) 2001), and therefore in a situation which is the mirror image of Mrs Bellinger's. Judge Chisholm said of Kevin, merely that he perceived himself to be a man; he had had reassignment treatment involving hormone therapy and irreversible surgery; he was perceived by others as being a man; at the time of his marriage, in appearance, characteristics and behaviour he was perceived, and accepted, as a man, by his family, friends and work colleagues. His marriage as a man was accepted in full knowledge of his circumstances. The human rights and common sense arguments prevailed and there was a declaration of the validity of the marriage. This path is open to the UK government.

  5.  In addition, these arguments are significantly strengthened by the cogent scientific arguments for allowing these marriages to be recognised from their inception. These are based on accepting the view, supported by medical and scientific experts, that although an infant's gender identity cannot be discerned at birth, it is, to an extent, predetermined by the early organisation of neural structures in small areas of the brain which are identifiable in the general population, as sex-dimorphic. Typically, this "brain sex" is consistent with other sex characteristics and, therefore, at birth, the gender identity is predicted to be congruent with the visible sex characteristics. It had previously been assumed, therefore, that the influence of the bodily appearance of an individual, reinforced by socialisation in a manner that was consistent with that appearance led, inevitably, to a congruent gender identity. Therefore, the typical biological pathway was regarded as being chromosomes—gonads—phenotype—rearing—gender identity. It was thought that what one could see at birth was all one needed to know. It is on this basis that Corbett has held sway for so long.

  6.  However, Corbett is now outdated in light of current knowledge. In accordance with the understanding that early biological influences include brain sex differentiation, it is also understood that there will be rare cases of inconsistency between it and other sex characteristics. This echoes the experience of, and research into, the unusual inconsistencies between many other elements of sex-differentiation, affecting genitalia, gonads and internal sex organs. In the case of trans individuals, two biological pathways are, in fact, running concurrently: the phenotype, leading to the imposition of the gender role; the brain sex differentiation predisposing to an opposite gender identity. The potential for the conflict between phenotype and gender role, on the one hand, and gender identity on the other, is innate, although it may take some years to become clearly identified. It is inevitable that, at birth, where there are instances of brain sex/body incongruence, the gender identity will inevitably be mistakenly predicted (see attached papers, Definition and Synopsis of Adult Gender Identity Disorder and Transsexualism; Gender Dysphoria).

  7.  Lord Justice Thorpe, in his dissenting judgment in Bellinger v Bellinger ([2001] EWCA Civ 1140, paragraph 134-136) referred to a parallel case, that, of Re W (Charles J in W v W [2001] 1 FLR 324). Mrs W had a condition known as partial Androgen Insensitivity Syndrome. This is a condition in which a chromosomally male foetus has a reduced response to the influence of testosterone. The infant may, therefore, be born with some degree of ambiguity of the genitalia since they are not fully masculinised. A decision was taken that this individual (Mrs W) would function best as a boy and the infant was assigned accordingly on the birth certificate. Eventually, finding herself uncomfortable in the male role, she transitioned to live in the female role and had genital realignment surgery. This individual's chromosomes and gonads were wholly inconsistent with her gender identity, as were, to a certain extent, her genitalia. A situation, which, as Thorpe L J pointed out, echoed in almost every particular, the history of Mrs Bellinger. Mrs W won her case; Mrs Bellinger lost, yet any distinctions, in medical terms, are spurious.

