Joint Committee On Human Rights Written Evidence



1a.Letter from the Clerk to Gender Recognition Division, Department for Constitutional Affairs


  As you are aware, the Joint Committee on Human Rights is currently conducting pre-legislative scrutiny of the Draft Gender Recognition Bill. As the entire Draft Bill is designed to correct incompatibilities between UK law and Convention rights under the European Convention on Human Rights (ECHR) and the Human Rights Act 1998, the Committee, in addition to considering the compatibility of the Draft Bill with human rights (including, but not restricted to, Convention rights under the Human Rights Act 1998), is examining a range of policy and drafting issues.

  The Committee gave provisional consideration to the Draft Bill, and the submissions it has received in connection with it, at its meeting of 20 October. Generally, the Committee provisionally takes the view that the Draft Bill is likely to achieve its objective in removing for the future the incompatibilities established by the European Court of Human Rights in Goodwin v United Kingdom and I. v United Kingdom and by the House of Lords in Bellinger v Bellinger. However, the Committee has instructed me to seek the Department's response to a number of issues which have arisen from the consultation exercise and its initial deliberations. In particular, the Committee is concerned about the following matters:

    —  In clause 1 of the Draft Bill, the criteria which are likely to be applied when deciding which countries and territories should be "approved territories" whose decisions on recognition of change of gender would be automatically recognised in this country.

    —  In clause 2, the proportionality of requiring an applicant for a gender recognition certificate to provide evidence of past, present or planned medical or surgical treatment as a condition for obtaining a certificate, despite the fact that undergoing such treatment is not a condition of recognition of a change of gender.

    —  Although in clause 5 it is made clear that the legal effects of a change of status operate only prospectively, whether there might be a case for validating retrospectively at least some marriages contracted previously between a man and a male-to-female transsexual person, or vice versa.

    —  In relation to clauses 3(3)-(9) and 7 of, and Schedule 3 to, the Draft Bill, the need for the applicant's subsisting marriage to be annulled or dissolved before his or her change of gender can be recognised with full legal effect.

    —  In clause 14(4)(d), the great breadth of the exception from criminal liability for disclosing protected information where the disclosure is made "in the course of official duties", and the criteria likely to be applied by the Secretary of State when deciding whether to create new exceptions by Order.

    —  In relation to the impact on anti-discrimination law, the possible lawfulness of discriminating against a person on the ground that he or she is a transsexual person.

  These issues are set out in more detail below.


  Clause 1(1)(b) would allow a person to apply for a gender recognition certificate on the ground that he or she is "recognised under the law of a country or territory outside the United Kingdom as having changed gender". This appears to be a straightforward way of ensuring so far as possible that people are not treated by law as having different genders under the law of different countries, and could therefore help to protect the effective enjoyment of rights under ECHR Articles 8 and 12. If the country or territory in question is an "approved country or territory" prescribed by order made by the Secretary of State, and the applicant follows the appropriate procedure, recognition in the United Kingdom would follow automatically: clause 1(5). There is no explanation in the Draft Bill, the Commentary on Clauses, or the background memorandum prepared for the Committee by the Bill Team, 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).

Question 1: What criteria does the Government consider appropriate for deciding which countries and territories should be "approved countries and territories" for the purpose of clause 1(5)?


  The procedures laid down in the Draft Bill for applying to a Panel for a certificate and to provide prescribed evidence, and the proposed registration regime, must themselves be compatible with human rights. Clauses 2(3) and 19(3) provide that, where an applicant has undergone or is undergoing treatment to modify sexual characteristics, or such treatment has been prescribed or planned, one of the medical reports would have to include details of it. It is not self-evident why this should be a mandatory requirement, in view of the fact that the criteria in clause 1 for recognising a change of gender do not include a requirement that the applicant should have undergone, be undergoing, or be planning to undergo medical or surgical treatment. A requirement to disclose such details engages the right to respect for private life under ECHR Article 8(1). The European Court of Human Rights treats medical information as particularly private and sensitive, requiring a high level of protection. It might be said that the information is needed in order to help the Panel to decide whether it is satisfied that the applicant intends to continue to live in the acquired gender until death (clause 1(4)(c)). However, the applicant might be able to produce other satisfactory evidence of that, in which case it might be considered both unnecessary and disproportionate to compel (rather than merely to allow) an applicant to provide such evidence, threatening a violation of ECHR Article 8.

Question 2: Why is it considered necessary to include in the Bill a requirement to disclose to the Gender Recognition Panel details of medical and surgical treatment to modify sexual characteristics?


  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 recognise 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).

  The Committee considers that these provisions give rise to both general concerns and a specific concern relating to particular people.

  The general concern relates to people who in the past went through a ceremony of marriage which was invalid because one party was a transsexual person and not at that time legally capable of marrying a person of the other gender to the one they had acquired. They all have potential claims before the European Court of Human Rights (although not the English courts) under ECHR Article 13 (right to an effective remedy) until such time as the legislation comes into force. The Committee is considering what can be done to provide a remedy for the earlier and continuing violation of their Convention rights, and in particular whether it would be desirable for the law to validate those marriages retrospectively, either on the date when the legislation comes into force or on the later date when the transsexual person obtains a gender recognition certificate.

