10. Submission from Liberty
A. INTRODUCTION
1. The draft Gender Recognition Bill, when
put before the House of Commons (whether in present or suggested
amended form) will remove many of the serious difficulties and
injustices faced by trans people, which have hitherto included
a complete absence of any legal recognition of their true social
identity and a total denial of the right to marry in their new
social identity or "acquired gender".
2. Liberty welcomes the broad contents and
objectives of this Bill, as necessarily prompted by the rulings
of the European Court of Human Rights in the cases of Goodwin
v United Kingdom and Iv United Kingdom. That said Liberty has
some abiding concerns, in respect of which it sets out recommendations
below.
B. ANALYSIS OF
THE BILL
(i) Criteria for applications for GRCs
3. Clause 1 of the draft Bill sets out the
statutory criteria that must be satisfied in any application for
a gender recognition certificate ("GRC"). In particular,
clause 1(4) requires an applicant to satisfy the Gender Recognition
Panel ("the Panel") that he or she has lived in the
acquired gender for two years and intends to live, in the acquired
gender until death.
4. Liberty has some concerns about the apparent
rigidity of this requirement. Liberty is aware of one case involving
a trans woman who had fathered two children before transitioning.
When the Court made a contact order it stipulated that the children
should not see this parent in role until they were old enough
to comprehend the change so that they could come to terms with
it.
5. Because of this type of circumstance
(which is likely to reoccur unless the Family Courts modify their
approach), Liberty recommends that there should be built into
section 1(4)(b) and (c) some flexibility to take account of such
exceptional circumstances.
(ii) Composition of the Panel
6. Clause 1 to 3 of the draft Bill sets
out the Panel's role. Schedule 1 of the draft Bill provides in
general terms for eligibility, hierarchy, tenure and composition.
Clause 1(2) of Schedule 1 provides that only medical and legal
members may be appointed to the Panel. Clause 4(2) of Schedule
1 provides that the President must ensure that a panel hearing
domestic applications (ie those under draft clause l(l)(a)) should
always include at least one legal member and one medical member.
7. Liberty is concerned there is no place
in these Panels for trans people who have experienced first hand
the trauma of transitioning and who can offer invaluable first
hand experience in determining which applications for GRC are
meritorious.
8. Accordingly, Liberty recommends that
consideration be given to either providing for the appointment
of trans members alongside medical and legal members or to the
appointment of trans consultants from whom Panel members may seek
advice, input or comment.
(iii) Evidence required by the Panel
9. Clause 2 of the draft Bill addresses
the evidence that is required to be presented by an applicant
to the Panel. Clause 2(1) provides that for any domestic application
made under clause l(l)(a) the application must include: (i) a
report from a registered medical practitioner practising in the
field of gender disphoria or a report by a chartered psychologist
practising in the field of gender disphoria, coupled with (ii)
a supplementary report from another registered medical practitioner
(such as a GP). In either case, clause 2(2) requires the specialist
reports to include details of the diagnosis of the applicant's
gender disphoria.
10. Like Press for Change, Liberty welcomes
the fact that gender reassignment surgery is not a precondition
for the grant of a GRC, yet is concerned that the requirements
of clause 2 should be clarified to avoid trans applicants incurring
unnecessary yet substantial costs and to avoid the potential for
substantial delays whilst such reports are awaited. The strong
likelihood is that many applicants for a GRC, particularly those
who have undergone gender reassignment surgery, will already have
a substantial body of medical reports from the time of such surgery
(or from the onset of hormonal treatment).
11. Therefore, Liberty recommends that
clause 2 be clarified to indicate that such contemporaneous medical
reports shall be acceptable as the evidence required by the Panel.
(iv) Further inquiries by the Panel
12. Section 2(9) provides the Panel with
a wide discretion to seek further evidence from an applicant.
Given that the focal point of the Panel's inquiry is twofold,
namely:
(1) consideration of the specialist and
other medical reports with a view to reaching a medical conclusion
as to whether or not the applicant indeed suffers from gender
disphoria; and
(2) consideration of other evidence so as
to be satisfied that the applicant has lived in role for two years
or more,
(3) the width of the discretion conferred
is unnecessary.
13. Such requests for information are potentially
highly intrusive, going to the heart of an applicant's private
and family life as protected by Article 8 ECHR.
