6. Submission from the Equal Opportunities
Commission
By way of explanation the response of the Equal
Opportunities Commission ("EOC") to the Draft Gender
Recognition Bill has been numbered in paragraphs which correspond
with the clause numbers indicated within the Gender Recognition
Bill.
The Equal Opportunities Commission is the statutory
body established under the Sex Discrimination Act 1975 by virtue
of section 53 of that Act with the following duties:
— To work toward the elimination of
discrimination
— To promote equality of opportunity
between men and women
— To promote equality of opportunity,
in the field of employment and of vocational training for persons
who intend to undergo, are undergoing or have undergone gender
reassignment
— To keep under review the working
of the Sex Discrimination Act and the Equal Pay Act 1970 and,
when they are so required by the Secretary of State or otherwise
think it necessary, draw up and submit to the Secretary of State
proposals for amending them
On this basis the Equal Opportunities Commission
is responding to the proposed content of the Gender Recognition
Bill. It should be borne in mind that under section 75 of the
Sex Discrimination Act 1975 the Equal Opportunities Commission
has assisted a number of trans gender individuals in claims in
the Employment Tribunals, County Courts, Employment Appeal Tribunals
and the Court of Appeal. Therefore the experience of the Equal
Opportunities Commission is not insignificant in this area.
Clause 2
It is important that the Bill recognises the
complexity of gender reassignment treatment. The individual undergoing
the process of gender reassignment may not be able to undergo
surgical or hormonal procedures as a result of health concerns
or personal reasons, delay due to waiting lists, unavailability
of treatment, costs, etc.
The EOC is strongly of the view that application
for gender recognition certificate should not require an individual
to have undergone surgery as a pre-requisite for gaining a gender
recognition certificate.
Section 1 of the Bill indicates that an application
for a gender recognition certificate must be granted if the applicant
has:
— sl(4) (a) Had or has gender dysphoria
— s1(4)(b) Has lived in the acquired
gender throughout the period of two years ending with a date upon
which the application is made
— s1(4)(c) Intends to continue
to live in the acquired gender until death, and
— s1(4)(d) Complies with the requirements
imposed by and any requirements imposed by the Panel under, section
2.
Guidance should be appended to the Bill to clarify
that those individuals applying in accordance with section 1(1
)(a) of the Bill, and so complying with sections 2(1), 2(2) and
2(4) of the Bill are not required to have undergone surgery or
medical treatment such as hormone therapy to make an application
for and be granted a gender recognition certificate so as to clarify
the individual making the application is not required to have
undergone surgery or hormone treatment.
Furthermore the EOC recognises the need for
medical evidence as regards the diagnosis of gender dysphoria.
However, the EOC would like clarification of what information
is required to satisfy the term "diagnosis". Guidance
should be given as to what is required concerning the diagnosis
of gender dysphoria and the issues to be addressed by a medical
expert. Medical personnel who have treated the individual for
gender dysphoria at a later stage are unlikely to be aware of
the initial diagnosis so would be excluded from providing a report
under the current provisions. Such a preclusion seems unnecessary
and it is suggested that it is sufficient for those medical personnel
who are involved in later treatment to comment on the previous
records detailing the diagnosis.
Often those suffering from gender dysphoria
and undergoing gender reassignment often have been in contact
with the medical profession for a number of detailed assessments
and reports. Therefore it is the EOC's view that should a suitable
report already have been produced, there is no requirement for
the individual to undergo a further medical examination by an
additional expert for the purposes of obtaining a report for a
gender recognition certificate.
There is a concern that if the reports already
obtained by the individual, during the course of their having
or having had gender dysphoria, are not to be used, either the
individual will be prejudiced due to a backlog of work by those
able to prepare the reports required under clause 2 of the Bill
and by the costs of obtaining those additional reports.
Clause 3
The current provisions in the Bill for an interim
gender recognition certificate effectively deny the individual
full legal recognition should they be married to someone, prior
to their transition, who is of the sex to which they transition.
Transgender individuals who wish to obtain full
gender recognition, in these circumstances, are thus required
to annul their marriage with their spouse. The implications of
such a requirement infringe the human rights of the individual
to a private life.
If the spouse of the individual undergoing gender
reassignment remains married to the transitioning individual after
transition the requirement to annul the marriage prejudices both
individuals. A great deal of emotional support has been given
by both individuals to each other along with the security financially
of being a married couple. Should this provision remain provisions
must be included so as to offset any detriment suffered by each
party, by way of finances and benefits, by the requirement that
the marriage must be annulled in order for the transgender individual
to gain the legal recognition to which they are entitled.
