7. Submission from the Evangelical Alliance
1. INTRODUCTION
1.1 The draft Bill is a well-meaning attempt
by the Government to respond to the many calls that have come
out of Brussels to improve the lot of transsexual people in Great
Britain. The Evangelical Alliance wishes to make clear from the
start that it is unequivocally supportive of the need to recognise
fundamental human rights of transsexual people.
1.2 The need for positive action has become
imperative following the decision of the House of Lords in Bellinger
that, insofar as it fails to enable transsexual people to enter
into legal marriages with persons who are ostensibly of the opposite
presenting sex, UK law is inconsistent with provisions of the
European Convention on Human Rights.
1.3 The Evangelical Alliance wishes to make
certain observations on the human rights implications of the draft
Bill.
1.4 The broad position which the Alliance
adopts is this:
1.4.1 The Bill addresses the perceived disadvantages
suffered by transsexual people, largely from the point of view
of transsexual people themselves. This is perhaps not surprising
since it is a first response to criticisms from Europe.
1.4.2 However, any change in status of or
privileges enjoyed by transsexual people is bound to have a "fall-out"
effect on third parties with whom they are connected, not least
members of their own families.
1.4.3 Unless this side effect is thoroughly
measured and evaluated, and unless appropriate safeguards are
put in place (something we consider the present draft Bill does
not achieve), it is highly probable that advancing the lot of
transsexual people will violate the human rights of those third
parties.
1.5 For convenience, throughout this paper
a transsexual person is referred to as "he" or "him".
This should not be taken to imply on our part any assumption about
the gender in which such a person is or should be recognised.
For "he" or "him", therefore, read "she"
and "her" as appropriate to the context.
2. HUMAN RIGHTS
ENGAGED BY
THE BILL
2.1 In our view, the Bill engages the following
human rights:
2.1.1 The right of fair trial (Article 6)
2.1.2 The right to respect for private life
(Article 8)
2.1.3 The right to respect for family life
(ditto)
2.1.4 The right of freedom of thought, conscience
and religion, including the right to manifest that religion or
belief in worship, teaching, practice and observance (Article
9)
2.1.5 The right of freedom of expression
(Article 10)
2.1.6 The right to marry according to national
laws (Article 12)
2.1.7 The enjoyment of these rights without
discrimination on the grounds of sex (Article 14)
2.2 We further consider that, in the measures
it proposes, the Bill seeks to improve the lot of transsexual
people in respect of their rights under Article 8, Article 12
and Article 14 of the Convention.
2.3 We do not think however that much thought
has been given to the rival and/or balancing rights of other members
of the community, in particular:
2.3.1 The right that other members of a
transsexual person's family enjoy under Article 8 to respect for
their private and family life;
2.3.2 The right of employers, family members,
and other members of the community under Article 10 to receive
and transmit truthful information about a transsexual person without
interference by public authority in their freedom to exercise
that right; and
2.3.3 The right of ministers of religion
and church congregations to practice tenets of their religion
which, for example, stipulate that a marriage is valid in God's
eyes only if it takes place between a man and a woman (Article
9).
3. THE RIGHT
OF FAIR
TRIAL
3.1 At first it may seem odd that a purely
private application relating to the personal attributes of an
individual should engage Article 6 at all. As we argue in the
next section, however, an application for a Gender Recognition
Certificate does not only affect the applicant. On the contrary,
as the name implies, it requires third parties to recognise' the
change of gender as a matter of law. This means that those who
are near and dear to a transsexual person, for example, can no
longer regard him as they once did, but are under compulsion to
accept the new identity, under legal sanctions.
3.2 It may be asked why any third party
should be required as a matter of Law to recognise a person's
new (acquired) identity, without at the very least having the
opportunity to voice objections. And as is well known (and specifically
acknowledged both by the European Court of Human Rights in the
Goodwin case and by the House of Lords in the Bellinger case),
there is no objective evidence accepted by the medical or scientific
community at large to suggest that a person is able to actually
change their sex. The failure to provide any forum for hearing
those objections is a fatal weakness at the heart of this Bill.