14. Liberty believes that any supplementary
medical evidence should only be requested after initial consideration
of the two mandatory reports submitted in accordance with clause
2(1). Liberty recognizes that in a limited number of cases consideration
of such reports may prompt follow up inquiries. As for evidence
of past life in the acquired gender and future intent Liberty
believes that in order to avoid potentially painful requests being
made, appropriate guidance should be drawn up (and the relevant
application form so structured) as to encourage applicants to
submit as much evidence as possible (with which they are comfortable)
to document or provide the foundation for their statutory declarations
under clause 2(4). This should minimize the need for the Panel
to make further inquiries. Because of their intrusive nature,
any request by the Panel for further evidence should only be made:
(i) where the Panel is "minded to reject" the application;
and (ii) with the provision of full reasons for the request.
15. Accordingly, Liberty recommends
that clause 2(9) be reformulated so as to provide: (a) that any
power to request information should not be exercisable until after
initial consideration of the mandatory reports and additional
information submitted by the applicant; (b) should only be exercisable
where the Panel was otherwise minded to reject an application;
(c) should be fully reasoned; and (d) thereafter should be confined
to supplementary medical reports from the original registered
medical practitioners (where possible) and to specific, identified
types of evidence documenting past life or future intent.
(v) Certificates and past marriage
16. The draft Bill links the conferral of
a Full GRC ("FGRC") to the applicant in question being
unmarried. Where an applicant, otherwise satisfying all of the
criteria required for a domestic or foreign application, remains
married then the Panel will only be empowered to issue an Interim
GRC ("IGRC"): see draft clause 3(1) to (3). An exception
is made by section 3(3) and (4) in foreign applications for "relevant
post-recognition marriages", ie marriages made abroad between
the applicant in their recognised acquired gender and a person
of the opposite gender. A holder of an IGRC may apply for an FGRC
within six months beginning with the day on which any subsisting
marriage is dissolved or annulled or the other party to the marriage
dies (so long as the applicant does not remarry in his or her
original gender prior to such application).
17. Liberty is concerned by a number of
aspects of these proposals. First, it appears to Liberty to be
wrong in principle to require applicants to terminate existing
marriages. In many instances spouses to trans applicants have
historically provided love, affection and support throughout and
after the difficult period of transition and life changes. As
Press for Change point out with its peculiar expertise, many of
these couples are now elderly couples in which the wife of a trans
woman has supported her partner through such difficult circumstances.
Such couples may have children and, even after the period of transition,
may constitute very real family units. To demand, as the price
for obtaining full recognition of an acquired gender, that such
marriages be terminated with the inevitable consequences of: (a)
disruption of family life; (b) distress and pain to applicants,
spouses and children, and (c) potential financial loss and inconvenience
(such as divorce costs, loss of benefit entitlements, especially
pension repercussions, maintenance obligations, loss of provision
on intestacy and the automatic right to apply for reasonable provision
on death under the Inheritance (Provision for Family and Dependants
Act) 1975, and so forth), is manifestly disproportionate. Liberty
believes that to impose such a "Hobson's Choice" on
the trans community will, in many cases, constitute a breach of
Article 8, Article 12 ECHR and/or Article 1 Protocol 1. To persist
with such an approach seems likely only to prompt further litigation
before the European Court of Human Rights.
18. Secondly, such an approach is entirely
unnecessary (even putting aside the issue of civil partnerships).
The device of the IGRC is presently without any legal consequence
other than as a trigger for an applicant (or his or her spouse)
to seek to annul an existing marriage. As Liberty understands
the draft Bill, an IGRC will produce no other meaningful effects
for an applicant as draft clause 5 on its face is expressly limited
to FGRCs. In Liberty's view this is unjustified. Whilst it is
arguably justifiable, so long as an existing marriage is in place,
to delay the legal consequences of a change in gender for the
law of marriage (which would in turn require substantial additional
amendment to Schedule 3), it is not justifiable to deprive holders
of IGRCs of the other benefits conferred upon FGRCs (such as the
issue of birth certificates or in the field of employment). Why,
it may be asked rhetorically, should the holder of an IGRC not
be able to obtain a modified birth certificate or to seek employment
without the risk of GOQ debates simply because they married before
transition? Seen in this light there is simply no rational connection
between such pre-transition marriage and the measures put in place
to deal with the predicament of trans people outside the field
of marriage. Finally, Liberty would point out that such an approach
would not pre-judge the more general debate on civil partnerships,
as trans people in such partnerships are in an entirely sui generis
position. It may be that the necessary redrafting will remove
the separate categories of IGRC and FGRC (as would be desirable
in the interests of clarity and equity), and simply restructure
the draft provisions on marriage.
