Select Committee on Home Affairs Written Evidence

56.  Memorandum submitted by Press For Change


  1.  If Parliament adopts the government's proposals for an ID card system, it must ensure that trans people do not suffer undue disadvantage. (paras 12-13)

  2.  Trans people are a small and vulnerable minority whose needs have historically been overlooked in legislation, creating injustices which have taken decades to resolve. (paras 15-16)

  3.  Protection for vulnerable minorities must be assessed before implementation of the National Identity Register (NIR) or of enhanced versions of existing documents, rather than delayed until consideration of universal compulsion. (paras 14-18)

  4.  The proposed system appears likely to curtail the many existing legitimate uses of more than one identity. (paras 19-24)

  5.  We have identified five ways in which ID cards could cause particular problems for trans people:

    (a) Will the ID card system record the gender in which someone lives their life, regardless of whether they have a Gender Recognition Certificate (GRC)? (paras 25-27)

    (b) Will use of the system reveal other information which might indicate that someone has undergone gender transition? (paras 28-30)

    (c) Will historical data about change of gender be adequately protected? (paras 31-36)

    (d) Will biometric tests reveal a trans history? (paras 37-41)

    (e) Will the system fully accommodate those who lead-dual-gendered lives? (paras 42-49)


  6.  Press for Change (PFC) is the largest representative organisation for transsexual people in the UK. PFC was formed in 1992 to "achieve equal civil rights and liberties for all transgender people in the United Kingdom, through legislation and social change".

  7.  The campaign seeks to achieve its objectives through education and engagement rather than confrontation or demand-making. Good relations have been established with Ministers and officials, as Government has addressed the problems faced by trans people.

  8.  In 1997-99 PEC took part in consultation and negotiation with the DfEE as it set out to introduce the Sex Discrimination (Gender Reassignment) Regulations 1999. PFC made substantial contributions to the work of the 1999-2000 Interdepartmental Working Group on Transsexual People. Since then we have assisted the Department for Constitutional Affairs in the development of policy which led to the Gender Recognition Bill, and have worked closely with ministers, officials, and parliamentarians of all parties as the bill has progressed.


  9.  Transsexual people identify themselves as members of the sex opposite to that assigned at birth, and may undergo medical treatment known as gender reassignment. Transgender is a broader term that includes people temporarily changing their gender and appearance as well as transsexual people. These terms are not precise, so PFC uses the broad adjective trans to cover men and women in both categories. (For more detailed discussion, see footnoted references[112]).

  10.  In this submission, we seek to avoid terminological difficulties by describing the problems which trans people may face in particular situations.


  11.  PFC does not seek to take a collective view on the broader debate about the merits of ID cards. The issue is outside our remit, and trans people hold a variety of views on the subject.

  12.  However, identity cards have particularly serious implications for trans people. Our main goals over the last decade have been legal recognition in the gender in which we live our lives, and protection of our privacy. These rights are now protected by domestic and European case law, and will be enhanced by the enactment of the Gender Recognition Bill.

  13.  PFC seeks to ensure that if Parliament adopts the government's proposals for an ID card system, it ensures that trans people do not suffer undue disadvantage, and are not excluded from the Home Secretary's stated aim that:

    "I want everyone who is living lawfully in the UK to be able to assert his or her true identity"[113]


  14.  The draft bill proposes not merely the issue of millions of plastic cards, but the establishment of a National Identity Register (NIR) to create what the Home Secretary described as "a secure form of personal identification"[114]. In other words, a system to register and manage identities.

  15.  The government may subsequently compel possession of an identity card. The White Paper sets out preconditions for compulsion, including ensuring that "those on low incomes and other vulnerable groups would not be disadvantaged"[115]. This welcome assurance is repeated verbatim in the consultation document accompanying the draft bill[116].

  16.  Trans people are not just a "vulnerable group"; we are also a very small minority (the DCA estimates that there only about 5,000 transsexual people in the UK). Our needs have historically been overlooked in legislation, which has led to a number of lengthy legal battles in the last decade. For example, when Parliament was debating the Sex Discrimination Act 1975, MPs were assured that the legislation would protect trans people; however, domestic courts rejected this interpretation. The matter was only finally resolved by amending the SDA in 1999[117].

  17.  While the draft bill (together with the accompanying consultation document) would require a parliamentary vote before ID cards become universally compulsory, it provides for the earlier compulsory adoption of "enhanced" versions of existing identity documents such as passports and driving licenses when reissued. Anyone requiring a new or replacement passport or driving licence will be effectively compelled to obtain an ID card, regardless of whether possession of an ID card is generally made compulsory.

  18.  Protection for trans people and other vulnerable minorities must therefore be assured before any implementation of the NIR or of enhanced versions of existing documents, rather than delayed until consideration of universal compulsion.