It implies that Parliament considers it acceptable to employ the
law to introduce methods of thought control to railroad family
members and other third parties into submission. This would represent
a highly alarming development in the use of the law.
3.3 No man is an island. A psychologically
disturbed pre-operative transsexual is nevertheless surrounded
by a delicate web of caring relationships consisting of family
and friends, and also by social and work acquaintances. Any of
those may have valid and reasoned objections why the person in
question should not go through with Gender Recognition. Unless
it is possible (which manifestly it is not) to dismiss all those
objections a priori as irrational and senseless, justice requires
that they be heard. And Article 6 requires sufficient procedural
safeguards to be in place to make that right effective.
3.4 Moreover it goes without saying that
Article 6 safeguards are illusory unless the hearing is, in principle,
conducted in public. We say "in principle" because it
is possible, under English law and in accordance with the Convention,
to exclude the public from part or all of the trial process where
it concerns sensitive medical or personal matters that may be
thought to be highly confidential. But even so:
3.4.1 This cannot exclude people who are
properly parties to the litigation, because they have an interest
in its outcome;
3.4.2 Even where the public is excluded
from part or all of the trial, the transcript of judgement must
nevertheless be available to the Press (if necessary, protected
by anonymisation).
3.5 This leads us to another fundamental,
and in our view fatal, weakness in the Bill, namely the presumption
(apparent from the way clauses 1 to 4 are cast, and from the structure
of the Bill as a whole) that Gender Recognition is essentially
a private secretive process which is required to take place behind
closed doors, with an embargo on information except that which
is necessarily communicated to selected professionals. We believe
this thinking is misconceived, especially when, as is well known,
the true identity of the vast majority of transsexual people is
readily apparent to others and therefore creates a situation where
recourse to legal fiction is necessary to enforce an interpretation
which is manifestly at odds with the facts and natural human perception.
3.6 In English law, all questions relating
to the legal status of individuals are determined, and evidenced,
in a public way. Whether it is a person's birth, death, marriage,
divorce, or their passport, nationality, or driving licence, all
these matters are open to inspection at any time by persons having
a legitimate interest (which in the examples cited, is everyone).
3.7 We consider that a change of gender
from apparent male to apparent female or vice versa is something
which goes to the root of a person's identity and legal status.
Indeed, so much is implied by the process of formal recognition
for which the Bill is designed. Gender Recognition would not be
much use if it did not translate into an external legal status.
3.8 Since the end result of this process
is so evidently public, and affects the mutual rights and obligations
of the whole of society (not to mention those nearest and dearest
to the transsexual), it is impossible to regard the procedure
for Gender Recognition as a purely private matter akin to, say,
inspecting a person's medical record (which for obvious reasons
is treated as confidential). On the contrary, it is a public declaration
by the person in question that he no longer wishes be regarded
as male, or female, as the case may be. It is hard to imagine
anything more public.
3.9 Clauses 1 to 4 of the Bill need to be
radically amended, first of all, to allow the Press and other
third parties to attend hearings and/or receive copies of the
judgement of the Panel (subject to the provisos already mentioned);
and secondly, to accommodate the right of third parties with an
interest, eg family members, to become parties and to voice their
objections in a way which is consistent with the right of fair
trial.
3.10 Although we cite family members as
an example, there may be others who are directly in the frame
for the right of fair trial, depending on the circumstances. This
group could include, for example, employers and insurers. There
is also mounting evidence that certain sports bodies and clubs
are feeling threatened by the participation of transgendered people—where
the transgendered person may or may not have undergone gender
reassignment surgery. For example, women in sport are particularly
affected since the potential physical advantage of the transgendered
"woman" takes away any sense of fair competition against
biological women. There is direct evidence already of events organised,
eg for women's cycling, where competitors have withdrawn from
the event when they have found out that a transgendered person
is riding. Organisers would prefer that they ride in their own
category, but are afraid of being accused of discrimination. There
must therefore be a mechanism for:—
3.10.1 Publicising the fact that an application
for Gender Recognition is due to take place;
3.10.2 Allowing third parties to intervene
on showing proper cause for doing so;
3.10.3 Allowing for the disqualification
of transgendered persons from seeking to impose their acquired
gender where this adversely affects the rights of others.
