Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

The second issue: providing a remedy for the successful litigants and others whose cases were pending

44. The second issue concerning the validity of marriages entered into before the legislation comes into force relates to the position of the litigants before the European Court of Human Rights and the House of Lords who successfully persuaded the judges that they had suffered a violation of their Convention rights, and other litigants in a similar position whose cases were pending at the time of the judgments in Goodwin v. United Kingdom and I. v. United Kingdom in July 2002. As it stands, the Draft Bill would offer those litigants nothing by way of just satisfaction for the violation of their rights. It would merely allow them to go through another ceremony of marriage, which would be prospectively recognised by law, once the transsexual partner has applied for and obtained a full gender recognition certificate. This is far from being a completely satisfactory remedy for a violation of the right to have their acquired gender recognised in the past for the purpose of deciding whether their marriages are valid.

45. We accept that the marriages were invalid in English law when they were entered into, and that the invalidity did not then violate Convention rights. However, we consider that there should be scope to give some benefit to people who have successfully followed the hard road of litigation in this country and in Strasbourg in order to establish the existence of a right to recognition of reassigned gender and of the right to marry for their own benefit but also for the benefit of others. In the European Court of Justice and the Supreme Court of the USA, judgments are sometimes given with prospective effect, but in such cases the courts order that the litigants who brought the matter before the court and others in a similar position whose cases are pending at that time are to be given the benefit of the judgment. In this way legal certainty is reconciled with the need to provide an effective remedy for successful litigants.

46. When we raised this point with the Department of Constitutional Affairs, the response was negative. The Department pointed to the factors influencing their approach to the general question of retrospective effect for the Draft Bill (see paragraph 39 above), and also pointed out that it would be invidious to create different classes of people, only some of whom would be entitled to the retrospective application of the legislation. We are even less impressed by the factors outlined in paragraph 39 in this context than we were in the context of general retrospective effect, because the acknowledged difficulty of unravelling previous transactions, rights and liabilities would be more far more limited if retrospective effect were allowed only in the case of successful litigants and those whose litigation was pending at the time of the judgments in July 2002.

47. We agree that treating differently people whose objective situation is similar gives rise to a risk of unjustified discrimination, a point which was made by a number of people who gave evidence to us on this subject. However, different treatment does not amount to improper discrimination if there is a rational and objective justification for it. In our view, there is a relevant distinction which provides a rational and objective justification in this case. The successful litigants, and others in the same position who had already initiated their litigation at the time of the crucial judgments of the European Court of Human Rights, were prepared to embark on the demanding, time-consuming and expensive process of litigation with no certainty of success. By doing so they provided a public benefit by allowing the requirements of the ECHR to be further elucidated and prompting the current legislative proposals. This seems to us (as it does to the European Court of Justice and the Supreme Court of the USA) to justify treating them more favourably than others. We note that a large number of correspondents favoured making special provision for the benefit of Mr and Mrs Bellinger, and we would extend that treatment to the successful litigants in the European Court of Human Rights and others whose litigation had been initiated before the date of the relevant Strasbourg judgments in July 2002.

48. We recommend that the legislation should provide for the successful litigants in Strasbourg and in the House of Lords, and others who had commenced similar proceedings by 11 July 2002 when the Strasbourg judgments were delivered, to have their acquired genders recognised by law from the earliest time at which they can show that they met the criteria for recognition set out in the legislation. Where they entered into marriages after that time, the legislation should provide for the validity of those marriages notwithstanding section 11(c) of the Matrimonial Causes Act 1973.

The demands of certainty and procedures for recognising an acquired gender

49. It is reasonable for the Government to take the view that there needs to be a degree of certainty about people's genders. Gender will affect legal status and a variety of other rights and obligations. Certainty is also needed to protect the interests and rights of people who have dealings, either administratively or in the course of personal relationships, with the person whose acquired gender is to be recognized.

50. While the Government's preference for official certainty seems reasonable, it is not the only possible view. For example, in Australia and New Zealand the courts rather than legislatures have often taken the lead in recognizing the capacity of transsexual people to marry in their acquired genders. In New Zealand, a clear line has been drawn: an acquired gender will be recognized when a person has acquired the physical conformation of a specified sex through surgical and medical procedures.[16] In Australia, post-operative transsexual people are normally to be regarded as members of their acquired sex, and this has been provided for by the legislature in South Australia;[17] but it is possible that pre-operative transsexual people may also be recognized as members of the acquired sex in the light of their life experiences and self-perception and other factors.[18] This leaves open a considerable area of uncertainty.

