Joint Committee On Human Rights Written Evidence

9. Submission from The Gender Trust

EXECUTIVE SUMMARY

  I.  The Gender Trust is the main UK national charity for the support of trans people. The Trust's submission is a substantial document including reasoned detail about how the Bill would impact on the lives of trans people. It contains 29 specific recommendations for improvement. Anyone with a need to fully understand the issues is asked to spend the time reviewing the full submission, but some of the key points are included below. The Bill has undoubtedly been prepared with good intent. Unfortunately, in a number of key areas, the Bill, as currently drafted, will be unacceptable to the Community, and will afford inadequate respect for Convention rights, if the issues set out in the full submission are not resolved. The Trust's comments are presented with the desire to help minimise problems and anguish in the future.

II.   Creation of a "Register of Transsexual People"

  The Bill proposes that trans people should be registered following assessment by a novel form of medico-legal tribunal, with the consequence that, without assessment and registration, various civil rights will be withheld. No other minority group in this country is required to be registered on a centralised national database accessible by the State and others in order to receive basic civil rights enjoyed by the majority, as opposed to gaining a benefit or advantage, or because of a criminal offence or court judgment. Many trans people will fear the consequences and stigma of being included on a register after "assessment" by a tribunal and will mistrust the process. Registration of an ethnic group, or of gay or lesbian people would be unacceptable and such is unacceptable when applied to the trans community.

III.   Employment Rights Restrictions

  Those who do not have a "gender recognition certificate" will remain lawfully discriminated against under employment rights restrictions contained in the provisions of the Sex Discrimination Act 1975 added by amendment (by SI) in 1999, even if, in all other respects, their situation is identical to trans people with a certificate. Among others, married people will be entitled to lesser employment rights than others. The employment restrictions are flawed and should be repealed.

IV.   Discrimination in respect of Goods and Services and Indirect Discrimination in Employment

  Discrimination against trans people in respect of basic goods and services is endemic and lawful and this Bill wholly omits provision in this area. Further, trans people will be the only minority group against whom indirect employment discrimination remains lawful by the end of 2003. The text sets out recommendations in a human rights context.

V.   Cases where gender recognition certificates are not sought or awarded

  The "concessions" currently in place for trans people to have primary documentation (eg passports and driving licenses) amended to coincide with gender presentation may be withdrawn or made conditional on having a gender recognition certificate (therefore be unavailable to many). "Ring-fencing" of such "concessions" is essential to personal safety and privacy abroad and at home, but the Bill makes no provision.

VI.   Linkage between gender recognition certificates and the right to "treatment services"

  The Bill recognises "acquired" gender "for all purposes". The Trust is concerned that this will lead to ineligibility for (broadly) medical services (such as for "gendered" cancers) based on "legal" sex rather than based on the actual morphology and bodily needs of the individual. The Trust proposes a rule of construction to resolve such basic issues at minimal cost.

VII.   Compulsory requirement to terminate marriage

  This is the only piece of legislation in UK law that requires people to terminate a marriage in order to qualify for basic rights. The termination requirement is discussed in a human rights context for all concerned, not merely the trans person.

VIII.   Privacy

  The Bill contains provisions for preventing disclosure of information but this applies only in limited instances. There are wide exemptions which would ensure frequent violations of the right to privacy. Furthermore in the Trust's view there must also be tight restrictions on the collection and holding of such information, not merely its disclosure.

IX.   Flaws in Mechanisms

  A critique of other aspects of the Bill's procedural mechanism is presented, including issues such as the apparent exorbitant jurisdiction over foreign nationals, the excessive cost of applications, and matters concerning legal aid and legal representation.

PART 1

Introduction

  1.0  This statement is made on behalf of The Gender Trust, which is a charity providing support and information, for members of the transsexual, transgendered and intersexed people of the UK, and their families and employers. Among our membership we number a significant proportion of trans people likely to be affected by this Bill and believe we are the largest body formally obligated to promote the best interests of the diverse trans community.

  1.1  The Gender Trust is one of the two major national charities which provides services to the transsexual and transgendered community—the other being a wholly independent body called GIRES[4] whose areas of responsibilities relate to medical research and ethics and whom we believe will be submitting their own evidence.

  1.2  We acknowledge the significant work and progress made by the political lobby groups within the community and smaller more informal associations, as well as many individuals. We expect that they will continue to contribute to the extent that they feel able but cannot comment on the degree to which those groups accept the detail of this submission.

Scope of activity

  1.3  As a charity with 13 years' experience, and one which also operates democratically, we are duty bound to speak in the interests of all trans people[5] whether they are openly transsexual, whether they be "stealth" people who are known by nobody but themselves to be transsexual, whether they are disabled or members of an ethnic minority, or whether they are prisoners in their own homes, trapped by a fear of stepping outside. The same breadth of duty applies equally as regards the spouses and families of trans people who also form our diverse membership. We are not, therefore, a body solely made up of trans people.

  1.4  The above is no mere throwaway comment: it is important that the JCHR appreciates that the Trust, whose volunteers throughout the country field a considerable number of helpline telephone calls (from members and non-members equally) and whose full time staffed office works come rain or shine, does not speak as a political group or promote a narrow view in support of any one sector of the community of trans people over any other. One service we offer in addition to the national helpline and local support lines is the confidential mailbox system which conveys many letters within the community, sent between sometimes isolated members of the community not connected to the electronic media.

  1.5  The Trust welcomes the fact that the Government has taken steps with the hope of protecting the basic rights of the trans community which we represent.

The purpose of the observations made

  1.6  The basic civil and human rights protection of transsexual and transgendered people in the UK is widely accepted as poor and the Bill is an attempt to improve matters. The Trust however wishes to draw the committee's attention to significant areas which we feel the Bill should address if the rights of the trans community (which is to say all of the trans community) are to be protected by, and not infringed by the Bill. We will focus upon eight main areas:

  (I)  The Transsexual Persons Register

  (II)  The 1999 Employment Rights Restrictions in relation to the Bill

  (III)  Discrimination against trans people in respect of Goods and Services

  (IV)  The situation of people who do not have or do not seek a Gender Recognition Certificate

  (V)  Linkage between the issue of a Gender Recognition Certificate and the right to medical care

  (VI)  The compulsory requirement for termination of marriage as a precondition of employment rights and gender recognition

  (VII)  Privacy

  (VIII)  Flaws in the Bill's mechanism for recognition

  1.7  Included as part of this submission (in Appendix 2)[6] is our analysis of the draft Bill which was released shortly after the publication on 11 July 2003. This contains The Trust's analysis of each clause within the Bill and discusses possible implications. It is intentionally examining the Bill critically in terms of the detail of the wording of the Bill. The analysis forms part of, and adds to, the evidence presented here and the committee is urged to consider it as complementary to and not repetitive of the issues raised here in that it goes into more detail in relation to the construction of the Bill and Schedules. It may also serve as a guide to how the Bill works from a procedural perspective.

  1.8  The remainder of this document will proceed to consider the problem areas of the Bill on an "issue based" footing.

  Note:

  In the text, occasional examples are given. Where an example relates to the future operation of the Bill then it is clearly an expression of opinion by the Trust as to how the Bill may or will operate. Where examples are given—and expressly flagged as "examples"—in relation to the current experience of trans people, they are to the best of the Trust's knowledge and belief taken from real situations but immaterial facts are altered such as initials, places, names, and genders to preserve anonymity.

PART 2

(I)   The Transsexual Persons Register

Legislative context

  By paragraph 1 of Schedule 2 "The Registrar General must maintain in the General Register Office a register to be called the Transsexual Persons Register".

  Upon registration (which is compulsory where a Gender Recognition Panel ascertains that a person satisfies the criteria for a full Certificate), the Registrar General must among other matters "secure that the birth register entry is marked in such a manner as may be described" and must "make traceable the connection between the entry in the Transsexual Persons Register and the birth register entry" (Paragraph 2(3) Schedule 2).

  The register will be accessible by a range of State and other bodies in a range of circumstances (discussed in more detail in the Analysis attached to this document) and it is understood that further provisions for wider access to the Register are to be considered by way of Regulations made under the Act were it to be enacted. Details of such proposed further access to the Register are not before the Trust but may be available to the committee at a later stage.

