Joint Committee On Human Rights Written Evidence

1c.Supplementary Memorandum from the Department for Constitutional Affairs


Question: As the Government's view is that medical treatment is very important when assessing a person's claim to have an acquired gender recognised, should that not be included expressly in clause 2(1) as a condition for recognition? It seems odd to make it a condition in clause 2(1) that people must comply with the procedural requirements set out in clause 3, and to make it a requirement in clause 3 that people should provide evidence of any past, present or planned treatment (but, by implication, to provide that people need not provide such evidence if there has been and is none), if in reality having some treatment is going to be treated as a necessary condition for obtaining a certificate.

  The Committee also seeks clarification of what is meant by "treatment". Would it include consultations with doctors for diagnostic purposes? The Committee was mindful of the extremely wide meaning given to "treatment" in, for example, the draft Mental Health Bill and decisions of the House of Lords in cases such as Airedale NHS Trust v Bland.

Response: 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 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.

  In response to the second point, when the Bill refers to treatment, it refers specifically to treatment for the purposes of modifying sexual characteristics. In our view, consultations for diagnostic purposes would not constitute treatment in this sense. Even in view of the wide definitions of "treatment" in the draft Mental Health Bill or Airedale NHS Trust v Bland, we would expect that "treatment" may include a course of counselling offered as a prelude to or in conjunction with hormonal or surgical treatment, but not consultations for diagnostic purposes.


Question: Your response to the initial questions from the Committee says that "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". The Committee does not consider that this logically follows. If the recognition of a change of gender is backdated, in the case of successful litigants and those whose cases were pending at the time of the Goodwin and I decisions, to the time when they can show (through medical evidence etc) that they met the criteria for recognition under the draft Bill, and that time is before the date on which they went through a ceremony of marriage, it would fall to be regarded as a marriage between people of different genders, not a same sex marriage.

  As a result, the Committee wishes to know what steps the Government plans to take to ensure that the people who litigated successfully in Strasbourg and the UK, and others whose cases were pending at the time, receive the benefit of their public spirited litigation. The Committee draws attention to the practice of the Supreme Court of the USA and of the European Court of Justice in allowing successful litigants the benefit of changes in the law which take effect only prospectively by virtue of decisions of those courts. The objects are to ensure (a) that they receive an effective remedy for the unlawfulness which they have helped to uncover (on which note the effect of ECHR Article 13), and (b) that there remains an incentive for others to litigate such cases in the public interest.

Response: On the first point—back-dating a change of gender—the Government feels that there will be practical difficulties in assessing today whether someone met particular criteria at a point some years in the past. Ultimately, the provision that the Committee has suggested would not only be retrospective but retroactive, and it will be so in really quite significant ways. For example, what would happen if the individual that we have deemed to have changed gender in 1997 became of pensionable age in the birth gender in 2001 but would not have reached the pensionable age until 2006 in the acquired gender? Should this person's pension be stopped? Should they have to re-pay the pension that has been paid to them already? If not, then the individual is regarded as being in law of one gender for the purpose of marriage and of a different gender for all other purposes.

  The Department feels that many difficult problems would be created by retroactive changes of gender and that this would violate principles of legal certainty and consistency. This is especially so as it would be difficult to justify restricting this policy to those transsexual people who managed to get "married" in a gender that was not their legal gender at the time they were married. The question could be asked: why aren't the changes of gender of all transsexual people back-dated? Why only the changes of gender of those who "married" in a way that was contrary to law?

  In summary, our view is that retroactive changes of gender are strongly undesirable—laws governing marriage, social security, pensions, inheritance, etc should remain clear and prospective—and if an exception was to be made to the principle of non-retroactivity of legislation, it would be odd to make it for a group that acted contrary to the law at the time and which should have had no expectation that their marriages would be valid.

  We accept of course that these "married" couples have built up emotional bonds and a shared history over the course of their relationship, but we believe that allowing the transsexual partner to change gender in law and to marry in that gender provides a suitable remedy for these couples and a means for them to gain recognition for their relationship in law.

