Draft Gender Recognition (Approved Countries and Territories) Order 2011
The Committee consisted of the following Members:
Bacon, Mr Richard (South Norfolk) (Con)
† Blunt, Mr Crispin (Parliamentary Under-Secretary of State for Justice)
Corbyn, Jeremy (Islington North) (Lab)
† Flello, Robert (Stoke-on-Trent South) (Lab)
† Hemming, John (Birmingham, Yardley) (LD)
† Leslie, Charlotte (Bristol North West) (Con)
McCabe, Steve (Birmingham, Selly Oak) (Lab)
† Maynard, Paul (Blackpool North and Cleveleys) (Con)
Mitchell, Austin (Great Grimsby) (Lab)
† Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op)
† Rotheram, Steve (Liverpool, Walton) (Lab)
Shannon, Jim (Strangford) (DUP)
† Stringer, Graham (Blackley and Broughton) (Lab)
† Syms, Mr Robert (Poole) (Con)
† Wallace, Mr Ben (Wyre and Preston North) (Con)
† Ward, Mr David (Bradford East) (LD)
† Wheeler, Heather (South Derbyshire) (Con)
† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)
James Rhys, Committee Clerk
† attended the Committee
Second Delegated Legislation Committee
Tuesday 7 June 2011
[Nadine Dorries in the Chair]
Draft Gender Recognition (Approved Countries and Territories) Order 2011
4.30 pm
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt): I beg to move,
That the Committee has considered the Draft Gender Recognition (Approved Countries and Territories) Order 2011.
It is a pleasure to serve under your chairmanship, Ms Dorries. I understand that this is the first time you have chaired a Statutory Instrument Committee; this is an immense pleasure for us all.
The order revokes and replaces an order made in 2005 about the legal recognition of transsexual people in the gender in which they permanently live—their acquired gender. It prescribes the overseas countries and territories with gender recognition processes equivalent to our own. Its purpose is to enable transsexual people who have gained legal recognition of their acquired gender overseas to apply for legal recognition in the UK through a simplified process. It prescribes countries and territories that are approved under the Gender Recognition Act 2004 for the purpose of that application process.
Other members of the Committee may find it helpful if I outline the purpose of the 2004 Act before we consider the order in more detail. The Act enables transsexual people to change their legal gender and gain the rights and responsibilities of their acquired gender. For example, a transsexual woman—that is, a transsexual person who was born male but subsequently transitioned to live permanently as a woman—can gain the right to marry a man or to form a civil partnership with a woman, as well as the right to claim a state pension at the pensionable age for women. The Act sets out stringent criteria that all applicants must meet to be granted a legal change of gender. Applicants for gender recognition must satisfy the Gender Recognition Panel, an independent judicial body established by the Act, that they meet the criteria.
First, the person must have or have had gender dysphoria, the recognised medical condition of feeling oneself driven to present as a member of the opposite sex. Secondly, the person must have lived permanently in their acquired gender for two years prior to the application being made. Thirdly, they must intend to live in their acquired gender until death.
Successful applicants who submit evidence to show that they meet the criteria receive a gender recognition certificate. Many other countries have their own gender recognition systems, and for that reason the Act provides for an alternative application process for those who gained legal recognition overseas. The intention of the overseas application process is to minimise bureaucracy without compromising the integrity of the criteria set out in the Act.
When the Act passed, Parliament was mindful of the danger of creating a system that might allow transsexual people who could not meet the criteria in the Act to sidestep them. Such people could travel overseas to obtain gender recognition in a country with weaker criteria and then obtain legal recognition in the UK by virtue of that overseas recognition. That would have undermined the robust criteria in the Act agreed by Parliament. The Act therefore contains a power that puts on a statutory footing the countries and territories approved for the purpose of the overseas application process. Applicants submitting an application through this alternative application process must satisfy the Gender Recognition Panel that they obtained legal recognition in one of the approved countries or territories.
An order made in 2005 sets out the countries and territories currently approved for the purpose of the overseas application process. When that order was made, those countries and territories were deemed to have a gender recognition system equivalent to our own. When it was approved, it was the view of Parliament that the list of countries and territories approved under the 2004 Act would have to be amended as countries or territories established new schemes for legal recognition. Gender recognition is a relatively new and fast developing area of law, and some countries and territories have indeed introduced new systems for legal recognition of a gender change since 2005. There are also some jurisdictions that have amended their existing gender recognition systems. Quite simply, the 2005 order is out of date.
The order today lists the countries and territories that up-to-date research has shown have gender recognition mechanisms as robust as our own.
Graham Stringer (Blackley and Broughton) (Lab): Forty countries out of—from memory—the 186 recognised by the United Nations are listed here. Portugal, a member of the European Union, is not listed. What are the rights in this country of a Portuguese person who does not have such certification? Will that conflict with any of their rights to travel or their access to funds under the treaty of Rome?
Mr Blunt: When I get to the end of my introductory remarks, I will attempt to provide the hon. Gentleman with a clear answer. If I am not in a position to do that by then, I will leave it for when I reply to the debate.
The order lists the countries and territories that research has shown have gender recognition mechanisms as robust as our own. In drawing up the list, the Government were guided by two factors. First, we included only those countries and territories that provide for legal recognition of a gender change. That reflects the main purpose of the Gender Recognition Act 2004, which is to grant legal recognition. Secondly, we included only those countries and territories in which the process for granting legal recognition includes a proper assessment that the individual has taken decisive steps to live fully and permanently in the acquired gender; that reflects the policy behind the Gender Recognition Act as agreed by Parliament.
