Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

2 Background to the Draft Bill

5. English law has until now treated a person's sex as being fixed at birth by reference to physiological and chromosomal indications. Someone who is registered as a male or female at birth cannot have his or her birth certificate changed subsequently. In English law, a person's sex has determined a number of important matters, including capacity to marry particular people: the Matrimonial Causes Act 1973, section 11, provides (so far as relevant): 'A marriage shall be void on the following grounds only, that is to say ... (c) that the parties are not respectively male and female ... ' The words 'male and female' have been interpreted as referring to sex, determined by reference to physical indications: chromosomal (males having XY chromosomes and females XX chromosomes), gonadal (the presence or absence of testes and ovaries), and genital (the presence or absence of internal or external sex organs).[1] Some commentators have suggested that the words 'male' and 'female' could be interpreted as referring not to sex but instead to gender, that is how one regards one's self and is regarded by others with whom one mixes socially.[2] However, this has not been accepted by courts.[3] In addition, sex at birth determines a number of other questions, including the age at which one becomes eligible for a pension, some potential criminal liabilities, and (except in relation to cases affected by developments in EC law, considered below) whether one has suffered discrimination on the ground of one's sex.

6. Usually, a person's sex (determined by chromosomal, gonadal and genital indications) is clear, and coincides with his or her psychological sex (the person's view of himself or herself) and social behaviour (the social role sometimes being referred to as gender). Where these indicia coincide, the allocation of sex at birth is unproblematic. However, in two groups of cases it may give rise to difficulties.

Physical intersex cases

^7. In some people the indicia of sex are inconsistent. External genitalia, the presence and arrangements of internal organs, and chromosomal identity, may not clearly define the person as either male or female. In these 'physical intersex' cases, the usual approach has been for medical advisers, in consultation with parents, to take a view as to where the best interests of the child lie. The child is then registered as male or female accordingly, and appropriate medical treatment (including surgery if necessary) is provided to ensure that the child's physical appearance is consistent with the allocated sex. It can lead to psychological problems later, particularly during and after puberty, but is currently thought to be preferable to leaving the child, and later the adolescent and the adult, in a social and legal limbo.[4]

Gender dysphoria, or gender identity disorder

8. There may be a mismatch between a person's physical sex and his or her feelings, attitudes and desires about his or her real sexual identity and proper social role. This mismatch between physical appearance and psycho-social gender is a recognised medical condition, going under a variety of names, including gender dysphoria and gender identity disorder. It is a sense of being a woman in a man's body, or a man in a woman's body, and can lead to serious psychological and social problems. The causes are not clear, but a body of medical opinion regards it as resulting from a failure in the genetic process of sexual differentiation at an early stage in development. The normal treatment in the United Kingdom involves careful psychological assessment to ensure that the person is not in reality homosexual or transvestite rather than a gender dysphoria sufferer, followed by a period of living (and dressing) as a member of the other sex in order to confirm the diagnosis and establish whether the person would be able to function adequately with a reassigned gender. Alongside this goes hormone therapy to start the necessary bodily changes. These processes are at least partially reversible if necessary. If all goes well, the final stage is usually surgery to bring the appearance of external genitalia (and to a limited extent internal organs) into line with the reassigned gender as far as possible. This is often, for practical purposes, irreversible. At this stage, it is usual to speak of people as 'post-operative' transsexuals.

The traditional attitude to gender reassignment in English law

9. As noted in paragraph 5 above, English law has traditionally treated sex as defined, once and for all, at birth, by reference to physical indicators. It has refused to recognise that the sex of people with gender dysphoria is anything other than their physical appearance and chromosomal make-up would indicate, or that sex can be changed, or that people's sex (or gender) can be different for different purposes. When a person has been registered as male or female at birth, they have (in law) been stuck with that for life and for all purposes. Even post-operative transsexuals have been regarded in law as still having the sex with which they were registered.[5] This has had some curious results. For example, a male-to-female transsexual remains, for legal purposes, a man, who can marry a woman but not a man; draws a pension at 65, not 60; and (except in relation to employment and vocational training, where Community law has intervened: see paragraph 10 below) cannot claim to have been unlawfully discriminated against on the ground of sex under the Sex Discrimination Act 1975 if people treat her less favourably than a man because she appears to be a woman. Official records may continue to record the person as being of his or her original gender, causing difficulties and embarrassment: for example, employers may discover a person's history when dealing with the Inland Revenue in respect of the person's national insurance records. This set of legal disabilities engages rights under ECHR Articles 8 (respect for private and family life, which includes in a number of respects a right to an identity), 12 (the right to marry), and 14 (the right to be free of discrimination in the enjoyment of other rights).