51. How does the Draft Bill pursue certainty? There are two elements: first, the need for certification by an official body, a Gender Recognition Panel; secondly, the application by the Panel of statutory criteria which, if met, would entitle a person to a certificate, and, if not met, would necessarily lead to refusal of a certificate. The Panel would have to assess the evidence, but would have no discretion.

The need to apply to a Gender Recognition Panel, and the procedural and registration requirements

52. The requirement to apply to a Panel for a gender recognition certificate, the set procedures to be followed, and the registration of acquired gender are essential elements in the scheme. They advance the aims of certainty and help to ensure that the Government's flexible approach to the stage at which an acquired gender should be recognized will not degenerate into giving legal recognition to lifestyle changes (see paragraphs 27-29 above). The system of registration is needed in order to ensure that it is possible to track a person's current identity back to their birth identity if necessary, for example in the course of a criminal investigation or in order to protect the health and rights of a person's children.

53. None the less, some of the people who submitted evidence to us have criticised the requirements and procedures on a number of grounds. We will consider, in turn:

a) the requirement for a person to apply to the panel for recognition of an acquired gender;

b) the procedural requirements relating to the application; and

c) the proposed arrangements for registering the acquired gender.

Requirement to apply to a gender recognition panel

54. Some evidence has suggested that it is demeaning to have to apply to a Panel for recognition of an acquired gender with which one has been living for all purposes for years, sometimes in close personal relationships with other people who have accepted one as being of the acquired gender.

55. We understand people feeling that they would be required to open to public scrutiny their person history and identity which they may have tried to leave behind them as they have worked to integrate into society with a new identity linked to their acquired gender. Both personal identity and sexual identity are aspects of a person's private life, protected by the right to respect to private life under ECHR Article 8, as the European Court of Human Rights has repeatedly said. Nevertheless, it seems to us that there are occasions on which it is appropriate for the state to regulate the acquisition of a new identity, whether sexual or personal. We consider it to be reasonable to require some official act of recognition of a step which has legal consequences and affects a person's status. This is justified in order to protect the rights of others, including the family of the person whose status is changing and those who will have dealings with the person in the future. This is one of the reasons why the state regulates marriage and the adoption of children, and requires births and deaths to be registered. A person's sex or gender has important legal and social consequences, including implications for legal status. The state therefore has a legitimate interest in ensuring that people who take on a new legal status can establish to the satisfaction of an official that they meet certain criteria.

56. The proposed system interferes to some extent with people's freedom to be whom they choose, and so may engage the right to respect for private life under ECHR Article 8.1. Nevertheless, it seems to us to be justifiable under ECHR Article 8.2 in order to protect the rights and freedoms of others. The interference with respect for private life is limited. People can choose whether or not to apply. If the panel is satisfied that the criteria for recognition of the acquired gender have been met, a certificate must be issued. The confidentiality of the process is guaranteed by the ordinary principles of breach of confidence at common law and by clause 14 of the Draft Bill, which would make it a criminal offence for any member or staff of the Panel, or anyone concerned with the Register, or an employer or prospective employer, or anyone conducting business or supplying professional services, to disclose 'protected information', that is, information relating to an applicant which concerns either the application or the applicant's gender before a full gender recognition certificate was issued. Subject to one reservation which is mentioned below, the exceptions to the duty of secrecy seem to us to be reasonable and to be justifiable interferences with the right to respect for private life by reference to the test in ECHR Article 8.2.

57. By the same token, we do not consider that the need to apply is likely to inflict on potential applicants a degree of suffering which would amount to degrading treatment in violation of ECHR Article 3.

The procedural and evidential requirements

58. Clause 2 of the Draft Bill sets out the statements which an applicant must make and the evidence which he or she must produce in support of an application for a gender recognition certificate. If the application is made on the basis that the applicant is living in the acquired gender, these are:

a) either a report by two registered medical practitioners, at least one of whom must practise in the field of gender dysphoria, or a report by a chartered psychologist practising in that field and one by a registered medical practitioner (clause 2(1));

b) the report of the practitioner or psychologist practising in the field of gender dysphoria must include details of the diagnosis of the applicant's gender dysphoria, and, if the applicant has undergone or is undergoing treatment to modify sexual characteristics, or has had such treatment prescribed or planned, the report must also include details of it (clause 2(2), (3));