Historical context in relation to the Proposed Register

  2.0  The creation of any form of registration scheme whereby a minority social group is held on a State register is a step which should always be preceded by the most careful and mature consideration in a democracy. This applies whether or not the State introducing the scheme believes that such a register will be immune from misuse. This is a particular concern for the UK as a Common Law Jurisdiction where the assumption is one of non-interference with the daily life of law abiding individuals and not one of regulation.

  2.1  Transsexual people are generally law-abiding people who, as with other normal people, wish to live, raise their families, marry, and work without fear of persecution. In this context, where the current legislative proposals would lead to a national register of transsexual people together with an identifying mark attached to their original birth register entry, it is essential to set out some of the historical context which informs the trans community and which must be taken into account when assessing whether the Register addresses a pressing social need.

  2.2  The Trust is conscious that reference to historical material may be a sensitive matter but regards such as essential. The background is mentioned because non-trans people may be less aware of the issues from this perspective than are people directly affected.

The 1999 employment rights restrictions in the context of Registration

  2.3  The acceptance of trans people within society in recent years has increased as more people meet trans people and recognise them as individuals simply endeavouring to be themselves rather than the grotesque caricatures so often portrayed. In society today there are trans people at all levels of seniority and in all forms of employment—doctors, nurses, surgeons, actors, physicists, engineers, teachers, solicitors, barristers, accountants, police officers, leading academics—and so on. In spite of this greater acceptance of diversity, gender role transition remains one of the most difficult and socially least understood of all the changes which can take place in life.

  2.4  It is only a few years since the norm was to dismiss an employee who "transitioned" (an expression which means, within the trans community, the shift from one form of gender presentation to another on what is usually intended to be a permanent basis). All of that was changed by the European Court of Justice finding in the case of P v S and Cornwall County Council (C-13/94) which provided protection in employment and vocational training against direct discrimination on the basis of gender reassignment.

  2.5  The above landmark ECJ case confirmed that Transsexual people had the benefit of the protection of the Equal Treatment Directive in employment matters: it was unlawful and discriminatory under EU law to dismiss any trans person because they had or intended to reassign their gender.

  2.6  The ruling was a breakthrough for the community and provided uniform employment protection: it mattered not whether a trans person was single or married, and it mattered not whether a trans person was a nurse, a teacher or a solicitor. It was one of the first occasions that the civil rights of the trans minority had been placed on a par with those of the non-trans majority and its impact must be understood to be on a par with, for example, the first time that a State body ever stated that to be a member of an ethnic minority was not a legitimate reason for dismissal.

  2.7  Following the widely welcomed judgment, after a brief period of consultation a piece of secondary legislation came into being called the Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999/1102, which introduced a number of specific restrictions on the employment rights of transsexual people by amending and adding to the Sex Discrimination Act 1975. As a piece of secondary legislation the document was not extensively debated in Parliament.

  2.8  The new restrictions on employment rights which were introduced in 1999 need not be set out extensively here but were termed "Special Genuine Occupational Qualifications" or "Special GOQs" and provided for numerous circumstances in which a trans person could be left without protection from dismissal (or non-recruitment by an employer) merely on the basis that they were transsexual (or more precisely were undergoing, or were intending to undergo, gender reassignment). In this document, and the attached analysis the exceptions to employment protection which the 1999 Statutory Instrument introduced are referred to as "the 1999 employment rights restrictions".

  2.9  The full list of Special GOQs appears in the 1999 Regulations themselves. Probably the most stigmatising, and the one which may have led to the most sadness within the community, is the "vulnerable persons" GOQ which provides that a transsexual person undergoing or intending to undergo gender reassignment may find themselves unprotected from dismissal if he or she works with "vulnerable" people (an expression which is not defined).

  2.10  The consequence is that members of the trans community working as doctors, nurses, care workers and others live under the shadow of uncertainty as to whether they are capable of dismissal in effect merely for being members of this particular social minority group. It should be plain that the implication of the "vulnerable persons" Special GOQ carries the stigma of a message that in some unspecified—and evidentially wholly unfounded—sense merely to be a transsexual person is to be a possible threat to "vulnerable" people, presumably in some moral or physical sense.

  2.11  The Gender Recognition Bill under consideration by the JCHR makes limited provision for releasing some unmarried transsexual people from the 1999 employment rights restrictions. Release from the restrictions requires the granting of a Full Gender Recognition Certificate. It follows that all married people will remain under the employment rights restrictions as will others who for whatever reason are unable to obtain a Full Gender Recognition Certificate.

  2.12  It is accordingly important to appreciate that, coupled with the history of the recent introduction of the "vulnerable persons" restriction, the proposed creation of a national register of transsexual persons carries with it connotations of a stigmatising nature which would be regarded as unacceptable if applied to other social groups.

Registration and the "mark" in the context of the wider experience of the trans minority

  2.13  The Trust calls to mind that in the Germany of the last War "transvestites" (the label used to refer to all trans people in years past) were deemed to fall within the category of prisoners indicated by a pink triangle on the prisoner's uniform, and that transgendered people were one of the persecuted groups under that regime along with other groups well known to the JCHR.

  2.14  The Trust is concerned that under the proposed legislation civil rights are to continue to be withheld from trans people unless they are entered onto the proposed register and their birth register entries are specially "marked". A register based on race, religion, or sexual orientation would be unacceptable to UK subjects and the Trust finds such a register unacceptable for the same reasons. The Trust regards such as inappropriate in this jurisdiction, howsoever administratively convenient it may appear, when applied to the trans community.

Law enforcement?

  2.15  The Trust is of the view that more than adequate information is available to the State, police and law enforcement bodies (for example via National Insurance records, tax records, medical records, DVLA records, Council Tax records, Credit Records, Passport Office records and so forth), to ascertain whether a given person is transsexual, should the need arise, without there being a requirement for a central register which isolates and lists identified transsexual people. A Register of Transsexual persons would in the Trust's view either be a breach of Article 8(1) not justified by Art 8(2) or would be a breach of Art 14 within the ambit of Art 8.

Recommendation One: The Register

  If a person is entitled to change legal gender they should be provided with a replacement birth certificate showing their new details, and the Birth Register entry should be replaced accordingly in all respects. There should be no Register of Transsexual Persons.

(II)   The 1999 Employment Rights Restrictions in relation to the Bill

  2.16  As regards the employment rights restrictions themselves[7] under the Bill before, this committee, those are almost all[8] lifted if a person obtains a Gender Recognition Certificate.

  2.17  Since there can be no practical difference between married and unmarried people in terms of the supposed "threat" they pose to "vulnerable people"[9] the Trust believes that the Employment rights restrictions—reduced in effect now to restrictions directed only at married people who are of necessity ineligible for a Certificate—are plainly lacking any principled basis and should be repealed.

Recommendation Two

  The employment rights restrictions set out in the Sex Discrimination (Gender Reassignment) Regulations should be revoked.

(III)   Discrimination against trans people in respect of Goods and Services and Indirect Discrimination in Employment

  2.18  Members of the trans community have no protection under English law against discrimination in respect of the provision of goods and services. It is apparently legal, for example:

(a)  to have a "no transsexuals" policy at a shop or restaurant (as regards customers)

(b)  to refuse an elderly trans person a place at a care home as a resident

(c)  to decline private medical services to a transsexual person because they are transsexual

(d)  to require a trans person to pay more for goods or services or to refuse services altogether

(e)  to refuse to let premises to a transsexual person (including in principle also erecting a "no transsexuals" sign at the door).

  2.19  The Gender Recognition Bill takes no steps whatsoever to improve that state of affairs: thus whilst it is illegal to refuse access to goods and services on the basis of the race of a person or usually on the basis of their sex, members of the trans community have no such protection in respect of their status as members of that minority group.

  2.20  The Trust believes that absence of protection in respect of Goods and Services does have human rights implications since the notion of "goods" and "services" in law are broad enough to include basic needs for housing, food and shelter and for the protection of property, provision of medical care and family services all of which it is incumbent upon the State, as signatory to the Convention, to protect insofar as they are elements necessary for the enjoyment of Convention rights in this democracy.

