9. Submission from The Gender Trust
I. The Gender Trust is the main UK national
charity for the support of trans people. The Trust's submission
is a substantial document including reasoned detail about how
the Bill would impact on the lives of trans people. It contains
29 specific recommendations for improvement. Anyone with a need
to fully understand the issues is asked to spend the time reviewing
the full submission, but some of the key points are included below.
The Bill has undoubtedly been prepared with good intent. Unfortunately,
in a number of key areas, the Bill, as currently drafted, will
be unacceptable to the Community, and will afford inadequate respect
for Convention rights, if the issues set out in the full submission
are not resolved. The Trust's comments are presented with the
desire to help minimise problems and anguish in the future.
II. Creation of a "Register of Transsexual
The Bill proposes that trans people should be
registered following assessment by a novel form of medico-legal
tribunal, with the consequence that, without assessment and registration,
various civil rights will be withheld. No other minority group
in this country is required to be registered on a centralised
national database accessible by the State and others in order
to receive basic civil rights enjoyed by the majority, as opposed
to gaining a benefit or advantage, or because of a criminal offence
or court judgment. Many trans people will fear the consequences
and stigma of being included on a register after "assessment"
by a tribunal and will mistrust the process. Registration of an
ethnic group, or of gay or lesbian people would be unacceptable
and such is unacceptable when applied to the trans community.
III. Employment Rights Restrictions
Those who do not have a "gender recognition
certificate" will remain lawfully discriminated against under
employment rights restrictions contained in the provisions of
the Sex Discrimination Act 1975 added by amendment (by SI) in
1999, even if, in all other respects, their situation is identical
to trans people with a certificate. Among others, married people
will be entitled to lesser employment rights than others. The
employment restrictions are flawed and should be repealed.
IV. Discrimination in respect of Goods and
Services and Indirect Discrimination in Employment
Discrimination against trans people in respect
of basic goods and services is endemic and lawful and this Bill
wholly omits provision in this area. Further, trans people will
be the only minority group against whom indirect employment discrimination
remains lawful by the end of 2003. The text sets out recommendations
in a human rights context.
V. Cases where gender recognition certificates
are not sought or awarded
The "concessions" currently in place
for trans people to have primary documentation (eg passports and
driving licenses) amended to coincide with gender presentation
may be withdrawn or made conditional on having a gender recognition
certificate (therefore be unavailable to many). "Ring-fencing"
of such "concessions" is essential to personal safety
and privacy abroad and at home, but the Bill makes no provision.
VI. Linkage between gender recognition certificates
and the right to "treatment services"
The Bill recognises "acquired" gender
"for all purposes". The Trust is concerned that this
will lead to ineligibility for (broadly) medical services (such
as for "gendered" cancers) based on "legal"
sex rather than based on the actual morphology and bodily needs
of the individual. The Trust proposes a rule of construction to
resolve such basic issues at minimal cost.
VII. Compulsory requirement to terminate
This is the only piece of legislation in UK
law that requires people to terminate a marriage in order to qualify
for basic rights. The termination requirement is discussed in
a human rights context for all concerned, not merely the trans
The Bill contains provisions for preventing
disclosure of information but this applies only in limited instances.
There are wide exemptions which would ensure frequent violations
of the right to privacy. Furthermore in the Trust's view there
must also be tight restrictions on the collection and holding
of such information, not merely its disclosure.
IX. Flaws in Mechanisms
A critique of other aspects of the Bill's procedural
mechanism is presented, including issues such as the apparent
exorbitant jurisdiction over foreign nationals, the excessive
cost of applications, and matters concerning legal aid and legal
1.0 This statement is made on behalf of
The Gender Trust, which is a charity providing support and information,
for members of the transsexual, transgendered and intersexed people
of the UK, and their families and employers. Among our membership
we number a significant proportion of trans people likely to be
affected by this Bill and believe we are the largest body formally
obligated to promote the best interests of the diverse trans community.
1.1 The Gender Trust is one of the two major
national charities which provides services to the transsexual
and transgendered communitythe other being a wholly independent
body called GIRES
whose areas of responsibilities relate to medical research and
ethics and whom we believe will be submitting their own evidence.
1.2 We acknowledge the significant work
and progress made by the political lobby groups within the community
and smaller more informal associations, as well as many individuals.
We expect that they will continue to contribute to the extent
that they feel able but cannot comment on the degree to which
those groups accept the detail of this submission.
Scope of activity
1.3 As a charity with 13 years' experience,
and one which also operates democratically, we are duty bound
to speak in the interests of all trans people
whether they are openly transsexual, whether they be "stealth"
people who are known by nobody but themselves to be transsexual,
whether they are disabled or members of an ethnic minority, or
whether they are prisoners in their own homes, trapped by a fear
of stepping outside. The same breadth of duty applies equally
as regards the spouses and families of trans people who also form
our diverse membership. We are not, therefore, a body solely made
up of trans people.
1.4 The above is no mere throwaway comment:
it is important that the JCHR appreciates that the Trust, whose
volunteers throughout the country field a considerable number
of helpline telephone calls (from members and non-members equally)
and whose full time staffed office works come rain or shine, does
not speak as a political group or promote a narrow view in support
of any one sector of the community of trans people over any other.
One service we offer in addition to the national helpline and
local support lines is the confidential mailbox system which conveys
many letters within the community, sent between sometimes isolated
members of the community not connected to the electronic media.
1.5 The Trust welcomes the fact that the
Government has taken steps with the hope of protecting the basic
rights of the trans community which we represent.
The purpose of the observations made
1.6 The basic civil and human rights protection
of transsexual and transgendered people in the UK is widely accepted
as poor and the Bill is an attempt to improve matters. The Trust
however wishes to draw the committee's attention to significant
areas which we feel the Bill should address if the rights of the
trans community (which is to say all of the trans community) are
to be protected by, and not infringed by the Bill. We will focus
upon eight main areas:
(I) The Transsexual Persons Register
(II) The 1999 Employment Rights Restrictions
in relation to the Bill
(III) Discrimination against trans people
in respect of Goods and Services
(IV) The situation of people who do not
have or do not seek a Gender Recognition Certificate
(V) Linkage between the issue of a Gender
Recognition Certificate and the right to medical care
(VI) The compulsory requirement for termination
of marriage as a precondition of employment rights and gender
(VIII) Flaws in the Bill's mechanism for
1.7 Included as part of this submission
(in Appendix 2)
is our analysis of the draft Bill which was released shortly after
the publication on 11 July 2003. This contains The Trust's analysis
of each clause within the Bill and discusses possible implications.
It is intentionally examining the Bill critically in terms of
the detail of the wording of the Bill. The analysis forms part
of, and adds to, the evidence presented here and the committee
is urged to consider it as complementary to and not repetitive
of the issues raised here in that it goes into more detail in
relation to the construction of the Bill and Schedules. It may
also serve as a guide to how the Bill works from a procedural
1.8 The remainder of this document will
proceed to consider the problem areas of the Bill on an "issue
In the text, occasional examples are given.
Where an example relates to the future operation of the Bill then
it is clearly an expression of opinion by the Trust as to how
the Bill may or will operate. Where examples are givenand
expressly flagged as "examples"in relation to
the current experience of trans people, they are to the best of
the Trust's knowledge and belief taken from real situations but
immaterial facts are altered such as initials, places, names,
and genders to preserve anonymity.
(I) The Transsexual Persons Register
By paragraph 1 of Schedule 2 "The Registrar
General must maintain in the General Register Office a register
to be called the Transsexual Persons Register".
Upon registration (which is compulsory where
a Gender Recognition Panel ascertains that a person satisfies
the criteria for a full Certificate), the Registrar General must
among other matters "secure that the birth register entry
is marked in such a manner as may be described" and must
"make traceable the connection between the entry in the Transsexual
Persons Register and the birth register entry" (Paragraph
2(3) Schedule 2).
The register will be accessible by a range of
State and other bodies in a range of circumstances (discussed
in more detail in the Analysis attached to this document) and
it is understood that further provisions for wider access to the
Register are to be considered by way of Regulations made under
the Act were it to be enacted. Details of such proposed further
access to the Register are not before the Trust but may be available
to the committee at a later stage.