3.11 The structure for such publicity, intervention
and protection is non-existent in the Bill as it stands, which
requires radical overhaul if it is to comply with Article 6.
4. THE RIGHT
TO PRIVATE
AND FAMILY
LIFE
4.1 No man is an island. Every change in
the persona of a transsexual person affects those around him.
For a very limited number of such people (eg the sexual partners
of the transsexual) there may be a net gain. However, for the
overwhelming majority of friends, acquaintances and especially
members of the family, it will represent a loss as experience
and case studies confirm.
4.2 This section focuses on family members
as such.
4.3 Family members who may be affected by
a person's decision to apply for a Gender Recognition Certificate
include:
4.3.1 His spouse;
4.3.2 His children;
4.3.3 His parents;
4.3.4 His siblings;
4.3.5 His grandparents, in-laws and other
members of the extended family.
4.4 Indeed, it is hard to imagine any member
of the family who is not affected in some way.
4.5 All these persons, but particularly
members of the immediate family, may suffer a deterioration in
the quality of their family life as the result of losing a person
they have known and loved. (Of course, the person may not be "lost"
in an absolute sense. Nevertheless, as case evidence confirms,
their assertion of a new gender identity is highly likely to sever
relationships and cause alienation within the family).
4.6 The most obvious case is children. At
its most basic level, the right to family life means the right
to have a mother and father. This right may not come into being
where artificial means of reproduction are employed such that
a child never knows his true father. But where the relationship
of mother, father and child exists, any interruption in the continuity
of that family relationship—especially where it is mandated
by the State—interferes most certainly and directly with
the children's family life and so amounts to a violation of their
right of respect to family life under Article 8. In addition the
paradoxical and confusing outcomes of ambiguous gender presentation
result in the contradictory categories for example of female "fathers"
and male "mothers". Children have a right to enjoy conventional
family life in line with the universal common sense understood
by the overwhelming majority of society. A change of gender will
therefore not affect parenthood. This could create some inevitable
dilemmas as to whether a person's true gender should be revealed
(a) to children themselves, (b) the court, (c) to the public in
consequence of the decision being reported, or the public being
admitted to the hearing.
4.7 Next, take spouses. Sadly, divorce is
prevalent in the UK and Europe but this cannot alter the fact
that, by definition, marriage is the union for life of one man
and one woman. Article 12 confirms that the right of men and women
to marry one another is a basic human right, and furthermore one
which is absolute and unqualified, unlike some of the other Convention
rights.
4.8 It necessarily follows that the State
cannot interfere with the right to remain married for life (unless
the marriage is ended at the petition of one of the spouses).
In other words, a spouse can end a marriage, but the State cannot.
4.9 Clause 3 of the Bill violates this right
by providing that if the necessary medical and lifestyle criteria
are established under clause 1, the Panel must issue a gender
recognition certificate to the applicant, which is to be known
as an "interim" certificate where the applicant is married.
4.10 The issue of an interim certificate
implies that it is already a foregone conclusion that the marriage
is at an end, which will translate into reality when in due course
the marriage is dissolved or annulled through the divorce courts.
4.11 Put this way, clause 3 is a monumental
assumption and exhibits a callous and high-handed attitude to
marriage on the part of the legislature. Inevitably, the issue
of an interim certificate will be seen by the divorce courts as
terminating the marriage whether or not the other spouse wishes
to rely on it as a ground of divorce. In other words, clause 3
amounts in effect to a state-imposed dissolution of the marriage.
This invades the fundamental right of the other spouse to be,
and remain, married; not to mention the Article 12 right to marry
itself.
4.1 2 Further illustrations of how family
members may be affected are otiose. But it goes without saying
that parents, grandparents, brothers, sisters, uncles, aunts,
nephews and nieces: all may be gravely distressed at "losing"
a member of the family who wishes to act out what many will inevitably
have no option but to regard as his transsexual fantasies. It
is notable that the draft Bill makes no mention of any responsibility
of the State to provide for the care and management of those many
family members suffering the inevitable trauma of a transsexual
person undergoing gender recognition procedures, with or without
accompanying surgery.