  2.21  Thus with the ageing population the Gender Trust is especially concerned that elderly trans people may be denied a place in a home because of their history. In the Trust's view it is already all too common to see young trans people who are homeless turned away from hostels because the hostel manager refuses to house them with people of their identified gender, yet it would be unsafe for them to be housed with persons of the opposite identified gender (eg a trans woman housed among men).

  2.22  The Trust notes with dismay that new regulations covering other groups within society will leave trans people as the only minority within society against whom it will be legal—and indeed normal practice—to discriminate against as a group. It is so often the case that the high unemployment rate among trans people forces a choice between basic privacy and employment.

  2.23  The Trust also notes with concern that existing lack of protection in respect of goods and services also means that trans people may be excluded from exercise and sport facilities as well as sport generally, with what must be seen as consequences in terms of basic health. The Trust refers to the fact that the Women's Sports Foundation[10] (WSF), itself commented in relation to the current state of the law, prior to the draft bill, as follows (extract from longer document):

"The Women's Sports Foundation believes however that the complexity and sensitivity of this issue should be a reason for further discussion and deliberation rather that an excuse for continued discrimination... Fundamentally there is no justification for treating a transgender person any differently to another individual wishing to participate, in whatever context, in sport."

  2.24  Before making a recommendation several examples of typical "routine" discrimination will be cited derived from real experience:

  B, a trans woman, enters a restaurant in Covent Garden, London. She buys a meal and before leaving wishes to use the lavatory. Despite the fact that other women are using the ladies facilities, she is told by staff that sadly all the facilities for women are out of use due to "a flood" and she is asked to use the men's lavatories (a urinal). She leaves the restaurant at once.

  C is a professional in a well paid City position and is the author of a couple of text books. He is also a member of the trans community (born physically female but having transitioned to male a year ago). He contacts a Recruitment agency and forwards a CV with a view to applying for a more senior post elsewhere, there being numerous advertisements for his sort of professional. The agents, who are aware he is a trans man, call him two days later to say that sadly they have no jobs for his type of professional and that it is proving so hard to place them that he should probably stay where he is.

  D, a trans woman, has a mobile phone. She wishes to change some of her personal settings on her account and telephones the operator to do this. The operator does not ask for her password or any of the usual details to check her identity before allowing her to change her personal settings. Instead the operator asserts that D is not who she says she is and that she does not "sound like a woman" and begins to become rude to D. It is only after D gives personal medical information to the operator, which she goes away and checks with her manager against the company records, that the operator agrees to alter the settings. The operator then still fails to ask for a password or standard identity information to confirm D's identity before changing the account settings.

  E, a trans woman, wishes to trade shares herself using a share trading service. When considering which service to use, she notices a full page advertisement for a share dealing service (see image at Appendix 3). She does not feel that she would be welcome if she called them, and seeing copies of the advertisement being read by the public makes her personally uncomfortable.

  F, a trans man, obtained a postgraduate qualification in 1994, which was before his gender transition. His university declines to issue a replacement certificate and so F "makes do" without telling prospective employers that he has that qualification.

  G a trans woman, worked as a manager for a department store for many years. She sees an advertisement for another company for which she would be suitable. On seeing the application form she simply discards any thoughts of applying. The form asked for all former names.

Recommendation Three

  The Bill should include an amendment to the Sex Discrimination Act 1975 to make it unlawful to discriminate on the basis of gender presentation or status in the provision of goods and services or to indirectly discriminate in employment or vocational training on such basis. Such protection should be irrespective of the holding of a Gender Recognition Certificate.

Discrimination against people associated with trans People

  2.25  The Trust is concerned that the Bill also fails to redress the lack of protection (in employment and goods and services law) for people such as friends and spouses of trans people (people "associated with" trans people). It remains, apparently, lawful to:

(a)  refuse to recruit a person because his spouse is transsexual.

(b)  refuse goods and services to people on the basis that they associate with transsexual people.

Recommendation Four

  The Bill should include an amendment to the Sex Discrimination Act 1975 to extend protection in all areas to persons associated in any way with trans people. (Such would place the Act on a par with the Race Discrimination legislation which provides "third party" protection).

(IV)   The situation of people who do not have or do not seek a Gender Recognition Certificate

  2.26  At present those who change gender role in society are able to obtain a variety of documents in their new name and in the gender in which they live their lives. This includes passports and driving licenses. The arrangements are administrative, policy based and somewhat informal.

  2.27  The long-standing and humane facilities allowed to trans people enabling them to obtain appropriate passports and driving licences are discretionary and the Trust fears that they could be withdrawn with an administrative change of policy once the Bill is enacted. The. Bill makes no provision to "ring fence" the current arrangements to prevent them from being summarily withdrawn from people without Gender Recognition Certificates.

  2.28  There are good reasons for the current arrangements: first that if a person who is to all intents and purposes female presents with a male passport she may be detained in her destination country, or subjected to abuse, and second that to require otherwise would be to require her to "out" herself whenever she has to prove her identity. Similar considerations apply to photocard driving licences: it would make a nonsense of the DVLA records if a person with a legally female name and visual appearance was logged as "male" and shown up as such on police records. It would interfere with operational effectiveness because for all practical purposes recording a woman as "male" would be misleading.

  2.29  The Trust understands that from 26 October 2004 the UK Government is effectively obliged (under a US law) to begin adding biometric data microchips to newly issued passports, in default of which UK nationals may be refused access to the USA. The position of the trans person therefore becomes all the more precarious and in need of clear protection as regards passports if such microchips were to contain gender markers. There is no provision for preventing inappropriate gender data about such people from being recorded on a biometric data chip in a passport, identity card or license in future.

  2.30  The Trust further understands that the US Department of Homeland Security has this month issued a "security advisory" to its security personnel released publicly under its Press Release number 238[11] in which it alerts staff at airports to the possible terrorist threat posed by "males dressed as females". The Trust is very concerned that the respected US rights group NTAC[12] and its advisers has felt the situation sufficiently serious to release an urgent security alert to the trans community this month stating inter alia that:

"For the trans gender community, this means that airport screeners and other law enforcement agencies will be much more vigilant than usual. It also means they may be more likely to commit unwitting abuses. At the minimum, the trans gender community should be mindful of the new alerts and prepare accordingly when travelling this fall, especially if flying.

Even for those who've transitioned, issues may arise if authorities suspect something. When travelling, it is advisable to consider bringing your court-ordered name (and gender) change papers. While terrorists may make fake identifications, they won't carry name change documents signed and notarized by a court.

In either case, be prepared to openly explain the truth about your transgender status if stopped and questioned by authorities. As frightening as this scenario may appear, hesitation or evasive answers will only draw more intense scrutiny and could possibly lead to police holding one temporarily for further interrogation. Lack of co-operation with authorities will likely be treated unfavourably and unapologetically."

  2.31  In the light of the above, preservation of the present entitlement to change gender and name details in passports is all the more important to reduce the risk of abuse, and the Trust is also concerned that married persons travelling to the USA would, under the Bill, find themselves unable to produce documentation to verify gender change since they would be, legally, "males travelling as females" (or vice versa).

  Example (taken from the international press):

  A Thai transsexual woman arrived in Singapore from Bangkok on a visit to that country in 2003. She was detained by immigration officers at Changi Airport when their suspicions were raised by how the woman was referred to as "Mr" in her passport. In Thailand, trans people are not permitted to change the gender of their passports.

  2.32  The draft Bill deals solely with those who qualify for a Gender Recognition Certificate. Unfortunately, a sizeable part of the trans community falls into one of four classes not qualifying for recognition:

—  those who are in the early stages of transition and are within the two-year qualifying period under the Bill;

—  those who are married and wish to remain so;

—  those who decide that for whatever reason they do not wish to obtain a Gender Recognition Certificate (perhaps being concerned about Registration or having families who express concern on that topic);

—  those who cannot afford the fees to seek a Gender Recognition Certificate and necessary expert medical evidence.

  2.33  The draft Bill makes no provision for such people in relation to existing entitlement to passports, driving licences and suchlike, and the Trust is of the view that it should do so by ensuring that arrangements already in place will remain in place in future.

Recommendation Five

  The Bill should be amended to ensure that persons who have transitioned in gender role living full time in that role should be able to continue to obtain all identity and entitlement documents except the birth certificate in their new name and gender and that no inappropriate biometric data is recorded on embedded passport microchips to "out" them upon entry to a foreign state.

