1b.Response to the Clerk's Letter from
the Department for Constitutional Affairs
Thank you for your letter of 21 October, and
for advising me that the Committee provisionally takes the view
that the Draft Bill is likely to achieve its objective in removing
for the future the incompatibilties with Convention rights established
by the European Court of Human Rights.
I welcome the opportunity to set out in more
detail the position on the issues that you have raised and I shall
deal with your questions in order.
1. CRITERIA TO
BE APPLIED
WHEN SELECTING
"APPROVED COUNTRIES
AND TERRITORIES"
You raised a question, in relation to clause
1(1)(b), which 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". As you suggest, the intention is
that this should provide a straightforward mechanism to protect
the effective enjoyment of rights under ECHR Articles 8 and 12
for those overseas citizens that live and work in the UK.
The criteria the Government will use to decide
which countries and territories should be "approved countries
and territories" for the purpose of clause 1(5) are straightforward:
we will "approve" those countries and territories that
have criteria equivalent to our own for granting legal recognition
to transsexual people. It is important that only those people
who have received recognition from a system as robust as our own
receive recognition in the UK.
In drafting terms, it would have been possible
to re-iterate the criteria themselves, rather than provide a list
of "approved countries and territories". However, it
was felt preferable to list such countries and territories, for
reasons of certainty (to avoid different agencies applying the
criteria differently) and clarity for all those reading and using
the legislation.
2. REQUIREMENT
FOR APPLICANTS
TO PROVIDE
EVIDENCE OF
THEIR MEDICAL
OR SURGICAL
TREATMENT
The nature of gender dysphoria is such that
a person is driven to live in the other gender and to assume the
sexual characteristics of the other gender. We therefore feel
that evidence of what treatment has been undergone is indicative
of whether a person has or has had gender dysphoria and that it
is crucial to establishing whether a person intends to live permanently
in the acquired gender. We accept that there may be other items
of evidence that contribute to establishing that intention and
our decision not to require particular treatments (for example,
surgery) reflects that view. However, as having some medical treatment
is so integral to having gender dysphoria, both in the eyes of
the transsexual person and the medical profession, we felt it
necessary to ask for evidence of treatment.
Indeed, we have even come under pressure from
some transsexual people and medics to include a requirement for
surgery. Many see surgery as being integral to the process of
reassignment and are not convinced that a person truly has gender
dysphoria unless they have surgery. We do not want to take that
line; we also see obvious exceptions to it, for example, that
someone does not have surgery for health reasons or on religious
grounds, or because the surgery for female-to-male transsexual
people is not especially well-developed. We do, however, feel
that evidence of treatment, per se, is both proportionate
and useful.
We have also taken considerable steps to lessen
the evidence burden. Hence, the evidence of treatment can come
from a general practitioner, it need not come from a professional
working in the field of gender dysphoria. We have discussed the
evidence requirements in some detail with trans groups and the
medical profession who have indicated, that the evidence requirements
are not particularly onerous. Indeed, the evidence requirements
are less strict that those of any other European country.
3. RETROSPECTIVE
VALIDATION OF
MARRIAGES
In the case of Bellinger v Bellinger,
the Lords of Appeal were sympathetic to Mrs Bellinger and were
"profoundly conscious of the humanitarian considerations
underlying her claim". However, their Lordships' judgment
supported the Government's enduring position that the English
law does not recognise same sex marriage. To validate retrospectively
existing marriages contracted between two people who were, at
the time, legally of the same gender, would, however narrowly,
give legal recognition to same sex marriage.
In Goodwin v UK, the Strasbourg
Court in Goodwin v UK, recognising that its interpretation
of the application of Convention rights to transsexuals had evolved
significantly over the years,. made it clear that its judgment
was prospective in force. Similarly, in Bellinger v Bellinger
it was the "continuing obstacle" to the Bellingers'
right to marry posed by section 11(c) of the Matrimonial Causes
Act 1973 which the House of Lords found to be incompatible with
Mrs Bellinger's convention rights—not failure to accord
recognition to the original "marriage".