  8.  It is not necessary to argue against that the notion that sex and gender are fixed at birth (Corbett). Let us suppose that they are. Sex, of course, may be modified by surgery. Gender identity may not be so modified. It is resistant, as Professor Richard Green suggests in his affidavit (Bellinger v Bellinger, cited at para 116 iv) to socialisation and to all manner of psychiatric treatments (Bellinger v Bellinger, cited at para 32). So it may be regarded as being predisposed to remain much as it was at birth but, in the case of those destined to experience gender dysphoria, it is not congruent with other sex characteristics, having developed in the opposite direction, as Professor Louis Gooren explains in his affidavit (Bellinger v Bellinger, cited at para 27). So, as stated at paragraph 6 above, where the error is made, is not necessarily in the presumption that gender identity is fixed, but in supposing that it is fixed in a way that is congruent with the external appearance. Thus, gender identity is not inconsistent with biology, but in Corbett and beyond, the wrong biological characteristics have been identified as relevant. As Professor William Reiner succinctly puts it, "the organ that appears to be critical to psychosexual development and adaptation is not the external genitalia but the brain" (W. G Reiner, (1997). To be Male or Female—That is the Question. Archives of Paediatrics and Adolescent Medicine 151 [March] :224-5)

  9.  Judge Chisholm, in re Kevin (validity of marriage of transsexual [sic] 2001,) also had the benefit of affidavits from a number of experts. After carefully analysing the material, he finds, on the balance of probabilities, that Kevin's sense of being a man is based on some "biological characteristic of his brain". Judge Chisholm does not rely on this, but his finding indicates the force of the medical evidence which reinforces the legal argument for human rights. The implications of this are that trans people are born, not made. A trans woman who, in the past would have been described as a biological male is, in fact, biologically female in the place that counts most—the brain. Mrs Bellinger, and others in similar situations were, at the time of birth and at the time of marriage and today, still experiencing the same gender identity. She has always been female and, crucially, at the time of her marriage to a man, she was recognised as such. Her existing marriage should, therefore, be validated. Obviously the same holds true for a trans man in the reverse situation. The Corbett criteria which had regard for chromosomes, gonads and genitalia, did not take account of the full biological picture, which includes brain sex-differentiation. It can no longer be argued that these criteria are sufficient information upon which to judge cases involving trans people. It is open to the government to follow the judgements of Judge Chisholm, Lord Justice Thorpe, and Charles J in W v W. In view of these important examples in existing law, a European court would almost certainly find in favour of validating the existing marriage, and the UK would, once again, be obliged to make local legal changes. This validation, however, can already be accommodated in UK law; indeed, the law has already done it (op. cit. Charles J in W v W. This avenue is open to the government.


  10.  Concerns have also been expressed with regard to the efficacy of the "prohibition on disclosure of (protected) information" and, therefore, the security of the Register. Reassurance that there can be no inappropriate sharing of this information, is sought. Concerns have recently been heightened by the intention of the DCA to enter into consultation regarding a draft statutory instrument to provide yet further exemptions from the disclosure rules under the Bill, thus looking to broaden, even further, access to the gender change register. We suggest that no further exemptions to the protection of these data are permitted.

Gender Recognition Panels

  11.  Clarity is sought on who is eligible to be a member of the Gender Recognition Panels, and how the members will be selected. Our recommendation is that people of impeccable objectivity are selected, who are knowledgeable about gender identity and transsexual issues, and that these criteria are incorporated into the Bill.


  12.  There are concerns about the possible cost to trans people of obtaining new recognition. We are aware that many are on very low incomes. We suggest that the cost should be specified and be no more, say, than the cost of renewing a passport. Since the provision of medical documents will, in most cases, be expensive, would it not suffice to have a single document from the GP, who is likely to have had the longest and perhaps the most frequent contact with the individual.

Solemnisation of marriage

  13.  It would appear to be the case that clergymen already have the right to refuse to marry people or carry out other ceremonies if it offends against their own conscience. Is it, therefore, necessary to single out trans people as the one group regarding whom a written regulation exists? A Rector in our village regularly refused to marry couples who had been cohabiting, or to baptise babies whose parents were unmarried. (The Church has now removed him to a distant part of Scotland where, presumably, it was deemed that his views would give less offence to fewer people). The church will always have a number of clergy who are "ignorant or bigoted". To dignify such attitudes by explicitly referring to these, in relation to trans individuals appears gratuitous.

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