Privacy among those not in possession of a Gender Recognition Certificate[13] 2.34  Among those not seeking or qualifying for a Gender Recognition Certificate will be a large number of people who would qualify under the Goodwin and "I" court rulings, (judgments of the ECHR which among other matters confirmed the right of trans people to privacy) but who cannot obtain a Certificate because they are married, are too poor, or are scared of the implications of being registered on a national register of transsexual people. It is a defence against breach of disclosure rules under the Bill itself that it was believed that no such certificate had been issued, and by implication it may be seen in some quarters as acceptable to disclose such information in the absence of a Gender Recognition Certificate.

  2.35  It is clear that in this respect some trans people are expected, within the terms of this draft Bill, to choose between a long-standing marriage on the one hand and their right to some element of privacy under the Bill. We regard this as contrary to the findings of the recent ECHR cases of Goodwin and "I" and likely to constitute a breach of Articles 8 and 12 of the European Convention on Human Rights, possibly also breaches of Article 14 within the ambit of Articles 8 and 12.

Recommendation Six

  Constraints on disclosure of information to the effect that a person is transsexual should apply to any person who can demonstrate that they have changed gender role or intend to do so and intend this change to be permanent.

Linkage between employment rights and grant of Gender Recognition Certificate (s. 9)

  2.36  The Bill in present form at section 9 has the effect that people without a Gender Recognition Certificate remain under the 1999 employment rights restrictions.

  2.37  The linkage between employment rights has the net effect that marriage, under English law, will be an impairment to employment rights. Members of the trans community in surviving marriages will still be subject to the employment restrictions introduced in 1999, whilst unmarried counterparts in otherwise identical circumstances will not.

  2.38  Since the case of Croft v Consignia (EAT/1160/00 and later upheld on appeal for modified reasons) decided recently it has become probable that employers will be less likely to permit use of facilities appropriate to the gender in which trans people present at the point of transition. While this has often been the case, it was often in practice mitigated by an agreed changeover along the lines of the guidance written in support of the Sex Discrimination (Gender Reassignment) Regulations.

  2.39  In such a regime the fear is that a trans person will be driven to undertake a degree of surgery which they may later come to regret deeply in the hope that this will persuade an employer to permit them to use the correct facilities. With the present proposals it may be the case that employers insist upon someone obtaining a Gender Recognition Certificate before suitable facilities may be used, and indeed such would appear to be the inevitable consequence of Croft v Consignia if the facilities available at work are limited (for example at an establishment with one male and one female set of facilities). Without appropriate changes to the Bill this will have two consequences: two years or more of being unable to use suitable facilities and undue pressure on someone who feels uncomfortable with obtaining a Gender Recognition Certificate (eg because of marriage) being pressured into divorce in order to obtain a certificate.

  Example (which would arise if the Bill was enacted as proposed):

  A, a married trans woman who is unable to obtain a Gender Recognition Certificate (because she is married), is required by her employer to use the male lavatory at work because the employer has only one lavatory for women and one for men. B, also a trans woman, who is A's junior colleague at work, is unmarried and has obtained a Gender Recognition Certificate. She is required by her employer to use the women's lavatory. Both women are otherwise identical in all relevant respects.

  2.40  The Trust is firmly of the view that a linkage between employment rights restrictions and the use of lavatory facilities, with marital status is absurd and is a link which has no legitimate purpose, and that the requirement for divorce or voiding of marriage in order to gain employment rights and the right to use appropriate facilities is a disproportionate requirement.

  2.41  The Trust believes that the above is a discriminatory breach of the right to respect for privacy and/or an unjustified breach of Art.14 of the Convention within the ambit of Art.8.

Recommendation Seven: Use of correct sanitary facilities (1)

  The Bill should amend the Sex Discrimination (Gender Reassignment) Regulations, 1999, to provide that equal treatment includes equal rights to use suitable facilities appropriate to the gender in which a person using those facilities identifies and appears at work.

Recommendation Eight: Use of correct sanitary facilities (2)

  The Secondary legislation[14] relating to provision of gendered facilities for washing at work which contributed to the decision it did in Croft v Consignia must be amended appropriately or repealed by the Bill so as to permit trans people to use the correct lavatory facilities for the gender in which they present at work.

(V)   Linkage between the issue of a Gender Recognition Certificate and the right to medical care

  2.42  The medical treatment for trans people within the UK is very limited in extent for those unable to pay for private treatment. There is wide variation in the provision of service, extensive delays well beyond that in almost any other area of treatment (waiting periods of years in length) and frequently trans people meet with GPs who have no understanding of the condition or competence in dealing with it. There is strong debate at present over what the appropriate standards of care should be with the UK choosing not to adopt the recognised international standard.

  Example:

  In some NHS areas the Trust understands that an "absolute ban" on receiving medical assistance for the condition is imposed on any transsexual person who lives within the NHS Trust area and cannot prove that they have so lived there for a certain number of years—hence excluding and creating "no go zones" for new citizens from abroad, homeless persons, students, those moving home, those moving to live with loved ones or those just moving to change jobs.

  2.43  Faced with such provision and the apparent creation of areas of the country in which trans people cannot be sure to receive relevant NHS cover, it is of paramount importance that matters are not made even worse by the Bill. Against that backdrop the Trust is concerned that the Bill fails to outlaw the possibility that medical treatment services may become linked (positively or negatively) to the status of an individual as "registered", irrespective of medical need and fails to protect pre-existing rights to general medical treatment.

  2.44  Thus for example the Bill offers no protection against a situation where a trans person is refused gender reassignment surgery until such time as they obtain a Gender Recognition Certificate, which will require divorce or annulment of marriage.

Recommendation Nine: No interference with gender reassignment treatments

  Under no circumstances should it be lawful to refuse medical treatment forming part of gender reassignment on the basis that the patient has not or is unable or unwilling to obtain a Gender Recognition Certificate (such as by virtue of being married).

General treatment services outside gender reassignment

  2.45  The idea that for all practical purposes trans people should be recognised as being of their reassigned gender is a welcome one.

  2.46  However in accordance with its policy that recognition must be sensibly interpreted in accordance with biological reality (such as the endocrinological, or morphological realities of each person), the Trust is concerned that the grant of recognition "for all purposes"—the expression used in section 5(1) of the Bill[15] carries with it a serious and unintentional side effect. This is that policy documents, Statutes, Statutory Instruments, professional rules and such like will have to be interpreted by service providers and the courts purely in accordance with the "legal" re-assigned gender of the person concerned irrespective of the medical issues involved and the medical services sought (whether privately or NHS).

  2.47  Thus a trans woman would under the Bill be a woman even when it came to funding surgery for prostate cancer or any other "gendered" medical service. That approach may or may not make good medical sense depending on the specific situation. This would of course apply equally to all "medical" statutes and so forth which use conventionally gendered terms (and which were drafted without foreseeing the fact that legal gender might change, one must reasonably assume), not merely in relation to treatment for illness but also to the whole range of public and private healthcare and treatment services.

  2.48  Thus suppose a local NHS funding policy funds prostate cancer screening and treatment for men in a specified age range. A male to female transsexual may not be able to persuade her Trust to screen her for prostate cancer because there is no funding for such treatment m people who for "all purposes" are women. Aft attempt to Judicially review the decision may equally fail since the Bill, on the face of it, would require a Trust to interpret its lawful funding policies so as to regard the person as female for all purposes. By contrast the same Trust would, presumably, have at least to budget for screening for cervical cancer notwithstanding that a male to female transsexual person lacks a cervix.

  2.49  Suppose alternatively that a private healthcare provider offers lifesaving cervical cancer care to women. Its insurance cover would, very possibly; not extend to such cancers in legal men.

  2.50  It appears to the Trust that it would be unreliable and costly to endeavour to list all local policies, instruments and rules, or to "vet" all statutes for problems in this context and that the preferable approach would be a simple rule of construction provided by the Bill as follows.

Recommendation 10: General rule of construction

  The Bill should be amended to ensure that a basic rule of construction is added that:

"Where a Statute or other instrument having legal effect (including NHS policy documents) contains the expressions `man' `woman' or related expressions connoting gender, the relevant Statute or legal instrument shall be construed, notwithstanding the grant of a Gender Recognition Certificate, such that if the individual concerned would have been permitted in law to receive treatment services prior to grant of a Gender Recognition Certificate, his or her entitlement to receive those services shall not cease or be restricted by reason of the grant of a Gender Recognition Certificate."