Historical context in relation to the Proposed
2.0 The creation of any form of registration
scheme whereby a minority social group is held on a State register
is a step which should always be preceded by the most careful
and mature consideration in a democracy. This applies whether
or not the State introducing the scheme believes that such a register
will be immune from misuse. This is a particular concern for the
UK as a Common Law Jurisdiction where the assumption is one of
non-interference with the daily life of law abiding individuals
and not one of regulation.
2.1 Transsexual people are generally law-abiding
people who, as with other normal people, wish to live, raise their
families, marry, and work without fear of persecution. In this
context, where the current legislative proposals would lead to
a national register of transsexual people together with an identifying
mark attached to their original birth register entry, it is essential
to set out some of the historical context which informs the trans
community and which must be taken into account when assessing
whether the Register addresses a pressing social need.
2.2 The Trust is conscious that reference
to historical material may be a sensitive matter but regards such
as essential. The background is mentioned because non-trans people
may be less aware of the issues from this perspective than are
people directly affected.
The 1999 employment rights restrictions in the
context of Registration
2.3 The acceptance of trans people within
society in recent years has increased as more people meet trans
people and recognise them as individuals simply endeavouring to
be themselves rather than the grotesque caricatures so often portrayed.
In society today there are trans people at all levels of seniority
and in all forms of employmentdoctors, nurses, surgeons,
actors, physicists, engineers, teachers, solicitors, barristers,
accountants, police officers, leading academicsand so on.
In spite of this greater acceptance of diversity, gender role
transition remains one of the most difficult and socially least
understood of all the changes which can take place in life.
2.4 It is only a few years since the norm
was to dismiss an employee who "transitioned" (an expression
which means, within the trans community, the shift from one form
of gender presentation to another on what is usually intended
to be a permanent basis). All of that was changed by the European
Court of Justice finding in the case of P v S and Cornwall County
Council (C-13/94) which provided protection in employment and
vocational training against direct discrimination on the basis
of gender reassignment.
2.5 The above landmark ECJ case confirmed
that Transsexual people had the benefit of the protection of the
Equal Treatment Directive in employment matters: it was unlawful
and discriminatory under EU law to dismiss any trans person because
they had or intended to reassign their gender.
2.6 The ruling was a breakthrough for the
community and provided uniform employment protection: it mattered
not whether a trans person was single or married, and it mattered
not whether a trans person was a nurse, a teacher or a solicitor.
It was one of the first occasions that the civil rights of the
trans minority had been placed on a par with those of the non-trans
majority and its impact must be understood to be on a par with,
for example, the first time that a State body ever stated that
to be a member of an ethnic minority was not a legitimate reason
2.7 Following the widely welcomed judgment,
after a brief period of consultation a piece of secondary legislation
came into being called the Sex Discrimination (Gender Reassignment)
Regulations 1999, SI 1999/1102, which introduced a number of specific
restrictions on the employment rights of transsexual people by
amending and adding to the Sex Discrimination Act 1975. As a piece
of secondary legislation the document was not extensively debated
2.8 The new restrictions on employment rights
which were introduced in 1999 need not be set out extensively
here but were termed "Special Genuine Occupational Qualifications"
or "Special GOQs" and provided for numerous circumstances
in which a trans person could be left without protection from
dismissal (or non-recruitment by an employer) merely on the basis
that they were transsexual (or more precisely were undergoing,
or were intending to undergo, gender reassignment). In this document,
and the attached analysis the exceptions to employment protection
which the 1999 Statutory Instrument introduced are referred to
as "the 1999 employment rights restrictions".
2.9 The full list of Special GOQs appears
in the 1999 Regulations themselves. Probably the most stigmatising,
and the one which may have led to the most sadness within the
community, is the "vulnerable persons" GOQ which provides
that a transsexual person undergoing or intending to undergo gender
reassignment may find themselves unprotected from dismissal if
he or she works with "vulnerable" people (an expression
which is not defined).
2.10 The consequence is that members of
the trans community working as doctors, nurses, care workers and
others live under the shadow of uncertainty as to whether they
are capable of dismissal in effect merely for being members of
this particular social minority group. It should be plain that
the implication of the "vulnerable persons" Special
GOQ carries the stigma of a message that in some unspecifiedand
evidentially wholly unfoundedsense merely to be a transsexual
person is to be a possible threat to "vulnerable" people,
presumably in some moral or physical sense.
2.11 The Gender Recognition Bill under consideration
by the JCHR makes limited provision for releasing some unmarried
transsexual people from the 1999 employment rights restrictions.
Release from the restrictions requires the granting of a Full
Gender Recognition Certificate. It follows that all married people
will remain under the employment rights restrictions as will others
who for whatever reason are unable to obtain a Full Gender Recognition
2.12 It is accordingly important to appreciate
that, coupled with the history of the recent introduction of the
"vulnerable persons" restriction, the proposed creation
of a national register of transsexual persons carries with it
connotations of a stigmatising nature which would be regarded
as unacceptable if applied to other social groups.
Registration and the "mark" in the context
of the wider experience of the trans minority
2.13 The Trust calls to mind that in the
Germany of the last War "transvestites" (the label used
to refer to all trans people in years past) were deemed to fall
within the category of prisoners indicated by a pink triangle
on the prisoner's uniform, and that transgendered people were
one of the persecuted groups under that regime along with other
groups well known to the JCHR.
2.14 The Trust is concerned that under the
proposed legislation civil rights are to continue to be withheld
from trans people unless they are entered onto the proposed register
and their birth register entries are specially "marked".
A register based on race, religion, or sexual orientation would
be unacceptable to UK subjects and the Trust finds such a register
unacceptable for the same reasons. The Trust regards such as inappropriate
in this jurisdiction, howsoever administratively convenient it
may appear, when applied to the trans community.
2.15 The Trust is of the view that more
than adequate information is available to the State, police and
law enforcement bodies (for example via National Insurance records,
tax records, medical records, DVLA records, Council Tax records,
Credit Records, Passport Office records and so forth), to ascertain
whether a given person is transsexual, should the need arise,
without there being a requirement for a central register which
isolates and lists identified transsexual people. A Register of
Transsexual persons would in the Trust's view either be a breach
of Article 8(1) not justified by Art 8(2) or would be a breach
of Art 14 within the ambit of Art 8.
Recommendation One: The Register
If a person is entitled to change legal gender
they should be provided with a replacement birth certificate showing
their new details, and the Birth Register entry should be replaced
accordingly in all respects. There should be no Register of Transsexual
(II) The 1999 Employment Rights Restrictions
in relation to the Bill
2.16 As regards the employment rights restrictions
under the Bill before, this committee, those are almost all
lifted if a person obtains a Gender Recognition Certificate.
2.17 Since there can be no practical difference
between married and unmarried people in terms of the supposed
"threat" they pose to "vulnerable people"
the Trust believes that the Employment rights restrictionsreduced
in effect now to restrictions directed only at married people
who are of necessity ineligible for a Certificateare plainly
lacking any principled basis and should be repealed.
The employment rights restrictions set out in
the Sex Discrimination (Gender Reassignment) Regulations should
(III) Discrimination against trans people
in respect of Goods and Services and Indirect Discrimination in
2.18 Members of the trans community have
no protection under English law against discrimination in respect
of the provision of goods and services. It is apparently legal,
(a) to have a "no transsexuals"
policy at a shop or restaurant (as regards customers)
(b) to refuse an elderly trans person a place
at a care home as a resident
(c) to decline private medical services to
a transsexual person because they are transsexual
(d) to require a trans person to pay more
for goods or services or to refuse services altogether
(e) to refuse to let premises to a transsexual
person (including in principle also erecting a "no transsexuals"
sign at the door).
2.19 The Gender Recognition Bill takes no
steps whatsoever to improve that state of affairs: thus whilst
it is illegal to refuse access to goods and services on the basis
of the race of a person or usually on the basis of their sex,
members of the trans community have no such protection in respect
of their status as members of that minority group.
2.20 The Trust believes that absence of
protection in respect of Goods and Services does have human rights
implications since the notion of "goods" and "services"
in law are broad enough to include basic needs for housing, food
and shelter and for the protection of property, provision of medical
care and family services all of which it is incumbent upon the
State, as signatory to the Convention, to protect insofar as they
are elements necessary for the enjoyment of Convention rights
in this democracy.