5. THE RIGHT
TO FREEDOM
OF THOUGHT
AND RELIGION
5.1 A minister of religion who is asked
to many two people has the right to know whether the people he
is marrying are male and female. For if not, he is brought into
conflict with the tenets of his belief, and (in the case of a
clergyman of the established church) the Canons of the Church
of England, which declare that the marriage is not valid in God's
eyes unless they are (biological) man and (biological) woman.
5.2 So far from the Bill providing a conscience
exception, it prevents a clergyman from even knowing whether he
is conducting a proper marriage. This violates the freedom of
thought, conscience and religion under Article 9. The Bill also
offers a potential unsavoury recipe for suspicion and confrontation
where clergymen and nonconformist ministers suspect (rightly or
wrongly) that they are being requested to marry two people of
the same-sex, yet are presented with denials and an apparent birth
certificate which contradicts the senses. This exception is acknowledged
as a valid attempt to meet the requirements of the religious conscience,
but unless access to the original records is made available it
would appear to be in many cases practically unworkable, and may
open a minister of religion to unnecessary legal actions.
5.3 We consider that the members of the
congregation of such a church are also entitled under the Convention,
to hold and practise their beliefs, and accordingly they have
as much right as the clergyman to know the true sex and gender
of the intending married couple. This would apply in many situations,
but especially in those frequent instances, for example, in Baptist
churches, where the entire membership is customarily involved
in the appointment of a new minister. As things stand, unless
a transsexual applicant gave permission for his true gender to
be disclosed (many will not agree to this claiming right to privacy)
church officials would apparently be guilty of prohibited disclosure
under the terms of the Bill for complying with the doctrines and
practices of their own church.
6. THE RIGHT
TO RECEIVE
INFORMATION (ART.
10)
6.1 We have already commented on how, in
many respects, the Bill misguidedly seeks to turn gender recognition
into a secret process.
6.2 It necessarily follows from our observations
that the status of an individual is a public matter in respect
of which the public has a right to know the truth.
6.3 It has already been made clear, and
we have rehearsed the evidence frequently elsewhere, that it is
universally accepted that a person cannot de facto change their
sex. Any attempt by this Bill, therefore, to suppress the facts,
whether in the shape of an altered birth certificate and other
registration documents (Schedule 2), or prohibitions on the disclosure
of information (clause 14), is in direct violation of Article
10 of the Convention.
6.4 Furthermore we see immense practical
difficulties in the way of suppressing information of this kind.
After all, a person's family and friends would know, and cannot
be prevented from telling their story. So how would restrictions
on publication and/or Press reporting work in practice? They would
fail at every turn. Also, experience has shown that in the vast
majority of cases transsexual peoples' true identity is easily
recognised. In our view, to conceal the truth will inevitably
make life more, rather than less, difficult for transsexual people,
and alternative means of handling their particular needs should
be considered, as we have previously argued with Government. In
the final analysis the fundamental human right to believe fact
and truth must be protected and in this Bill recourse to legal
fiction in an effort to meet the needs of transsexual people seems
to us both unworkable and likely to produce the opposite of what
is intended.
7. THE RIGHT
TO MARRY
7.1 The right of a man and woman to many
is expressly asserted in the Convention in terms that are absolute
(Art 12).
7.2 This necessarily implies the right of
one party to the marriage to know the sex and gender of the other,
and vice versa.
7.3 We do not see how a suppression of this
information, which is in effect what the Bill proposes, can possibly
be consistent with Article 12.
8. FREEDOM FROM
DISCRIMINATION
8.1 We take it that one of the main aims
of the Bill is to end or limit discrimination against transsexual
people by removing some of the latent obstacles to recognition
in the gender of their choice.