(VI)   The compulsory requirement for termination of marriage as a precondition of employment rights and gender recognition

  2.51  A few existing marriages survive the great trauma of one spouse undergoing gender transition. The non-transsexual spouse is very often the person who suffers the most. Those that do survive, do so because of a huge investment of energy, emotion and effort on the part of both parties, together with a great deal of love. Like others who successfully come through traumatic events together, the bond can actually be strengthened by the experience.

  2.52  Society at large does not understand why trans people marry in their "legal" gender role when they "know" about their condition and, when considering the proposed legislation it is necessary to have some insight into this issue.

  2.53  It is probably fair to say that most get married either while in denial about their gender identity or because they believe that they will be able to beat the condition and live their entire life in their legal gender role, and for the perfectly natural reason that they love each other.

  2.54  To a large extent, this is inevitable, given societal (and legal) pressure to conform to the role assigned on the Birth Certificate. It is also fair to say that, whatever their gender presentation, some do get married because the union is legal and accords with their own sexuality and legal identity.

  2.55  As drafted, the legislation will add a further pressure to dissolve an existing marriage and, therefore, impose greater trauma on trans people and their spouse and children who are trying to deal with the condition. We believe that this will cause many trans people to put off seeking help and treatment and will increase the risk of suicidal ideation.

  2.56  In the cases where a trans person's existing marriage survives, they and their spouse will be faced with an impossible dilemma—a choice between dissolving the marriage in order to gain a gender recognition certificate or maintaining the marriage; being unable to obtain a certificate and, as a result, being subjected to the uncertainties of not being legally recognised in their adopted gender role, many of which are outlined elsewhere in this document. This could hardly be construed to be a free choice and, further, will introduce new legal inequalities between trans people whose marriages survive and those whose marriages do not.

  2.57  The Trust also believes that the requirement for dissolution of marriage, and the placing of that "right" within the control of the transsexual spouse is an unwarranted interference with the rights of the other spouse and the children of the family for respect for their home and family life. It is an unwarranted interference with the property rights of the other spouse where those are affected by the forced transition of the other spouse from a legally heterosexual married relationship to a legally homosexual unmarried one, and will grossly affect the insurance and other benefits available to the spouse concerned.

  2.58  In the view of the Trust the requirement as a whole is contrary to the basic principle of public Policy in English Law that the institution of marriage is to be protected. It would be a substantial abandonment of the principle that the family should be protected, to require people to end marriages when neither spouse wishes to do so.

  Example by way of evidence:

  A Statement by "M" in her own words:

"We have a happy and loving marriage that survived against all odds because of our great love for each other and a determination to do our best to/ace a difficult future together. I've spent my whole life so far facing a set of institutionalised discrimination, which was based on a failure to recognise the validity of my existence. Now that validity has been recognised and the legislators are at last preparing primary legislation to put right some of the wrongs of the last three decades. And, despite extensive consultation where the circumstances of people like us should have been considered, the legislation proposed simply replaces one invalidation with a different invalidation. Both my spouse and I will probably be worse off if this bill is passed as proposed."

  Further example by way of evidence:

  E. the wife of a trans woman, D. writes:

"We have now been married for over 30 years. We had our marriage re-blessed after 25 years and on the evening before D's transition, I gave her a wedding ring in the presence of a priest who blessed both us and the ring. There have been moments of great difficulty, anguish and pain for us, and, our two children. We have watched I) attempt to take her own life, we have had to. struggle with our own demons, but we have survived all of this and remain a very loving and committed family. To suggest that our marriage should be dissolved in order for D to gain the simple rights most of us take for granted is not simply just a matter of her basic human rights, for we know that she will put our marriage before her needs. Try and imagine how we will feel believing that we are somehow denying her! At the end of the day, it may be easy for some to suggest that there is no real problem, as we may well be able to divorce and then register a civil partnership (a welcome right for many loving couples), but, in this particular instance, one requiring me to make yet another public statement about my personal relationships. It is plain wrong, unacceptably painful and undermines the very essence of our marriage and family life."

Recommendation 11: Marriages to be respected

  The Bill should not require the dissolution of a marriage as a precondition of the grant of civil rights.

The Bellinger[16]-style Marriage

  2.59  The Bill also omits to address the need to legally recognise pre-existing marriages involving a spouse who has changed gender, similar to the "Bellinger" case where a marriage was contracted and all formalities were followed[17] the sole invalidity being the somewhat technical fact that, even though a marriage certificate was issued, the Gender Recognition Bill was not in force to permit a change of legal gender, and hence that the marriage was in law a marriage between people of the same sex.

  2.60  But for the fact that the technical legal genders of the parties were not recognised as opposite (the Bill not being in force at the time) such marriages would have been at the time in all respects otherwise valid. Had the Bill been in force at the time of the marriage the trans spouse would have been entitled to change legal gender and contract a legitimate marriage. It was only the lack of such a right to change legal gender which stood in the way of the marriage being recognised in law at the time, given compliance with all other formalities.

  2.61  Under the Bill marriages such" as the "Bellinger" marriage will remain invalid in law yet a simple amendment to the Bill (suggested below) would permit the handful of such families to avoid the trauma of having to dissolve the marriage if they are to secure legal recognition.

Recommendation 12: Bellinger style marriages

  To resolve the issue of "Bellinger" style marriages, those marriages should be recognised under a special approval mechanism in the Act:

  Provided:

(a)  the parties at date of marriage underwent as far as possible what in all respects would have been a formally valid marriage but for a violation of the requirement of legally different sexes; and

(b)  the relevant party to the marriage would have been eligible for a Gender Recognition Certificate at the time of marriage but/or the/act that the Gender Recognition Act was not in force at the time; and

(c)  both parties consent to the application;

  then the marriage should be recognised as valid.

  The Trust is of the view that the above represents fairness and equity to all concerned and is similar inform to the post hoc recognition of fatherhood for trans men which is provided in the Bill, recognising as it does the act of becoming a father which pre-dated the date of legal malehood.

  Example:

  The case of the Bellinger family marriage.

Existing valid marriages between opposite pairs of trans people

  2.62  Sometimes two trans people (a trans man and a trans woman, both therefore of legally opposite genders) marry each other. This may make sense especially in a world where few from the non-trans community understand the cultural experience of being a trans person. These couples marry legally and perfectly validly because they are, in law, respectively female (in the case of the trans man) and male (in the case of the trans woman)[18].

  2.63  The Bill as currently drafted fails to deal with such marriages where the parties go on to obtain Gender Recognition Certificates. It seems to the Trust to be pointless and contrary to public policy to require such a valid marriage to be dissolved merely so that the parties can obtain Gender Recognition Certificates and then promptly re-marry each other (this time with the husband and wife roles reversed to their proper outward appearance). It would be administratively sensible and in accordance with the Convention's respect for marriage to permit such married couples to merely amend their marriage certificate to reverse the labels of "husband" and "wife" once a Gender Recognition certificate is obtained, without first having to dissolve the marriage then re-marry.

  2.64  The Trust has already recommended, above, that the requirement for dissolution of marriage should be abandoned in all cases, and that will not be repeated here, but in order to cater for marriages such as the above the Trust also proposes as follows.

Recommendation 13: Correcting the marriage record where a valid marriage exists between two opposite gendered trans people

  The records appertaining to the pre-existing marriage of two people both of whom are entitled to Gender Recognition Certificates and both of whom were at the time of marriage of opposite genders and who remained of opposite genders after grant of a Gender Recognition Certificate, shall be rectified by issue of a new certificate to state the legally correct status of the parties as Husband and Wife upon a joint application to that effect being made by the parties enclosing copies of their respective Gender Recognition Certificates and their original marriage certificate.

Religious freedom and marriage

  2.65  Marriage is sacred in a number of religious faiths. In the Trust's view it is not acceptable to deny people the right to obtain the lifting of employment rights restrictions and a changed birth certificate, where they cannot make use of the proposed procedure because to do so would be contrary to a deeply held religious conviction to the effect that the ending of a marriage is wrong.