2.21 Thus with the ageing population the
Gender Trust is especially concerned that elderly trans people
may be denied a place in a home because of their history. In the
Trust's view it is already all too common to see young trans people
who are homeless turned away from hostels because the hostel manager
refuses to house them with people of their identified gender,
yet it would be unsafe for them to be housed with persons of the
opposite identified gender (eg a trans woman housed among men).
2.22 The Trust notes with dismay that new
regulations covering other groups within society will leave trans
people as the only minority within society against whom it will
be legaland indeed normal practiceto discriminate
against as a group. It is so often the case that the high unemployment
rate among trans people forces a choice between basic privacy
2.23 The Trust also notes with concern that
existing lack of protection in respect of goods and services also
means that trans people may be excluded from exercise and sport
facilities as well as sport generally, with what must be seen
as consequences in terms of basic health. The Trust refers to
the fact that the Women's Sports Foundation
(WSF), itself commented in relation to the current state of the
law, prior to the draft bill, as follows (extract from longer
"The Women's Sports Foundation believes
however that the complexity and sensitivity of this issue should
be a reason for further discussion and deliberation rather that
an excuse for continued discrimination... Fundamentally there
is no justification for treating a transgender person any differently
to another individual wishing to participate, in whatever context,
2.24 Before making a recommendation several
examples of typical "routine" discrimination will be
cited derived from real experience:
B, a trans woman, enters a restaurant in Covent
Garden, London. She buys a meal and before leaving wishes to use
the lavatory. Despite the fact that other women are using the
ladies facilities, she is told by staff that sadly all the facilities
for women are out of use due to "a flood" and she is
asked to use the men's lavatories (a urinal). She leaves the restaurant
C is a professional in a well paid City position
and is the author of a couple of text books. He is also a member
of the trans community (born physically female but having transitioned
to male a year ago). He contacts a Recruitment agency and forwards
a CV with a view to applying for a more senior post elsewhere,
there being numerous advertisements for his sort of professional.
The agents, who are aware he is a trans man, call him two days
later to say that sadly they have no jobs for his type of professional
and that it is proving so hard to place them that he should probably
stay where he is.
D, a trans woman, has a mobile phone. She wishes
to change some of her personal settings on her account and telephones
the operator to do this. The operator does not ask for her password
or any of the usual details to check her identity before allowing
her to change her personal settings. Instead the operator asserts
that D is not who she says she is and that she does not "sound
like a woman" and begins to become rude to D. It is only
after D gives personal medical information to the operator, which
she goes away and checks with her manager against the company
records, that the operator agrees to alter the settings. The operator
then still fails to ask for a password or standard identity information
to confirm D's identity before changing the account settings.
E, a trans woman, wishes to trade shares herself
using a share trading service. When considering which service
to use, she notices a full page advertisement for a share dealing
service (see image at Appendix 3). She does not feel that she
would be welcome if she called them, and seeing copies of the
advertisement being read by the public makes her personally uncomfortable.
F, a trans man, obtained a postgraduate qualification
in 1994, which was before his gender transition. His university
declines to issue a replacement certificate and so F "makes
do" without telling prospective employers that he has that
G a trans woman, worked as a manager for a department
store for many years. She sees an advertisement for another company
for which she would be suitable. On seeing the application form
she simply discards any thoughts of applying. The form asked for
all former names.
The Bill should include an amendment to the
Sex Discrimination Act 1975 to make it unlawful to discriminate
on the basis of gender presentation or status in the provision
of goods and services or to indirectly discriminate in employment
or vocational training on such basis. Such protection should be
irrespective of the holding of a Gender Recognition Certificate.
Discrimination against people associated with
2.25 The Trust is concerned that the Bill
also fails to redress the lack of protection (in employment and
goods and services law) for people such as friends and spouses
of trans people (people "associated with" trans people).
It remains, apparently, lawful to:
(a) refuse to recruit a person because his
spouse is transsexual.
(b) refuse goods and services to people on
the basis that they associate with transsexual people.
The Bill should include an amendment to the
Sex Discrimination Act 1975 to extend protection in all areas
to persons associated in any way with trans people. (Such would
place the Act on a par with the Race Discrimination legislation
which provides "third party" protection).
(IV) The situation of people who do not have
or do not seek a Gender Recognition Certificate
2.26 At present those who change gender
role in society are able to obtain a variety of documents in their
new name and in the gender in which they live their lives. This
includes passports and driving licenses. The arrangements are
administrative, policy based and somewhat informal.
2.27 The long-standing and humane facilities
allowed to trans people enabling them to obtain appropriate passports
and driving licences are discretionary and the Trust fears that
they could be withdrawn with an administrative change of policy
once the Bill is enacted. The. Bill makes no provision to "ring
fence" the current arrangements to prevent them from being
summarily withdrawn from people without Gender Recognition Certificates.
2.28 There are good reasons for the current
arrangements: first that if a person who is to all intents and
purposes female presents with a male passport she may be detained
in her destination country, or subjected to abuse, and second
that to require otherwise would be to require her to "out"
herself whenever she has to prove her identity. Similar considerations
apply to photocard driving licences: it would make a nonsense
of the DVLA records if a person with a legally female name and
visual appearance was logged as "male" and shown up
as such on police records. It would interfere with operational
effectiveness because for all practical purposes recording a woman
as "male" would be misleading.
2.29 The Trust understands that from 26
October 2004 the UK Government is effectively obliged (under a
US law) to begin adding biometric data microchips to newly issued
passports, in default of which UK nationals may be refused access
to the USA. The position of the trans person therefore becomes
all the more precarious and in need of clear protection as regards
passports if such microchips were to contain gender markers. There
is no provision for preventing inappropriate gender data about
such people from being recorded on a biometric data chip in a
passport, identity card or license in future.
2.30 The Trust further understands that
the US Department of Homeland Security has this month issued a
"security advisory" to its security personnel released
publicly under its Press Release number 238
in which it alerts staff at airports to the possible terrorist
threat posed by "males dressed as females". The Trust
is very concerned that the respected US rights group NTAC
and its advisers has felt the situation sufficiently serious to
release an urgent security alert to the trans community this month
stating inter alia that:
"For the trans gender community, this means
that airport screeners and other law enforcement agencies will
be much more vigilant than usual. It also means they may be more
likely to commit unwitting abuses. At the minimum, the trans gender
community should be mindful of the new alerts and prepare accordingly
when travelling this fall, especially if flying.
Even for those who've transitioned, issues may
arise if authorities suspect something. When travelling, it is
advisable to consider bringing your court-ordered name (and gender)
change papers. While terrorists may make fake identifications,
they won't carry name change documents signed and notarized by
In either case, be prepared to openly explain
the truth about your transgender status if stopped and questioned
by authorities. As frightening as this scenario may appear, hesitation
or evasive answers will only draw more intense scrutiny and could
possibly lead to police holding one temporarily for further interrogation.
Lack of co-operation with authorities will likely be treated unfavourably
2.31 In the light of the above, preservation
of the present entitlement to change gender and name details in
passports is all the more important to reduce the risk of abuse,
and the Trust is also concerned that married persons travelling
to the USA would, under the Bill, find themselves unable to produce
documentation to verify gender change since they would be, legally,
"males travelling as females" (or vice versa).
Example (taken from the international press):
A Thai transsexual woman arrived in Singapore
from Bangkok on a visit to that country in 2003. She was detained
by immigration officers at Changi Airport when their suspicions
were raised by how the woman was referred to as "Mr"
in her passport. In Thailand, trans people are not permitted to
change the gender of their passports.
2.32 The draft Bill deals solely with those
who qualify for a Gender Recognition Certificate. Unfortunately,
a sizeable part of the trans community falls into one of four
classes not qualifying for recognition:
those who are in the early stages
of transition and are within the two-year qualifying period under
those who are married and wish to
those who decide that for whatever
reason they do not wish to obtain a Gender Recognition Certificate
(perhaps being concerned about Registration or having families
who express concern on that topic);
those who cannot afford the fees
to seek a Gender Recognition Certificate and necessary expert
2.33 The draft Bill makes no provision for
such people in relation to existing entitlement to passports,
driving licences and suchlike, and the Trust is of the view that
it should do so by ensuring that arrangements already in place
will remain in place in future.