  19.  The draft bill does not distinguish between a person and their identity: it appears to be assumed throughout that one person will have only one identity. The Home Secretary's phrase "true identity" will, for most people (including most trans people), mean a single identity. However, some people will face difficulties if it is assumed that there is a single "true" identity.

  20.  Historically, the UK has had only limited scrutiny of identity. Unlike continental jurisdictions, the citizen has had no general obligation to prove identity on demand, and the state has not provided any general means of doing so. Possession of a passport is voluntary, and theoretically required only for overseas travel. Birth certificates have been widely used for identification, but in recent years have carried an explicit disclaimer of their suitability for that purpose.

  21.  It has been a long-standing principle of common law that a person is free to use more than one name, provided that there is no attempt at fraud or the avoidance of an obligation. In some circles, this is routine: for example, singers, actors and writers often use an assumed name for their art, and that name may carry over into wider usage. This distinction between a "stage name" and a "private name" may be an important factor in maintaining privacy. Similar factors may be involved in the use by a married woman of her maiden name for professional purposes.

  22.  The identity card system raises doubts about how much of this legitimate flexibility will remain. A move towards a "single identity" system has adverse implications for many people, but particularly for those living dual-gendered lives (see below, paras 42-50).

  23.  Para 2.9 of the consultation document explicitly acknowledges the need to record stage names, but does not address privacy of the link between those names, nor does it appear to provide for issuing multiple identity cards for one individual.

  24.  PFC recommends that the bill should explicitly allow the issue of multiple identity cards to a person, and provide explicit privacy for the link between those identities. The assurance that biometrics "will confirm securely a person's identity"[118] negates any security concerns about the provision of multiple cards.


  25.  Even when the Gender Recognition Bill comes into effect, many people who have permanently changed their gender will not obtain a Gender Recognition Certificate (GRC). No-one can apply for a GRC for at least two years after transition, and married trans people who choose not to dissolve their marriages will remain permanently ineligible[119]. Those people need an ID card which records the gender in which they live their lives and there is a body of domestic and European case law to support that right.[120]

  26.  This already applies to driving licences and passports. There are different mechanisms for changing those documents (and the passport office has not always been consistent in approach), but the principle has been that trans people may change both documents when they change their social role.

  27.  PFC seeks explicit confirmation that documents within the "family" of ID cards will continue to record gender by social role rather than by legal status.


  28.  Even if the card records gender by social role, there are other ways in which it could reveal a gender change. Any indication of previous names (or even of the fact of a name change) would be a serious breach of privacy. That information must not be printed on the ID card, or stored electronically on the card, or generally available through access to the NIR. Exceptions may be required for law-enforcement, but should be tightly defined in law.

  29.  Paragraph 24 of the White Paper says that:

    "Data held on the National Identity Register will be basic identity information—such as name, address, date of birth, gender, immigration status and a confirmed biometric—and this will be set out in statute. Organisations using the National Register to verify identity will not be able to get to other personal information, for instance health or tax records, via the Register."[121]

  30.  This welcome assurance does not acknowledge the need to protect some of the "basic identity information", and the draft bill needs further clarification:

    —  Clause 1(5)(b) provides that the National Identity Register (NIR) will record "other names by which he is or has previously been known". Trans people need explicit restrictions on the disclosure of this crucial information, to preserve the privacy protection provided in the Gender Recognition Bill, and as found in the decisions of the ECtHR in the cases of Goodwin v UK, and I v UK.

    —  Clause 1 (5)(d) provides for the recording of "physical characteristics that are capable of being used for identifying him". Paragraph 13 of the explanatory notes includes the phrase "(egbiometric information)", implying that other aspects of physiology may be recorded. This provision poses particular hazards for trans people.

    —  Paragraph 13 of the explanatory notes refers to "personal information" as including "historical records of this personal information". Clarification is needed about the status of records relating to change of gender: to comply with human rights law and with the Gender Recognition Bill, access to such records must be explicitly restricted.


  31.  The bill appears to risk systematic disclosure of historical information in two situations: for verification (clause 22), and by consent (clause 14).

  32.  Clause 22 (Disclosures for the purpose of correcting false information) provides for the disclosure of "the respects in which it was false" and "what is in fact recorded in that individual's entry in respect of the matters to which the false information related". Clause 23 provides for regulations to authorise disclosure in other circumstances.

  33.  Clause 24(1) restricts disclosure to situations where the information could not reasonably have been obtained by other means. This is particularly problematic for trans people, who will usually take careful (and entirely legitimate) steps to prevent disclosure in other circumstances.

  34.  PFC recommends that clause 24 be amended to give primacy to the privacy provisions of the Gender Recognition Bill[122].

  35.  Clause 14 (disclosures with consent of registered individual) appears to provide for only two options: either consent is offered, or it is withheld. There appears to be no mechanism for a person to give consent while restricting disclosure of a previous gender or of previous names.