The aim of the Bill is to give transsexual people
the right to live legally in their acquired gender, and this of
course includes the right to marry in that gender. A Gender Recognition
Certificate—which will confer legal recognition—will
be issued by the Panel according to the evidence put before it
about how the applicant lives now. Certificates will be
prospective from the day of issue; the Bill makes no provision
for retrospective recognition of the acquired gender.
The Government has made clear its commitment
to enabling those transsexual people who wish to be recognised
legally in their acquired gender to have that opportunity. However,
it will not make special allowances about the previous rights
and responsibilities of transsexual people, which do not apply
to other groups in society.
4. COMPULSORY
ANNULMENT OR
DISSOLUTION OF
VALID MARRIAGES
BEFORE ONE
PARTY CAN
OBTAIN A
FULL GENDER
RECOGNITION CERTIFICATE
The consequence of the grant of a gender recognition
certificate will be that the applicant is, from that time, recognised
in law as being of the opposite gender to his or her birth gender.
If the applicant was married, this would mean that the marriage
would become a marriage between two people of the same gender.
English law does not recognise same-sex marriage, and the Government
has made it clear that it does not propose to change this. The
right to marry under Article 12 of the Convention only applies
to "men and women of marriageable age", and the Strasbourg
Courts have, accordingly, not recognised same-sex marriage. The
fact that recognition of a transsexual person might require a
previous marriage to come to an end was recognised by the Strasbourg
Court in Goodwin v UK when it noted "it is
for the Contracting State to determine inter alia the conditions
. . . under which past marriages cease to be valid".
We recognise that requiring the annulment or
dissolution of a marriage as a condition for the granting of a
final gender recognition certificate is an interference with the
private life of applicants under Article 8(1). However, we consider
that this is justifiable under Article 8(2). We consider that
it is legitimate to preserve the status of marriage as a union
of an opposite-sex couple, and that this meets a pressing social
need. This requires us to insist that those seeking recognition
in the acquired gender accept all the necessary consequences of
doing so.
We are concerned to limit, as far as possible,
the disruption to the couple's relationship that this rule will
require. You will be aware of the Government's proposals for a
civil partnership registration scheme which would give legal recognition
to same-sex couple relationships. The consultation period has
recently ended and the Government will soon be publishing a summary
of the responses received. As part of the civil partnership proposals,
it is our objective to enable transsexual people whose marriage
is ended only because of the issue of an interim gender recognition
certificate to establish if they wish a civil partnership within
days of the formal ending of the marriage.
5. DISCLOSURE
OF PROTECTED
INFORMATION
You have raised the exemption in clause 14(4)(d)
relating to disclosure of information "in the course of official
duties". We too have become concerned by the potential scope
of this formation, and we share your fear that it might have left
the door open for unwarranted disclosure. Consequently, we have
instructed for 14(4)(d) to be removed and it will not appear in
the Bill as presented for Introduction.
6. DISCLOSURE
OF PROTECTED
INFORMATION
The Government considers that a power to make
exceptions to the disclosure of protected information provisions
in clause 14 is necessary. We have sought to give as much protection
to "protected information" as possible by providing
that the definition of acquiring such information in an official
capacity is as wide as possible, and that the exceptions are limited.
As noted above, we intend to reduce the scope of the exceptions
permitted in the Bill. However, this increases the risk that a
justified disclosure might become a criminal offence.
It is difficult to target the power more closely
at the mischief at which it is aimed. Those exemptions to the
disclosure provisions that can, at this time, be foreseen, have
already been delineated in clause 14(4). We do not consider that
it is possible to set out all the circumstances in which such
disclosure would be considered justified in the Bill. New schemes
and arrangements for gathering and sharing information will continue
to develop in any society. It is only reasonable that there be
some provision to deal with future contingencies without having
to resort to amending primary legislation.
The negative resolution procedure was felt to
be an appropriate level of parliamentary control over such an
order. The 1973 Joint Committee on Delegated Legislation recommended
that affirmative resolution procedure was only appropriate for:
(iii)
Other powers of special importance, for example,
those creating serious criminal offences.