  On the second, broader point, the judgments in Goodwin and "I" did, in our view, make clear that the obligations of the UK were, in this respect, prospective and not retrospective. The Court at Strasbourg does not look to States to change the law retrospectively. We also question whether singling out, in this way, those individuals who litigated would be discriminatory against other individuals, who may have been in the same position and not brought litigation, for any one of a variety of reasons.


Question: The Committee draws attention to the following matters:


    it understands that this provision is likely to affect only about 100 families, and so is a relatively small-scale problem, although its impact in those cases is likely to be very significant;


    before it would be satisfied that the civil partnership proposals would offer a satisfactory solution to these problems, the Committee wishes to be sure that the new civil partnership arrangements would come into force at the same time as the Gender Recognition Bill. The Committee therefore seeks an undertaking that the Government will bring forward its legislation on civil partnerships as a matter of urgency and certainly no later than it introduces the Gender Recognition Bill;


    in order to be satisfied that the civil partnership proposals would offer a satisfactory solution, the Committee also seeks an undertaking that the arrangements in the Civil Partnerships Act would ensure that all the issues raised in section 4 of the letter from Paul Evans to you dated 21 October 2003 (particularly the recoverability of damages under the Fatal Accidents Acts, the right of a survivor to obtain the benefit of pensions, the right to receive certain social security payments, and exemptions from inheritance tax for transfers of property) would be adequately provided for; and


    in this connection (and more generally) the Committee is provisionally of the view that the right to receive benefits or payments, which might be lost on annulment of marriage or change of gender, are possessions protected by Article 1 of Protocol No 1 to the ECHR, so that the loss of such benefits or payments requires justification under that Article.

Response: The Department agrees both that this is a small-scale problem (likely only to affect about 30-40 families) and that its emotional impact in those cases is likely to be significant. The Government does not however have any plans to introduce an institution of same-sex marriage. Marriage is a distinct institution for opposite-sex couples. It would, in any case, be especially difficult to justify introducing same-sex marriages for a small group in society and not for all same-sex couples. We do also feel that many of the practical effects of the dissolution of marriages can be dealt with by the court on making the annulment, eg by making a pension-sharing order, or by making provisions regarding children of the family.

  You refer also to the civil partnership proposals. Clearly same-sex civil partnership may provide an alternative form of legal recognition for the relationship of couples who have had to end their marriages to allow one party to gain recognition in the acquired gender. As the Committee will be aware, the Government has issued a detailed consultation paper on civil partnership. The Government's consultation has now closed. It is analysing the responses received and will publish its response in due course.

  Finally, on the right to receive benefits and payments, this has been considered carefully and our view is that a change of gender brings with it those rights and responsibilities appropriate to the acquired gender. We do not think it is appropriate to make special exceptions for transsexual people. Specifically on the point relating to benefits connected to marriage, we believe that the margin of appreciation allowed to states means that a state may restrict the institution of marriage and the rights and responsibilities that come with it to opposite-sex couples. As you know, the Government has consulted on same-sex civil partnership and it was proposed in the consultation document that registered same-sex partners have, for example, the same pension rights as married couples.


Question: The Committee has never suggested that the draft Bill would make it lawful to discriminate against people on the ground that they are transsexual persons. The issue is whether the existing legal liability for discrimination on that ground should be extended to contexts beyond those in which the current law applies, as could easily be done in primary legislation. In this connection, the Committee's experience in this field suggests that one of the fields in which discrimination against transsexuals is most common and most damaging is housing, for example when homeless people are denied places in hostels because it is thought inappropriate to accommodate them in either a men's hostel or a women's hostel. That being so, the Committee finds it hard to accept the assertion that the only pressing need in this area is to outlaw discrimination in the field of employment and vocational training. Should the principle of equal treatment not be of general application?

  The Sex Discrimination Act 1975 as amended by the Regulations for employment purposes includes section 2A. This makes it unlawful to discriminate against a person on the ground that he or she has had, is having or plans to have gender reassignment treatment. This was necessary in order to comply with Community law. Although Community law does not usually apply to housing, supply of goods and services or education, it seems to the Committee anomalous to use the Sex Discrimination Act to protect a transsexual person against discrimination on the ground that he or she is a transsexual in employment and related settings, but to deny that protection in other fields covered by the Act unless the discrimination amounts to direct or indirect discrimination on the ground of sex. Why is the Government not proposing simply to remove from section 2A of the 1975 Act the words of limitation which restrict its effect to employment and related settings?