19. Thirdly, should the Government decide
to reform the law on civil partnerships so as to confer rights
and obligations upon unmarried heterosexual and homosexual couples
(as is contemplated in the consultation paper released in June
2003 entitled "Civil Partnership—A framework for the
legal recognition of same sex couples"), it would be anomalous
to require the complete termination of any relationship between
a couple that married before one partner acquired a new gender.
20. Lastly, as Press for Change point out,
the present drafting of clause 3 neglects entirely the existence
and predicament of married couples in which both partners have
acquired new and opposite genders. There can be no justification
at all for requiring such partnerships to end when remarriage
(should both partners obtain FGRCs) would then be possible.
21. For these reasons, Liberty recommends
that:
(1) IGRCs be given equal status to FGRCs
in all areas save the law of marriage, with consequential amendments
being made to clauses 5, 7 and Schedule 3 in particular. Ideally,
the separate category of IGRC should be abolished, with specific
provision instead being made for those lawfully married before
transition.
(2) The system of IGRCs be further amended
should the Government seek to create the institution of civil
partnerships, such that partners to an existing valid marriage
may transform that into a civil partnership upon obtaining an
FGRC.
(3) In any event, partners to a current,
valid marriage in which both partners have acquired new genders
should be entitled to obtain FGRCs without terminating such marriage.
(vi) Costs
22. Clause 4(2) provides that applicants
must pay to the Secretary of State a non-refundable fee in an
amount specified by the Secretary of State.
23. Like Press for Change, Liberty is concerned
about the costs of the proposed system for applicants. Press for
Change have produced a table, annexed to their own submissions
to the Committee, showing the possible range of costs for applicants
for the various steps required or envisaged by the draft Bill.
The total costs vary between £709 and £1,640, of which
the application fee is likely to constitute between £440
and £833. (The other substantial potential cost that of specialist
reports can hopefully be avoided in many cases if Liberty's above
suggestion is adopted). These costs, if realized, are a substantial
deterrent to the use of the system.
24. With this in mind, Liberty believes
that it is incumbent upon the Government to do all in its power
to limit the costs to applicants, whether by:
(1) providing for the use of standard form
documents (which may reduce say GP report costs);
(2) providing some form of notarizing service;
and/or
(3) subsidizing the cost of running the
Panels.
25. As for the last point, Liberty believes
that the case for subsidizing the Panels is especially strong
for anyone using the fast-track procedure envisaged by clause
19. These individuals have lived for years without proper recognition
of their predicament. In all likelihood they will wait a further
two years or more for any concrete benefits from the Goodwin judgment.
To demand sizeable fees from such individuals when, in principle,
they should be entitled to just satisfaction for the distress
they have suffered, would be wrong in principle.
26. For costs, Liberty recommends that
(i) fees should be set as low as possible, with all possible efforts
being made to streamline the operation of the Panel system; (ii)
the Government should subsidise completely the operation of the
system for anyone making a fast-track application under draft
clause 19.
(vii) Court powers
27. Clause 4(3) provides for an appeal by
an unsuccessful applicant to the High Court on a point of law
"against a decision to reject an application".
28. Liberty welcomes the creation of a statutory
appeal, but believes the system of legal scrutiny can and should
be tightened as follows:
(1) First, the draft Bill should impose
a general obligation upon Panels to provide reasons for their
decisions. This is already an obligation in analogous medical
contexts (such as appeals under the Medical Act 1983 and the statutory
instruments made thereunder) and is clearly necessary in cases
that are likely to turn upon complex medical evidence or upon
factual findings (about past life or future intent). Such reasons
should do more than simply rehearse the statutory language: see,
by analogy Dr Prabha Gupta v the General Medical Council (2001)
EWHC Admin 631, at para l4 per Newman J.
(2) Secondly, the language of the statutory
appeal should make explicit (as Liberty believes to be implicit)
the High Court's power to intervene in cases of procedural unfairness
and irrationality/disproportionality. Of course, Panels will be
"public authorities" bound by their duty under section
6 of the HRA 1998 to act in conformity with Convention rights,
most obviously those arising under Articles 8, 12 and 14.
