Gender Recognition Bill [HL]

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Gender Recognition Bill [HL]

Gender Recognition Bill [HL]
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Marriage
Schedule 4 (amendments of marriage law) has effect.
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Parenthood
The fact that a person’s gender has become the acquired gender under this Act
does not affect the status of the person as the father or mother of a child.
5
13
Social security benefits and pensions
Schedule 5 (entitlement to benefits and pensions) has effect.
14
Discrimination
Schedule 6 (amendments of Sex Discrimination Act 1975 (c. 65) and Sex
Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15))) has
10
effect.
15
Succession etc.
The fact that a person’s gender has become the acquired gender under this Act
does not affect the disposal or devolution of property under a will or other
instrument made before the appointed day.
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Peerages etc.
The fact that a person’s gender has become the acquired gender under this
Act—
(a)
does not affect the descent of any peerage or dignity or title of honour,
and
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(b)
does not affect the devolution of any property limited (expressly or not)
by a will or other instrument to devolve (as nearly as the law permits)
along with any peerage or dignity or title of honour unless an intention
that it should do so is expressed in the will or other instrument.
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Trustees and personal representatives
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(1)
A trustee or personal representative is not under a duty, by virtue of the law
relating to trusts or the administration of estates, to enquire, before conveying
or distributing any property, whether a full gender recognition certificate has
been issued to any person or revoked (if that fact could affect entitlement to the
property).
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(2)
A trustee or personal representative is not liable to any person by reason of a
conveyance or distribution of the property made without regard to whether a
full gender recognition certificate has been issued to any person or revoked if
the trustee or personal representative has not received notice of the fact before
the conveyance or distribution.
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(3)
This section does not prejudice the right of a person to follow the property, or
any property representing it, into the hands of another person who has
received it unless that person has purchased it for value in good faith and
without notice.

Gender Recognition Bill [HL]
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Orders where expectations defeated
(1)
This section applies where the disposition or devolution of any property under
a will or other instrument (made on or after the appointed day) is different
from what it would be but for the fact that a person’s gender has become the
acquired gender under this Act.
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(2)
A person may apply to the High Court or Court of Session for an order on the
ground of being adversely affected by the different disposition or devolution
of the property.
(3)
The court may, if it is satisfied that it is just to do so, make in relation to any
person benefiting from the different disposition or devolution of the property
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such order as it considers appropriate.
(4)
An order may, in particular, make provision for—
(a)
the payment of a lump sum to the applicant,
(b)
the transfer of property to the applicant,
(c)
the settlement of property for the benefit of the applicant,
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(d)
the acquisition of property and either its transfer to the applicant or its
settlement for the benefit of the applicant.
(5)
An order may contain consequential or supplementary provisions for giving
effect to the order or for ensuring that it operates fairly as between the
applicant and the other person or persons affected by it; and an order may, in
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particular, confer powers on trustees.
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Sport
(1)
A body responsible for regulating the participation of persons as competitors
in an event or events involving a gender-affected sport may, if subsection (2) is
satisfied, prohibit or restrict the participation as competitors in the event or
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events of persons whose gender has become the acquired gender under this
Act.
(2)
This subsection is satisfied if the prohibition or restriction is necessary to
secure—
(a)
fair competition, or
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(b)
the safety of competitors,

at the event or events.
(3)
“Sport” means a sport, game or other activity of a competitive nature.
(4)
A sport is a gender-affected sport if the physical strength, stamina or physique
of average persons of one gender would put them at a disadvantage to average
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persons of the other gender as competitors in events involving the sport.
(5)
This section does not affect—
(a)
section 44 of the Sex Discrimination Act 1975 (c. 65) (exception from
Parts 2 to 4 of that Act for acts related to sport), or
(b)
Article 45 of the Sex Discrimination (Northern Ireland) Order 1976 (S.I.
40
1976/1042 (N.I. 15)) (corresponding provision for Northern Ireland).

Gender Recognition Bill [HL]
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Gender-specific offences
(1)
Where (apart from this subsection) a relevant gender-specific offence could be
committed or attempted only if the gender of a person to whom a full gender
recognition certificate has been issued were not the acquired gender, the fact
that the person’s gender has become the acquired gender does not prevent the
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offence being committed or attempted.
(2)
An offence is a “relevant gender-specific offence” if—
(a)
either or both of the conditions in subsection (3) are satisfied, and
(b)
the commission of the offence involves the accused engaging in sexual
activity.
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(3)
The conditions are—
(a)
that the offence may be committed only by a person of a particular
gender, and
(b)
that the offence may be committed only on, or in relation to, a person of
a particular gender,
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and the references to a particular gender include a gender identified by
reference to the gender of the other person involved.
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Foreign gender change and marriage
(1)
A person’s gender is not to be regarded as having changed by reason only that
it has changed under the law of a country or territory outside the United
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Kingdom.
(2)
Accordingly, a person is not to be regarded as being married by reason of
having entered into a foreign post-recognition marriage.
(3)
But if a full gender recognition certificate is issued to a person who has entered
into a foreign post-recognition marriage, after the issue of the certificate the
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marriage is no longer to be regarded as being void on the ground that (at the
time when it was entered into) the parties to it were not respectively male and
female.
(4)
However, subsection (3) does not apply to a foreign post-recognition marriage
if a party to it has entered into a later (valid) marriage before the issue of the
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full gender recognition certificate.
(5)
For the purposes of this section a person has entered into a foreign post-
recognition marriage if (and only if)—
(a)
the person has entered into a marriage in accordance with the law of a
country or territory outside the United Kingdom,
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(b)
before the marriage was entered into the person had changed gender
under the law of that or any other country or territory outside the
United Kingdom,
(c)
the other party to the marriage was not of the gender to which the
person had changed under the law of that country or territory, and
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(d)
by virtue of subsection (1) the person’s gender was not regarded as
having changed under the law of any part of the United Kingdom.

