Joint Committee On Human Rights Written Evidence

10. Submission from Liberty


  1.  The draft Gender Recognition Bill, when put before the House of Commons (whether in present or suggested amended form) will remove many of the serious difficulties and injustices faced by trans people, which have hitherto included a complete absence of any legal recognition of their true social identity and a total denial of the right to marry in their new social identity or "acquired gender".

  2.  Liberty welcomes the broad contents and objectives of this Bill, as necessarily prompted by the rulings of the European Court of Human Rights in the cases of Goodwin v United Kingdom and Iv United Kingdom. That said Liberty has some abiding concerns, in respect of which it sets out recommendations below.


 (i)   Criteria for applications for GRCs

  3.  Clause 1 of the draft Bill sets out the statutory criteria that must be satisfied in any application for a gender recognition certificate ("GRC"). In particular, clause 1(4) requires an applicant to satisfy the Gender Recognition Panel ("the Panel") that he or she has lived in the acquired gender for two years and intends to live, in the acquired gender until death.

  4.  Liberty has some concerns about the apparent rigidity of this requirement. Liberty is aware of one case involving a trans woman who had fathered two children before transitioning. When the Court made a contact order it stipulated that the children should not see this parent in role until they were old enough to comprehend the change so that they could come to terms with it.

  5.   Because of this type of circumstance (which is likely to reoccur unless the Family Courts modify their approach), Liberty recommends that there should be built into section 1(4)(b) and (c) some flexibility to take account of such exceptional circumstances.

 (ii)   Composition of the Panel

  6.  Clause 1 to 3 of the draft Bill sets out the Panel's role. Schedule 1 of the draft Bill provides in general terms for eligibility, hierarchy, tenure and composition. Clause 1(2) of Schedule 1 provides that only medical and legal members may be appointed to the Panel. Clause 4(2) of Schedule 1 provides that the President must ensure that a panel hearing domestic applications (ie those under draft clause l(l)(a)) should always include at least one legal member and one medical member.

  7.  Liberty is concerned there is no place in these Panels for trans people who have experienced first hand the trauma of transitioning and who can offer invaluable first hand experience in determining which applications for GRC are meritorious.

  8.   Accordingly, Liberty recommends that consideration be given to either providing for the appointment of trans members alongside medical and legal members or to the appointment of trans consultants from whom Panel members may seek advice, input or comment.

 (iii)   Evidence required by the Panel

  9.  Clause 2 of the draft Bill addresses the evidence that is required to be presented by an applicant to the Panel. Clause 2(1) provides that for any domestic application made under clause l(l)(a) the application must include: (i) a report from a registered medical practitioner practising in the field of gender disphoria or a report by a chartered psychologist practising in the field of gender disphoria, coupled with (ii) a supplementary report from another registered medical practitioner (such as a GP). In either case, clause 2(2) requires the specialist reports to include details of the diagnosis of the applicant's gender disphoria.

  10.  Like Press for Change, Liberty welcomes the fact that gender reassignment surgery is not a precondition for the grant of a GRC, yet is concerned that the requirements of clause 2 should be clarified to avoid trans applicants incurring unnecessary yet substantial costs and to avoid the potential for substantial delays whilst such reports are awaited. The strong likelihood is that many applicants for a GRC, particularly those who have undergone gender reassignment surgery, will already have a substantial body of medical reports from the time of such surgery (or from the onset of hormonal treatment).

  11.   Therefore, Liberty recommends that clause 2 be clarified to indicate that such contemporaneous medical reports shall be acceptable as the evidence required by the Panel.

 (iv)   Further inquiries by the Panel

  12.  Section 2(9) provides the Panel with a wide discretion to seek further evidence from an applicant. Given that the focal point of the Panel's inquiry is twofold, namely:

  (1)  consideration of the specialist and other medical reports with a view to reaching a medical conclusion as to whether or not the applicant indeed suffers from gender disphoria; and

  (2)  consideration of other evidence so as to be satisfied that the applicant has lived in role for two years or more,

  (3)  the width of the discretion conferred is unnecessary.

  13.  Such requests for information are potentially highly intrusive, going to the heart of an applicant's private and family life as protected by Article 8 ECHR.

  14.  Liberty believes that any supplementary medical evidence should only be requested after initial consideration of the two mandatory reports submitted in accordance with clause 2(1). Liberty recognizes that in a limited number of cases consideration of such reports may prompt follow up inquiries. As for evidence of past life in the acquired gender and future intent Liberty believes that in order to avoid potentially painful requests being made, appropriate guidance should be drawn up (and the relevant application form so structured) as to encourage applicants to submit as much evidence as possible (with which they are comfortable) to document or provide the foundation for their statutory declarations under clause 2(4). This should minimize the need for the Panel to make further inquiries. Because of their intrusive nature, any request by the Panel for further evidence should only be made: (i) where the Panel is "minded to reject" the application; and (ii) with the provision of full reasons for the request.

  15.   Accordingly, Liberty recommends that clause 2(9) be reformulated so as to provide: (a) that any power to request information should not be exercisable until after initial consideration of the mandatory reports and additional information submitted by the applicant; (b) should only be exercisable where the Panel was otherwise minded to reject an application; (c) should be fully reasoned; and (d) thereafter should be confined to supplementary medical reports from the original registered medical practitioners (where possible) and to specific, identified types of evidence documenting past life or future intent.

 (v)   Certificates and past marriage

  16.  The draft Bill links the conferral of a Full GRC ("FGRC") to the applicant in question being unmarried. Where an applicant, otherwise satisfying all of the criteria required for a domestic or foreign application, remains married then the Panel will only be empowered to issue an Interim GRC ("IGRC"): see draft clause 3(1) to (3). An exception is made by section 3(3) and (4) in foreign applications for "relevant post-recognition marriages", ie marriages made abroad between the applicant in their recognised acquired gender and a person of the opposite gender. A holder of an IGRC may apply for an FGRC within six months beginning with the day on which any subsisting marriage is dissolved or annulled or the other party to the marriage dies (so long as the applicant does not remarry in his or her original gender prior to such application).