The Bill should be amended to ensure that persons
who have transitioned in gender role living full time in that
role should be able to continue to obtain all identity and entitlement
documents except the birth certificate in their new name and gender
and that no inappropriate biometric data is recorded on embedded
passport microchips to "out" them upon entry to a foreign
Privacy among those not in possession of a Gender
2.34 Among those not seeking or qualifying for a Gender Recognition
Certificate will be a large number of people who would qualify
under the Goodwin and "I" court rulings, (judgments
of the ECHR which among other matters confirmed the right of trans
people to privacy) but who cannot obtain a Certificate because
they are married, are too poor, or are scared of the implications
of being registered on a national register of transsexual people.
It is a defence against breach of disclosure rules under the Bill
itself that it was believed that no such certificate had been
issued, and by implication it may be seen in some quarters as
acceptable to disclose such information in the absence of a Gender
2.35 It is clear that in this respect some
trans people are expected, within the terms of this draft Bill,
to choose between a long-standing marriage on the one hand and
their right to some element of privacy under the Bill. We regard
this as contrary to the findings of the recent ECHR cases of Goodwin
and "I" and likely to constitute a breach of Articles
8 and 12 of the European Convention on Human Rights, possibly
also breaches of Article 14 within the ambit of Articles 8 and
Constraints on disclosure of information to
the effect that a person is transsexual should apply to any person
who can demonstrate that they have changed gender role or intend
to do so and intend this change to be permanent.
Linkage between employment rights and grant of
Gender Recognition Certificate (s. 9)
2.36 The Bill in present form at section
9 has the effect that people without a Gender Recognition Certificate
remain under the 1999 employment rights restrictions.
2.37 The linkage between employment rights
has the net effect that marriage, under English law, will be an
impairment to employment rights. Members of the trans community
in surviving marriages will still be subject to the employment
restrictions introduced in 1999, whilst unmarried counterparts
in otherwise identical circumstances will not.
2.38 Since the case of Croft v Consignia
(EAT/1160/00 and later upheld on appeal for modified reasons)
decided recently it has become probable that employers will be
less likely to permit use of facilities appropriate to the gender
in which trans people present at the point of transition. While
this has often been the case, it was often in practice mitigated
by an agreed changeover along the lines of the guidance written
in support of the Sex Discrimination (Gender Reassignment) Regulations.
2.39 In such a regime the fear is that a
trans person will be driven to undertake a degree of surgery which
they may later come to regret deeply in the hope that this will
persuade an employer to permit them to use the correct facilities.
With the present proposals it may be the case that employers insist
upon someone obtaining a Gender Recognition Certificate before
suitable facilities may be used, and indeed such would appear
to be the inevitable consequence of Croft v Consignia
if the facilities available at work are limited (for example at
an establishment with one male and one female set of facilities).
Without appropriate changes to the Bill this will have two consequences:
two years or more of being unable to use suitable facilities and
undue pressure on someone who feels uncomfortable with obtaining
a Gender Recognition Certificate (eg because of marriage) being
pressured into divorce in order to obtain a certificate.
Example (which would arise if the Bill was enacted
A, a married trans woman who is unable to obtain
a Gender Recognition Certificate (because she is married), is
required by her employer to use the male lavatory at work because
the employer has only one lavatory for women and one for men.
B, also a trans woman, who is A's junior colleague at work, is
unmarried and has obtained a Gender Recognition Certificate. She
is required by her employer to use the women's lavatory. Both
women are otherwise identical in all relevant respects.
2.40 The Trust is firmly of the view that
a linkage between employment rights restrictions and the use of
lavatory facilities, with marital status is absurd and is a link
which has no legitimate purpose, and that the requirement for
divorce or voiding of marriage in order to gain employment rights
and the right to use appropriate facilities is a disproportionate
2.41 The Trust believes that the above is
a discriminatory breach of the right to respect for privacy and/or
an unjustified breach of Art.14 of the Convention within the ambit
Recommendation Seven: Use of correct sanitary
The Bill should amend the Sex Discrimination
(Gender Reassignment) Regulations, 1999, to provide that equal
treatment includes equal rights to use suitable facilities appropriate
to the gender in which a person using those facilities identifies
and appears at work.
Recommendation Eight: Use of correct sanitary
The Secondary legislation
relating to provision of gendered facilities for washing at work
which contributed to the decision it did in Croft v Consignia
must be amended appropriately or repealed by the Bill so as to
permit trans people to use the correct lavatory facilities for
the gender in which they present at work.
(V) Linkage between the issue of a Gender
Recognition Certificate and the right to medical care
2.42 The medical treatment for trans people
within the UK is very limited in extent for those unable to pay
for private treatment. There is wide variation in the provision
of service, extensive delays well beyond that in almost any other
area of treatment (waiting periods of years in length) and frequently
trans people meet with GPs who have no understanding of the condition
or competence in dealing with it. There is strong debate at present
over what the appropriate standards of care should be with the
UK choosing not to adopt the recognised international standard.
In some NHS areas the Trust understands that
an "absolute ban" on receiving medical assistance for
the condition is imposed on any transsexual person who lives within
the NHS Trust area and cannot prove that they have so lived there
for a certain number of yearshence excluding and creating
"no go zones" for new citizens from abroad, homeless
persons, students, those moving home, those moving to live with
loved ones or those just moving to change jobs.
2.43 Faced with such provision and the apparent
creation of areas of the country in which trans people cannot
be sure to receive relevant NHS cover, it is of paramount importance
that matters are not made even worse by the Bill. Against that
backdrop the Trust is concerned that the Bill fails to outlaw
the possibility that medical treatment services may become linked
(positively or negatively) to the status of an individual as "registered",
irrespective of medical need and fails to protect pre-existing
rights to general medical treatment.
2.44 Thus for example the Bill offers no
protection against a situation where a trans person is refused
gender reassignment surgery until such time as they obtain a Gender
Recognition Certificate, which will require divorce or annulment
Recommendation Nine: No interference with gender
Under no circumstances should it be lawful to
refuse medical treatment forming part of gender reassignment on
the basis that the patient has not or is unable or unwilling to
obtain a Gender Recognition Certificate (such as by virtue of
General treatment services outside gender reassignment
2.45 The idea that for all practical purposes
trans people should be recognised as being of their reassigned
gender is a welcome one.
2.46 However in accordance with its policy
that recognition must be sensibly interpreted in accordance with
biological reality (such as the endocrinological, or morphological
realities of each person), the Trust is concerned that the grant
of recognition "for all purposes"the expression
used in section 5(1) of the Bill
carries with it a serious and unintentional side effect. This
is that policy documents, Statutes, Statutory Instruments, professional
rules and such like will have to be interpreted by service providers
and the courts purely in accordance with the "legal"
re-assigned gender of the person concerned irrespective of the
medical issues involved and the medical services sought (whether
privately or NHS).
2.47 Thus a trans woman would under the
Bill be a woman even when it came to funding surgery for prostate
cancer or any other "gendered" medical service. That
approach may or may not make good medical sense depending on the
specific situation. This would of course apply equally to all
"medical" statutes and so forth which use conventionally
gendered terms (and which were drafted without foreseeing the
fact that legal gender might change, one must reasonably assume),
not merely in relation to treatment for illness but also to the
whole range of public and private healthcare and treatment services.
2.48 Thus suppose a local NHS funding policy
funds prostate cancer screening and treatment for men in a specified
age range. A male to female transsexual may not be able to persuade
her Trust to screen her for prostate cancer because there is no
funding for such treatment m people who for "all purposes"
are women. Aft attempt to Judicially review the decision may equally
fail since the Bill, on the face of it, would require a Trust
to interpret its lawful funding policies so as to regard the person
as female for all purposes. By contrast the same Trust would,
presumably, have at least to budget for screening for cervical
cancer notwithstanding that a male to female transsexual person
lacks a cervix.
2.49 Suppose alternatively that a private
healthcare provider offers lifesaving cervical cancer care to
women. Its insurance cover would, very possibly; not extend to
such cancers in legal men.
2.50 It appears to the Trust that it would
be unreliable and costly to endeavour to list all local policies,
instruments and rules, or to "vet" all statutes for
problems in this context and that the preferable approach would
be a simple rule of construction provided by the Bill as follows.