8.2 While this may be a laudable aim as
far as it goes, it is only one of many balancing aims that a statute
of this nature should seek to encompass. We do not deny that transsexual
people should receive sympathy, support and counselling, nor that
they should be protected from harassment and victimisation, if
necessary by clear and strong statutory provisions. But the way
in which the Bill seeks to achieve this, by in effect legislating
a new status and suppressing all truth and evidence to the contrary,
is we think taking a sledgehammer to crack a nut. Furthermore,
the danger of doing so is that it rides roughshod over the rights
of a large sector of the population, who are entitled to form
and hold their own views and beliefs about transsexual people,
and to relate to them either in their gender of choice, or as
the individuals they always knew, or know and believe them to
be. So to elevate freedom from discrimination to the overriding
objective of the Bill, is to injure many other interests and rights,
which in many cases, on account of their delicate nature, tend
to go unseen. No attempt has been made within the Bill, for example,
to advise employers or owners of public services on how to cope
with the inevitable response of staff or clients to obviously
transsexual people (with or without gender reassignment surgery)
using gender specific facilities.
8.2.1 By way of a further specific example,
there is no apparent third party protection offered by the draft
Bill involving the need for disclosure when a doctor/medical practitioner
has themselves acquired a different gender. We already know the
police will not allow transsexual officers to conduct personal
searches. But where transsexual doctors are examining patients
of the "opposite" sex it is a fundamental human right,
that those patients should be made aware, and have the opportunity
to decline without fear of prosecution. Muslim women, for example,
always insist on female doctors for examinations.
9. CONCLUSION
9.1 Change of gender is a change of status
which, by its nature, needs to be publicly acknowledged.
9.2 This cannot happen if, as the Bill presently
seeks to do, the process is a secret one, in which information
is suppressed.
9.3 Nor is it right to favour the interests
of transsexual people while riding roughshod over the interests
and concerns of family members of the transsexual and other interested
parties.
9.4 So far from the Bill catering for or
holding in balance those interests, it does not even provide a
mechanism whereby they may be consulted let alone heard.
9.5 The Bill assumes without any foundation
whatsoever that it is possible to change sex, a proposition that
to say the least raises a host of scientific, medical, factual,
philosophical and theological questions. it further suggests that
gender is a status that can be self-determined and bought for
money. To the vast majority of right-thinking people in Great
Britain, gender is manifestly predetermined by biological sex,
and the idea of an optional crossover is as offensive as it is
absurd. It is advisable nonetheless for societal acceptance of
some form of recognition, short of a change of actual status,
for those individuals who have a psychological need to live as
a member of the opposite sex. The Convention right of privacy
may safeguard individuals in this category from prurient enquiry.
The Bill should be addressing this need for sensible recognition
and/or safety, not striking at the roots of sex and gender.
Furthermore, it appears from the draft Bill
that marriage is no longer to be based on biological sex, but
on "gender" (as defined for the purposes of this legislation).
That is a huge constitutional change that goes well beyond the
remit of this Bill. If gender is to be divorced from sex, as the
Bill implies, then why retain any distinction at all between the
sexes? Though the Evangelical Alliance clearly does not take such
a view, it is logical to ask why not abolish marriage altogether—or
make it available to anyone of whatever (optional) sex? For if
gender, not sex, defines marriage (as the Bill in effect provides),
then biological sex has effectively become redundant save only
as a mechanism for reproduction, if that.
As to altering the records, and in particular
birth certificates, this ranks as one of the most obnoxious features
of the Bill: because it obliges registrars to state, and everyone
else to accept, what is plainly a falsehood, viz, that someone
was (by implication) born a member of the opposite sex. It virtually
amounts in many peoples' minds to what could be regarded as institutionalised
deception. Should anyone who knows the facts venture to state
them in public, he or she may commit a criminal offence and be
open to a suit for libel. The Bill criminalises truth-telling,
and thus undermines the whole basis for the rule of law.
The Bill does not guarantee impartiality over
issues of sex and gender. For example, medical reports are required
from, and the Recognition Panel is to comprise, experts who gain
their living by diagnosing the condition known as gender dysphoria,
and by encouraging the carrying out of cosmetic plastic surgery
to "correct" it. Such people have an interest in changing
a person's gender. By contrast, those who may have an interest
in ensuring that a person's gender remains the same (spouses,
members of the family, etc), are not allowed to participate in,
let alone judge, the case.
In our view, therefore, the Bill therefore violates
a large number of human rights and cannot be considered compatible
with the Convention.
29 September 2003
| 