  17.  Liberty is concerned by a number of aspects of these proposals. First, it appears to Liberty to be wrong in principle to require applicants to terminate existing marriages. In many instances spouses to trans applicants have historically provided love, affection and support throughout and after the difficult period of transition and life changes. As Press for Change point out with its peculiar expertise, many of these couples are now elderly couples in which the wife of a trans woman has supported her partner through such difficult circumstances. Such couples may have children and, even after the period of transition, may constitute very real family units. To demand, as the price for obtaining full recognition of an acquired gender, that such marriages be terminated with the inevitable consequences of: (a) disruption of family life; (b) distress and pain to applicants, spouses and children, and (c) potential financial loss and inconvenience (such as divorce costs, loss of benefit entitlements, especially pension repercussions, maintenance obligations, loss of provision on intestacy and the automatic right to apply for reasonable provision on death under the Inheritance (Provision for Family and Dependants Act) 1975, and so forth), is manifestly disproportionate. Liberty believes that to impose such a "Hobson's Choice" on the trans community will, in many cases, constitute a breach of Article 8, Article 12 ECHR and/or Article 1 Protocol 1. To persist with such an approach seems likely only to prompt further litigation before the European Court of Human Rights.

  18.  Secondly, such an approach is entirely unnecessary (even putting aside the issue of civil partnerships). The device of the IGRC is presently without any legal consequence other than as a trigger for an applicant (or his or her spouse) to seek to annul an existing marriage. As Liberty understands the draft Bill, an IGRC will produce no other meaningful effects for an applicant as draft clause 5 on its face is expressly limited to FGRCs. In Liberty's view this is unjustified. Whilst it is arguably justifiable, so long as an existing marriage is in place, to delay the legal consequences of a change in gender for the law of marriage (which would in turn require substantial additional amendment to Schedule 3), it is not justifiable to deprive holders of IGRCs of the other benefits conferred upon FGRCs (such as the issue of birth certificates or in the field of employment). Why, it may be asked rhetorically, should the holder of an IGRC not be able to obtain a modified birth certificate or to seek employment without the risk of GOQ debates simply because they married before transition? Seen in this light there is simply no rational connection between such pre-transition marriage and the measures put in place to deal with the predicament of trans people outside the field of marriage. Finally, Liberty would point out that such an approach would not pre-judge the more general debate on civil partnerships, as trans people in such partnerships are in an entirely sui generis position. It may be that the necessary redrafting will remove the separate categories of IGRC and FGRC (as would be desirable in the interests of clarity and equity), and simply restructure the draft provisions on marriage.

  19.  Thirdly, should the Government decide to reform the law on civil partnerships so as to confer rights and obligations upon unmarried heterosexual and homosexual couples (as is contemplated in the consultation paper released in June 2003 entitled "Civil Partnership—A framework for the legal recognition of same sex couples"), it would be anomalous to require the complete termination of any relationship between a couple that married before one partner acquired a new gender.

  20.  Lastly, as Press for Change point out, the present drafting of clause 3 neglects entirely the existence and predicament of married couples in which both partners have acquired new and opposite genders. There can be no justification at all for requiring such partnerships to end when remarriage (should both partners obtain FGRCs) would then be possible.

  21.   For these reasons, Liberty recommends that:

  (1)   IGRCs be given equal status to FGRCs in all areas save the law of marriage, with consequential amendments being made to clauses 5, 7 and Schedule 3 in particular. Ideally, the separate category of IGRC should be abolished, with specific provision instead being made for those lawfully married before transition.

  (2)   The system of IGRCs be further amended should the Government seek to create the institution of civil partnerships, such that partners to an existing valid marriage may transform that into a civil partnership upon obtaining an FGRC.

  (3)   In any event, partners to a current, valid marriage in which both partners have acquired new genders should be entitled to obtain FGRCs without terminating such marriage.

 (vi)   Costs

  22.  Clause 4(2) provides that applicants must pay to the Secretary of State a non-refundable fee in an amount specified by the Secretary of State.

  23.  Like Press for Change, Liberty is concerned about the costs of the proposed system for applicants. Press for Change have produced a table, annexed to their own submissions to the Committee, showing the possible range of costs for applicants for the various steps required or envisaged by the draft Bill. The total costs vary between £709 and £1,640, of which the application fee is likely to constitute between £440 and £833. (The other substantial potential cost that of specialist reports can hopefully be avoided in many cases if Liberty's above suggestion is adopted). These costs, if realized, are a substantial deterrent to the use of the system.

  24.  With this in mind, Liberty believes that it is incumbent upon the Government to do all in its power to limit the costs to applicants, whether by:

  (1)  providing for the use of standard form documents (which may reduce say GP report costs);

  (2)  providing some form of notarizing service; and/or

  (3)  subsidizing the cost of running the Panels.

  25.  As for the last point, Liberty believes that the case for subsidizing the Panels is especially strong for anyone using the fast-track procedure envisaged by clause 19. These individuals have lived for years without proper recognition of their predicament. In all likelihood they will wait a further two years or more for any concrete benefits from the Goodwin judgment. To demand sizeable fees from such individuals when, in principle, they should be entitled to just satisfaction for the distress they have suffered, would be wrong in principle.

  26.   For costs, Liberty recommends that (i) fees should be set as low as possible, with all possible efforts being made to streamline the operation of the Panel system; (ii) the Government should subsidise completely the operation of the system for anyone making a fast-track application under draft clause 19.

 (vii)   Court powers

  27.  Clause 4(3) provides for an appeal by an unsuccessful applicant to the High Court on a point of law "against a decision to reject an application".