Recommendation 10: General rule of construction
The Bill should be amended to ensure that a
basic rule of construction is added that:
"Where a Statute or other instrument having
legal effect (including NHS policy documents) contains the expressions
`man' `woman' or related expressions connoting gender, the relevant
Statute or legal instrument shall be construed, notwithstanding
the grant of a Gender Recognition Certificate, such that if the
individual concerned would have been permitted in law to receive
treatment services prior to grant of a Gender Recognition Certificate,
his or her entitlement to receive those services shall not cease
or be restricted by reason of the grant of a Gender Recognition
(VI) The compulsory requirement for termination
of marriage as a precondition of employment rights and gender
2.51 A few existing marriages survive the
great trauma of one spouse undergoing gender transition. The non-transsexual
spouse is very often the person who suffers the most. Those that
do survive, do so because of a huge investment of energy, emotion
and effort on the part of both parties, together with a great
deal of love. Like others who successfully come through traumatic
events together, the bond can actually be strengthened by the
2.52 Society at large does not understand
why trans people marry in their "legal" gender role
when they "know" about their condition and, when considering
the proposed legislation it is necessary to have some insight
into this issue.
2.53 It is probably fair to say that most
get married either while in denial about their gender identity
or because they believe that they will be able to beat the condition
and live their entire life in their legal gender role, and for
the perfectly natural reason that they love each other.
2.54 To a large extent, this is inevitable,
given societal (and legal) pressure to conform to the role assigned
on the Birth Certificate. It is also fair to say that, whatever
their gender presentation, some do get married because the union
is legal and accords with their own sexuality and legal identity.
2.55 As drafted, the legislation will add
a further pressure to dissolve an existing marriage and, therefore,
impose greater trauma on trans people and their spouse and children
who are trying to deal with the condition. We believe that this
will cause many trans people to put off seeking help and treatment
and will increase the risk of suicidal ideation.
2.56 In the cases where a trans person's
existing marriage survives, they and their spouse will be faced
with an impossible dilemmaa choice between dissolving the
marriage in order to gain a gender recognition certificate or
maintaining the marriage; being unable to obtain a certificate
and, as a result, being subjected to the uncertainties of not
being legally recognised in their adopted gender role, many of
which are outlined elsewhere in this document. This could hardly
be construed to be a free choice and, further, will introduce
new legal inequalities between trans people whose marriages survive
and those whose marriages do not.
2.57 The Trust also believes that the requirement
for dissolution of marriage, and the placing of that "right"
within the control of the transsexual spouse is an unwarranted
interference with the rights of the other spouse and the children
of the family for respect for their home and family life. It is
an unwarranted interference with the property rights of the other
spouse where those are affected by the forced transition of the
other spouse from a legally heterosexual married relationship
to a legally homosexual unmarried one, and will grossly affect
the insurance and other benefits available to the spouse concerned.
2.58 In the view of the Trust the requirement
as a whole is contrary to the basic principle of public Policy
in English Law that the institution of marriage is to be protected.
It would be a substantial abandonment of the principle that the
family should be protected, to require people to end marriages
when neither spouse wishes to do so.
Example by way of evidence:
A Statement by "M" in her own words:
"We have a happy and loving marriage that
survived against all odds because of our great love for each other
and a determination to do our best to/ace a difficult future together.
I've spent my whole life so far facing a set of institutionalised
discrimination, which was based on a failure to recognise the
validity of my existence. Now that validity has been recognised
and the legislators are at last preparing primary legislation
to put right some of the wrongs of the last three decades. And,
despite extensive consultation where the circumstances of people
like us should have been considered, the legislation proposed
simply replaces one invalidation with a different invalidation.
Both my spouse and I will probably be worse off if this bill is
passed as proposed."
Further example by way of evidence:
E. the wife of a trans woman, D. writes:
"We have now been married for over 30 years.
We had our marriage re-blessed after 25 years and on the evening
before D's transition, I gave her a wedding ring in the presence
of a priest who blessed both us and the ring. There have been
moments of great difficulty, anguish and pain for us, and, our
two children. We have watched I) attempt to take her own life,
we have had to. struggle with our own demons, but we have survived
all of this and remain a very loving and committed family. To
suggest that our marriage should be dissolved in order for D to
gain the simple rights most of us take for granted is not simply
just a matter of her basic human rights, for we know that she
will put our marriage before her needs. Try and imagine how we
will feel believing that we are somehow denying her! At the end
of the day, it may be easy for some to suggest that there is no
real problem, as we may well be able to divorce and then register
a civil partnership (a welcome right for many loving couples),
but, in this particular instance, one requiring me to make yet
another public statement about my personal relationships. It is
plain wrong, unacceptably painful and undermines the very essence
of our marriage and family life."
Recommendation 11: Marriages to be respected
The Bill should not require the dissolution
of a marriage as a precondition of the grant of civil rights.
2.59 The Bill also omits to address the
need to legally recognise pre-existing marriages involving a spouse
who has changed gender, similar to the "Bellinger" case
where a marriage was contracted and all formalities were followed
the sole invalidity being the somewhat technical fact that, even
though a marriage certificate was issued, the Gender Recognition
Bill was not in force to permit a change of legal gender, and
hence that the marriage was in law a marriage between people of
the same sex.
2.60 But for the fact that the technical
legal genders of the parties were not recognised as opposite (the
Bill not being in force at the time) such marriages would have
been at the time in all respects otherwise valid. Had the Bill
been in force at the time of the marriage the trans spouse would
have been entitled to change legal gender and contract a legitimate
marriage. It was only the lack of such a right to change legal
gender which stood in the way of the marriage being recognised
in law at the time, given compliance with all other formalities.
2.61 Under the Bill marriages such"
as the "Bellinger" marriage will remain invalid in law
yet a simple amendment to the Bill (suggested below) would permit
the handful of such families to avoid the trauma of having to
dissolve the marriage if they are to secure legal recognition.
Recommendation 12: Bellinger style marriages
To resolve the issue of "Bellinger"
style marriages, those marriages should be recognised under a
special approval mechanism in the Act:
(a) the parties at date of marriage underwent
as far as possible what in all respects would have been a formally
valid marriage but for a violation of the requirement of legally
different sexes; and
(b) the relevant party to the marriage would
have been eligible for a Gender Recognition Certificate at the
time of marriage but/or the/act that the Gender Recognition Act
was not in force at the time; and
(c) both parties consent to the application;
then the marriage should be recognised as valid.
The Trust is of the view that the above represents
fairness and equity to all concerned and is similar inform to
the post hoc recognition of fatherhood for trans men which is
provided in the Bill, recognising as it does the act of becoming
a father which pre-dated the date of legal malehood.
The case of the Bellinger family marriage.
Existing valid marriages between opposite pairs
of trans people
2.62 Sometimes two trans people (a trans
man and a trans woman, both therefore of legally opposite genders)
marry each other. This may make sense especially in a world where
few from the non-trans community understand the cultural experience
of being a trans person. These couples marry legally and perfectly
validly because they are, in law, respectively female (in the
case of the trans man) and male (in the case of the trans woman).
2.63 The Bill as currently drafted fails
to deal with such marriages where the parties go on to obtain
Gender Recognition Certificates. It seems to the Trust to be pointless
and contrary to public policy to require such a valid marriage
to be dissolved merely so that the parties can obtain Gender Recognition
Certificates and then promptly re-marry each other (this time
with the husband and wife roles reversed to their proper outward
appearance). It would be administratively sensible and in accordance
with the Convention's respect for marriage to permit such married
couples to merely amend their marriage certificate to reverse
the labels of "husband" and "wife" once a
Gender Recognition certificate is obtained, without first having
to dissolve the marriage then re-marry.
2.64 The Trust has already recommended,
above, that the requirement for dissolution of marriage should
be abandoned in all cases, and that will not be repeated here,
but in order to cater for marriages such as the above the Trust
also proposes as follows.
Recommendation 13: Correcting the marriage record
where a valid marriage exists between two opposite gendered trans
The records appertaining to the pre-existing
marriage of two people both of whom are entitled to Gender Recognition
Certificates and both of whom were at the time of marriage of
opposite genders and who remained of opposite genders after grant
of a Gender Recognition Certificate, shall be rectified by issue
of a new certificate to state the legally correct status of the
parties as Husband and Wife upon a joint application to that effect
being made by the parties enclosing copies of their respective
Gender Recognition Certificates and their original marriage certificate.
Religious freedom and marriage
2.65 Marriage is sacred in a number of religious
faiths. In the Trust's view it is not acceptable to deny people
the right to obtain the lifting of employment rights restrictions
and a changed birth certificate, where they cannot make use of
the proposed procedure because to do so would be contrary to a
deeply held religious conviction to the effect that the ending
of a marriage is wrong.