  The specific concern relates to those people who successfully litigated before the European Court of Human Rights or the English courts and obtained judgments holding that they had suffered violations of ECHR Articles 8 and 12, or who have brought similar proceedings which are pending. In many systems of law (for example, EC law and US constitutional law) a decision by courts that a person's rights have been infringed may take effect only prospectively, but the court can provide that the successful litigants and anyone in a similar position whose case is pending at the time are to receive the benefit of the change in the law retrospectively. This is thought to be desirable both to provide the litigants with a remedy for the violation of their rights and to ensure that there is some incentive for people to challenge violations of rights in the public interest. In the light of these considerations, the Committee is considering whether it would be appropriate to include in the legislation provision for retrospectively recognising the change of gender of those litigants, and retrospectively validating marriages which have been entered into (for example by Mr and Mrs Bellinger).

Question 3: Would the Government be prepared, either generally or in the case of successful litigants before the European Court of Human Rights and courts in the United Kingdom and other litigants whose cases are pending, to include provisions retrospectively validating marriages in such circumstances?


  The Draft Bill would not invalidate a marriage if one of the parties subsequently acquires a new gender. However, a person who is validly married in his or her birth gender would not be able to obtain a final gender recognition certificate unless the marriage was annulled or dissolved.

  In paragraph 50 of the Notes on Clauses the Department 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".

  However, the Committee has received evidence of the detriment and suffering which this would cause to members of many families, and is concerned that the limitation may not be either proportionate to a pressing social need so as to be "necessary in a democratic society" or socially desirable. Where both parties to the marriage want it to continue, but also want recognition of one party's changed gender, annulling or dissolving the marriage could have a significant emotional impact on the members of the family. It would also impose legal detriments, perhaps particularly in relation to the recoverability of damages under the Fatal Accidents Acts, the right of a survivor to obtain the benefit of pensions, the right to certain social security payments, and exemptions from inheritance tax for transfers of property.

Question 4: Does the Government consider that there is a pressing social need to require the annulment or dissolution of a marriage as a condition for the grant of a final gender recognition certificate, and that this would be proportionate to a legitimate aim, bearing in mind the detriment to members of the applicant's family? What wider policy considerations underlie its decision to approach this issue in the way that it has? Has the Government considered ways of alleviating the impact of a forced annulment or dissolution on the legal rights of the parties, and would the Government be willing to include such measures in the legislation?


  There would be a duty, to be backed by criminal law under clause 14, not to disclose "protected information" concerning an application for a gender recognition certificate or the applicants gender before the issue of a full gender recognition certificate. Information of this type is highly sensitive and personal. Therefore, as the Strasbourg Court accepted in B. v France, Eur. Ct. HR, judgment of 25 March 1992, Series A, No. 232-C, ECHR Article 8 requires stringent protection against disclosure without the consent of the data subject. The Government (Commentary on Clauses, paragraph 51) propose to make it a criminal offence to disclose the information improperly, in order to give adequate protection to the right to respect for private life under ECHR Article 8(1). However, it is not to be an offence to disclose protected information if, among other circumstances, "the disclosure is in the course of official duties".

  The "course of official duties" is a vague expression, perhaps capable of including unlawful official action, and certainly capable of including action which is not required (or even expressly authorised) by statute. It might not be 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 might also be too broad in scope to ensure that a disclosure would have to be proportionate to a legitimate aim in order to avoid criminal liability.

Question 5: Would the Government be willing to define the exception in clause 14 relating to disclosure of information in the course of official duties more closely in order to give appropriate protection to the right to respect for private life of an applicant for a certificate, in accordance with ECHR Article 8?

  The Secretary of State would have power under clause 14(4)(d) and (5) to prescribe by order "circumstances in which the disclosure of protected information is not to constitute an offence under this section". Clause 15 would allow such orders to come into force when made, before being laid before each House, subject only to subsequent annulment by negative resolution. The power to create additional exceptions by order gives rise to concern about both the effect such orders might have on the proportionality of the scheme as a whole, and the level of parliamentary control over the orders.

Question 6: Why does the Government consider that a power to make exceptions to the provisions of clause 14 is necessary? If it is believed to be necessary, to what extent has the Government considered whether it could be targeted more closely on the mischief at which it is aimed? What considerations led to the conclusions that negative resolution procedure is the appropriate form of parliamentary control over this power?


  Because a person whose acquired gender is recognised under the Draft Bill would be regarded for all purposes as being of that gender, 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 account of his or her acquired gender. However, it has been suggested in evidence to the Committee that when a person has a final gender recognition certificate it would still be lawful to discriminate against him or her on the ground that he or she is a transsexual, rather than because he or she is of one or the other sex or gender.

Question 7: Does the Government agree that discrimination against persons on the grounds that they were transsexual persons (of whatever acquired gender) would be lawful under the Draft Bill? If so, has the Government considered including in the legislation a further amendment to the Sex Discrimination Act 1975 making it unlawful to discriminate against a person on the ground that he or she is a transsexual?


  The Explanatory Notes to the Draft Bill give some estimates of the effects of its provisions on public expenditure. However, these figures are not clearly supported by any assessment of the number of individuals likely to seek to take advantage of its provisions.

Question 8: Have any estimates been made of the number of:

    (a)  transsexual persons likely to qualify for the "fast track" procedures provided for in clause 19: and


    the average annual number of transsexual persons likely to seek recognition under the Bill's provisions?

  Clause 11 make provision in relation to peerages, etc. As the Explanatory Notes state, this is a further exception to the general proposition in clause 5 that a change of gender will not have retrospective effect.

Question 9: What consideration of policy led the Government to conclude that the retrospective exceptions provided by clause 11 were desirable in the public interest?

  The Committee would be grateful for a reply by 31 October if possible.

21 October 2003

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