It is not felt that this order-making power
fell under any of these categories (as set out in paragraph 78
of the Second Report of the Joint Committee on Delegated Powers
"the Brooke Report"), and therefore the negative resolution
procedure is thought to provide an appropriate level of parliamentary
scrutiny.
7. DISCRIMINATION
AGAINST TRANSSEXUAL
PEOPLE
It is incorrect to suggest that the draft Bill
would make it lawful to discriminate against persons on the grounds
that they were transsexual persons (of whatever acquired gender).
Discrimination on the grounds that a person intends to undergo,
is undergoing or has undergone gender reassignment is and will
remain unlawful, in relation to employment and vocational training,
under the Sex Discrimination Act 1975 (as amended by the Sex Discrimination
(Gender Reassignment) Regulations 1999).
On the contrary, the further amendments to the
Sex Discrimination Act which are proposed in the draft Bill would
strengthen this protection by ensuring that, once a person has
been recognised in the acquired gender, the exceptions in the
Sex Discrimination Act (where discrimination may currently be
lawful as a result of a genuine occupational qualification) cease
to be available. Discrimination against them on grounds of their
transsexual status in the situations covered by the legislation
will then be unlawful in all circumstances without exception.
The Bill does not give transsexual people protection
against discrimination in the provision of goods or services on
the grounds of their gender reassignment. As the Committee recognises,
however, they will benefit from all the legal rights, including
protection from discrimination, given to anyone of their acquired
gender. This appeared to the Government to be the pressing need
in this area.
Once a robust and credible gender recognition
system is in place and the effects of legal recognition in the
acquired gender become more apparent, the question of whether
transsexual people need further legal protection can be properly
explored. The Government is committed to securing social inclusion
and basic rights for all and the draft Bill is an important reflection
of this commitment.
8. GENERAL AND
MISCELLANEOUS: PREDICTED
NUMBERS OF
APPLICANTS FOR
LEGAL RECOGNITION
There are no firm figures on the number of transsexual
people in the UK. The Inland Revenue and Department for Work and
Pensions have around 4,000 cases marked as "nationally sensitive"
because the individual has stated that he or she is transsexual.
Groups representing the community estimate that there are 5,000
transsexual people in the United Kingdom. Transsexual people can
change their name and gender on passports and driving licences.
Figures from the Passport Agency and DVLA also suggest that the
population is close to 5,000.
The Government assumes that the vast majority
of those 5,000 transsexual people will qualify for the "fast-track"
procedure under clause 19. We therefore anticipate 5,000 applications
in the first year, although the number of these that will come
in the first six months is unknown (though likely to be high).
After this initial rush of applications, the Panel is likely to
receive between 200 and 300 applications each year.
9. GENERAL AND
MISCELLANEOUS: CLAUSE
11
Clause 11 is indeed a further exception to the
proposition in clause 5, but this does not relate to retrospectivity.
Rather, clause 11 embodies an exception to the prospective
effect that the legislation generally has. It makes provision
for a person recognised in an acquired gender to be considered,
for the purposes of peerages and lineal property only, in his
or her birth gender.
In terms of the policy behind clause 11, by
stating that where a peerage is concerned a transsexual person
is considered in his or her birth gender we avoid anomalies of
succession. Without clause 11, it is conceivable that, for example,
a female-to-male transsexual could bypass the first-born son and
inherit a title of honour. Unless otherwise specified, clause
11 removes the incentive to switch genders for this purpose. In
2002 the Government agreed that it would be inappropriate to allow
the adopted children of peers to inherit a peerage or associated
property from their adoptive parents. Clause 11 may be seen as
an extension of that policy.
I note that you think it likely that that the
Committee will want to hear oral evidence from Lord Filkin. I
would be grateful if you could confirm, as early as possible,
when that is likely to be so that we can get the date in his diary.
It is clear that the Committee will not now report by the end
of October but we are keen to do all we can to enable it to do
so as soon as possible.
Belinda Crowe
Head of Gender Recognition Division
28 October 2003
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