1c.Supplementary Memorandum from the Department
for Constitutional Affairs
1. REQUIREMENT
FOR APPLICANTS
TO PROVIDE
EVIDENCE OF
TREATMENT: MEANING
OF "TREATMENT"
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.
2. RETROSPECTIVE
VALIDATION OF
MARRIAGES
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.
3. ANNULMENT
OR DISSOLUTION
OF MARRIAGES
BEFORE ONE
PARTY CAN
OBTAIN A
FULL GENDER
RECOGNITION CERTIFICATE
Question: The Committee draws attention to the
following matters:
(a)
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;
(b)
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;
(c)
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
(d)
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.
4. DISCRIMINATION
AGAINST TRANSSEXUAL
PEOPLE
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:
(a)
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.
(b)
The discrimination protection for transsexual people
is equivalent in scope to the protection given to gay and lesbian
people.
(c)
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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