Joint Committee On Human Rights Nineteenth Report

3 The Draft Gender Recognition Bill

23. The Draft Bill is constructed on six main planks.

a)  The Draft Bill would establish a scheme for giving legal recognition to a transsexual person's 'acquired gender' (clauses 1, 2 and 5). It would not require that the person should have undergone reconstructive surgery before the acquired gender is recognised, although a person would be required to supply evidence relating to relevant medical treatment.

b)  The recognition of the acquired gender will apply for all purposes: clause 5(1); but will be prospective only: clause 5(2). The Government has set its face against retrospectively validating marriages which were invalid at the time when the parties went through a ceremony of marriage.

c)  The Government considers that there needs to be certainty as to the way in which a person's gender will be treated for legal purposes. To that end, there are to be legal conditions for recognition of a change of gender, set out in clauses 1, 2 and 4 of the Draft Bill. There would also be official 'gatekeepers', Gender Recognition Panels, to certify that the conditions have been complied with (clause 1 of and Schedule 1 to the Bill), interim and final certificates to mark the recognition officially (clause 3), and a Transsexual Persons Register to be kept by the Registrar General of Births, Marriages and Deaths for England and Wales (clause 6 and Schedule 2).

d)  Where a person contracted a valid marriage in his or her original gender and subsequently undergoes a change, the change will not be legally recognized as long as the person continues to be a party to the marriage. It will not be possible to give legal recognition to a change of gender if that would result in two people of the same gender being regarded as legally married: clause 3(3), (5) and (8), clause 7, and Schedule 3, paragraphs 5, 6 and 7.

e)  Anti-discrimination law is to be brought into line with the new legal regime, so it will be unlawful to discriminate against a person by reason of his or her reassigned gender in any of the fields covered by the Sex Discrimination Act 1975, so far as discrimination against a person originally of that gender would previously have been unlawful: clause 9.

f)  Provision would be made to protect the interests of all members of families and others where the change of gender could affect a person's status as a parent, or his or her succession to property or a peerage or honour, interests under trusts, or other property interest, or freedom of religion, could be affected by the change of gender: clauses 8, 10, 11, 12 and 13, and Schedule 3, paragraph 2.

24. Like most of the people who gave evidence to us, we welcome the Government's determination to deal with the very difficult problems faced by people in this field, and we respect the Government's good intentions as reflected in the Draft Bill. As one would expect in an area of such delicacy and complexity, each of these main planks has some significance in terms of both the impact on sensitive interests of people affected by them and their human rights. We examine them separately, but some important common themes will emerge.

Recognition of 'acquired gender'

25. The Draft Bill is couched in terms of gender, not sex. As noted above, gender is a matter of a person's psychology and social role, and depends on the person's view of himself or herself and his or her relationships with others, while sex is principally concerned with physical characteristics. The Draft Bill emphasises that it is not concerned with physical characteristics in a number of ways. A person may apply for a gender recognition certificate on the basis of living in the other gender (clause 1(1)(a)). There is no requirement for a person to have had, be having or be planning to have any treatment to change his or her physical appearance before applying for a certificate (clause 1(4)), although evidence of any such treatment would have to be given by a medical practitioner and would strengthen the case for recognition (clause 2(1), (3)).

26. This gives rise to two separate questions. First, is it appropriate to recognise a person's acquired gender before he or she has undergone specified therapies, including surgery, to reassign his or her sex? Secondly, would the Draft Bill's use of the language of gender rather than sex make it more difficult for the legislation to meet the minimum requirements set out in paragraph 20 above?

Should recognition be limited to post-operative transsexual people?

27. The Draft Bill's focus on gender rather than sex has given rise to contrasting reactions among those who gave evidence to us. Most of them welcomed the decision not to require transsexual people to undergo surgery to change their physical characteristics before applying for a gender recognition certificate. On the other hand, a few correspondents considered that legislation should be aimed at the really serious harm suffered by those transsexual people who, despite social, personal, medical and legal hurdles, had felt forced to change their sex, and had undergone surgery as part of that process. These correspondents considered that the Draft Bill, by extending beyond post-operative transsexuals and concentrating on gender rather than sex, comes perilously close to giving legal recognition to a lifestyle choice, and demeans the suffering of those people who are most severely affected by the present law.

28. In our view, the flexible approach adopted by the Government in not restricting recognition to people who have undergone surgical sex reassignment therapy is entirely appropriate, and we welcome it. Allowing people to apply for recognition before, or without, surgery or other specified therapies would avoid discriminating against people who for some medical reason unconnected with their gender are unsuitable for particular kinds of surgical, hormonal or other treatment. It would also allow people in the process of sex or gender reassignment to have their acquired gender recognised by law without waiting an uncertain period for particular types of treatment to become available through the National Health Service if the Gender Recognition Panel is satisfied that they have or have had gender dysphoria, have lived in the acquired gender for two years, and intend to live in that gender for life (clause 1(4)(a)-(c)). The evidence presented to us suggests that the expert professional members of the Panels are unlikely to issue certificates to people who are making a mere lifestyle choice. Indeed, there were suggestions in the evidence that medical experts are sometimes unfairly sceptical about whether a person is suffering from gender dysphoria.