  28.  Liberty welcomes the creation of a statutory appeal, but believes the system of legal scrutiny can and should be tightened as follows:

  (1)  First, the draft Bill should impose a general obligation upon Panels to provide reasons for their decisions. This is already an obligation in analogous medical contexts (such as appeals under the Medical Act 1983 and the statutory instruments made thereunder) and is clearly necessary in cases that are likely to turn upon complex medical evidence or upon factual findings (about past life or future intent). Such reasons should do more than simply rehearse the statutory language: see, by analogy Dr Prabha Gupta v the General Medical Council (2001) EWHC Admin 631, at para l4 per Newman J.

  (2)  Secondly, the language of the statutory appeal should make explicit (as Liberty believes to be implicit) the High Court's power to intervene in cases of procedural unfairness and irrationality/disproportionality. Of course, Panels will be "public authorities" bound by their duty under section 6 of the HRA 1998 to act in conformity with Convention rights, most obviously those arising under Articles 8, 12 and 14.

  (3)  Thirdly, the High Court should be given an appellate jurisdiction in respect of any evidence direction made by the Panel under draft clause 2(9)(a) (as amended in the light of Liberty's submissions). Such appeals are likely to be rare but, where arising, will raise important privacy issues. As such determinations would otherwise be amenable to judicial review, a statutory appeal process is desirable (a) because of the suggested linkage between such requests and a "minded to refuse" stance on the part of the Panel; and (b) in order to remove the requirement for the grant of permission, which is unnecessary in such circumstances.

  (4)  Fourthly, Liberty believes that the remedial powers of the High Court should be clarified. Whilst clause 4(5) sets out the options available where the Court is minded to quash a certificate on grounds of fraud, no such remedial menu exists for ordinary appeals. Liberty recommends that the High Court be given powers to: (i) quash Panel decisions; (ii) to remit applications to Panels (with or without directions on issues); and/or (iii) to substitute a FGRC or IGRC (unless abolished as proposed above) for a decision to refuse an application.

  (5)  Fifthly, whilst welcoming the ability of the applicant to have a case heard in private (draft clause 4(3)) Liberty believes it will be appropriate in many cases simply to have a case heard with anonymisation of names. It recommends that clause 4(3) be amended accordingly.

  (6)  Lastly, clause 4(4) should be amended to create an exception from the six-month rule in the case of any applicant who has successfully sought the quashing of a decision to reject an application.

  29.   Liberty therefore recommends that clause 4 is substantially redrafted to provide a general obligation on Panels to give reasons, to clarify the High Court's jurisdiction and powers, to provide for anonymisation of parties to appeals and to modify the six-month application periods.

 (viii)   effect of GRC

  30.  Liberty welcomes the general terms of draft clause 5, but suggests (as detailed above) that these legal effects be extended to IGRCs (unless abolished as proposed above), save in the case of marriage.

 (ix)   Registration

  31.  Liberty also welcomes the changes made by draft clause 5 and 6 to the system of registration of births.

  32.  Liberty adopts the suggestion of Press for Change that the applicant may request, at no extra cost, a certificate in the form that certificates took at their date of birth. Such a system will prevent the possible identification of that applicant as a trans person by anyone comparing the forms of certificate in use historically and presently.

 (x)   Marriage

  33.  For those in receipt of a FGRC Liberty recognizes the need (from the usual paternalistic policy perspective) to prevent (by exact analogy to the rules operating in orthodox heterosexual marriage) certain forms of union. Clearly the prohibited degrees of relationship for trans people marrying in their acquired gender should reflect those properly applicable to non-trans couples[20] As explained above, Liberty believes that further drafting is required:

  (1)  to make marriage the only area of changed rights/obligations not applying to holders of IGRCs; and

  (2)  to harmonise the draft Bill with the proposed creation of civil partnerships.

 (xi)   Parenthood

  34.  Liberty welcomes both the provisions dealing with parenthood, namely draft clause 8(1) which states that the fact that a person's gender has become the acquired gender will not affect their status as a father or mother, and draft clause 8(2) which provides for retrospective recognition of trans men as the "father" in law of children conceived in circumstances to which (but for their previous gender) section 28(3) of the HFE Act 1990 would apply.

  35.  As for the first subsection, Liberty would point out that this provision may have important effects in the law of succession when combined with section 11.

  36.  As for the second subsection, Liberty:

  (1)  reiterates the importance that there should be a right for any child conceived by donor insemination to be able to discover through inspection of his/her birth certificate at the age of 18 that he or she was conceived by donor insemination (by way of parity with adopted, children). The rights currently conferred by section 33(3) and (4) do not presently confer such a right. Liberty does not suggest that the child should have the right to discover that a parent is a trans person;

  (2)  believes that the provisions do not go far enough, as a variety of other possible problems arise, whether through use of sperm stored before gender reassignment surgery, or through the surrogate use of eggs stored before gender reassignment surgery. Liberty believes that the storage of gametes or embryos by those undergoing gender reassignment surgery with a view to potential future use will become increasingly prevalent, particularly amongst younger individuals. These possibilities require further amendment to:

    (a)  section 28(3) LIFE Act 1990, because, in any post FGRC treatment, due to section 5(1) of the draft Bill, there will be no "man" or "father" and section 8 of the draft bill will not apply because it applies only to trans men (ie female to male trans people);

    (b)  section 30 HFE Act 1990, to cope with the situation of two married trans people and (should civil partnerships be created) same sex couples;

    (c)  the entries made on a birth certificate (a new category of "parent" may be required); and

    (d)  to the storage provisions in the LIFE Act (to deal with the situation where the male gamete donor becomes a woman).

  37.   Liberty recommends further consideration be given to the legal interaction of gender acquisition and the use by couples of artificial or donor insemination or embryos.

 (xii)   Discrimination

  38.  Liberty warmly welcomes draft clause 9 which abolishes the existence of GOQ defences in an employment context once an individual has obtained an FGRC, thereby reversing the approach of Buxton U in A v Chief Constable of West Yorkshire Police (2003) 1 All ER 255. As set out above, Liberty believes this provision should apply to holders of IGRCs as well. However, Liberty regrets the continued omission of trans people from the legal regime protecting against discrimination in the provision of goods and services. This is anomalous when compared to the position of sex, race and disability discrimination (though not sexual orientation or religious discrimination once the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 come into force in December 2003).