A Roman Catholic, believes that the introduction
of the Bill's "device" whereby people who are married
may terminate marriage without a divorce (on the basis of "voiding"
it) is no more than a semantic departure from divorcea
"quickie" divorce in other wordsand as such is
not in accordance with his faith. He would not feel able to make
use of the procedure and would if married have to remain deprived
of civil rights at work and elsewhere. Merely re-labelling a divorce
as "voiding" does not escape the true moral nature of
the act within his system of belief
Recommendation 14: Right of Conscientious objection
(without prejudice to the Trust's recommendation for the abandonment
of a divorce or dissolution requirement)
Where a person makes a declaration that they
object on conscientious grounds to undergoing the voiding or dissolution
of marriage they shall be exempted from that requirement absolutely.
2.66 It is commonplace for any trans person
who comes to public notice to be "outed" as trans and
for their past name to be published. Frequently, such occasions
will also involve use of incorrect gender pronouns as a matter
2.67 Within the draft Bill there are constraints
upon disclosure of information acquired in an "official capacity"
about a trans person who has obtained a Gender Recognition Certificate.
These constraints are welcomed but it is noted that the exceptions
provided are extremely wide. Already, it appears that consultation
is taking place about possible new exemptions from disclosure
constraints which may be introduced as secondary legislation.
2.68 It is also regretted that there has
been no attempt to limit the right to acquire such information.
Any organisation will retain the right to ask questions about
transsexual history or whether someone has applied for or been
granted a Gender Recognition Certificate. For example an employer
may well ask such questions on an application form or at interview.
In such an instance the trans person would have no protection
from dismissal if they failed to answer honestly whereas an honest
answer could be interpreted under the proposed section 14(4)(b)
as being voluntarily disclosed by the trans person and hence outwith
subsequent disclosure constraints.
Recommendation 15: Primary limitation on acquisition
and holding of information
The draft Bill should be amended to prevent
acquisition and holding of information related to gender role
transition or associated medical conditions and treatment unless
a clear relevance can be demonstrated in advance.
2.69 Within the exemptions in section 14(4)
of the draft Bill sub-section (c) relates simply to someone being
unaware that a person had acquired a Gender Recognition Certificate.
We are concerned that this provides a defence in law to anyone
who makes a disclosure or even to" someone who simply refuses
to believe the trans person when told that a certificate has been
issued. This places an even greater burden upon the trans person
to disclose their history, perversely because this is the only
way in which they may further prevent disclosure of their history
by persuading the employer or third party of the truthfulness
of their claim to be transsexual.
Recommendation 16: Scope of Primary limitation
on acquisition and holding of information.
The disclosure, and any future acquisition or
data retention constraints should apply to any person who has
undergone gender role transition regardless of whether they have
obtained a Gender Recognition Certificate.
2.70 The exemptions on disclosure constraints
include an exemption for disclosure made in the course of "official
duties". This term is undefined but given the meaning given
to "official capacity" earlier in this section to include,
essentially, any activity in the course of work, one can only
question the value of the protections provided within the draft
2.71 Similarly, section 1 4(4)(f) provides
a disproportionately wide exemption for any matter in relation
to court proceedings. There is no requirement that the trans history
have any relevance to the proceedings. This raises the serious
prospect of any court matter involving a trans person having their
history discussed in open court at the whim of any participant.
The threat of such an event is likely in any event to deter trans
people from seeking redress in court or even reporting crimes
and would amount to a form of legitimate blackmail.
2.72 Equally "broad brush" are
the powers given to the Secretary of State to make exemptions.
This may in future even put at risk the disclosure of personal
details of persons who appear on the proposed transsexual persons
Recommendation 17: Narrowing the current exemptions
The disclosure exemptions should be reduced
by deletion of 14(4)(c), (d) and (g).
Recommendation 18: Disclosure in Court proceedings
to be restricted to essential cases
The court proceedings exemption in 14(4)(f)
should be limited by the requirement that disclosure be essential
to the case being considered.
Note: The discussion here is not technical in
nature but is intended to be an overview. The detailed analysis
at Appendix 2
of this document sets out more detail in relation to problems
with the operation of the Bill by reference to specific sections.
Visitors to the UK: loss of "domicile"
gender and introduction of exorbitant jurisdiction
2.73 The Trust welcomes the option for foreign
nationals to apply to the Panel for a GRC. This would benefit
a trans person from a country where legal recognition of acquired
gender is not permitted, but who might be a long term resident
in the UK, obtaining appropriate legal recognition at least within
the UK (albeit, without the possibility of amending a birth certificate
held under a foreign jurisdiction). However the immediate effect
of the Bill as regards visitors to the UK (section 1(1 )(b). and
1(5)) is that if a trans person who "is" recognised
in their home country as, say, female comes to the UK then she
will nevertheless be recognised as male if the country from which
she comes is not on the "Approved list" or if she has
not obtained a Gender Recognition certificate. Even if the country
in question is on the list of "Approved" countries the
person will not be recognised in their correct gender unless they
have submitted to the jurisdiction of the Gender Recognition Panel
in the UK. To many people who are not UK citizens such a requirement
would be oppressive.
2.74 The Trust is concerned that persons
from overseas inadvertently falsely declare their own gender,
marital relationship to their spouse and status of their children
at customs if they are not made aware of the UK' s lack of recognition
of their legal gender prior to arrival. A list of approved countries
should be displayed prominently on arrivalor perhaps prior
to boardingand appropriate guidance for those affected
given in writing on boarding cards and suchlike. Even those from
Approved countries should be given due warning that upon entry
to the UK their gender will be deemed to revert to something other
than their gender at home unless they apply to the Panel and submit
to its jurisdiction.
2.75 It is the Trust's position that a trans
person who is a foreign national should have the right, but not
the obligation, to apply to the Panel for a GRC. Where that right
is not exercised (for example, in the case of a trans person whose
acquired gender has been legally recognised in their home state)
the UK should recognise and respect the legal gender of that person
in their home state without further formality.
2.76 Married persons from abroad may well
find that they are not treated as married in the UK unless they
have first obtained a Certificate, and that they are treated instead
as single same sex couplesin other words that they have
no legal relationship to one another even as next of kin. Bigamous
marriages could be facilitated by such a law.
2.77 Moreover the status of the parties
as mother and father of a child in their home state might be at
risk upon entry to the UK in favour of an uncertain legal relationship
during their stay in the UK.
2.78 The Trust also harbours concern that
by endorsing a Panel mechanism in the UK for foreign visitors,
where the default assumption is that a person's gender "at
home" is not recognised until a Panel has approved an application,
an example may be set for other States whereby a UK national on
holiday or on business may not be accorded gender recognition
unless they have complied with local requirements as to gender
definition. The preferable position in the Trust's judgment is
that the UK should respect overseas law and encourage reciprocity
of recognition for UK nationals.
Recommendation 19: Non-UK citizens
The Trust recommends that in UK law a person
should (if they do not voluntarily make an application to a Gender
Panel) be, deemed to be the gender they are recognised as having
in their country of citizenship.
If such a recommendation is not acceptable then
there should alternatively be a simple procedure to recognise
status in assigned gender for the duration of a visit to the UK
without the person concerned having to submit papers to a legal
Involvement of qualified trans persons in Panel
2.79 The Trust notes with concern the fact
that there is no provision in the Bill to ensure that lawyers
and doctors from the trans community should make up the professional
membership of the panel or at least that those from the trans
community should form an appropriate proportion of the panel.
It is in the Trust's view most unlikely that a Panel made up of
professionals from outside the trans community will carry with
it the respect of community leaders and members or will have sufficient
understanding of the issues involved.
Recommendation 20: Panel composition
The Trust recommends that in selecting members
of the Panel, trans people and non-trans people should be accorded
equal numbers of members in the "pool" from which Panels
The cost of applications and rights to Legal representation
2.80 The Panel procedure is one by which
the legal status of an individual trans person is determined by
lawyers and medical panel members. Evidence is filed and considered,
much of it expert evidence. Declarations having force of law are
made and fees paid. If an application fails there is only a narrow
appeal route limited to a point of law. The legal repercussions
in terms of property, pension, insurance, criminal, marriage and
other rights are considerable.