29. We conclude that the Draft Bill represents a sensitive and sensible compromise by allowing pre-operative transsexual people to have their acquired gender recognised, with the Gender Recognition Panel providing a safeguard against premature or frivolous applications. In our view, the absence of a requirement for people to undergo surgical or medical reshaping of their bodies before applying makes it sensible to speak of gender rather than sex in the Draft Bill.

Are any legal problems presented by the language of gender rather than sex?

30. While we accept that it is appropriate to speak of gender rather than sex in the Draft Bill, we consider that the language of gender might make it more difficult to be sure that the legislation will produce the required effects outlined in paragraph 20 above. Some of those who gave evidence to us expressed similar concerns.

31. In a nutshell, the potential problem is as follows. The legislation which has been held to be incompatible with Convention rights, and other legislation which adversely affects transsexual people, is either cast expressly in terms of a person's physical sex or has been interpreted by courts in this country as applying in that way. This is true of the Matrimonial Causes Act 1973, section 11(c), as noted in paragraph 5 above. It is also true of the Sex Discrimination Act 1975, which has been interpreted by courts as protecting people against discrimination on the ground of their physical sex at birth, not their gender or (except in relation to employment and vocational training, affected by Community law and to some extent operating retrospectively[12]) their status as transsexual people. Clause 5(1) of the Draft Bill provides, 'Where a full gender recognition certificate has been issued to a person, the person's gender becomes for all purposes the acquired gender.'[13] The Draft Bill does not define 'gender', so presumably it would be interpreted by courts in accordance with the previous case-law which distinguished between sex (physical) and gender (psychological and social). If this is correct, it is far from clear that recognition of a person's acquired gender would be regarded as giving them a new sex for the sex discrimination legislation, or making them male rather than female (or vice versa) for the purpose of deciding the validity of a marriage under the Matrimonial Causes Act 1973, section 11(c).

32. It is possible that courts might interpret 'gender' as meaning 'sex' for those purposes, thus making the Draft Bill effective to achieve its purposes. The courts might be assisted by the presumption that Parliament, when legislating to give effect to the United Kingdom's international obligations, intends to implement international law effectively. They might also be influenced by their duty under section 3 of the Human Rights Act 1998 to read and give effect to the legislation in a manner compatible with Convention rights (including the rights under ECHR Articles 8, 12 and 14) so far as it is possible to do so.

33. However, we are not convinced that the desired result would necessarily be achieved. We think it is significant that the House of Lords in Bellinger v. Bellinger (Lord Chancellor intervening) refused to re-interpret section 11(c) of the Matrimonial Causes Act 1973 so as to be compatible with Convention rights as interpreted by them in that case and by the European Court of Human Rights in Goodwin v. United Kingdom and I. v. United Kingdom. Their Lordships considered that the complexity of the issues and the consequential effects of any change made it necessary to leave Parliament to make the necessary changes. It seems to us that the legislation should therefore be cast in the clearest terms possible, so as to leave no doubt about the effect which Parliament intends to achieve.

34. Accordingly, we recommend that a further paragraph should be added to clause 5 of the Draft Bill, making it clear that where under any legislation it is necessary to decide the sex of a person who has an acquired gender, or to say whether that person is a man or a woman or male or female, the question must be answered in accordance with the person's acquired gender, except to the extent that the Draft Bill or the legislation in question provides otherwise expressly or by necessary implication. Without such a provision, we fear that there is a significant risk of the Draft Bill failing to achieve some of its purposes.

The effect of a recognized change of gender

35. As noted above, clause 5(1) provides that a person's gender becomes for all purposes the acquired gender once a full gender recognition certificate is issued. However, the law would not recognize an acquired gender until a full gender recognition certificate has been issued, and would not retrospectively affect the legal status of any marriage or other transaction taking place before the certificate is issued: clause 5(2).

36. This has provoked a good deal of concern among respondents to the Committee's consultation exercise. In particular, the people who successfully challenged the compatibility of English law in Strasbourg and in Bellinger v. Bellinger, and some of those who challenged it unsuccessfully in earlier years or were in similar positions but did not take legal action, have submitted that retrospective recognition of marriages in particular is needed in order to provide them with an effective remedy for having suffered a violation of their rights.[14] This is supported by many correspondents, some of whom also consider that it would be demeaning to them and their families, devalue their earlier marriage vows, and show a lack of respect for their long-standing and loving relationships, to require them to apply for a full gender recognition certificate after the legislation comes into force, then go through a further ceremony of marriage, before they could be legally regarded as husband and wife as they should have been before.