  A Roman Catholic, believes that the introduction of the Bill's "device" whereby people who are married may terminate marriage without a divorce (on the basis of "voiding" it) is no more than a semantic departure from divorce—a "quickie" divorce in other words—and as such is not in accordance with his faith. He would not feel able to make use of the procedure and would if married have to remain deprived of civil rights at work and elsewhere. Merely re-labelling a divorce as "voiding" does not escape the true moral nature of the act within his system of belief

Recommendation 14: Right of Conscientious objection (without prejudice to the Trust's recommendation for the abandonment of a divorce or dissolution requirement)

  Where a person makes a declaration that they object on conscientious grounds to undergoing the voiding or dissolution of marriage they shall be exempted from that requirement absolutely.

(VII)  PRIVACY

  2.66  It is commonplace for any trans person who comes to public notice to be "outed" as trans and for their past name to be published. Frequently, such occasions will also involve use of incorrect gender pronouns as a matter of policy.

  2.67  Within the draft Bill there are constraints upon disclosure of information acquired in an "official capacity" about a trans person who has obtained a Gender Recognition Certificate. These constraints are welcomed but it is noted that the exceptions provided are extremely wide. Already, it appears that consultation is taking place about possible new exemptions from disclosure constraints which may be introduced as secondary legislation.

  2.68  It is also regretted that there has been no attempt to limit the right to acquire such information. Any organisation will retain the right to ask questions about transsexual history or whether someone has applied for or been granted a Gender Recognition Certificate. For example an employer may well ask such questions on an application form or at interview. In such an instance the trans person would have no protection from dismissal if they failed to answer honestly whereas an honest answer could be interpreted under the proposed section 14(4)(b) as being voluntarily disclosed by the trans person and hence outwith subsequent disclosure constraints.

Recommendation 15: Primary limitation on acquisition and holding of information

  The draft Bill should be amended to prevent acquisition and holding of information related to gender role transition or associated medical conditions and treatment unless a clear relevance can be demonstrated in advance.

  2.69  Within the exemptions in section 14(4) of the draft Bill sub-section (c) relates simply to someone being unaware that a person had acquired a Gender Recognition Certificate. We are concerned that this provides a defence in law to anyone who makes a disclosure or even to" someone who simply refuses to believe the trans person when told that a certificate has been issued. This places an even greater burden upon the trans person to disclose their history, perversely because this is the only way in which they may further prevent disclosure of their history by persuading the employer or third party of the truthfulness of their claim to be transsexual.

Recommendation 16: Scope of Primary limitation on acquisition and holding of information.

  The disclosure, and any future acquisition or data retention constraints should apply to any person who has undergone gender role transition regardless of whether they have obtained a Gender Recognition Certificate.

  2.70  The exemptions on disclosure constraints include an exemption for disclosure made in the course of "official duties". This term is undefined but given the meaning given to "official capacity" earlier in this section to include, essentially, any activity in the course of work, one can only question the value of the protections provided within the draft Bill.

  2.71  Similarly, section 1 4(4)(f) provides a disproportionately wide exemption for any matter in relation to court proceedings. There is no requirement that the trans history have any relevance to the proceedings. This raises the serious prospect of any court matter involving a trans person having their history discussed in open court at the whim of any participant. The threat of such an event is likely in any event to deter trans people from seeking redress in court or even reporting crimes and would amount to a form of legitimate blackmail.

  2.72  Equally "broad brush" are the powers given to the Secretary of State to make exemptions. This may in future even put at risk the disclosure of personal details of persons who appear on the proposed transsexual persons register.

Recommendation 17: Narrowing the current exemptions

  The disclosure exemptions should be reduced by deletion of 14(4)(c), (d) and (g).

Recommendation 18: Disclosure in Court proceedings to be restricted to essential cases

  The court proceedings exemption in 14(4)(f) should be limited by the requirement that disclosure be essential to the case being considered.

(VIII)  FLAWS IN THE BILL'S MECHANISM FOR RECOGNITION

  Note: The discussion here is not technical in nature but is intended to be an overview. The detailed analysis at Appendix 2[19] of this document sets out more detail in relation to problems with the operation of the Bill by reference to specific sections.

Visitors to the UK: loss of "domicile" gender and introduction of exorbitant jurisdiction

  2.73  The Trust welcomes the option for foreign nationals to apply to the Panel for a GRC. This would benefit a trans person from a country where legal recognition of acquired gender is not permitted, but who might be a long term resident in the UK, obtaining appropriate legal recognition at least within the UK (albeit, without the possibility of amending a birth certificate held under a foreign jurisdiction). However the immediate effect of the Bill as regards visitors to the UK (section 1(1 )(b). and 1(5)) is that if a trans person who "is" recognised in their home country as, say, female comes to the UK then she will nevertheless be recognised as male if the country from which she comes is not on the "Approved list" or if she has not obtained a Gender Recognition certificate. Even if the country in question is on the list of "Approved" countries the person will not be recognised in their correct gender unless they have submitted to the jurisdiction of the Gender Recognition Panel in the UK. To many people who are not UK citizens such a requirement would be oppressive.

  2.74  The Trust is concerned that persons from overseas inadvertently falsely declare their own gender, marital relationship to their spouse and status of their children at customs if they are not made aware of the UK' s lack of recognition of their legal gender prior to arrival. A list of approved countries should be displayed prominently on arrival—or perhaps prior to boarding—and appropriate guidance for those affected given in writing on boarding cards and suchlike. Even those from Approved countries should be given due warning that upon entry to the UK their gender will be deemed to revert to something other than their gender at home unless they apply to the Panel and submit to its jurisdiction.

  2.75  It is the Trust's position that a trans person who is a foreign national should have the right, but not the obligation, to apply to the Panel for a GRC. Where that right is not exercised (for example, in the case of a trans person whose acquired gender has been legally recognised in their home state) the UK should recognise and respect the legal gender of that person in their home state without further formality.

  2.76  Married persons from abroad may well find that they are not treated as married in the UK unless they have first obtained a Certificate, and that they are treated instead as single same sex couples—in other words that they have no legal relationship to one another even as next of kin. Bigamous marriages could be facilitated by such a law.

  2.77  Moreover the status of the parties as mother and father of a child in their home state might be at risk upon entry to the UK in favour of an uncertain legal relationship during their stay in the UK.

  2.78  The Trust also harbours concern that by endorsing a Panel mechanism in the UK for foreign visitors, where the default assumption is that a person's gender "at home" is not recognised until a Panel has approved an application, an example may be set for other States whereby a UK national on holiday or on business may not be accorded gender recognition unless they have complied with local requirements as to gender definition. The preferable position in the Trust's judgment is that the UK should respect overseas law and encourage reciprocity of recognition for UK nationals.

Recommendation 19: Non-UK citizens

  The Trust recommends that in UK law a person should (if they do not voluntarily make an application to a Gender Panel) be, deemed to be the gender they are recognised as having in their country of citizenship.

  If such a recommendation is not acceptable then there should alternatively be a simple procedure to recognise status in assigned gender for the duration of a visit to the UK without the person concerned having to submit papers to a legal tribunal.

Involvement of qualified trans persons in Panel

  2.79  The Trust notes with concern the fact that there is no provision in the Bill to ensure that lawyers and doctors from the trans community should make up the professional membership of the panel or at least that those from the trans community should form an appropriate proportion of the panel. It is in the Trust's view most unlikely that a Panel made up of professionals from outside the trans community will carry with it the respect of community leaders and members or will have sufficient understanding of the issues involved.

Recommendation 20: Panel composition

  The Trust recommends that in selecting members of the Panel, trans people and non-trans people should be accorded equal numbers of members in the "pool" from which Panels are drawn.

The cost of applications and rights to Legal representation

  2.80  The Panel procedure is one by which the legal status of an individual trans person is determined by lawyers and medical panel members. Evidence is filed and considered, much of it expert evidence. Declarations having force of law are made and fees paid. If an application fails there is only a narrow appeal route limited to a point of law. The legal repercussions in terms of property, pension, insurance, criminal, marriage and other rights are considerable.