Developments in EC law and the effect on national law in the UK

10. In 1996, the Court of Justice of the European Communities held, for the first time, that the protection against sex discrimination in employment and related fields under the EC Equal Treatment Directive encompassed discrimination on the ground of gender reassignment, which could not sensibly be separated from sex.[6] This required legislative action, and the Government amended the law to bring it into line with the new understanding of the Equal Treatment Directive.[7] However, the Directive applies only to employment and vocational training. The national law was amended by way of a statutory instrument made under section 2 of the European Communities Act 1972, and so was limited to giving effect to the enforceable Community rights. It could not deal with discrimination in contexts not covered by Community law.

The impact of the ECHR

11. In a series of cases decided between 1986 and 1998,[8] the European Court of Human Rights had held that the English law relating to transsexuals engaged the right to respect for private life under ECHR Article 8.1. However, applying the doctrine of the margin of appreciation, the Court (by a steadily narrowing majority) had felt unable to hold that it was an unnecessary, and so unjustifiable, interference with that right, because there was no European consensus as to the best way to approach the legal identity of people following gender reassignment. Nevertheless, the Court recognised that there was a steady movement towards recognising the person's post-operative reassigned gender, and repeatedly urged the United Kingdom to keep the matter under careful review, clearly implying that the Court might consider that the state had exceeded its margin of appreciation if it failed to take active steps to review the position in national law and amend the law accordingly.

12. In the same cases, the Court consistently decided that the right to marry under ECHR Article 12 was not infringed by the law in the United Kingdom, because—

a) Article 12 gives the right to marry only 'according to the national laws governing the exercise of the right', thus apparently subjecting the right entirely to national law;

b) limitations placed on the right by national law had to be such as not to deprive people of the very essence of the right; but

c) the law in the United Kingdom did not prevent transsexual people from marrying, but only stopped them marrying people of the opposite sex to their reassigned gender, a restriction that the Court did not initially regard as depriving people of the very essence of the right to marry, although the Court's view was open to criticism on the ground that a right to marry is worthless if it permits marriage only to people of what one regards as one's own sex.

13. There was one area in which the Court was willing to find a violation. In countries where people are required to carry identity cards and to produce them to officials on request, or as a condition for obtaining access to public benefits, including information about the person's original gender on the card could cause great embarrassment. This was held to be a disproportionate interference with the right to respect for private life, violating ECHR Article 8.[9] In the United Kingdom, the absence of a system of identity cards was thought to avoid this problem.

The recent decisions of the Strasbourg Court and the House of Lords, and their implications

14. In Goodwin v. United Kingdom and I. v. United Kingdom,[10] decided in July 2002, the Strasbourg Court took the final step of holding, unanimously, that the United Kingdom's continuing refusal to take steps to recognise the reassigned gender of a post-operative transsexual person was not necessary in a democratic society for any legitimate aim under ECHR Article 8.2, and therefore violated the right to respect for private life.

15. In addition, the Court for the first time decided that refusing to allow transsexual people to be treated as being of the sex matching their reassigned genders for the purpose of marriage violated the right to marry under ECHR Article 12.