  39.  Given: (i) the finding of the ECJ in the case of P v S and Cornwall County Council (1996) IRLR 347 that discrimination against trans people was a facet of sex discrimination, (ii) the existence of a free-standing general principle of Community law (going beyond the field of employment) prohibiting discrimination on grounds of sex, and (iii) the ECHR's ruling in Goodwin, Liberty believes that the United Kingdom has a positive obligation under Article 8 ECHR to secure access for trans people to supplies by private entities of goods and services free from discrimination. ("Public authorities" will probably be bound, under section 6 HRA 1998, as read with Articles 8 and 14 ECHR, not to so discriminate, but should be included for the avoidance of doubt). Moreover, Liberty believes that these matters should come under the aegis of a single equality and human rights commission, for which it has been campaigning.

  40.   As such Liberty recommends that provision be made to prohibit discrimination against trans people in the supply of goods and services, and that responsibility for administering such discrimination law be entrusted to a unified anti-discrimination and human rights body.

 (xiii)   Succession Provisions

  41.  In clauses 10 to 13, the draft fill contains a number of provisions dealing with the impact of the newly acquired gender upon property rights. In reading these provisions, one must always keep in mind the guiding principles derived from clauses 5 and 8, namely that:

  (1)  By clause 5(1) for all purposes a person's gender after the grant of a FGRC is that of the acquired gender; and

  (2)  By clause 5(2), the impact of clause 5(1) whilst not affecting things already done before the time when the FGRC is issued will "operate for the interpretation of enactments passed, and instruments and other documents made, before that time (as well as those passed afterwards)."

  (3)  By clause 8(1) a person remains a "father" or "mother" notwithstanding a new acquired gender. However there is no similar provision such that a person remains a "son" or a "daughter" notwithstanding a new acquired gender.

  42.  Liberty perceives a particular problem that arises in the application of such principles to documents, wills and other instruments (such as trust settlements) whose operation and legal effect may depend upon events stretching over a period of time or which may be executed before the issue of a FGRC whilst taking effect afterwards.

  43.  Many wills and settlements may be unintentionally drafted in gender specific terms. For example if a testator with two children (both sons) executes a will before the issue of a FGRC in respect of one of his children leaving his estate to "my sons", following his death it is likely under clause 5(2) that the son in whose favour a FGRC had been issued would not benefit as she would be treated as a "daughter" and not as a "son". Such a construction would have the effect (in many situations) of defeating the testator's true intent, namely to provide for both his children regardless of their genders. This situation is not rectified by clause 10, whose effect, simply put, is to allow a testator or other settler of property to contract out of the effect of section 5 (but not, it should be noted clause 8(1)). As a result unless a testator so drafts his will/settlement (which is most improbable for many documents, particularly those settlements irreversibly made before the Act, and for homemade wills), there is a real risk that the true object of the will/settlement shall be defeated. It seems to Liberty that, particularly in the modem age, the intention of most testators is to settle assets on people as such, rather than people of a particular gender (though gender is unfortunately often used as a form of shorthand to describe them compendiously), with the result that the structure of draft clause 10 is likely to result in haphazard rather than intentional changes in beneficiaries.

  44.  Indeed, at present clause 10 sits anomalously with clause 11. Clause 11 provides for peerages and titles, and land or property attached to them as if there was no acquired gender. Thus, a Duke with a dynastic estate who acquired a new, female gender, would continue to be a Duke, with all the rights and privileges that appertained (eg any stately home, dedicated trust funds, place in the House of Lords and so forth). Yet such a situation pertains precisely where gender-based intentions on the part of settlor/testator (namely the principle of primogeniture) could be most readily inferred. Doubtless the rationale of the section is to preserve the status quo ante.

  45.  Moreover, Liberty can presently discern no reason why wills should be excluded from the general remedial or dispensing powers provided by draft clause 13(1). Whilst wills (as opposed to settlements) may be varied in theory, in practice a testator may be or remain unaware, of: (a) the fact of someone's acquired gender; or (b) the potential impact of such event upon the legal effect of their will, with the result that a similar remedial power will be required. Finally, Liberty believes that it is undesirable and contrary to the rule of law to provide a remedial power of such open texture, with absolutely no guidance as to the criteria or factors which should influence its exercise.

  46.  Given these concerns Liberty has asked Camilla Lamont of Landmark Chambers to provide an advice on the detailed analysis of clauses 5, 8 and 10 to 13. This is attached as Appendix A. The advice identifies a number of shortcomings and pitfalls in the current drafting and makes detailed recommendations relating thereto which Liberty endorses. Liberty also believes that the Chancery Bar Association should be consulted upon these provisions, given their potential to generate unnecessary and expensive litigation.

  47.  As such, Liberty recommends that:

  (1)   clause 10 be remodelled to adopt the approach of clause 11, such that acquiring a different gender has no impact upon a will/settlement unless the testator/settlor so expressly determines.

  (2)   clause 13 be amended by the deletion of the words "other than a will" and by the addition of criteria by which to guide the exercise of remedial powers.

 (xiv)   Privacy and disclosure of information

  48.  Again, Liberty welcomes the regime for the prohibition on disclosure of information introduced by draft clause 14. Such a section is, in general terms, required by the need to respect privacy as guaranteed by Article 8 ECHR. However, Liberty has concerns on several points of detail:

  (1)  The definition of "official capacity" is wide, particularly in view of clause 1 4(3)(c), which would embrace (say) national newspapers or professional journalists. However, the offence in question does not embrace purely malicious parties wishing to cause or in fact causing distress (for instance, a local agitator who circulates unpleasant, denigratory leaflets). This is wrong in principle. Whilst Liberty is always concerned about any extensions to the criminal law, we suggest that there should be a further offence created which is directed at intentional acts causing offence or distress. We believe this to be justified for the protection of a vulnerable minority group.