  2.81  Under section 4(2) a non refundable fee is chargeable for applications, and no legal aid is available for this. Given the extended delays in gaining appropriate medical referrals under the NHS experienced by most trans people for medical treatment (if there is any provision at all), it seems likely that similar delays will be experienced for reports supporting applications for gender recognition. The only realistic route, not entailing delays amounting to years past the qualification date, will be to obtain the two medical reports privately. In addition, there may be a requirement for additional evidence and applicants would be well advised to seek legal advice before making any application.

  2.82  These elements, when added together, will add up to what is, for many people a very large amount of money.

  2.83  A high proportion of trans people are unemployed or are in low wage employment and will have had to bear significant other costs for their treatment (the NHS does not fund anything like the full cost of gender transition and, as a result, many trans people end up carrying significant debts). There is a very real risk that the high total cost of applications may result in a bar to applications from a significant number of trans people, unless provision is made for financial support for reports and the waiving of fees for such applicants.

Recommendation 21: right to representation and legal aid for costs and fees

  No trans person should be denied access to a recognition certificate because they cannot afford the cost.

  In accordance with basic principles of fairness and equality before the law, all persons having applications before the Panel must in the Trusts view be accorded the following basic rights:

(1)  The right to a fair hearing by an impartial disinterested tribunal not connected in any way with witnesses professional or otherwise in the proceedings.

(2)  The right to be represented on paper and at any oral hearing.

(3)  The right to examine witnesses if an oral hearing is called (as appears to be permitted by the Bill's wide evidence provisions).

(4)  If an applicant cannot afford representation, the right to access to legal aid for the proceedings and advice in relation thereto and to defray application and expert fees.

  2.84  In the Trust's view it would be unjust given the vast imbalance of power between an average trans person and the two or more professional (and probably non-trans: but see above) members of a Panel, to fail to accord the above minimum rights as part of the process given the seriousness of the consequences of the Panel's decision. The same considerations apply a fortiori as regards any High Court hearing at which it is proposed to make an order:

—  revoking a gender recognition certificate under section 4(5) or

—  in relation to an Appeal on point of law against refusal of a Certificate.

Status of the Gender Recognition Panel's Findings

  2.85  While reasons for the Panel's decision must be provided the Trust believes that, given the lay status of members of the Panel in respect of gender identity (in the sense that they. are not specialists), there is Potential for serious misinterpretation of presented information. This could lead to considerable uncertainty, and prolonged misery for some trans people. We believe that involvement of qualified trans people within Panel membership would be a significant step to preventing such mistakes (see Recommendation 20) but that trans people should also be involved in the selection and training of new Panel members. As a last resort, there is a clear need to allow appeal against the Panel's findings on point of fact as well as on point of law contained in the draft Bill.

Recommendation 22: The right of appeal against the Panel's findings

  The Trust recommends that applicants should have the right of appeal on a point of fact against the findings of the Panel. This should include right to representation at any appeal hearing as per our earlier recommendations.

Recommendation 23: Training of Panel Members Prior to Appointment

  The Trust recommends that members of the Panel should attend familiarisation sessions including the chance to meet with trans people and discuss their concerns prior to taking up appointment. The Gender Trust is non party-political and would be willing to facilitate such meetings.

Recommendation 24: Selection of Panel Members

  The process for selection of Panel members "to form the selection pool" from which Panels are formed should directly involve lay, medical and legal representatives of the trans community, chosen by the trans community.

Open ended "additional requirements"

  2.86  The Trust notes that under section 2(9)a, there is an absolute requirement for the applicant to provide "any other evidence which [the Panel] may require".

  2.87  While the Trust recognises the intention is to provide flexibility for the panel, the resulting .position is that the applicant could legitimately be required to comply with requirements or "hurdles" that depend on the attitude of individual Panel members towards trans people generally, the applicant, their clinicians, or perceptions as to the type of evidence required to establish "proof of commitment".

  2.88  Trans history has numerous examples of the institutions and clinicians dealing with trans people creating many serial hurdles to the recognition of the condition, access to treatment or to any other aspect of gender transition (some of these are illustrated elsewhere) and there is no protection against this in the bill. There must be provision, for protection against the imposition of unreasonable requirements.

Recommendation 25: The right of appeal against the Panel's requirements

  The Trust recommends that applicants should have the right of appeal against the requirements of the Panel, and access to the aid and representation provisions set out earlier in this document, in order to do so.

Psychological Assessment

  2.89  There is a statutory requirement under 2(1) for evidence in the form of a report from either a registered medical practitioner or chartered psychologist practising in the field of gender dysphoria and a further report by another registered practitioner who may, but need not practice in that field. Many assume that a GP's report will be sufficient for the second report and also assume that a GP would be prepared to involve himself in the legal process in this way, despite the risks of litigation if his report were to be insufficient due to lack of expertise.

  2.90  Those NHS patients who have recently had surgery and transitioned, may either have copies of two reports or relatively easy access to them. Nevertheless, this assumes that all trans people applying have followed the surgery route—which is the only circumstance under which two pre-existing psychological evaluations will currently be available under the NHS. In reality the Trust believes that most NHS patients do not receive surgery in any reasonable time if at all.

  2.91  However many trans people will encounter difficulties for a number of reasons, including the following: because they sought private treatment (most trans people at some stage); because they transitioned such a long time ago that they have lost their psychiatrists report (if they ever had one); because the psychiatrist who assessed them is no longer alive; because their GP had no knowledge of their trans history; or because their GP has insufficient knowledge of Gender Dysphoria or of trans people.

  2.92  These difficulties mean that many trans people will need to seek psychological reassessment of their condition, even if they have been fully assimilated into their new gender role for decades. This not only introduces issues of cost, also creates a number of practical hurdles to overcome, which are described next.

(a)  For those who are unable to afford, private consultations, there is no supporting mechanism in the NHS to provide, the reports. Currently the few NHS Gender Identity Clinics are overstretched because they have minimal capacity and long waiting lists; a number have closed their lists to new entrants. The referral process to the GIC's can be very long, requiring "tertiary" referral from local psychiatrists (who are mostly uneducated in the subject of Gender dysphoria) who themselves are also overstretched. It is therefore, at best, questionable if the NHS has the capacity to take on this extra workload merely to assist a legal procedure in principle not far removed from a passport application.

(b)  It is again questionable whether trans people who are no longer unwell (ie who resolved their gender dysphoria a long time ago if they ever experienced it at a clinically significant level) would be successful in obtaining funding for psychiatric referrals for which there is no medical need. Such would be a clear waste of resources and indeed the mere fact that a perfectly well person is referred to a psychiatric specialist would create both stigma and grave unnecessary implications for insurance premiums.

(c)  If the trans person sees a gender specialist who has no knowledge of their history, there is a very real risk of re-medicalising them and, in order to arrive at a "diagnosis" of gender dysphoria or past gender dysphoria, the specialist may require the applicant to undergo extended psychological reassessments.

(d)  In practice, most GP's have little or no experience of transsexual people and many will therefore be reluctant to provide a formal "diagnosis of the applicant's gender dysphoria" (section 2(2)). In cases where a GP did not see the person until long after transition it is unlikely that they will have even discussed gender dysphoria and may be unwilling to provide a diagnosis of a condition with which the patient has never previously presented.

Recommendation 26: Allow discretion as to requirements for psychological reports

  The Trust recommends that any stated requirement should be in the form of guidelines for operation of the Panel and should have sufficient latitude, and a stated intent, to consider any cases which do not meet the requirement where the trans person has been living in role for two years, and all oilier primary identification documentation has been in the new identity for a similar length of time.

Recommendation 27: Make provision for assistance to persons unable to provide medical reports

  The Trust recommends (if the Panel refuses in any given case to waive the requirement for medical reports under Recommendation 26), that persons lacking in means to obtain private medical reports and who do not already have such reports from the NHS, be eligible for means tested financial assistance to obtain the necessary reports.

The importance of medical history

  2.93  The evidence required (two medical reports) highlights the importance to be attached to the details of the medical history, as opposed to the fact that a person "has or has had gender dysphoria" (which is the sole relevant criterion under section l(4Xa)). This runs the risk that the panel will be making an "audit" of the original diagnosis, as the details of the case will be laid bare and the Panel might also choose to take into account the credibility of the diagnosis and attempt to "second-guess" the medical professional.