  The Committee has a further concern in this connection. The Draft Bill would require a person to be treated as being of the acquired "gender" once a final gender recognition certificate has been issued. The Sex Discrimination Act makes unlawful discrimination on the ground of "sex". Before the decision of the ECJ in P v S, courts here treated gender as being different from sex. In the light of the judgment in P v S, the EAT has treated "sex" as including "gender" in the employment and related settings in which Community law applies, and has gone so far as to dispense the need for a comparator of the other sex in employment cases involving transsexuals. But is it possible to be very confident that courts would take the view, in a context to which Community law does not apply, that "sex" includes "gender"? It could be argued that both the Gender Recognition Act and the Sex Discrimination Act would have to be read and given effect, so far as possible, in a manner compatible with Convention rights (Human Rights Act 1998 s 3). But the courts might find it impossible to depart from a settled interpretation of the word "sex" unless the Gender Recognition Act specifies that, for the purposes of the Sex Discrimination Act, an acquired gender is to be treated as a person's sex. What is the Department's view?

Response: You asked why we do not now take the opportunity to extend the protection against discrimination on the grounds of gender reassignment beyond the area of employment and vocational training (as covered by the Gender Reassignment Regulations) and into the other areas covered by Part III of the SDA (in particular, the provision of goods, facilities and services).

  One very practical consideration has to do with possible difficulties in distinguishing a transsexual person in a situation where the relationship is a transient one—for example, between a landlord and a customer in a hotel or public house. If the SDA covered this situation, the landlord would be acting unlawfully if he discriminated against a transsexual person, but not if the person was instead a transvestite, or possibly a practical joker; and the landlord might have no way of determining what the actual situation was.

  In the example you give of a hostel for homeless people, similarly, how is the owner/manager of a hostel to know the difference between a transsexual person, a transvestite person, or an impostor? There are important differences here, but it does seem to us that without receiving some very personal information from the individual concerned the landlord is not in a position to know whether someone is a transsexual person. Such problems are unlikely to occur in employment, where the relationship is a more permanent one and people's status can be clearly determined. More work would be needed on issues of this kind, and the nature of any necessary exceptions, before any extension could be considered.

  Ultimately, we are not aware yet of a compelling body of evidence that discrimination in this area is of a scale and nature that merits new legal protection. Our view remains that 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.

  It is also the case that the existing protection for transsexual people compares with that now available under the Employment Equality (Sexual Orientation) Regulations 2003. We do not consider that there is any anomaly in limiting discrimination protection for transsexual people to the employment field. On the contrary we do not have compelling evidence at present that transsexual people should be given greater protection from discrimination than gay or lesbian people, which is what the Bill would be doing if it extended discrimination protection for transsexual people to goods and services.

  In summary, our view is that:


    Extending discrimination protection to transsexual people in other areas would raise a number of difficult questions, including those of definition/identity, a blanket extension of protection beyond employment would not be possible without careful consideration of the particular circumstances of transgendered people and the inclusion of appropriate provisions or exceptions to ensure fair outcomes.


    The discrimination protection for transsexual people is equivalent in scope to the protection given to gay and lesbian people.


    Legal recognition of the acquired gender of transsexual people must come first and after a recognition scheme has been created the extent and effect of any remaining discrimination against transsexual people can properly be considered.

  You also asked whether, because clause 5(1) of the GR Bill uses the word "gender", it is possible that a person who has been recognised as of the acquired "gender" could nonetheless be regarded as of the birth "sex" for the purposes of the SDA.

  The intention is certainly to ensure that the person legally changes from being male to female, or vice versa, regardless of whether one is considering a legal provision drafted in terms of "sex" or one drafted in terms of "gender". The purpose of the Bill is to provide someone who is male/female in law with the opportunity to become female/male in law. We are not aiming at some more subtle and graded subjective concept of personal and sexual identity which in other contexts might be implied by the word "gender".

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