2.81 Under section 4(2) a non refundable
fee is chargeable for applications, and no legal aid is available
for this. Given the extended delays in gaining appropriate medical
referrals under the NHS experienced by most trans people for medical
treatment (if there is any provision at all), it seems likely
that similar delays will be experienced for reports supporting
applications for gender recognition. The only realistic route,
not entailing delays amounting to years past the qualification
date, will be to obtain the two medical reports privately. In
addition, there may be a requirement for additional evidence and
applicants would be well advised to seek legal advice before making
2.82 These elements, when added together,
will add up to what is, for many people a very large amount of
2.83 A high proportion of trans people are
unemployed or are in low wage employment and will have had to
bear significant other costs for their treatment (the NHS does
not fund anything like the full cost of gender transition and,
as a result, many trans people end up carrying significant debts).
There is a very real risk that the high total cost of applications
may result in a bar to applications from a significant number
of trans people, unless provision is made for financial support
for reports and the waiving of fees for such applicants.
Recommendation 21: right to representation and
legal aid for costs and fees
No trans person should be denied access to a
recognition certificate because they cannot afford the cost.
In accordance with basic principles of fairness
and equality before the law, all persons having applications before
the Panel must in the Trusts view be accorded the following basic
(1) The right to a fair hearing by an impartial
disinterested tribunal not connected in any way with witnesses
professional or otherwise in the proceedings.
(2) The right to be represented on paper
and at any oral hearing.
(3) The right to examine witnesses if an
oral hearing is called (as appears to be permitted by the Bill's
wide evidence provisions).
(4) If an applicant cannot afford representation,
the right to access to legal aid for the proceedings and advice
in relation thereto and to defray application and expert fees.
2.84 In the Trust's view it would be unjust
given the vast imbalance of power between an average trans person
and the two or more professional (and probably non-trans: but
see above) members of a Panel, to fail to accord the above minimum
rights as part of the process given the seriousness of the consequences
of the Panel's decision. The same considerations apply a fortiori
as regards any High Court hearing at which it is proposed to make
revoking a gender recognition certificate
under section 4(5) or
in relation to an Appeal on point
of law against refusal of a Certificate.
Status of the Gender Recognition Panel's Findings
2.85 While reasons for the Panel's decision
must be provided the Trust believes that, given the lay status
of members of the Panel in respect of gender identity (in the
sense that they. are not specialists), there is Potential for
serious misinterpretation of presented information. This could
lead to considerable uncertainty, and prolonged misery for some
trans people. We believe that involvement of qualified trans people
within Panel membership would be a significant step to preventing
such mistakes (see Recommendation 20) but that trans people should
also be involved in the selection and training of new Panel members.
As a last resort, there is a clear need to allow appeal against
the Panel's findings on point of fact as well as on point of law
contained in the draft Bill.
Recommendation 22: The right of appeal against
the Panel's findings
The Trust recommends that applicants should
have the right of appeal on a point of fact against the findings
of the Panel. This should include right to representation at any
appeal hearing as per our earlier recommendations.
Recommendation 23: Training of Panel Members Prior
The Trust recommends that members of the Panel
should attend familiarisation sessions including the chance to
meet with trans people and discuss their concerns prior to taking
up appointment. The Gender Trust is non party-political and would
be willing to facilitate such meetings.
Recommendation 24: Selection of Panel Members
The process for selection of Panel members "to
form the selection pool" from which Panels are formed should
directly involve lay, medical and legal representatives of the
trans community, chosen by the trans community.
Open ended "additional requirements"
2.86 The Trust notes that under section
2(9)a, there is an absolute requirement for the applicant to provide
"any other evidence which [the Panel] may require".
2.87 While the Trust recognises the intention
is to provide flexibility for the panel, the resulting .position
is that the applicant could legitimately be required to comply
with requirements or "hurdles" that depend on the attitude
of individual Panel members towards trans people generally, the
applicant, their clinicians, or perceptions as to the type of
evidence required to establish "proof of commitment".
2.88 Trans history has numerous examples
of the institutions and clinicians dealing with trans people creating
many serial hurdles to the recognition of the condition, access
to treatment or to any other aspect of gender transition (some
of these are illustrated elsewhere) and there is no protection
against this in the bill. There must be provision, for protection
against the imposition of unreasonable requirements.
Recommendation 25: The right of appeal against
the Panel's requirements
The Trust recommends that applicants should
have the right of appeal against the requirements of the Panel,
and access to the aid and representation provisions set out earlier
in this document, in order to do so.
2.89 There is a statutory requirement under
2(1) for evidence in the form of a report from either a registered
medical practitioner or chartered psychologist practising in the
field of gender dysphoria and a further report by another registered
practitioner who may, but need not practice in that field. Many
assume that a GP's report will be sufficient for the second report
and also assume that a GP would be prepared to involve himself
in the legal process in this way, despite the risks of litigation
if his report were to be insufficient due to lack of expertise.
2.90 Those NHS patients who have recently
had surgery and transitioned, may either have copies of two reports
or relatively easy access to them. Nevertheless, this assumes
that all trans people applying have followed the surgery routewhich
is the only circumstance under which two pre-existing psychological
evaluations will currently be available under the NHS. In reality
the Trust believes that most NHS patients do not receive surgery
in any reasonable time if at all.
2.91 However many trans people will encounter
difficulties for a number of reasons, including the following:
because they sought private treatment (most trans people at some
stage); because they transitioned such a long time ago that they
have lost their psychiatrists report (if they ever had one); because
the psychiatrist who assessed them is no longer alive; because
their GP had no knowledge of their trans history; or because their
GP has insufficient knowledge of Gender Dysphoria or of trans
2.92 These difficulties mean that many trans
people will need to seek psychological reassessment of their condition,
even if they have been fully assimilated into their new gender
role for decades. This not only introduces issues of cost, also
creates a number of practical hurdles to overcome, which are described
(a) For those who are unable to afford, private
consultations, there is no supporting mechanism in the NHS to
provide, the reports. Currently the few NHS Gender Identity Clinics
are overstretched because they have minimal capacity and long
waiting lists; a number have closed their lists to new entrants.
The referral process to the GIC's can be very long, requiring
"tertiary" referral from local psychiatrists (who are
mostly uneducated in the subject of Gender dysphoria) who themselves
are also overstretched. It is therefore, at best, questionable
if the NHS has the capacity to take on this extra workload merely
to assist a legal procedure in principle not far removed from
a passport application.
(b) It is again questionable whether trans
people who are no longer unwell (ie who resolved their gender
dysphoria a long time ago if they ever experienced it at a clinically
significant level) would be successful in obtaining funding for
psychiatric referrals for which there is no medical need. Such
would be a clear waste of resources and indeed the mere fact that
a perfectly well person is referred to a psychiatric specialist
would create both stigma and grave unnecessary implications for
(c) If the trans person sees a gender specialist
who has no knowledge of their history, there is a very real risk
of re-medicalising them and, in order to arrive at a "diagnosis"
of gender dysphoria or past gender dysphoria, the specialist may
require the applicant to undergo extended psychological reassessments.
(d) In practice, most GP's have little or
no experience of transsexual people and many will therefore be
reluctant to provide a formal "diagnosis of the applicant's
gender dysphoria" (section 2(2)). In cases where a GP did
not see the person until long after transition it is unlikely
that they will have even discussed gender dysphoria and may be
unwilling to provide a diagnosis of a condition with which the
patient has never previously presented.
Recommendation 26: Allow discretion as to requirements
for psychological reports
The Trust recommends that any stated requirement
should be in the form of guidelines for operation of the Panel
and should have sufficient latitude, and a stated intent, to consider
any cases which do not meet the requirement where the trans person
has been living in role for two years, and all oilier primary
identification documentation has been in the new identity for
a similar length of time.
Recommendation 27: Make provision for assistance
to persons unable to provide medical reports
The Trust recommends (if the Panel refuses in
any given case to waive the requirement for medical reports under
Recommendation 26), that persons lacking in means to obtain private
medical reports and who do not already have such reports from
the NHS, be eligible for means tested financial assistance to
obtain the necessary reports.
The importance of medical history
2.93 The evidence required (two medical
reports) highlights the importance to be attached to the details
of the medical history, as opposed to the fact that a person "has
or has had gender dysphoria" (which is the sole relevant
criterion under section l(4Xa)). This runs the risk that the panel
will be making an "audit" of the original diagnosis,
as the details of the case will be laid bare and the Panel might
also choose to take into account the credibility of the diagnosis
and attempt to "second-guess" the medical professional.
