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
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.
4. The proposed system appears likely to
curtail the many existing legitimate uses of more than one identity.
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?
(c) Will historical data about change of gender
be adequately protected? (paras 31-36)
(d) Will biometric tests reveal a trans history?
(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).
10. In this submission, we seek to avoid
terminological difficulties by describing the problems which trans
people may face in particular situations.
PFC AND ID CARDS
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"
A SYSTEM TO
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".
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".
This welcome assurance is repeated verbatim in the consultation
document accompanying the draft bill.
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.
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
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
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
negates any security concerns about the provision of multiple
Q1 WILL THE
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.
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.
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.
Q2. WILL THE
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
29. Paragraph 24 of the White Paper says
"Data held on the National Identity Register
will be basic identity informationsuch as name, address,
date of birth, gender, immigration status and a confirmed biometricand
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."
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.
Q3. WILL HISTORICAL
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
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.
Q4. WILL BIOMETRIC
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.
Q5. WILL THE
42. There are many circumstances in which
people lead dual-gendered lives, including:
Those in the early stages of gender
When required to do by court order.
To seek or maintain employment.
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.
112 See in particular "Government Policy concerning
Transsexual People", published by the Department for Constitutional
Affairs at http://www.dca.eov.uk/constitution/transsex/policv.htm
and the PFC website, especially "Campaign Issues" at
"Legislation on Identity Cards: A Consultation", foreword
by the Home Secretary. Back
"Identity Cards: The Next Steps", foreword by the
Home Secretary. Back
"Identity Cards: The Next Steps", para 3. Back
"Legislation on Identity Cards", para 1.13. Back
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 Council. Back
"Legislation on Identity Cards", para 3.25. Back
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
See, inter alia, "B v France", ECtHR case 57/1990/248/319,
at http://www.pfc.ore.uk/legal/b-v-f.htm and "A v West Yorkshire
Police", 204 UKHL 21, at http://www.pfc.org.uk/legal/a-wyp5.htm Back
"Identity Cards: The Next Steps", para 24. Back
Gender Recognition Bill, as amended by the Lords: Clause 22
"Prohibition on disclosure of information". Back