Joint Committee On Human Rights Written Evidence

5. Submission by Discrimination Law Association

  1.  The Discrimination Law Association ("DLA") welcomes the opportunity to comment on the Draft Gender Recognition Bill ("GRB").

  2.  The DLA is a national membership organisation established to promote good community relations by the advancement of education in the field of anti-discrimination law and practice. It achieves this by, among other things, the promotion and dissemination of advice and information; the development and co-ordination of contacts with discrimination law practitioners and similar people and organisations in the UK and internationally. The DLA is concerned with achieving an understanding of the needs of victims of discrimination amongst lawyers, law-makers and others and of the necessity for a complainant-centred approach to anti-discrimination law and practice. With this in mind the DLA seeks to secure improvements in discrimination law and practice in the United Kingdom, Europe and at an international level.

  3.  The DLA currently has more than 400 members. Membership is open to any lawyer, legal or advice worker or other person substantially engaged or interested in discrimination law and any organisation, firm, company or other body engaged or interested in discrimination law. The membership comprises, in the main, persons concerned with discrimination law from a complainant perspective.


  4.  The DLA welcomes the potentially wide-ranging effect of the Bill on the lives of transsexual people in the UK. In particular, the DLA is pleased to note that the grant of a Gender Recognition Certificate will be effective for all purposes and that there are no suggested exceptions, for instance in relation to insurance or pensions.

  5.  However, the DLA is concerned that in some areas the Bill does not afford full protection to transsexual people. In particular, the Bill does not improve the position of transsexuals who are discriminated against on their grounds of their transsexual status in the provision of goods and services. This is elaborated upon below.


Powers of the Gender Recognition Panel (Schedule 1)

  6.  The DLA is concerned that the Bill does not provide that at least one member of each Gender Recognition Panel must have some experience of or knowledge of the subject area. Rather it requires that the Panel be made up of "legal members" and "medical members". Bearing in mind the wide discretion given to the Panel in its decision making role, we believe it would be of great assistance to the Panel itself as well as in applicants' interests for there to be a lay member on the panel who was either from the transsexual community, or someone who had experience of working with transsexual issues in the workplace—for example, a member of a human resources department who had assisted a transsexual employee in his or her transition at work.

  7.  We would also welcome Guidance as to:

  7.1.  whether applicants will be permitted legal representation;

  7.2.  whether public funding will be available to applicants.

  8.  We assume that the Panel will be empowered to hear witness evidence and would appreciate confirmation of this.

Evidence requirements (section 2)

  9.  The DLA is concerned that the requirement for two medical reports may be unduly expensive. We are also concerned that the procedure should not involve a re-diagnosis of the applicant, who is already likely to have undergone significant medical assessment and intervention. We see no reason why an applicant may not rely on reports commissioned in the course of his or her transition, rather than being forced to bear the expense of contemporaneous reports, and ask that this be clarified.

  10.  The DLA is apprehensive about the Panel's power in section 1(9) (a) to call for unspecified further evidence which the applicant must provide. This power is open to abuse and grants the Panel a worryingly wide discretion, particularly in the light of the restricted rights of appeal in section 4(3). We believe a useful check on this power would be for the Panel to be required to explain the assistance which it believes would be derived from the further evidence sought. This would minimise requests which served no useful purpose.

The right of appeal (section 4(3))

  11.  We feel that the Bill should include a requirement upon the Panel to provide extended written reasons for its decisions, so that applicants are able properly to formulate their appeals.

  12.  We assume that the appeals on points of law include perversity appeals, that is, decisions on facts which are so unreasonable that no reasonable Tribunal could have come to such a decision, and we seek confirmation of this.

  13.  In addition, if the Panel is to retain its wide ranging power to request further unspecified evidence the Bill ought to provide a mechanism for appeals against that request, in order to avoid the need for judicial review provisions on this point.

  14.  The powers of the High Court in an appeal against a decision of the Panel ought to be clarified in the Bill.

  15.  Where it is suspected that an application was made fraudulently, the applicant should be afforded the benefit of funded legal representation for any High Court hearing especially because of the risk of an allegation of fraud being made in bad faith. It is important that such a hearing and the lead up to it should be properly structured with full disclosure being granted to the applicant of the evidence going to the suspicion of fraud and an opportunity being given to the applicant to gather any material necessary to rebut the allegation put forward.