c) a statutory declaration by the applicant that that applicant has lived in the acquired gender for at least two years at the date of the application and intends to continue to live in the acquired gender until death (clause 2(4)(a));

d) a statutory declaration by the applicant as to whether he or she is married (clause 2(4)(b));

e) the applicant's birth certificate (which would include, where applicable, a copy of any relevant entry in the Adopted Children Register or the proposed Transsexual Persons Register) (clause 2(6)(a), (7) and (8));

f) evidence concerning any changes in the name by which the applicant has been known at any time during his or her life (clause 2(6)(b));

g) any other evidence required by the Gender Recognition Panel (clause 2(9)(a)); and

h) such further evidence as the applicant wishes (clause 2(9)(b)).

59. If the application is made on the basis that the applicant has been recognised under the law of a country or territory outside the United Kingdom as having changed gender, the applicant must arrange to provide:

a) if the applicant is not married, a statutory declaration to that effect (clause 2(5)(a));

b) if the applicant is married, either a copy of an entry in a register containing a record of the marriage or other evidence as to the date of the marriage and the genders of the parties to it (clause 2(5)(b));

c) evidence that the applicant is recognised under the law of an approved country or territory as having changed gender (clause 2(5));

d) the applicant's birth certificate (which would include, where applicable, a copy of any relevant entry in the Adopted Children Register or the proposed Transsexual Persons Register) (clause 2(6)(a), (7) and (8));

e) evidence concerning any changes in the name by which the applicant has been known at any time during his or her life (clause 2(6)(b));

f) any other evidence required by the Gender Recognition Panel (clause 2(9)(a)); and

g) such further evidence as the applicant wishes (clause 2(9)(b)).

60. Generally the required statements and evidence are limited to what is necessary to establish that an applicant meets the criteria for recognition under clause 1(4) of the Draft Bill and to protect the other party to any subsisting marriage. Nevertheless, the information is highly personal, and requiring it to be disclosed engages the right to respect for private and family life under ECHR Article 8.1. Such a requirement must be justified under Article 8.2 as being in accordance with the law and necessary in a democratic society (i.e. a response to a pressing social need, and proportionate to it) for one of the legitimate aims listed in Article 8.2.

61. The Draft Bill would constitute a sufficiently clear and accessible legal basis for the requirement to make it 'in accordance with the law'. The purposes served by disclosure are to protect the rights of other members of the applicant's family and to uphold morality. Once it is decided to put in place a scheme for recognising an acquired gender by law, it is necessary to have some criteria by which to decide whether a person's gender has changed, and to have evidence relating to the change and its social implications, not least as it affects other people. In relation to proportionality, there are safeguards for the security of personal information: as noted above, the principles of the law of breach of confidence would apply; so would the data protection principles of the Data Protection Act 1998; and clause 14 of the Draft Bill would make it a criminal offence for any member or staff of the Panel, or anyone concerned with the Register, or an employer or prospective employer, or anyone conducting business or supplying professional services, to disclose information relating to an applicant which concerns either the application or the applicant's gender before a full gender recognition certificate was issued. There are exceptions, and in one respect those included in the Draft Bill are rather too wide. (This matter is mentioned below, paragraph 67) But in principle we consider that the evidential requirements proposed in the Draft Bill are justifiable by reference to the criteria contained in ECHR Article 8.2.

62. It follows, in our view, that applicants are very unlikely to be subjected, through the need to provide evidence to the Panel, to a violation of their right to respect for private and family life under ECHR Article 8.

63. When we initially examined the Draft Bill we thought that the evidence required to support an application on the ground that the applicant was living in the acquired gender might, in one respect, interfere more than necessary with the right to respect for private life. The requirement to include in a medical report details of past, current or planned treatment to modify sexual characteristics seemed to us to go beyond what is necessary to show that the criteria for recognition have been met, since clause 1 of the Draft Bill does not require a person to undergo such treatment as a condition of obtaining a gender recognition certificate. Nor does the requirement appear to protect the interests of the other party to a subsisting marriage. Since the European Court of Human Rights treats medical information as particularly private and sensitive, requiring a high level of protection, we asked the Department why it thought that the disclosure of such details should be mandatory, and what was meant by 'treatment'.