  (2)  As for the defences envisaged by draft clause 14(4), Liberty believes that 14(4)(b) requires modification to deal with the situation of those individuals who are entirely open and public about their trans status (such as trans campaigners). Strictly construed the Bill would require anyone wishing to publish an article about such individuals to obtain specific consent to disclosing their trans status. Liberty believes that to be an unjustified restriction on freedom of expression.

  (3)  However, more generally the defences in question do not have built into them an explicit proportionality test. Liberty believes that this is an important oversight. It cannot be enough that the action is, say, "in the course of official duties", however misguided. The official (or employee) in question must have formed a reasonable opinion as to the relevance of and necessity for disclosure in the particular form envisaged.

  (4)  Like Press for Change, Liberty believes the .scale of the proposed sanction to be insufficient, particularly for deliberate or repeated disclosures which have the capacity to cause real and lasting distress and damage.

  (5)  Moreover, there is a complete absence of any civil remedies, most obviously a right of action to recover damages for distress or other loss. To some extent section 8 HRA 1998 and/or section 13 of the Data Protection Act and/or the tort of confidence might provide a remedy, but the deficiencies of these remedies for privacy issues have been exhaustively analysed by the European Court of Human Rights in the case of Peck v United Kingdom (2003) 36 EHRR 719. In many circumstances (eg an employee known by colleagues to have had gender reassignment surgery) the information in question could not sensibly be described as "confidential" under the present public domain test, such that a trans individual will have no private remedy against a private party (including a newspaper) repeatedly and/or invasively disseminating information connected to that person's transsexuality or former life and thus to a highly intimate part of private life.

  49.   Liberty therefore recommends that clause 14 be amended: to provide far an offence of disclosure by any party deliberately causing harm or distress; to provide for a reformulated defence on consent; to provide for increased sanctions; and to provide civil law remedies for breach of privacy.

 (xv)   Transitional provisions

  50.   Liberty endorses the simplified fast-track procedure envisaged by clause 19, but suggests that (for similar reasons to those advanced by Press for Change) that the time-limit for such applications be extended to one year, and that such time limit may be extended where "good reason" for failing to apply earlier can be shown.

  51.   Liberty notes and accepts the absence of any retrospective validation of marriages, but contends that provision needs to be made to take into account (where relevant) previous attempts to marry (for instance, wherever the duration of any relationship is material).

Thomas de la Mare

Blackstone Chambers

Joanne Sawyer


15 September 2003


In the Matter of the Draft Gender Recognition Bill


  1.  I have been asked to advise Liberty as to clauses 5, 8, and 10 to 13 of the Draft Gender Recognition Bill.

  2.  In general I am of the opinion that certain clauses (particularly clauses 5, 10 and 13) of the Draft Bill have the potential to operate unfairly in the construction of wills and other settlements both in relation to trans people and other third parties.

  General concern as to retrospective effect of the Draft Bill and a FGRC in interpreting documents.

  3.  There is immediate scope for argument arising under clause 5(2) since following the issue of a FGRC to a person that persons' gender becomes the acquired gender (under clause 5(1)) but this:

    (i)  is expressed not to affect things done, or events occurring, before the time when the certificate is issued; but

    (ii)  does operate for the interpretation of enactments passed, and instruments and other documents made, before that time (as well as those passed or made afterwards).

  4.  The difficulty arises as follows: a document or other instrument executed prior to the FGRC is a "thing done" before the FGRC is issued yet it is to be construed as though the FGRC was not issued. Therefore there is potential scope for a document to mean one thing before the issue of a FGRC and another thing after.

  5.  There is a danger that clause 5(2) falls foul of the general aspiration of the rule of law in that it operates retrospectively to documents executed by persons who must be taken to have had a settled understanding of the law as to gender at that time. It could operate in practice very unfairly in relation to the construction of documents and instruments executed (i) before the bringing into force of the Draft Bill; (ii) after the bringing into, force of the Draft Bill but before the issue of a FGRC; and (iii) in some cases, to those executed or taking effect after the issue of a FGRC (especially if the donor is unaware of the fact of the FGRC or as to its consequences).

  6.  Whilst the issue of a FGRC does not affect the status of the person as a father or mother of a child (clause 8) there is no equivalent provision to ensure that the issue of a FGRC to a child (whilst over 18 years) does not affect the status of that person as a son or a daughter, grandson or granddaughter, godson or goddaughter, sister or brother etc. Whilst this may be the whole point of the Draft Bill it will, in combination with clauses 5 and 10-13, potentially have considerable adverse consequences for trans people issued with a FGRC in respect to their entitlements on the death of a parent or other relative. Conversely, in some instances it will confer a windfall on trans people at the expense of other family members.


 (1)   Wills

  7.  In some instances documents such as the wills of living persons can be altered by codicil or the revocation of a will and the execution of a new will. Therefore it is of course open for a testator (prior to his or her death) to change his or her will if a FGRC is issued in relation to one of his or her children.

  8.  There is a concern that the general public will not be aware of the possible need to alter their wills following the issue of a FGRC. People often execute wills, put them in a draw or in a solicitor's safe and do not think about them again. There will be a few cases in which such revocation is practically impossible (due to the testator dying very shortly after the issue of a FGRC or the illness or incapacity of the testator after the FGRC). Some testators may not know of the fact of FGRC issue or may not appreciate its consequences.

  9.  This concern applies equally to persons who execute wills and other documents after the issue of a FGRC and the bringing into force of the Draft Bill. Although professional assistance in preparing a will is relatively inexpensive many people are unwilling to spend money in this regard and many people make "home made" wills and may unintentionally name intended beneficiaries in gender specific terms, namely to "my sons" rather than to named beneficiaries such as "to my sons A and B" or "to A and B". Again these testators may not know of the fact of FGRC issue or as to its consequences.