The order includes the majority of countries and territories listed in the 2005 order, with two exceptions. One of those is Latvia. Following developments in Latvian case law, the process for legal recognition of a
gender change there is no longer suitably robust. The second country is Serbia and Montenegro, which no longer exists as a unified state. Serbia continues to maintain a gender recognition system broadly comparable to our own, so we have added Serbia to the list.The order includes eight further countries and territories that were not included in the 2005 order. In some cases, such as Uruguay, that is because a mechanism equivalent to our own for legally recognising a gender change has been introduced since 2005. In the case of some countries, such as Croatia, we have identified that country’s gender recognition process for the first time. Although the order is predominantly an administrative exercise, the Government took the opportunity to seek informally the views of key stakeholder groups, and none had any objections to the countries and territories listed.
In reply to the point made by the hon. Member for Blackley and Broughton, I should say that if an individual has received legal recognition in a European Union or EEA country, they may be treated in their acquired gender when visiting or living in the UK. However, given the complexity of the law in this area, people in that category are encouraged to consider seeking a UK gender recognition certificate to secure added certainty to their position. In the Portuguese example raised by the hon. Gentleman, they would then need to satisfy our own Gender Recognition Panel for the purpose of rights in the United Kingdom.
Graham Stringer: I am grateful to the Minister, who has been inspired to answer my question, but I am still not completely clear. Does that mean that an EU citizen from Portugal would have to go through extra steps before receiving the recognition in this country that they are entitled to under EU law? Is he in effect saying that they would have to get extra certification before receiving their rights as an EU citizen?
Mr Blunt: This is not a matter of European Union law, as I understand it. It is a matter of the gender certification process under United Kingdom law and what is required to satisfy United Kingdom authorities that the person is of the appropriate gender. Portugal is not on the list because its processes either do not exist or do not satisfy us. It is not a matter of EU rights, but rights within the United Kingdom about gender recognition.
In conclusion, the order provides an up-to-date list of countries and territories that have a gender recognition system that we can rely on. A transsexual person who has obtained legal recognition of their acquired gender in any of those countries and territories will have taken decisive steps to live fully and permanently in their acquired gender. I commend the draft order to the Committee.
4.40pm
Robert Flello (Stoke-on-Trent South) (Lab): Thank you, Ms Dorries. May I also welcome you to the Chair, and say what a pleasure it is to serve under you on this occasion, the first time you have chaired a Delegated Legislation Committee?
I am grateful to the Minister for his detailed explanation of the order, which is just a technical amendment to add nine countries and territories to the list of approved
ones, and to remove two countries from it. I am sure that he will be pleased to hear that I do not intend to detain the Committee for long.While researching the matter, I was surprised that there was so little comment on the Gender Recognition Act 2004, beyond that which was recorded while the Act was still before Parliament as a Bill. Indeed, from my Catholic viewpoint, I was surprised to find very little commentary on the issue and none on the impact of the Act itself since 2004. I know that you will not want me to stray too far into a discussion of that Act, Ms Dorries. You want me to focus on the order, so I have a couple of questions about that.
First, might there be people from Latvia living in the UK who have not yet applied for recognition of their changed gender, which had been recognised in accordance with previous Latvian law and procedure when it did comply with the 2004 Act? If so, what arrangements are in place for such people to have their changed gender recognised, or do they need to go through the system set down in the 2004 Act as though they had not had their changed gender recognised previously in Latvia? Secondly, can the Minister give the Committee an idea of the number of people who apply each year for recognition under the Act, both from the UK and from countries approved under the 2005 order?
I note from the explanatory notes that the Ministry of Justice believes that there will be no impact on business, charities or voluntary bodies, but charities that work on transgender issues may argue otherwise. Does the Minister believe that it was a little hasty to say that there will be no such impact? I look forward to his response.
4.43 pm
Mr Blunt: On the point made by the hon. Member for Stoke-on-Trent South about Latvia, I would be interested to know whether he is aware of a Latvian example that might fall into the category. So far, there have been 107 applications via the overseas route, and I understand that 64 have been granted. I am uncertain as to whether any of those involve Latvians, or whether we would have to consider the Latvian cases in detail.
We are removing Latvia from the list because, following a 2008 court decision, the country no longer has suitably rigorous criteria for legal recognition of a gender change. I would be surprised if applications prior to 2008 had not been concluded by now. I assume that is why Latvia has been dropped from the list. Legislative reforms are under way, but the proposals are yet to be approved by the Latvian Parliament, and we cannot tell when they will be implemented.
If the hon. Gentleman is particularly interested in Latvia, I can tell him that the court judgment in 2008 determined that the decision should be an administrative one, rather than one made on the basis of medical evidence that was robust enough for us in 2005, and remains so. The judgment did not address the criteria for determining a change of gender. As a result, a working party was formed to draft statutory regulations to determine the criteria for a legal change of gender and a Bill has been drafted, but, as I said, it has yet to be approved by the Latvian Parliament. I am certainly unaware of any Latvians who are caught by that situation when applying in the United Kingdom.
I will write to the hon. Gentleman and fellow members of the Committee about the impact of the order on charities, as stated in the explanatory notes.