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Supplementary
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Prohibition on disclosure of information
(1)
It is an offence for a person who has acquired protected information in an
official capacity to disclose the information to any other person.
(2)
“Protected information” means information which relates to a person who has
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made an application under section 1(1) and which—
(a)
concerns that application or any application by the person under
section 5(2) or 6(1), or
(b)
if the application under section 1(1) is granted, otherwise concerns the
person’s gender before it becomes the acquired gender.
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(3)
A person acquires protected information in an official capacity if the person
acquires it—
(a)
in connection with the person’s functions as a member of the civil
service, a constable or the holder of any other public office or in
connection with the functions of a local or public authority or of a
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voluntary organisation,
(b)
as an employer, or prospective employer, of the person to whom the
information relates or as a person employed by such an employer or
prospective employer, or
(c)
in the course of, or otherwise in connection with, the conduct of
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business or the supply of professional services.
(4)
But it is not an offence under this section to disclose protected information
relating to a person if—
(a)
the information does not enable that person to be identified,
(b)
that person has agreed to the disclosure of the information,
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(c)
the information is protected information by virtue of subsection (2)(b)
and the person by whom the disclosure is made does not know or
believe that a full gender recognition certificate has been issued,
(d)
the disclosure is in accordance with an order of a court or tribunal,
(e)
the disclosure is for the purpose of instituting, or otherwise for the
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purposes of, proceedings before a court or tribunal,
(f)
the disclosure is for the purpose of preventing or investigating crime,
(g)
the disclosure is made to the Registrar General for England and Wales,
the Registrar General for Scotland or the Registrar General for
Northern Ireland,
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(h)
the disclosure is made for the purposes of the social security system or
a pension scheme,
(i)
the disclosure is in accordance with provision made by an order under
subsection (5), or
(j)
the disclosure is in accordance with any provision of, or made by virtue
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of, an enactment other than this section.
(5)
The Secretary of State may by order make provision prescribing circumstances
in which the disclosure of protected information is not to constitute an offence
under this section.
(6)
The power conferred by subsection (5) is exercisable by the Scottish Ministers
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(rather than the Secretary of State) where the provision to be made is within the
legislative competence of the Scottish Parliament.

Gender Recognition Bill [HL]
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(7)
An order under subsection (5) may make provision permitting—
(a)
disclosure to specified persons or persons of a specified description,
(b)
disclosure for specified purposes,
(c)
disclosure of specified descriptions of information, or
(d)
disclosure by specified persons or persons of a specified description.
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(8)
A person guilty of an offence under this section is liable on summary
conviction to a fine not exceeding level 5 on the standard scale.
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Power to modify statutory provisions
(1)
The Secretary of State may by order make provision for modifying the
operation of any enactment or subordinate legislation in relation to—
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(a)
persons whose gender has become the acquired gender under this Act,
or
(b)
any description of such persons.
(2)
The power conferred by subsection (1) is exercisable by the Scottish Ministers
(rather than the Secretary of State) where the provision to be made is within the
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legislative competence of the Scottish Parliament.
(3)
The appropriate Northern Ireland department may by order make provision
for modifying the operation of any enactment or subordinate legislation which
deals with a transferred matter in relation to—
(a)
persons whose gender has become the acquired gender under this Act,
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or
(b)
any description of such persons.
(4)
In subsection (3)—

“the appropriate Northern Ireland department”, in relation to any
enactment or subordinate legislation which deals with a transferred
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matter, means the Northern Ireland department which has
responsibility for that matter,

“deals with” is to be construed in accordance with section 98(2) and (3) of
the Northern Ireland Act 1998 (c. 47), and

“transferred matter” has the meaning given by section 4(1) of that Act.
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(5)
Before an order is made under this section, appropriate consultation must be
undertaken with persons likely to be affected by it.
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Orders and regulations
(1)
Any power of the Secretary of State, the Chancellor of the Exchequer, the
Scottish Ministers or a Northern Ireland department to make an order under
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this Act includes power to make any appropriate incidental, supplementary,
consequential or transitional provision or savings.
(2)
Any power of the Secretary of State, the Chancellor of the Exchequer or the
Scottish Ministers to make an order under this Act, and any power of the
Registrar General for England and Wales or the Registrar General for Scotland
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to make regulations under this Act, is exercisable by statutory instrument.
(3)
No order may be made under section 2 or paragraph 11 of Schedule 3 unless a
draft of the statutory instrument containing the order has been laid before, and
approved by a resolution of, each House of Parliament.

