Summary of Recommendations
Recognition of 'acquired gender'
1. 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. (Paragraph 29)
2. 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. (Paragraph 34)
The effect of a recognised change of gender
3. On
balance, we are not convinced that the difficulties which influence
the Government's approach to recognition of previously invalid
marriages 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 2 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. (Paragraph
42)
4. We consider that
such considerations apply 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. (Paragraph
43)
5. 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. (Paragraph 48)
The demands of certainty and procedures for recognising
an acquired gender
6. 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. (Paragraph 65)
7. 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. (Paragraph 73)
Parties to marriages who acquire a new gender
after marriage
8. We
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. (Paragraph 89)
9. 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. (Paragraph 90)
10. 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. (Paragraph 91)
Anti-discrimination law
11. To
make absolutely sure that the legislation would achieve its intended
effect, we recommend that it should expressly state that 'sex'
in the Sex Discrimination Act 1975 is to be interpreted as including
the acquired gender of a person who has obtained a full gender
recognition certificate. (Paragraph 94)
12. We recommend that
the legislation should include provisions amending the sex discrimination
legislation to make it unlawful to discriminate against people
in the fields of education, housing and the provision of goods,
facilities and services on the ground that they have undergone,
are undergoing or plan to undergo sex reassignment. The government
should consider whether it would be appropriate to limit protection
to people who have obtained a full gender recognition certificate,
bearing in mind that there is no such limitation in the provisions
of section 2A of the Sex Discrimination Act 1975 which applies
to employment and vocational training. (Paragraph 103)