(3) Thirdly, the High Court should be given
an appellate jurisdiction in respect of any evidence direction
made by the Panel under draft clause 2(9)(a) (as amended in the
light of Liberty's submissions). Such appeals are likely to be
rare but, where arising, will raise important privacy issues.
As such determinations would otherwise be amenable to judicial
review, a statutory appeal process is desirable (a) because of
the suggested linkage between such requests and a "minded
to refuse" stance on the part of the Panel; and (b) in order
to remove the requirement for the grant of permission, which is
unnecessary in such circumstances.
(4) Fourthly, Liberty believes that the
remedial powers of the High Court should be clarified. Whilst
clause 4(5) sets out the options available where the Court is
minded to quash a certificate on grounds of fraud, no such remedial
menu exists for ordinary appeals. Liberty recommends that the
High Court be given powers to: (i) quash Panel decisions; (ii)
to remit applications to Panels (with or without directions on
issues); and/or (iii) to substitute a FGRC or IGRC (unless abolished
as proposed above) for a decision to refuse an application.
(5) Fifthly, whilst welcoming the ability
of the applicant to have a case heard in private (draft clause
4(3)) Liberty believes it will be appropriate in many cases simply
to have a case heard with anonymisation of names. It recommends
that clause 4(3) be amended accordingly.
(6) Lastly, clause 4(4) should be amended
to create an exception from the six-month rule in the case of
any applicant who has successfully sought the quashing of a decision
to reject an application.
29. Liberty therefore recommends that
clause 4 is substantially redrafted to provide a general obligation
on Panels to give reasons, to clarify the High Court's jurisdiction
and powers, to provide for anonymisation of parties to appeals
and to modify the six-month application periods.
(viii) effect of GRC
30. Liberty welcomes the general terms of
draft clause 5, but suggests (as detailed above) that these legal
effects be extended to IGRCs (unless abolished as proposed above),
save in the case of marriage.
(ix) Registration
31. Liberty also welcomes the changes made
by draft clause 5 and 6 to the system of registration of births.
32. Liberty adopts the suggestion of Press
for Change that the applicant may request, at no extra cost,
a certificate in the form that certificates took at their date
of birth. Such a system will prevent the possible identification
of that applicant as a trans person by anyone comparing the forms
of certificate in use historically and presently.
(x) Marriage
33. For those in receipt of a FGRC Liberty
recognizes the need (from the usual paternalistic policy perspective)
to prevent (by exact analogy to the rules operating in orthodox
heterosexual marriage) certain forms of union. Clearly the prohibited
degrees of relationship for trans people marrying in their acquired
gender should reflect those properly applicable to non-trans couples[20]
As explained above, Liberty believes that further drafting is
required:
(1) to make marriage the only area of changed
rights/obligations not applying to holders of IGRCs; and
(2) to harmonise the draft Bill with the
proposed creation of civil partnerships.
(xi) Parenthood
34. Liberty welcomes both the provisions
dealing with parenthood, namely draft clause 8(1) which states
that the fact that a person's gender has become the acquired gender
will not affect their status as a father or mother, and draft
clause 8(2) which provides for retrospective recognition of trans
men as the "father" in law of children conceived in
circumstances to which (but for their previous gender) section
28(3) of the HFE Act 1990 would apply.
35. As for the first subsection, Liberty
would point out that this provision may have important effects
in the law of succession when combined with section 11.
36. As for the second subsection, Liberty:
(1) reiterates the importance that there
should be a right for any child conceived by donor insemination
to be able to discover through inspection of his/her birth certificate
at the age of 18 that he or she was conceived by donor insemination
(by way of parity with adopted, children). The rights currently
conferred by section 33(3) and (4) do not presently confer such
a right. Liberty does not suggest that the child should have the
right to discover that a parent is a trans person;
(2) believes that the provisions do not
go far enough, as a variety of other possible problems arise,
whether through use of sperm stored before gender reassignment
surgery, or through the surrogate use of eggs stored before gender
reassignment surgery. Liberty believes that the storage of gametes
or embryos by those undergoing gender reassignment surgery with
a view to potential future use will become increasingly prevalent,
particularly amongst younger individuals. These possibilities
require further amendment to:
(a) section 28(3) LIFE Act 1990, because,
in any post FGRC treatment, due to section 5(1) of the draft Bill,
there will be no "man" or "father" and section
8 of the draft bill will not apply because it applies only to
trans men (ie female to male trans people);
(b) section 30 HFE Act 1990, to cope with
the situation of two married trans people and (should civil partnerships
be created) same sex couples;
(c) the entries made on a birth certificate
(a new category of "parent" may be required); and
(d) to the storage provisions in the LIFE
Act (to deal with the situation where the male gamete donor becomes
a woman).