64. The Department replied that treatment means more than diagnosis and advice. It might include counselling, and certainly includes medicinal or surgical treatment. A willingness to receive treatment is very important as evidence that the applicant is suffering from gender dysphoria and is determined to live his or her life in the acquired gender. There are good reasons for not including treatment among the list of conditions for the issue of a gender recognition certificate in clause 1(4). For example, a person might be unable for some reason to undergo medical or surgical therapy. However, in that event other evidence would have to be presented.

65. We see the force of this argument, and on balance we accept that it is appropriate to ask for details of treatment to modify sexual characteristics where such treatment has been or is being received or is planned.

66. As we pointed out above, we consider the safeguards against improper disclosure of information about applicants and their applications to be important in securing the confidence of applicants in the system and in ensuring that it complies with the state's duties under ECHR Article 8 to respect private and family life. The type of information in question is particularly sensitive and personal, as the Strasbourg Court accepted in B. v. France,[19] and therefore requires stringent protection against disclosure without the consent of the data subject. We agree with the Government[20] that it is appropriate to make it a criminal offence under clause 14 to disclose the information improperly, in order to give adequate protection to the right to respect for private life under ECHR Article 8.1. The consequences of disclosing that a person has applied or is applying for a gender recognition certificate, or of disclosing information about the applicant's marital history or medical condition, could be devastating for the applicant, his or her family, employers, fellow workers, friends, and others.

67. On our initial examination of the Draft Bill, we had reservations about one of the exceptions to the duty not to disclose protected information: it would not be an offence to disclose protected information if 'the disclosure is in the course of official duties'.[21] This is a very vague expression, perhaps capable of including unlawful official action, and certainly capable of including action which is not required (or even expressly authorized) by statute. We thought that it is not sufficiently certain to meet the requirement in Article 8.2 that an interference with the right must be 'in accordance with the law', and it is too wide in scope to ensure that a disclosure would have to be proportionate to a legitimate aim in order to avoid criminal liability. We were therefore pleased to learn from the Department of Constitutional Affairs that it had reached the same view, and that the exception would be omitted from the Bill to be presented to Parliament.

68. In other respects, we consider that the safeguards for the confidentiality of information are adequate to meet the requirements of ECHR Article 8.

The register of transsexual persons

69. Clause 6 of and Schedule 2 to the Draft Bill make provision for a Register, to be maintained in the General Register Office by the Registrar General, wherein would be kept records for each person who receives a full gender recognition certificate. For each successful applicant, the Register would contain an entry relating to the applicant's birth, and a copy of the certificate. In addition, the Registrar must arrange for the person's entry in the register of births to be marked in a prescribed manner, and arrange for the connection between the entries in the two registers to be traceable.

70. The maintenance of a separate register for gender recognition certificates is made necessary by the refusal to contemplate alterations to a person's entry in the register of births. We accept that there are good reasons for keeping a record of the historical fact that the transsexual person was originally registered at birth as being of a different sex from the gender in which he or she now lives. We also accept that connection between the entries in the two registers is important in order to allow essential tracking for the purpose of criminal investigations and the protection of the rights of a person's blood relations. However, this makes it very important for access to the knowledge that there is an entry in each register relating to a person to be tightly controlled, as the information that a person has changed his or her sex or gender is highly sensitive. The maintenance of a register of recognition of reassigned gender is essential to protect transsexual people against disclosure of their sex at birth to anyone entitled to examine the register of births, if it is accepted that it would be inappropriate to alter the birth register and issue an amended birth certificate.

71. A number of people gave evidence to us about a range of concerns in relation to the registers. At the most fundamental level, some people objected to being made to register at all. In one or two cases they thought that a requirement to register was demeaning in itself. However, it seems to us that registration is essential in order to allow people to prove that they are of the acquired gender as a matter of law: a copy of the entry in the register would be evidence of that fact (Schedule 9, paragraph 9). Several people thought that the title of the register, 'Transsexual Persons Register', was demeaning, calling to mind the Sex Offenders Register. We are sure that a different name could be found, such as the Gender Recognition Register. Although a few people thought that the existence of the register would allow some future government to trace all registered transsexual people to pursue a policy of eugenics, and compared the register with the policy of the Nazis in Germany during the 1930s and early 1940s in first requiring Jews to register so that they could then be rounded up and dispatched to concentration camps, we are not convinced that the risk is sufficiently significant to make it necessary to dispense with the system for registering the issue of a gender recognition certificate.