The qualification tests (section 1)


  16.  The DLA welcomes the fact that surgery is not a pre-condition for the grant of a Gender Recognition Certificate. It is important that this provision is maintained, as many transsexual people are not able to undergo surgery due to poor health or do not wish to undergo surgery for other valid reasons.

"Gender dysphoria"

  17.  The DLA is concerned that currently there may be insufficient medical consensus as to the existence, symptoms or labelling of this condition, and that there may be an inadequate number of suitably qualified medical practitioners able to assess applicants. Accordingly it is preferable if not crucial that "medical members" appointed to the list referred to in Schedule 1 paragraph 1, are those with working experience of cases of gender dysphoria and the gender reassignment process.

Living in the acquired gender for two years

  18.  We understand the need for certainty in this area and do not dispute the length of this period. However we ask that there be recognised the exceptional circumstances where a person who lives in his or her acquired gender for the vast majority of the time has to retain some identity in the former gender, in order, for example, to maintain contact with his or her children. A fair solution to this aspect of the evidential test which would not detract from the need for certainty would be to give the Panel a discretion to accept the applicant as having lived in the acquired gender throughout the two year period where this occurs save for the minimal and/or crucial occasions when a return to the former gender role necessarily occurs.

Intention to continue living in the acquired gender until death

  19.  We do not understand how the Panel will assess whether the applicant intends to continue living in the acquired gender until death, other than accepting an honest declaration as to this intention. The Panel will have all the evidence before it going to paragraph 1(4)(b) of the Bill that the applicant has lived in the acquired gender for two years and there will not usually be any further evidence necessary. We would appreciate clarification of the evidential requirements for this element of the test.

Being recognised in another country as having changed gender

  20.  The DLA is pleased that the evidential requirements are lower in respect of transsexuals who have already been recognised in another country in their acquired gender. We would resist any further requirement upon such applicants to "prove" their status.

  21.  We are concerned that this procedure only allows for recognition of transsexual people who are recognised in an "approved" territory, and that there is currently no indication of how such territories will be chosen.

The effect of a pre-existing marriage (section 3(3)-(4))

  22.  The DLA does not agree that married transsexual people should be required to dissolve their marriages before they are entitled to a Gender Recognition Certificate:

  22.1.  The DLA's principal objection relates to its belief that same-sex couples should be granted the same partnership rights as heterosexual couples. As such, gay and lesbian transsexuals ought not to be required to abandon their legally recognised marriages and the many legal rights which are associated with those partnerships. The DLA recognises that this objection calls for a profound change to the law which goes beyond the parameters of the GRB.

  22.2.  The effect of this provision on the spouse of the applicant is likely to be punitive, in particular in the case of older couples who have accrued pension and other legal rights during their marriages.

  22.3.  We realise that our suggestion would put those in a relationship which becomes same sex (due to one party transitioning), in a preferential position to those in same sex relationships but believe the primary objective should be to avoid forced dissolution of marriages with the emotional and financial harm this would bring.

  22.4.  We feel that the Bill's provision will discriminate against some transsexual people on grounds of their religion or belief, since many religions do not permit divorce. We do not think that transsexuals should be put in the position of having to choose between their religion and a Gender Recognition Certificate.

  22.5.  We are also concerned that marriages between two transsexuals who both intend to apply for Gender Recognition Certificates would have to be ended in order for the partners to make their applications. Whilst such a situation must be rare, there seems to be no purpose in insisting upon the annulment of a marriage which will swiftly be followed by the couple remarrying. A more sensible solution would be the amendment of names on the original marriage certificate.


General (section 5)

  23.  We welcome that there is full recognition for all purposes and that no exceptions are suggested, for instance in relation to insurance or pensions. We also particularly welcome the retrospective effect of the grant of a Certificate in relation to enactments and other documents made before the issue of the Certificate.

The Transsexual Persons Register (section 6, sch.2)

  24.  We welcome the privacy measures in relation to the Register and birth certificates.

Marriage (section 7)

  25.  We do not object to the requirement that transpersons must tell spouses about their trans history before marrying. We are content that this is part of a general principle that people should be honest with those they are marrying.

