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.
SUMMARY OF
RESPONSE
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.
ADMINISTRATIVE AND
PROCEDURAL ISSUES
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.
QUALIFICATION FOR
A GENDER
RECOGNITION CERTIFICATE
The qualification tests (section 1)
Surgery
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.
EFFECTS OF
A GENDER
RECOGNITION 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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