Clause 4
The requirement at section 4(1) of the Bill
that an application must be made in a form and manner specified
by the Secretary of State must not be cumbersome so as to discourage
applications but must include only that which is necessary, relevant
and proportionate for the application.
Section 4(2) of the Bill provides that the applicant
for the gender recognition certificate must pay a non-refundable
fee in respect of the application. Often individuals have funded
their treatment privately and therefore any additional fees should
be restricted to the minimal level to cover administration of
the provision of the gender recognition certificate. The EOC is
of the view that the fixed fee be made clear at the outset which
is subject to inflationary increases only.
Clause 9
Section 9 of the Bill removes the exemptions
from jobs with genuine occupational qualifications. However, there
is no recognition that once a gender recognition certificate has
been obtained, the individual may still be discriminated against
on grounds of having undergone gender reassignment, as well as
potentially being discriminated against upon grounds of their
being male or female. The Bill should include provisions so that
even where a gender recognition certificate has been gained the
individual has recourse and redress for discrimination on grounds
of having undergone gender reassignment.
It should be clarified in the Bill that those
individuals who have gained the gender recognition certificate
will then be protected by S29 of the Sex Discrimination Act 1975.
The Bill should be amended so as to ensure that those individuals
who have not yet gained a gender recognition certificate are protected
by S29 of the Sex Discrimination Act. A failure to do so results
in disparate discrimination of those undergoing gender reassignment
who have not yet gained a Gender Recognition Certificate.
An issue which often arises is the point at
which the employment protection at S2A of the Sex Discrimination
Act becomes effective. Often individuals undergo the real life
test without necessarily undergoing immediate medical treatment
although they may be under medical supervision. In these circumstances
it is suggested that the SDA be amended to ensure and clarify
that individuals will be protected and treated in accordance with
the gender to which they transition when they undertake the real
life test which includes steps such as changing dress, changing
their name by deed pole, changing records, etc.
Clause 14
This section of the Bill protects the individual,
who has made an application for a gender recognition certificate
which has been granted, from disclosure of the act of applying
for the certificate. The protection afforded by this section does
not extend to the information contained within the application
nor the circumstances where the application is made but a certificate
is not granted. A requirement for non disclosure should include
information within the application, the fact that an application
has been made irrespective of whether the application is successful
or not.
This imposes a duty of non disclosure on individuals
who have come into contact with the application and employers
and prospective employers of the individual making the application.
It also impose the duty on those providing business or professional
services but it does not cover the provision of all goods, facilities
and services. The Bill should be amended so as to encompass the
provision of all goods, facilities and services to the individual.
As regards the exemptions under clause 14(4)
there are a number of inappropriate exemptions. For example whether
or not an individual can be identified from disclosure of information
does not excuse the disclosure of the information as it is an
entirely subjective judgment of whether someone can be identified
or not. Those individuals who are living or employed in particular
areas that may be more easily identified by those in that area
than by the person who discloses the information. Additionally,
it is not acceptable once an application has been made the information
should be disclosed whether or not the application has been granted.
It should also be made clear that even if an application is not
granted, that information should not be disclosed.
Should the disclosure of information within
the course of official duties occur, the definition of official
duties must be clarified as "official duties" may be
entirely subjective giving rise to disclosure of information in
appropriate circumstances.
Any disclosure pursuant to clause 14 must be
stated to be necessary, relevant and proportionate to the need
which requires the disclosure.
Clause 19
The Bill provides that those who meet the requirements
of clause 1 and 2 should be granted a gender recognition certificate.
One of these requirements is for the individual to have lived
in the acquired gender for two years prior to the application
to apply a time period of six years for the fast track process.
The Bill's provisions should be consistent in that those who have
lived in their acquired, gender for two years and meet the requirements
of section 19 should also be allowed to "fast track"
their applications. The time limit of six months from the implementation
of the Bill for fast track applications is too short as many people
may have to obtain medical reports which may take longer than
six months, thus precluding them from the benefit of the fast
track process.
Schedule 1
It is of great concern to the EOC that little
attention has been paid to the training and experience of those
persons who are eligible to sit as members of the Gender Recognition
Panels. It is strongly suggested that any individuals selected
to sit on a gender recognition panel must either have had experience,
qualifications within the gender reassignment field or receive
appropriate training as to what is involved in the gender reassignment
process. The Bill should be amended to reflect this requirement.
11 September 2003
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