2.94 Despite the absence of any surgical
requirement for recognition within the draft Bill, the bill itself
sets out a clear evidential requirement to provide details, of
any treatment undertaken or planned (section 2(3)). This implies
that such treatment is, in fact, of relevance to the diagnosis
or that such treatment is relevant to the applicant's intention
to remain permanently in role, which is not the stated intention
of the bill and is medically nonsensical. At the very least, because
of human nature, it seems likely that the Panel will view applications
where surgery has not taken place with suspicion when compared
to those where it has and may therefore impose onerous additional
requirements allowed under section 2(9).
2.95 This, in turn, could put individuals
into the position where they feel that they have to undergo surgery
in order to gain a recognition certificate, even if it is inappropriate
for their situation.
2.96 The Trust believes that removal of
organs and body tissue should not be a pre-requisite of civil
rights for any minority group and that failure to do so should
not be viewed as impairing the credibility of an application.
Recommendation 28: Delete the requirement to declare
details of treatment insofar as it relates to surgery
The Trust recommends that there should be no
requirement to give details of surgical treatment.
The six month "transitional" procedure
2.97 Section 19 sets out provision for a
transitional procedure to enable trans people who have been living
in role for a long time to "fast track" applications
during the first six months of the life of the scheme.
2.98 This will require a very quick decision
from applicants who wish to take advantage of the procedure and
may be inadequate to allow sufficient time for the dissemination
of knowledge of the scheme, obtaining of medical reports and other
documentation. Furthermore, many trans people who would otherwise
qualify will be risk averse and feel the need to wait until the
scheme is well established and proven to be safe before they feel
confident enough to apply. They may also need legal advice and
they or their spouses may need counselling in relation to the
loss of marriage. Such people will effectively, be excluded from
the transitional procedure and forced to follow the more onerous
and more expensive "normal" process.
Recommendation 29: The "fast track"
process should be permanently available
Without prejudice to its criticisms of the procedures
under the Bill where these are also part of the fast track procedure,
the Trust recommends that the fast track process should be made
permanently available to any applicant who qualifies.
2.99 This document contains 29 recommendations
all of which the Trust regards as essential to enable the Bill
to operate fairly and in accordance both with the Convention and
the Common Law legal tradition in this country.
2.100 The Committee is entitled and urged
to consider the Bill in its proper cultural context. Trans people
are a minority community with a European history of regulatory
oppression, not merely a history of complaint. Set against that
backdrop the Bill as presently framed would, among other matters
do a number of unacceptable things described above. It would cause
our minority community to face registration, marking of birth
register entries, differential employment rights based on marital
status, continued lack of protection against abuse in respect
of goods and services essential to normal life, a lack of privacy
and the fear that private and NHS treatment services appropriate
to bodily make-up will be affected after gender change.
2.101 29 recommendations, then, are very
few indeed. The Trust commends them to the Committee.
The Gender Trust's Short Analysis of the
Gender Recognition Bill (Released: 11/7/03)
The Bill allows unmarried transsexual people
who are able to obtain two medical reports and other evidence
(or some people who are from overseas and are recognised as having
changed gender) to apply to a new Tribunal (the Gender Recognition
Panel, consisting of a lawyer and a doctor), to seek full legal
recognition. The process (when based on "living in role"
rather than when based on overseas recognition) applies the following
requirements to the applicant (paraphrased from the Bill).
(a) s/he has, or has had "gender dysphoria"
(an expression defined in the Act somewhat differently from its
usual medical meaning);
(b) s/he has lived in the acquired gender
for two years ending with the date on which the application is
(c) s/he intends to continue to live in the
acquired gender until death;
(d) s/he complies with the requirements imposed
by section 2 (which are formal evidence requirements) or with
any requirements imposed by the Panel under section 2 (which is
any further additional evidence required by the Panel).
The Panel will have wide powers (presently not
limited under the Bill) to require further evidence from the applicant.
If successful, a "Full Gender Recognition
Certificate" is issued to the applicant unless the person
Unfortunately married people will be refused
legal recognition (save in some cases where they married abroad,
the foreign state recognised the marriage, and the person concerned
had already changed gender legally in that country). However if
a married person would otherwise qualify they will be given an
"Interim" certificate, which has no legal significance
other than to enable their marriage to be declared void if they
go to court to do so, and to give married people the right to
obtain a Full Gender Recognition Certificate via a simplified
procedure, once they have terminated their marriage or once the
spouse has died.
The effect of obtaining a Full Gender Recognition
Certificate is that:
The (now unmarried) person will be
automatically entered on a database or "Register" of
transsexual people held by the Registrar General and their original
Birth register entry will be marked, presumably visibly, to indicate
that they are transsexual. The "Transsexual Persons Register"
will not be open to search by the public but it will be widely
accessible by the State.
The person will be able to obtain
new birth certificates which do not disclose the fact that they
changed gender, and the effect will be just as if they had "always
been that way".
Once a Full Gender Recognition Certificate
is issued, and unless it is later set aside for fraud, the transsexual
person will be for all legal purposes of their "acquired"
gender, which includes retrospective effects upon the interpretation
of laws and documents, though recognition does not apply retrospectively
to acts done or events occurring before the certificate was issued.
Although legal recognition in the
acquired gender is for all purposes, there are no new protections
against discrimination in respect of goods and services under
the Sex Discrimination legislation, on the grounds of being transsexual
or on the grounds of being a registered transsexual person.
The Employment restrictions imposed
in 1999 upon transsexual people will cease to apply once the person
in question has obtained a full certificate. Sadly therefore,
married people will continue to come under the employment restrictions
even if they have obtained an Interim Gender Recognition Certificate.
A change of legal gender does not
however have any effect on a person's status as the mother or
father of a child, save for an exception in the case of trans
men who have entered into treatment services under the Human Fertilisation
and Embryology Act 1990 for the purposes of him and a woman together.
The trans man will be deemed to be the father just as would a
non-trans man in the same circumstances.
Rights of inheritance under wills
and so forth will not normally be affected and nor will rights
in respect of the descent of peerages and titles, etc.
The Bill provides what might best
be described as a "transitional" procedure which will
apply only for the first six months after the Bill, once enacted,
comes into force. Under the procedure which will apply during
that period, different tests apply for legal recognition, to the
effect that the person must show that they have, or have had gender
dysphoria, or have undergone surgery to modify sexual characteristics
and have lived "in role" for at least six years before
applying, and must also satisfy points (c) and (d) above. The
medical evidence is reduced to a requirement for only one medical
report which must provide details of the diagnosis and/or surgery.
The panel which considers the application need not, under this
procedure, include a medical member. It appears that this procedure
is the only route available for the first six months of the life
of the Act.
Other provisions of the Act put in place some
safeguards against disclosure of material relating to a person's
application to the Gender Recognition Panel, but there is a wide
range of exceptions enabling disclosure.
This is only a short summary and does not cover
all areas of the Bill. Please see the detailed description on
the Gender Trust website which should explain most of the aspects
on a clause by clause basis.
23 September 2003
4 The Gender Identity Research and Education Society,
Throughout this document the expression "trans people"
will be used to refer to transsexual and transgendered people
in accordance with the emerging preference of the majority of
that community. A trans woman is a person legally male at birth
but who reassigns her gender role to female, and a trans man is
a person legally female at birth but who reassigns his gender
role to male. Back
Not printed. Back
See above. Back
Save a religious employment exception, to which the Trust expresses
its objection. Back
The Trust notes that no evidence of any such threat has been put
www.wsf.org.uk From a document entitled "Transsexuality and
Sport" submitted to the Government by WSF. Back
National Transgender Advocacy Coalition. Back
For more general privacy issues see the separate section below
entitled "(VII) Privacy". Back
See the Workplace (Health, Safety and Welfare) regulations 1992
SI 1992/3004 r. 20(2). Back
"the persons gender becomes for all purposes the acquired
Bellinger (FC) (Applicant) v Bellinger [20031 UKHL 21. Back
In Bellinger, between a post transition trans woman as wife and
a man as husband. Both parties wished their marriage to be formally
The outward appearance is of course that the parties are to all
intents and purposes male and female, in that order. Back
Not printed. Back