 (2)   Settlements

  10.  Trust settlements cannot be amended! Revoked in the absence of an express power in the settlement or the agreement of all the beneficiaries (which is often impossible due to lack of consent of living adult beneficiaries or the fact that children or future unborn beneficiaries cannot give consent such that a court application is required under the Variation of Trusts Act 1958)[21] However effected, such variations can and often do have considerable adverse tax consequences for the parties involved.

  11.  As with wills, though perhaps more frequently, trusts may be drafted in gender specific terms rather than to named individuals, especially as many settlements are intended to continue throughout the perpetuity period and envisage that unborn children will in due course have beneficial entitlements under the settlement. Beneficiaries are often defined as part of a class rather than by name. Such gender reference may be (and frequently is) inadvertent. On the other hand it is of course possible that a settlor may have intentionally desired to make a distinction between sons and daughters. For example, a settlor may have wished to make greater provision for his male heirs and/or provide for his daughters only until marriage (although such provisions are less frequent these days for obvious reasons). I would have thought it extremely unlikely that many (if indeed any) settlors had specifically addressed the issue of gender change in executing such documentation.


Scenarios A and B: Wills

  12.  There is considerable cause for concern in the field of wills due to the fact that wills which may have been executed prior to a FGRC will be construed as at the date of death of the testator. It is a well established principle of will construction that it should be construed from death (often described as the principle that a will speaks from death). Take the following scenario, Scenario A:

    A testator has two sons, A and B. He executes a will leaving his entire estate to "my sons". Subsequently B changes gender in that a FGRC is issued. The testator, thinking nothing of it, does not amend his will to leave his estate to "my son and my daughter" or to "A and B" but his understanding is always that A and B will benefit. On his death, under the draft Bill, it is strongly arguable (especially in the light of the express provision in clause 5(2)) that A would take the entire estate and B would not have any right to apply under clause 13 as wills are expressly excluded from that provision. This would be the combined effect of the fact that (i) "a will speaks from death" and takes effect after the issue of the FGRC such that it would be very difficult to contend that it was an act done prior FGRC issue and (ii) the issue of the FGRC and consequent change of gender means that on a construction in accordance with clause 5(2), B is on the testator's death no longer his "son" but his "daughter". The testator's intentions would therefore be defeated and B deprived of her inheritance merely by virtue of her status as a trans person. The court would have no jurisdiction to remedy the situation.

  13.  Conversely in some situations the trans person may obtain a windfall, contrary to the intentions of the testator as can be demonstrated by Scenario B as follows:

    A testator has a son A and 2 daughters B and C. He wishes to exclude A from his estate and executes a will leaving his estate "to my daughters in equal shares". A then has a FGRC issued in her favour. The testator fails to address the issue by re writing his will. On his death, A would be arguably treated as a daughter and then be entitled to a third of the estate, thereby depriving the two sisters of a proportion of their inheritance.

  14.  In the absence of clause 5(2) the courts would in my opinion be likely to attempt to construe such documents purposively by analogy to the recent orthodoxy on contractual interpretation[22] thereby giving effect to the testator's clear intentions but in the light of clause 5(2) the court might find that its hands were tied on this issue such that it should construe the word "son" or "daughter" as meaning just that, leaving no room for ambiguity and the possibility of a purposive construction. In any event it is not appropriate for legislation to be drafted ambiguously on the assumption that the court will construe it purposively.

  15.  In the above scenarios, the testators could not possibly have been expected to say "I express the wish that any change of gender under the Act shall not affect the disposal of my property". The "Act" will in many cases not have been in force at the time of execution. I have never seen a will or settlement which contains this sort of provision for gender alteration in any event and it is likely that clause 10 will be of no assistance at all. In reality testators in future who are aware of the possible pitfalls will simply refer to their children by name rather than by gender. Related issues in relation to clause 10 are dealt with, below.

Scenario C: Settlements

  16.  Similar issues arise in relation to settlements. Take, for example, Scenario C (which could quite easily occur given that the drafting below would be standard).

    A female settlor (beyond child bearing age) has two sons, A and B (who at the time of settlement have three children between them but the possibility of further children of A and B arises) and settles a trust fund in one of three possible ways as follows:

    (i)  "On trust for my sons during their lifetimes and on the death of the last of my surviving sons to my sons' children living at that date in equal shares absolutely";


    (ii)  "On trust for A and B during their lifetimes and on the death of the survivor of them to their children living at that date in equal shares absolutely";


    (iii)  "On trust for my sons during their lifetimes and on the death of the last of my surviving sons to my grandchildren living at that date in equal shares absolutely".

  17.  It is clear that as at the date of the settlement, A and B have a life interest in the fund.

  18.  But then, following the settlement, B has a FGRC issued in her favour. The effect of the issue of the FGRC raises considerable difficulties in relation to the construction of the deed.

  19.  It is arguable that under drafts (i) and (iii) B's life interest ceases on the issue of the FGRC as on a construction of the deed at that date she is no longer a "son" of the settlor. Alternatively it could be argued that the deed should be construed as an act done before the issue of the FGRC and therefore be unaffected. There is considerable uncertainty as to the continuation of the interest which any trustee would properly be advised to resolve by the issue of a "construction summons" (by which I mean a Part 8 claim in the High Court) at considerable expense to the trust fund (and hence the beneficiaries). There is conceptual difficulty with a document meaning one thing before and after the issue of a FGRC. In these cases the courts might be tempted to construe the document as an act done before the issue of a FGRC but this is by no means certain given the express terms of clause 5(2) as I have set out above.

  20.  Under draft (i) it is also questionable whether B's children's entitlements would fail to vest in due course as a consequence of the issue of a FGRC. It is potentially arguable under clause 8 of the Draft Bill, that they should not but the settlement is drafted by reference to the children of the settlor's sons and in my opinion the better view is that "the settlor's sons' children" would only include A's children if B were deemed a daughter for these purposes since the remaining grandchildren would properly be treated as the settlor's daughter's children and not her son's children.