  36.  PFC recommends that clause 14 be amended to explicitly permit limited consent to disclosure.


  37.  A further problem might arise from proposed biometric tests. For example, DNA testing would inevitably problematise trans people, most of whom have gender-mismatched chromosomes. DNA is not listed as a proposed biometric, but the draft bill would appear to permit its use without further parliamentary approval.

  38.  The government proposes trials to evaluate issues around biometric recording", including facial recognition, iris testing and fingerprints. The intention is for the system to use one or more of these technologies.

  39.  Facial profiling causes obvious problems, because there are significant phenotypical differences between the sexes. Trans people are more likely than others to have facial structures which don"t fit gender norms, and thereby trigger alerts when validation proves problematic.

  40.  PFC has no information on whether sex-differentiated features might be revealed by fingerprints or iris testing. If such differentiation exists, it would appear to be problematic only if the testing system specifically included sex as a check against the validity of the result or if the data was offered in a form capable of independent analysis.

  41.  PFC recommends that any proposed biometric tests should be explicitly reviewed for their impact on the privacy of trans people.


  42.  There are many circumstances in which people lead dual-gendered lives, including:

    —  Those in the early stages of gender reassignment.

    —  When required to do by court order.

    —  To seek or maintain employment.

    —  By choice.

  43.  Those situations are explained in greater detail below, but the important point in each case is that the ability to successfully lead a dual-gendered life risks being undermined by a system to manage identities. There would appear to be only two solutions: either to omit gender markers from ID cards and from the National Identity Register, or to allow people to obtain identity cards in both genders.

(a)  The early stages of gender reassignment

  44.  Nearly all trans people who eventually undertake a permanent gender change go through a period of transition, during which they alternate between gender roles. This process may be short for some people, while for others it can last for years or even decades.

  45.  This period of transition is explicitly encouraged by the medical professionals: it is an important part of the medical process of gender reassignment, allowing people both to develop their self-understandings and to build confidence in their new gender role. It is therefore essential that the ID card system does not undermine the ability of those in transition to function in both genders, without breach of privacy.

(b)  When required by court order

  46.  A family court may impose, as a condition of access, a requirement that trans people who are separated parents must present themselves to the children in their previous gender. PEC believes that these orders are unjust, and damaging to both parent and child. However, they are regrettably common.

  47.  People placed in this situation by the courts should not face the further humiliation of having identification documents inappropriate to the gender in which the state has ordered them to live part of their lives.

(c)  To seek or maintain employment

  48.  Some trans people have encountered such persistent discrimination that they present in their previous gender for the purpose of employment, while living the rest of their lives in their adopted gender. This is often essential in the initial stages of transition, before the long-term benefits of hormone therapy, particularly where people work with the public. It is more prevalent in some specialist industries which are still sex- specific, and where a trans person would be very visible.

(d)  By choice

  49.  Not all people with gender dysphoria proceed with gender reassignment treatment. This may be for health or social reasons or because they have found ways of managing their gender dysphoria through temporary relief mechanisms. This is seen as a success in medical terms, and may be the best available solution for some people with families who would otherwise find it hard to stay together.

  50.  Some trans people routinely alternate between gender roles for a prolonged period of their lives.


  51.  The ID card system might help some trans people by enabling them to prove their identities, but only if designed with consideration of the needs of trans people.

  52.  The ID card system should be developed in consultation with the trans community to avoid health-damaging stress, and to endorse the principle of privacy set out by the ECtHR in Goodwin v UK.

May 2004

112   See in particular "Government Policy concerning Transsexual People", published by the Department for Constitutional Affairs at and the PFC website, especially "Campaign Issues" at Back

113   "Legislation on Identity Cards: A Consultation", foreword by the Home Secretary. Back

114   "Identity Cards: The Next Steps", foreword by the Home Secretary. Back

115   "Identity Cards: The Next Steps", para 3. Back

116   "Legislation on Identity Cards", para 1.13. Back

117   The Sex Discrimination (Gender Reassignment) Regulations 1999 were introduced to give effect to a ruling of the European Court of Justice in the case of P v Sand Cornwall County CouncilBack

118   "Legislation on Identity Cards", para 3.25. Back

119   The Gender Recognition Bill provides that a full Gender Recognition Certificate will not be issued to a married person. This provision is opposed by PFC, and criticised by the parliamentary Joint Committee on Human Rights. Back

120   See, inter alia, "B v France", ECtHR case 57/1990/248/319, at and "A v West Yorkshire Police", 204 UKHL 21, at Back

121   "Identity Cards: The Next Steps", para 24. Back

122   Gender Recognition Bill, as amended by the Lords: Clause 22 "Prohibition on disclosure of information". Back

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