  26.  We note the conscience clause for clergy in paragraph 3 of Schedule 3 which equalises the position of the Anglican church with other Christian policies on marriage but further draw the Government's attention to the unsatisfactory position that a minister of religion who refuses to marry someone for the reason that they are pregnant or Asian or blind will not be committing an unlawful act under the anti-discrimination legislation.

Parenthood (section 8)

  27.  We welcome the retention of parental rights and responsibilities and the provision in clause 8(2) with respect to recognising that a female to male transsexual may be recognised as the father of a child whose conception was assisted by HFEA treatment.

Discrimination (section 9)

  28.  The DLA welcomes the removal of the Genuine Occupational Qualification defence which is currently open to employers under sections 7A(1), 7B(2), 9(3B) and 11(3C) of the Sex Discrimination Act 1975 ("SDA").

  29.  However, we are particularly concerned to note that no new protection is afforded to transsexual people in relation to discrimination in the provision of goods and services. It is not sufficient that transsexual people will be protected from discrimination on the grounds of sex in their acquired gender. Transsexual people are at risk of discrimination on the grounds of their transsexuality itself.

  30.  For example, a male to female transsexual will be protected by the SDA if a barber refuses to cut her hair on the grounds that she is a woman. However she will not be protected if the barber refuses her because of her transsexual status. The failure to amend section 2A of the SDA to cover Part III of that Act already causes much hardship to transsexual people especially to those who do not "pass" easily in their acquired gender. For the Government to refuse to grant such protection at this stage would render the certification process meaningless where discrimination on grounds of transsexual status occurs.

  31.  The prohibition against discrimination in relation to goods and services on grounds of sex, race and, to some extent, disability, is highly significant. Discrimination in this area can impact disastrously on numerous aspects of a person's life, including use of public lavatories and changing rooms, facilities in prisons and hospitals and categorisation at sporting events. Nevertheless the anti-discrimination legislation remains woefully inadequate in relation to discrimination in this area on other grounds, and the government has in the drafting, of this Bill again missed a prime opportunity to provide a legal remedy for those experiencing unjustifiable discrimination.

  32.  We ask the Government to clarify what rights flow from an interim gender recognition certificate. If the law is amended as suggested above to protect transsexuals in the field of supplies, goods and services, that full certification has not yet been granted will not be detrimental, as the SDA would protect those who were intending to undergo gender reassignment as well as those further along the transitioning path.

  33.  We note that the Regulations arising from the European Framework Directives (including those coming into force in December 2003) will increase yet further the myriad of different sources of the UK's anti-discrimination legislation and call for the Government to consult at the appropriate time about the proposed single equality body including within its remit discrimination against transsexuals along with such inclusion in a Single Equality Act.

Succession, peerage and trustees etc (sections 10-12)

  34.  We broadly welcome the proposals made under these sections although we have some concerns relating to the impact upon these provisions of section 5. We understand that Liberty intends to submit detailed proposals as to this aspect of the Bill and we refer the Government to those submissions.

Privacy (section 14)

  35.  The DLA is pleased to note that the Bill ensures protection of the privacy of transsexual people and that it imposes a criminal sanction upon those who breach the privacy provisions. However, our concerns lead us to suggest that:

  35.1.  section 14(4)(b) ought to require the person concerned to have agreed in writing to the disclosure of the information;

  35.2.  section 14(4)(c) should not provide an exception for those who do not believe that a Gender Recognition Certificate has been issued. This is exception is far too, wide and will impact particularly harshly upon those who do not easily "pass" in their acquired gender;

  35.3.  the phrase "in the course of official duties" in section 14(4)(d) ought to be properly and narrowly defined by means of a proscribed list, and in particular ought to be more narrowly defined than the phrase "in an official capacity" in section 14(3). This defence ought also to incorporate a proportionality requirement;

  35.4.  disclosure in connection with court or tribunal proceedings within section 14(4)(f) ought to be lawful only if it is relevant to and probative of the issues in the case;

  35.5.  a more severe penalty than that in section 14(7) ought to be imposed for unlawful disclosure which is persistent or malicious;

  35.6.  a civil remedy ought to be provided.

Rachel Crasnow

Akua Reindorf

Cloisters Chambers

15 September 2003

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