72. In order to protect the confidentiality of the history of people's sexual identity, it is essential to ensure the security of the registers and to make it impossible for anyone without a pressing need which satisfies the requirements of ECHR Article 8.2 to trace the connection between a transsexual person's old and new identities. The Draft Bill contains some provisions which would help to achieve this. The Transsexual Persons Register would not be open to public inspection or search (Schedule 2, paragraph 1(3)). Certified copies of entries in the Transsexual Persons Register would not be permitted to disclose the fact that the entry is contained in that register, and short certificates of birth could be compiled from the Transsexual Persons Register rather than the births register but would not be permitted to disclose that fact (ibid., paragraphs 4(2) and 5), and if complied from the birth register would not be allowed to include anything marked in order to show that there was a connected entry in the Transsexual Persons Register (ibid., paragraph 2(4)). Information kept by the Registrar General to make traceable the connection between the entry in the birth register and that in the Transsexual Persons Register would not be open to public inspection or search (ibid., paragraph 2(5)). The index of entries in the registers maintained by the Registrar General, which is open to public inspection, would not be allowed to disclose the fact that any entry was contained in the Transsexual Persons Register (ibid., paragraph 3(2)). Unauthorised disclosure of information would be a criminal offence (clause 14).

73. Despite these safeguards, some of our correspondents were concerned that it would still be too easy for a third party to discover that a person had acquired a new gender. We do not agree. In our view, the safeguards are as secure as those applying to the Adopted Children Register. When the whole set of safeguards is taken into consideration, we consider that the interest of transsexual people in confidentiality and their right to respect for private life under ECHR Article 8.2 would be properly safeguarded by the measures contained in the Draft Bill. We say this on the assumption, which we confidently make, that the methods of making the entry in the Transsexual Persons Register and marking the connected entry in the birth register to be prescribed by the Registrar General with the approval of the Chancellor of the Exchequer would ensure effective protection for confidentiality and privacy.

The criteria for granting a gender recognition certificate

74. A person would be able to apply for a gender recognition certificate on the basis of either (i) living in the other gender or (ii) being recognised under the law of another country as having changed gender.[22] The Gender Recognition Panel would have to grant a certificate under (i) if satisfied that the applicant:

a) has or has had gender dysphoria;

b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made (a requirement which is at present usually a precondition for surgical treatment in the NHS);

c) intends to continue to live in the acquired gender until death; and

d) complies with the evidential requirements imposed by or under clause 2 of the Draft Bill.[23]

The Panel would have to grant a certificate under (ii) if satisfied that the country is approved by order made by the Secretary of State, and that the applicant has provided the required evidence.[24] Otherwise the Panel must reject the application.[25]

75. For reasons explained above, in paragraphs 27-29, we consider that the Government's flexible approach to the criteria, and particularly their decision not to limit recognition to post-operative transsexual people, is a proper one.

76. The criteria for granting a certificate under (i) seem to us to meet human rights requirements. They would allow the United Kingdom to comply with its international obligations as disclosed in the recent decisions of the European Court of Human Rights and the House of Lords in relation to the right to respect for private life under ECHR Article 8.1 and the right to marry under Article 12. So far as the criteria restrict recognition of the acquired gender, the restriction must be justifiable under Article 8.2 and Article 12.

77. To be justifiable under Article 8.2, restrictions must be in accordance with the law, and pursue a legitimate aim identified in that paragraph, and be necessary in a democratic society for that purpose. In our view, the criteria for recognition in clause 1 would satisfy the 'in accordance with the law' requirement. It would lay down in municipal law a set of rules which would be sufficiently clear and accessible to allow people to understand their legal positions. They pursue a legitimate aim, namely the protection of the rights and freedoms of others, particularly those who have dealings or enter into relationships with the applicant. They are likely to be regarded as necessary in a democratic society, within the meaning of Article 8.2: there is a pressing social need for legislation, not least because of the need to respond to the judgments of the Strasbourg Court and the House of Lords, and the criteria seem to us to represent a fair and proportionate balance between the competing interests of those involved. Some people might say that the choice of a gender should be unconstrained and reversible, but that seems to us to give insufficient weight to the interests of others in knowing the legal status of those with whom they have to deal.