16. A few months after those decisions of the Strasbourg Court, the House of Lords decided an appeal in Bellinger v. Bellinger (Lord Chancellor intervening).[11] Mrs. Bellinger (who gave evidence to us as part of our inquiry) is a male-to-female transsexual person who in 1981 went through a ceremony of marriage with Mr. Bellinger. They brought proceedings seeking a declaration that their marriage was valid. They failed at first instance, in the Court of Appeal and in the House of Lords. All the judges expressed sympathy, but all bar one (Thorpe L.J., who dissented in the Court of Appeal) decided that only Parliament could change the well-settled law that a marriage is invalid under section 11(c) of the Matrimonial Causes Act 1973 if the parties are not respectively man and woman in the sense of having been recognized as being of male and female sex respectively from birth. However, the Bellingers also sought a declaration under section 4 of the Human Rights Act 1998 that the provisions of section 11(c) of the 1973 Act are incompatible with ECHR Articles 8 and 12. The Lord Chancellor, intervening, accepted that there was an incompatibility in the light of the recent decisions of the Strasbourg Court, but argued that the House should exercise its discretion against making a declaration of incompatibility because the Government was actively planning legislation to remedy the incompatibility. But the House of Lords decided that there was no reason to deny the Bellingers the satisfaction of a declaration of incompatibility.

The Government's position since Goodwin and I.

17. As a result of the Strasbourg decisions, the Government is obliged, under international law, to arrange for the law to be amended in the United Kingdom to bring it into line with the requirements of the ECHR as interpreted in Goodwin v. United Kingdom and I v. United Kingdom. The declaration of incompatibility made in Bellinger v. Bellinger (Lord Chancellor intervening) does not oblige the Government to introduce remedial legislation as a matter of national law, but the Government has very properly decided that it ought to act.

18. After the Strasbourg judgments, the Government had to decide what should be done by registrars of marriages while it considered the form which legislation should take. In a letter of 25 November 2002 to our Chair, Rosie Winterton MP (the Minister then responsible for the review of the law) explained that, since July 2002, the Government had advised registrars of marriages to continue to apply section 11(c) of the Matrimonial Causes Act 1973 in the traditional way, allowing people to marry according to their birth genders but not their reassigned genders. As this might lead to a position where, for example, a male-to-female transsexual married a woman, the parties would have to be advised that subsequent legislation (for instance, recognising the reassigned gender so that the transsexual partner had to be treated as a woman rather than a man for the purpose of marriage) might invalidate the marriage. In the light of the decision of the House of Lords in Bellinger v. Bellinger (Lord Chancellor intervening) the approach recommended by the Government is clearly lawful.

19. Meanwhile the Government has actively developed its strategy to amend the law. The Draft Gender Recognition Bill embodies most of the Government's response. The Department has told us that some further provisions will be included before a Bill is introduced to Parliament in order to make the necessary consequential changes to the social security system.

What the legislation needs to do

20. In order to rectify the incompatibilities between English law and Convention rights identified in the judgments of the Strasbourg Court and the House of Lords, any legislation must as a minimum achieve the following:

a) to comply with ECHR Article 12 (right to marry), either amend section 11 of the Matrimonial Proceedings Act 1973 or otherwise change the legal treatment of transsexual people so that once they have acquired a new sex or gender they are no longer disabled from entering into a valid marriage with a person of their birth sex;

b) to comply with ECHR Article 8 (right to respect for private life), amend the law so that any failure to recognise a person's reassigned sex or gender is justifiable under Article 8.2 as being in accordance with the law and necessary in a democratic society (i.e. serving a pressing social need and being proportionate to it) in order to achieve one of the legitimate aims listed in that paragraph; and

c) to avoid any incompatibility with ECHR Article 14 (right to be free of discrimination in the enjoyment of Convention rights) taken together with other Convention rights, ensure that arrangements which might lead to such discrimination are avoided.

21. Although those are the minimum requirements of international and domestic human rights law in this field, neither the Strasbourg Court nor the House of Lords could specify the manner in which the law should be changed to meet those requirements. This is a matter for the legislature, which is free to adopt any means which seem to it to be appropriate. Nevertheless, the resulting changes to laws and practices will inevitably have far-reaching effects, with an impact on many areas of life and law, including criminal law, family law, entitlement to pensions, and sex discrimination (so far as it covers areas such as housing, education and the provision of goods and services not already dealt with under EC law). The legal status of transsexual people has an immense impact on their lives and the lives of their families and friends. The sensitivity of these issues cannot be exaggerated.

22. In the remainder of this Report, we examine the provisions of the Draft Bill in the light of those considerations.

1 Corbett v. Corbett (orse Ashley) [1971] P. 83 Back