  21.  Under draft (ii) the entitlements would not change as a result of the issue of a FGRC as the reference is not gender specific. However, as above, there would be scope for argument if the trust was for "my sons A and B during their lifetimes . . ."

  22.  Under draft (iii), B might lose the benefit of the life interest as aforesaid but A and B's children would benefit given their description as grandchildren (such that their entitlement is not dependent upon the gender of their parent).

  23.  It is unlikely that the settlor in Scenario C would have been aware that the minor differences in drafting in the three clauses would have such dramatic differences to the settlement. Most settlors and their legal representatives would treat all three drafts as having the same effect. The difficulties arise most acutely in relation to settlements that have already been executed (and are extremely difficult if not impossible to alter as I have said above) but will also result in an added "pitfall" for future settlement drafting.

  24.  I assume that there are likely to be few trans people relative to the overall population. It is therefore highly unlikely that settlors and testators (who themselves will not usually be the trans person in question and may well not have any real understanding of these issues) are going to be alerted to need to deal with such possible issues in their documentation and clause 10 is likely to be redundant.

  25.  In this situation (ie in relation to settlements) clause 13 could assist but this is dependent on expensive and uncertain court litigation which will involve the possible instruction of several firms of solicitors and Counsel to represent various interests (such as A, the trustees, the unborn children of A, the unborn children of B, the minor children of A, the minor children of B etc). Clause 13 will be dealt with in more detail below.

Presumption in clause 10

  26.  In my view; the presumption in clause 10 should be reversed. It seems to be more appropriate if the presumption were that donors intend to give to/confer rights on particular individuals regardless of their gender status rather than the other way around. The presumption as drafted in my view endorses a negative attitude towards the recognition of gender alteration. It gives the impression by way of a presumption that gender is more important to the settlor/testator (and by implication the general public) than the individual concerned which, in reality, is unlikely to be the case in the majority of situations. There is also, an anomaly between clauses 10 and 11. Under clause 11 a Duke with a dynastic estate who acquired a new, female gender, would continue to be a Duke, with all the rights and privileges that appertained. Yet such a situation pertains precisely where gender-based intentions on the part of the settlor (namely the principle of primogeniture) could be most readily inferred.

  27.  In my opinion clauses 5(2) and 10 should be amended so that any instrument or document (as opposed to any enactment) executed or entered into before the issue of a FGRC, should be construed by reference to the gender of any person at the time of execution of the document or instrument. Therefore trans people's and other parties' entitlements would be unaffected by the issue of an FGRC in relation to documents executed previously. The proviso in clause 10 should be reversed namely that the aforesaid principle would be subject to any contrary intention expressly included by the settlor or testator in the instrument or document.

  28.  It should be noted that clause 13 might then become superfluous but this will depend on the exact amendments that are made and whether clause 5(2) is amended for all, or merely a category of documents.

Clause 12

  29.  I also have concerns about the word "purchaser" in clause 12(3). As a matter of the law of property (and or restitution) a beneficiary can trace property into the hands of all recipients other than the bona fide purchaser for value.

  30.  In my opinion consideration should be given to amending the word "purchaser" in clause 12(3) to refer to a "bona fide purchaser for value" or "a purchaser for value without notice (either actual, constructive or inferred)" of the true beneficiary's interest.

  31.  Without such amendment the following scenario, Scenario D, could happen:

    A testator has two sons, A and B. B then has a FGRC issued in her favour. The testator then executes a will leaving his house to "my son A and my daughter" (intending the reference to my daughter as being to B). The executor, not knowing of the FGRC takes the view that the testator does not have a daughter and distributes solely to A by vesting the property in him. Under clause 12(1) the executor cannot be liable for distributing in ignorance of the FGRC. B could trace her entitlement into A's hands but A might "transfer" the house to C for £1 in order to defeat his sister's entitlement, perhaps on the basis of some oral understanding or arrangement. Under clause 12(3) as drafted, B would have no right to trace into the house in C's hands. The proposed amendment would close off this potential scenario since C, whilst a purchaser, would not be a bona fide purchaser.

Clause 13

  32.  I am concerned about the general scheme of clauses 10-13 of the Draft Bill which is in essence to deprive trans people of their entitlements on a death of or settlement made by their parents where reference to such child is in gender terms but then to confer a general power on the court to adjust such property rights. There is also the possibility that a trans person may gain a windfall which is equally inappropriate as it is likely to be contrary to the intentions of the settlor/testator.

  33.  This will impose on trans persons (and third persons, usually siblings) additional cost, stress and worry at a time when they are likely to be coming to terms with the death of a parent or other family member.

  34.  The lack of any guidance of the basis on which the court may exercise, its powers under clause 13 is concerning. There is no guidance as to when "it may be just to do so" and in my opinion if this power is to be retained some guidance should be provided for in the statute[23] Lack of guidance creates uncertainty and will encourage expensive and protracted litigation. Factors may include:

    (i)  whether the dispositive document was executed before or after commencement of the Act;

    (ii)  whether the dispositive document was executed before or after the issue of the FGRC; and

    (iii)  whether the document contains any indication that the donor had addressed the gender issue or the possibility of a FGRC.

  35.  Given the lack of statutory criteria there is consequently no guidance as to the scope of relevant (and therefore admissible) evidence. For example, it is unclear whether the document be examined on its own terms or whether extrinsic material may be admitted (for example to demonstrate the donor's attitude to trans people generally) and if so what and how much. Litigation under this clause could in my opinion become distasteful if such factors were admitted. It is difficult to think of any factors which might weigh in the balance against reversing the effective "disinheritance" of a trans person or an unintended windfall conferred on a trans person. In my opinion these observations in themselves point to the need for such documents to be construed by reference to gender at the time of execution in the first place as proposed herein.