78. The criteria also seem to us to be compatible with Article 12, which recognises the right of men and women of marriageable age to marry and to found a family according to national laws governing the exercise of this right. The state's discretion in setting those laws is limited. In particular, the laws must not effectively deprive anyone of the very essence of the right to marry, as the recent decisions of the Strasbourg Court and the House of Lords demonstrate. The proposed criteria are a great improvement on the previous blanket refusal to recognised a person's reassigned gender. They are sensitive to the social as well as the sexual and medical aspects of gender and gender dysphoria. They impose conditions which must be met, but these serve legitimate state aims (including administrative and fiscal efficiency and the protection of the rights and freedoms of others) and they do not seem to us to impose an unreasonable or disproportionate burden on people in pursuing those aims.

79. The criterion under (ii), recognition of change of gender in an approved foreign country or territory, appears to us to make sense in policy terms. It would be awkward and unfair to treat a person as being of a different gender in this country from that which he or she has under the law of another country, as long as that other country applies criteria for recognising a change of gender which seem acceptable. Nevertheless, there is no explanation in the Draft Bill or the annexed Commentary on Clauses of the criteria which the Secretary of State will apply when deciding whether to prescribe a country or territory as an approved country or territory by an order made under clause 1(6). Orders would be subject to the negative resolution procedure only.[26] We therefore asked the Department of Constitutional Affairs what criteria are likely to be applied when deciding whether to prescribe a country or territory as an approved one.

80. The Department's reply satisfies us that the power to prescribe approved countries and territories would be used to ensure that a person's foreign recognition of change of gender would be accepted here only if the criteria for recognition in the foreign country or territory are at least as demanding as those under the Draft Bill. If they are not, the person would still be able to apply on ground (i), but would have to provide much fuller supporting evidence and documentation than would be necessary if the application under (ii) were acceptable (see paragraph 59 above).

Parties to marriages who acquire a new gender after marriage

81. The Draft Bill also has important implications for the parties to marriages who were respectively male and female at the time of the wedding but one of whom subsequently seeks to change his or her sex or gender as a result of gender dysphoria.

82. A person who is validly married in his or her birth gender would be unable to obtain a final gender recognition certificate unless the marriage is first annulled or dissolved. During the continuance of the marriage, the person would be able to apply to a Gender Recognition Panel, but even if he or she satisfied the Panel that the criteria for recognition of the acquired gender in clause 1(4) have been met, the Panel would be allowed to grant only an interim gender recognition certificate. This would state that the application for recognition has been granted (because the criteria for recognition have been met) but that, because of the applicant's marriage, a full gender recognition certificate has not been granted.[27]

83. An interim certificate would not have any effect on the applicant's legal status or on the validity of the marriage, but would entitle him or her to apply for a full gender recognition certificate within six months of the marriage being annulled or dissolved or the other party to the marriage dying (unless the applicant has remarried). If satisfied, the Panel would then have to grant a full certificate.[28]

84. To make it easier to end the marriage, the Draft Bill would amend the Matrimonial Causes Act 1973 to provide that a marriage is voidable if either party to it has after the time of the marriage been granted an interim gender recognition certificate, in which case the usual bars to relief by way of a decree of nullity on the ground that the marriage was voidable[29] would not apply.[30]

85. When we initially examined the Draft Bill we were deeply concerned about the way that people in stable marriages, perhaps with dependent children and strong family ties, would be pushed into ending the marriage if one of the parties suffers from gender dysphoria and wants legal recognition of his or her acquired gender. A number of the people who sent us written evidence provided eloquent testimony to the heartache and hardship which this might cause. As well as the emotional costs, the ending of a marriage could affect people financially, by depriving a surviving partner of widow's benefits or of the benefit of a pension, or of a right to damages under the Fatal Accidents Acts. It was also pointed out that the approach gives relatively little weight to the value of maintaining family life and the sacredness of marriage vows.

86. The Department for Constitutional Affairs accepts that other approaches to subsisting marriages may be justifiable, and that the approach taken has an impact on the right to respect for private and family life of individual applicants and their families. But it takes the view that it is justifiable under Article 8.2 and Article 12 to require transsexual people 'to accept the ending of a male-female marriage as a condition for registration in the new gender'.[31] This is mainly because the Government does not wish to sanction the idea that there can be a valid marriage between two people of the same sex or gender. It may be reasonable to expect people contemplating gender reassignment to accept that a willingness to accept that a marriage between two people of the same sex is not legally acceptable. The Government points to its plans to introduce a Bill to Parliament to institute a system of civil partnerships for same-sex couples, with legal consequences broadly similar to those entailed by marriage. It says that the parties to a marriage annulled in order to allow one of them to obtain a full gender recognition certificate would be able to enter into a civil partnership within a matter of days. It is estimated that only a small number of marriages—perhaps between two and three dozen in all—would be affected.