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(4)
A statutory instrument containing an order made by the Secretary of State
under section 7, 22 or 23 is subject to annulment in pursuance of a resolution of
either House of Parliament.
(5)
A statutory instrument containing an order made by the Scottish Ministers
under section 22 or 23 is subject to annulment in pursuance of a resolution of
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the Scottish Parliament.
(6)
Any power of a Northern Ireland department to make an order or regulations
under this Act is exercisable by statutory rule for the purposes of the Statutory
Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
(7)
Orders and regulations made by a Northern Ireland department under this Act
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are subject to negative resolution (within the meaning of section 41(6) of the
Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.))).
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Interpretation
In this Act—
“the acquired gender” is to be construed in accordance with section 1(2),
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“approved country or territory” has the meaning given by section 2(4),
“the appointed day” means the day appointed by order under section 26,
“chartered psychologist” means a person for the time being listed in the
British Psychological Society’s Register of Chartered Psychologists,
“enactment” includes an enactment contained in an Act of the Scottish
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Parliament or in any Northern Ireland legislation,
“full gender recognition certificate” and “interim gender recognition
certificate” mean the certificates issued as such under section 4 or 5 and
“gender recognition certificate” means either of those sorts of
certificate,
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“gender dysphoria” means the disorder variously referred to as gender
dysphoria, gender identity disorder and transsexualism,
“Gender Recognition Panel” (and “Panel”) is to be construed in
accordance with Schedule 1,
“subordinate legislation” means an Order in Council, an order, rules,
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regulations, a scheme, a warrant, bye-laws or any other instrument
made under an enactment, and
“UK birth register entry” has the meaning given by section 10(2).
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Commencement
Apart from sections 23 to 25, this section and sections 28 and 29, this Act does
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not come into force until such day as the Secretary of State may appoint by
order made after consulting the Scottish Ministers and the Department of
Finance and Personnel in Northern Ireland.
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Applications within two years of commencement
(1)
This section applies where applications are made under section 1(1)(a) during
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the period of two years beginning with the appointed day (“the initial period”).
(2)
Section 2(1)(a) has effect as if there were inserted at the end “or has undergone
surgical treatment for the purpose of modifying sexual characteristics,”.
(3)
In the case of an application which—

Gender Recognition Bill [HL]
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(a)
is made during the first six months of the initial period, or
(b)
is made during the rest of the initial period and is based on the
applicant having undergone surgical treatment for the purpose of
modifying sexual characteristics,

section 2(1)(b) has effect as if for “two” there were substituted “six”.
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(4)
Subsections (5) and (6) apply in the case of an application to which subsection
(3) applies and in the case of an application—
(a)
made during the rest of the initial period,
(b)
based on the applicant having or having had gender dysphoria, and
(c)
including a statutory declaration by the applicant that the applicant has
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lived in the acquired gender throughout the period of six years ending
with the date on which the application is made.
(5)
Section 3 has effect as if for subsections (1) to (3) there were substituted—
“(1)
An application under section 1(1)(a) must include either—
(a)
a report made by a registered medical practitioner, or
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(b)
a report made by a chartered psychologist practising in the field
of gender dysphoria.
(2)
Where the application is based on the applicant having or having had
gender dysphoria—
(a)
the reference in subsection (1) to a registered medical
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practitioner is to one practising in the field of gender dysphoria,
and
(b)
that subsection is not complied with unless the report includes
details of the diagnosis of the applicant’s gender dysphoria.
(3)
Subsection (1) is not complied with in a case where—
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(a)
the applicant has undergone or is undergoing treatment for the
purpose of modifying sexual characteristics, or
(b)
treatment for that purpose has been prescribed or planned for
the applicant,

unless the report required by that subsection includes details of it.”
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(6)
Paragraph 4(2) of Schedule 1 has effect with the omission of paragraph (b).
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Extent
(1)
The following provisions extend only to England and Wales—
(a)
Part 1 of Schedule 2,
(b)
Part 1 of Schedule 3, and
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(c)
Part 1 of Schedule 4.
(2)
The following provisions extend only to Scotland—
(a)
section 24(5),
(b)
Part 2 of Schedule 2,
(c)
Part 2 of Schedule 3, and
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(d)
Part 2 of Schedule 4.
(3)
The following provisions extend only to England and Wales and Scotland—
(a)
paragraphs 12, 14 and 16 of Schedule 5, and
(b)
Part 1 of Schedule 6.