  36.  There appears to be no logical justification at all for the exclusion of wills from clause 13 of the Draft Bill. The effects could be equally invidious if not more so given the fact that there are likely to be vastly more wills than settlements. In addition wills are more frequently informally created than settlements which usually involve the instruction of lawyers (due to complications of drafting and taxation). There is also considerable overlap as many wills also involve the creation of settlements. There seems no logical reason to exclude such settlements merely by reason of their mode of creation.

  37.  The only possible reason I can think of for such an exclusion (other than the technical fact that the testator will in most cases be in a position to alter his or her will which has been addressed above) is that the draftsman may have considered that the court already has such power under the Inheritance (Provision for Family and Dependants) Act 1975 but that Act is directed at a totally different issue, namely the failure of the deceased to provide reasonable provision for the maintenance of the applicant. Although "children" of the deceased fall into the category of persons who are entitled to make an application under section 2 of the Act (by section l(l)(c)), such "child" applicants must show that the will or intestacy fails to make reasonable provision for "their maintenance". Therefore an adult child (as all trans people would inherently be as a FGRC may only be issued to an adult) will only succeed if and insofar as he or she requires provision "for his or her maintenance". This would be of no assistance to financially independent persons who were disinherited merely because of their trans status (or the trans status of their sibling) and contrary to any direct intention in that regard on the part of their parent.

  38.  In my opinion, clause 13 should be amended by the deletion of the words "other than a will", although I question the need for clause 13 at all if (by virtue of the proposed amendments) property rights are not in essence lost or gained as a result of the issue of the FGRC in the first place. If clause 13 is to be retained I am of the opinion that consideration should be given to introducing statutory criteria against which any such application could be determined.


  39.  One class of persons who can make an application under the 1975 Act are certain cohabitees (other than spouses and former spouses who are covered by other provisions) as follows:

    "(where the deceased died on or after 1 January 1996) and during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—

(a)  in the same household as the deceased, and

(b)  as the husband or wife of the deceased"[24]

  40.  It is questionable how this will operate in respect of a cohabiting man A and woman B where A has a FGRC issued in her favour such that A and B are both legally women. In this scenario A and B may continue to live together as a family unit with real ties. A man and a woman can live together as "husband and wife" if they operate as a family unit even if they do not share a bedroom or have sexual relations[25] and therefore it is clear that the law does, at least in relation to relationships between men and women, recognise that many couples have a stable and loving relationship worthy of legal recognition and protection without sexual relations being a necessary ingredient.

  41.  At present it is questionable whether the courts would construe "living as husband and wife" in s. 1(1)(ba) of the 1975 Act as applying to same sex relationships (whether homosexual or following the issue of a FGRC of one cohabiting partner). As far as I am aware no direct authority exists for the proposition that a person in a same sex partnership could apply under section l(l)(ba). However, in light of the decision of the Court of Appeal in Ghaidan v Godin-Mendoza (2002) EWCA 1533 as to the construction of a similar phrase in the Rent Acts in light of the Human Rights Act 1998, it is probable that same sex couples (whether homosexual couples or those including a trans person) would be treated as living as though they were man and wife but this is by no means certain.

  42.  If such a purposive construction were not adopted in relation to the 1975 Act, a trans person and/or his or her partner would on the death of one of them only be able to make an application under section 1(1)(d) of the 1975 Act by establishing dependency[26] This is a greater hurdle to overcome. If the couple were financially independent, no claim could be made by the survivor even if the couple had lived together as a unit for many years and even if reasonable provision should have been made for the survivor's maintenance.

  43.  Therefore, in my opinion, consideration should be given to making specific amendments to the Inheritance (Provision and Dependants) Act 1975 to deal with cohabiting partners such that a man and woman are not to be taken as no longer "living together as husband and wife" in section l(1A) merely by virtue of the issue of a FGRC to one of them (if indeed that is the case). This will deal specifically with the very special and unique situation of relationships where one cohabiting partner changes gender. This then still leaves open the question as to whether any such couple were, on the facts of a particular case, living together as husband and wife. As with all cases this is a matter of fact and degree but the above approach would have the advantage that trans people would not be totally excluded as a consequence of the issue of a FGRC.


  44.  If a married couple is effectively compelled to divorce in order for one of them to obtain a FGRC, the trans person or his or her partner would following divorce (as an unmarried former spouse under section l(1)(b) of the 1975 Act) have the right to apply for provision, but the definition of "reasonable financial provision" for a former spouse is less favourable than for a spouse. In relation to spouses it means such financial provision as it would be reasonable for a spouse to receive (whether or not required for his or her maintenance). For all other categories of persons (including unmarried former spouses) it is such financial provision as it would be reasonable for the applicant to receive for his or her maintenance[27]

  45.  There may also be issues if spouses are compelled to divorce as a pre condition to the issue of a FGRC in relation to the provision that will be made on an intestacy of one of them under the Administration of Estates Act 1925. The former spouse will not be entitled on intestacy to a share of the deceased's estate.


  46.  Liberty has obtained my consent to the annexation of this Opinion to its consultation response on the Draft Gender Recognition Bill.

Camilla Lamont

Landmark Chambers

4 Breams Buildings

8 September 2003

20   Liberty does not however accept that all the degrees of relationship currently listed in Section 1 Marriage Act 1949 (as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986) are necessary. Back

21   This requires the variation to be for the benefit of the children/unborn and is therefore not directed at the issue in question in the same way as clause 13. In addition such applications are expensive and time consuming. Back

22   As per Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 HL. Back

23   For example compare section 3 of the Inheritance (Provision for Family and Dependants) Act 1975 which sets out several factors to be taken into account in this respect (and even then has been heavily litigated). Back

24   I(PF&D)A 1975, ss. 1(ba) and (1A). Back

25   Re Watson [1999] 1 FLR 878. Back

26   Section 1(1)(d) provides "any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased." Back

27   See section 1(2) of the 1975 Act. Back

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