87. The requirement for a marriage to be ended before a party to it can obtain a full gender recognition certificate undoubtedly engages ECHR Article 8, as the Government accepts (and it might also discriminate on the ground of marital status contrary to ECHR Article 14 taken together with Article 8). It would be in accordance with the law for the purpose of a justification under Article 8.2, and could be said to pursue a legitimate aim, the protection of morality (in the sense of wanting to preserve the special significance of marriage as a union between a man and a woman) and the rights and freedoms of others. We accept that the state is entitled to give special status to marriage as a union of people of different genders. However, we remain to be satisfied that it would be proportionate to a pressing social need so as to be 'necessary in a democratic society'. We are troubled by the submissions which draw attention to the distress caused to parties to a marriage and their children, who still form part of a close and loving family group, by the idea that the marriage would have to be annulled or dissolved before the applicant's change of gender could be legally recognised.

88. After the end of the marriage, the family unit could continue to operate as before if its members wanted that to happen. But even if the parties immediately enter into a civil partnership, there might be financial consequences. For example, if one of the parties has retired and is receiving an occupational pension and subsequently dies, the survivor might not be entitled to continue to receive a pension if the civil partnership was entered into after the deceased person's retirement. Even the availability of a civil partnership with legal effects is not certain. Although there have been suggestions that a Civil Partnership Bill might be introduced to Parliament in the 2003-04 session, there is no guarantee that it would be passed, and the Government was understandably unable to offer us any assurance that it would come into force at the same time as the legislation on gender recognition.

89. We therefore recommend that the Government should reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate (clause 3(3) and (5)).

90. If the Government decides as a matter of principle that the requirement should remain part of the legislation, we recommend that transitional provision should be made to ensure that the requirement will not apply to applications made to Gender Recognition Panels until such time as the relevant provisions of the proposed civil partnership legislation are in force to allow the parties to the marriage to enter into such a partnership with legal consequences.

91. We recommend that the gender recognition legislation should relieve the parties to the marriage of any adverse financial and fiscal consequences of the ending of the marriage by reason of the provisions of the legislation, as long as the parties enter into a civil partnership within a reasonable time if and when the civil partnership legislation is in force.

Anti-discrimination law

92. Two issues call for consideration in relation to the effect of the Draft Bill on a transsexual person's rights under the Sex Discrimination Act 1975 and related legislation. First, would a male-to-female transsexual person be protected against discrimination on the ground that she is a woman (and vice versa)? Secondly, would a transsexual person be protected against discrimination on the ground that he or she has acquired a new gender?

Sex discrimination on the ground of the person's acquired gender

93. Because a person whose acquired gender is recognized under the Draft Bill would be regarded for all purposes as being of that gender, the Government considers that he or she would be treated as a victim of unlawful sex discrimination for all the purposes of the Sex Discrimination Act 1975 if he or she suffers discrimination on the ground that he or she is a person of his or her acquired gender.

94. We hope that the Government is correct, but we are not completely confident. As we pointed out above, in paragraphs 31 to 34, the Draft Bill uses the language of gender rather than sex, while the Sex Discrimination Act 1975 generally makes it unlawful to discriminate on the ground of sex, not gender. To make absolutely sure that the legislation would achieve its intended effect, we recommend that it should expressly state that 'sex' in the 1975 Act is to be interpreted as including the acquired gender of a person who has obtained a full gender recognition certificate.

95. We welcome clause 9 of the Draft Bill, which would amend the 1975 Act so that it would no longer be possible to justify discriminating against a person in employment, vocation or partnership appointments by reason of his or her acquired gender on the ground that being of one sex rather than the other is a 'genuine occupational qualification' once his or her acquired gender has been recognised.

16 Attorney General v. Otahuhu Family Court [1995] 1 NZLR 603 Back

17 See Sexual Reassignment Act 1988 (South Australia), authorizing the issue of a sexual reassignment certificate after which the person's reassigned sex is recognized by law Back

18 In re Kevin (Validity of Marriage of Transsexual) [2001] Fam CA 1074, affirmed on narrower grounds by the Federal Family Court, Appeal No. EA/97/2001, judgment of 21 February 2003 Back

19 Eur. Ct. HR, judgment of 25 March 1992, Series A, No. 232-C Back

20 Commentary on Clauses, para. 51 Back

21 Cl. 14(4)(d) Back