  2.94  Despite the absence of any surgical requirement for recognition within the draft Bill, the bill itself sets out a clear evidential requirement to provide details, of any treatment undertaken or planned (section 2(3)). This implies that such treatment is, in fact, of relevance to the diagnosis or that such treatment is relevant to the applicant's intention to remain permanently in role, which is not the stated intention of the bill and is medically nonsensical. At the very least, because of human nature, it seems likely that the Panel will view applications where surgery has not taken place with suspicion when compared to those where it has and may therefore impose onerous additional requirements allowed under section 2(9).

  2.95  This, in turn, could put individuals into the position where they feel that they have to undergo surgery in order to gain a recognition certificate, even if it is inappropriate for their situation.

  2.96  The Trust believes that removal of organs and body tissue should not be a pre-requisite of civil rights for any minority group and that failure to do so should not be viewed as impairing the credibility of an application.

Recommendation 28: Delete the requirement to declare details of treatment insofar as it relates to surgery

  The Trust recommends that there should be no requirement to give details of surgical treatment.

The six month "transitional" procedure

  2.97  Section 19 sets out provision for a transitional procedure to enable trans people who have been living in role for a long time to "fast track" applications during the first six months of the life of the scheme.

  2.98  This will require a very quick decision from applicants who wish to take advantage of the procedure and may be inadequate to allow sufficient time for the dissemination of knowledge of the scheme, obtaining of medical reports and other documentation. Furthermore, many trans people who would otherwise qualify will be risk averse and feel the need to wait until the scheme is well established and proven to be safe before they feel confident enough to apply. They may also need legal advice and they or their spouses may need counselling in relation to the loss of marriage. Such people will effectively, be excluded from the transitional procedure and forced to follow the more onerous and more expensive "normal" process.

Recommendation 29: The "fast track" process should be permanently available

  Without prejudice to its criticisms of the procedures under the Bill where these are also part of the fast track procedure, the Trust recommends that the fast track process should be made permanently available to any applicant who qualifies.

(IX)  CONCLUDING REMARKS

  2.99  This document contains 29 recommendations all of which the Trust regards as essential to enable the Bill to operate fairly and in accordance both with the Convention and the Common Law legal tradition in this country.

  2.100  The Committee is entitled and urged to consider the Bill in its proper cultural context. Trans people are a minority community with a European history of regulatory oppression, not merely a history of complaint. Set against that backdrop the Bill as presently framed would, among other matters do a number of unacceptable things described above. It would cause our minority community to face registration, marking of birth register entries, differential employment rights based on marital status, continued lack of protection against abuse in respect of goods and services essential to normal life, a lack of privacy and the fear that private and NHS treatment services appropriate to bodily make-up will be affected after gender change.

  2.101  29 recommendations, then, are very few indeed. The Trust commends them to the Committee.

APPENDIX 1

The Gender Trust's Short Analysis of the Gender Recognition Bill (Released: 11/7/03)

SUMMARY—THE BILL IN A NUTSHELL

  The Bill allows unmarried transsexual people who are able to obtain two medical reports and other evidence (or some people who are from overseas and are recognised as having changed gender) to apply to a new Tribunal (the Gender Recognition Panel, consisting of a lawyer and a doctor), to seek full legal recognition. The process (when based on "living in role" rather than when based on overseas recognition) applies the following requirements to the applicant (paraphrased from the Bill).

(a)  s/he has, or has had "gender dysphoria" (an expression defined in the Act somewhat differently from its usual medical meaning);

(b)  s/he has lived in the acquired gender for two years ending with the date on which the application is made;

(c)  s/he intends to continue to live in the acquired gender until death;

(d)  s/he complies with the requirements imposed by section 2 (which are formal evidence requirements) or with any requirements imposed by the Panel under section 2 (which is any further additional evidence required by the Panel).

  The Panel will have wide powers (presently not limited under the Bill) to require further evidence from the applicant.

  If successful, a "Full Gender Recognition Certificate" is issued to the applicant unless the person is married.

  Unfortunately married people will be refused legal recognition (save in some cases where they married abroad, the foreign state recognised the marriage, and the person concerned had already changed gender legally in that country). However if a married person would otherwise qualify they will be given an "Interim" certificate, which has no legal significance other than to enable their marriage to be declared void if they go to court to do so, and to give married people the right to obtain a Full Gender Recognition Certificate via a simplified procedure, once they have terminated their marriage or once the spouse has died.

  The effect of obtaining a Full Gender Recognition Certificate is that:

—  The (now unmarried) person will be automatically entered on a database or "Register" of transsexual people held by the Registrar General and their original Birth register entry will be marked, presumably visibly, to indicate that they are transsexual. The "Transsexual Persons Register" will not be open to search by the public but it will be widely accessible by the State.

—  The person will be able to obtain new birth certificates which do not disclose the fact that they changed gender, and the effect will be just as if they had "always been that way".

—  Once a Full Gender Recognition Certificate is issued, and unless it is later set aside for fraud, the transsexual person will be for all legal purposes of their "acquired" gender, which includes retrospective effects upon the interpretation of laws and documents, though recognition does not apply retrospectively to acts done or events occurring before the certificate was issued.

—  Although legal recognition in the acquired gender is for all purposes, there are no new protections against discrimination in respect of goods and services under the Sex Discrimination legislation, on the grounds of being transsexual or on the grounds of being a registered transsexual person.

—  The Employment restrictions imposed in 1999 upon transsexual people will cease to apply once the person in question has obtained a full certificate. Sadly therefore, married people will continue to come under the employment restrictions even if they have obtained an Interim Gender Recognition Certificate.

—  A change of legal gender does not however have any effect on a person's status as the mother or father of a child, save for an exception in the case of trans men who have entered into treatment services under the Human Fertilisation and Embryology Act 1990 for the purposes of him and a woman together. The trans man will be deemed to be the father just as would a non-trans man in the same circumstances.

—  Rights of inheritance under wills and so forth will not normally be affected and nor will rights in respect of the descent of peerages and titles, etc.

—  The Bill provides what might best be described as a "transitional" procedure which will apply only for the first six months after the Bill, once enacted, comes into force. Under the procedure which will apply during that period, different tests apply for legal recognition, to the effect that the person must show that they have, or have had gender dysphoria, or have undergone surgery to modify sexual characteristics and have lived "in role" for at least six years before applying, and must also satisfy points (c) and (d) above. The medical evidence is reduced to a requirement for only one medical report which must provide details of the diagnosis and/or surgery. The panel which considers the application need not, under this procedure, include a medical member. It appears that this procedure is the only route available for the first six months of the life of the Act.

  Other provisions of the Act put in place some safeguards against disclosure of material relating to a person's application to the Gender Recognition Panel, but there is a wide range of exceptions enabling disclosure.

  This is only a short summary and does not cover all areas of the Bill. Please see the detailed description on the Gender Trust website which should explain most of the aspects on a clause by clause basis.

23 September 2003

---

4   The Gender Identity Research and Education Society, www.gires.org.uk Back

5   Throughout this document the expression "trans people" will be used to refer to transsexual and transgendered people in accordance with the emerging preference of the majority of that community. A trans woman is a person legally male at birth but who reassigns her gender role to female, and a trans man is a person legally female at birth but who reassigns his gender role to male. Back

6   Not printed. Back

7   See above. Back

8   Save a religious employment exception, to which the Trust expresses its objection. Back

9   The Trust notes that no evidence of any such threat has been put forward. Back

10   www.wsf.org.uk From a document entitled "Transsexuality and Sport" submitted to the Government by WSF. Back

11   http://www.dhs.gov/dhspublic/interapp/pres-release/press-release-0238.xml Back

12   National Transgender Advocacy Coalition. Back

13   For more general privacy issues see the separate section below entitled "(VII) Privacy". Back

14   See the Workplace (Health, Safety and Welfare) regulations 1992 SI 1992/3004 r. 20(2). Back

15   "the persons gender becomes for all purposes the acquired gender". Back

16   Bellinger (FC) (Applicant) v Bellinger [20031 UKHL 21. Back

17   In Bellinger, between a post transition trans woman as wife and a man as husband. Both parties wished their marriage to be formally recognised. Back

18   The outward appearance is of course that the parties are to all intents and purposes male and female, in that order. Back

19   Not printed. Back

---

Prepared 4 December 2003