37. We have a good deal of sympathy with these points of view. They seem to us to give rise to two distinct issues.

The first issue: general retrospective effect in relation to marriages

38. The first issue relates to the general treatment of couples who are in the situation of Mr and Mrs Bellinger, with one party being a male-to-female transsexual and the other being a male for the purpose of section 11(c) of the Matrimonial Causes Act 1973, or where one party is a female-to-male transsexual and the other party is a female. Can it be right to refuse to recognise the validity of their marriages if, at the time they went through the wedding ceremony, the transsexual party was well settled in his or her reassigned gender and would have satisfied the requirements for recognition of the acquired gender had clause 1(4) of the Draft Bill been in force?

39. We have engaged in some correspondence with the Department of Constitutional Affairs on this issue. We would summarise the Department's position as follows.

a)  The European Court of Human Rights in Goodwin v. United Kingdom and I. v. United Kingdom made it clear that their judgment operated only prospectively. It had previously been held that English law did not violate Convention rights, and the judgment in the most recent cases did not cast doubt on the correctness of the earlier judgments at the time when they were given. The House of Lords in Bellinger v. Bellinger (Lord Chancellor intervening) held that a marriage between parties in the position of Mr. and Mrs. Bellinger was void in English law, although their Lordships declared that the relevant legislation was incompatible with Convention rights.[15] The marriages were therefore void at the time they were entered into.

b)  The Government does not wish to change retrospectively the legal status of the parties to such marriages, because:

i)  such a change could affect rights and obligations acquired over a long period (including pension and social security entitlements and tax liabilities) and require decisions on those matters to be reopened;

ii)  it might be very difficult to establish now whether a person would have met the requirements of clause 1(4) of the Draft Bill many years ago; and

iii)  retrospectively validating marriages which were originally void in these cases would create a position where people legally regarded as having been of the same sex are to be treated as legally married, whereas the Government does not consider that it would be appropriate to equate same-sex relationships to marriage.

40. We accept the correctness of point a) as a matter of law. We also accept that the problems referred to in b) i) might arise, unless the legislation makes it clear that the change in status is not to have any such consequences. On the other hand, we do not consider that considerations b) ii) and iii) have much weight. In relation to b) ii), a person seeking to establish that he or she would have met the requirements of clause 1(4) of the Draft Bill ten or twenty years ago would have to provide medical evidence, as required by clause 2. If his or her medical advisers at that time kept adequate medical notes, and the notes are still available, it should now be possible to make a satisfactory assessment of the person's condition at that time. Of course the notes might no longer be available, or might be insufficiently detailed for the purpose, but we do not consider that people who can establish their condition at a particular time in the past should be prevented from having their marriages recognised merely because other people might not be able to provide similar evidence.

41. In relation to b) iii), we do agree that recognising those marriages would have the effect of giving the legal status of marriage to same-sex relationships. If the law recognises a transsexual person's acquired gender retrospectively, either generally or for the purpose of marriage only, it follows that the marriage in question will have to be regarded as having been a mixed-sex marriage in law. For example, if the law recognises that Mrs. Bellinger, a male-to-female transsexual person, was female in 1981 when she married Mr. Bellinger (at least for the purpose of the Matrimonial Causes Act 1973, s. 11(c)), the marriage must logically be regarded as having been between a man and a woman.

42. On balance, we are not convinced that the difficulties which influence the Government's approach are insuperable, or that the suggestion that some retrospective effect for recognition of acquired gender would lead to same-sex marriage being legally recognised is correct. We recommend that the Government should give further thought to the possibility of giving retrospective recognition to a person's acquired gender from the date at which the person can show that he or she would have satisfied the requirements of clause 1(4) of the Bill had it been in force, at least for the purpose of deciding whether a marriage was void when entered into after that date.

43. We consider that this applies even more strongly to anyone who has entered into a ceremony of marriage since 11 July 2002 when the European Court of Human Rights gave judgment in Goodwin v. United Kingdom and I. v. United Kingdom. Since then, it has been well established that the UK has been in breach of international law by refusing to recognise the acquired gender for the purpose of marriage. There seems to us to be a particularly strong case for providing in the legislation for retrospective recognition of the acquired gender of a transsexual party to these marriages, and thus for the validity of the marriages themselves. We recommend that the legislation should include such provision.

12   See Chief Constable of the West Yorkshire Police v. A. (No. 2) [2002] EWCA Civ 1584, [2003] AC 161, [2003] 1 All ER 255, CA (but note that leave has been granted to appeal to the HL) Back

13   Italics added Back

14   See the evidence of Mrs Elizabeth Bellinger, Christine Goodwin, and Kristina Sheffield Back

15   See Goodwin v. United Kingdom (2002) 35 EHRR 447 at para. 120, Eur. Ct. HR, and Bellinger v. Bellinger [2003] 2 WLR 1147 at para [24] per Lord Nicholls of Birkenhead Back

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