37. Liberty recommends further consideration
be given to the legal interaction of gender acquisition and the
use by couples of artificial or donor insemination or embryos.
(xii) Discrimination
38. Liberty warmly welcomes draft clause
9 which abolishes the existence of GOQ defences in an employment
context once an individual has obtained an FGRC, thereby reversing
the approach of Buxton U in A v Chief Constable of West Yorkshire
Police (2003) 1 All ER 255. As set out above, Liberty believes
this provision should apply to holders of IGRCs as well. However,
Liberty regrets the continued omission of trans people from the
legal regime protecting against discrimination in the provision
of goods and services. This is anomalous when compared to the
position of sex, race and disability discrimination (though not
sexual orientation or religious discrimination once the Employment
Equality (Sexual Orientation) Regulations 2003 and the Employment
Equality (Religion or Belief) Regulations 2003 come into force
in December 2003).
39. Given: (i) the finding of the ECJ in
the case of P v S and Cornwall County Council (1996) IRLR 347
that discrimination against trans people was a facet of sex discrimination,
(ii) the existence of a free-standing general principle of Community
law (going beyond the field of employment) prohibiting discrimination
on grounds of sex, and (iii) the ECHR's ruling in Goodwin, Liberty
believes that the United Kingdom has a positive obligation under
Article 8 ECHR to secure access for trans people to supplies by
private entities of goods and services free from discrimination.
("Public authorities" will probably be bound, under
section 6 HRA 1998, as read with Articles 8 and 14 ECHR, not to
so discriminate, but should be included for the avoidance of doubt).
Moreover, Liberty believes that these matters should come under
the aegis of a single equality and human rights commission, for
which it has been campaigning.
40. As such Liberty recommends that
provision be made to prohibit discrimination against trans people
in the supply of goods and services, and that responsibility for
administering such discrimination law be entrusted to a unified
anti-discrimination and human rights body.
(xiii) Succession Provisions
41. In clauses 10 to 13, the draft fill
contains a number of provisions dealing with the impact of the
newly acquired gender upon property rights. In reading these provisions,
one must always keep in mind the guiding principles derived from
clauses 5 and 8, namely that:
(1) By clause 5(1) for all purposes a person's
gender after the grant of a FGRC is that of the acquired gender;
and
(2) By clause 5(2), the impact of clause
5(1) whilst not affecting things already done before the time
when the FGRC is issued will "operate for the interpretation
of enactments passed, and instruments and other documents made,
before that time (as well as those passed afterwards)."
(3) By clause 8(1) a person remains a "father"
or "mother" notwithstanding a new acquired gender. However
there is no similar provision such that a person remains a "son"
or a "daughter" notwithstanding a new acquired gender.
42. Liberty perceives a particular problem
that arises in the application of such principles to documents,
wills and other instruments (such as trust settlements) whose
operation and legal effect may depend upon events stretching over
a period of time or which may be executed before the issue of
a FGRC whilst taking effect afterwards.
43. Many wills and settlements may be unintentionally
drafted in gender specific terms. For example if a testator with
two children (both sons) executes a will before the issue of a
FGRC in respect of one of his children leaving his estate to "my
sons", following his death it is likely under clause 5(2)
that the son in whose favour a FGRC had been issued would not
benefit as she would be treated as a "daughter" and
not as a "son". Such a construction would have the effect
(in many situations) of defeating the testator's true intent,
namely to provide for both his children regardless of their genders.
This situation is not rectified by clause 10, whose effect, simply
put, is to allow a testator or other settler of property to contract
out of the effect of section 5 (but not, it should be noted clause
8(1)). As a result unless a testator so drafts his will/settlement
(which is most improbable for many documents, particularly those
settlements irreversibly made before the Act, and for homemade
wills), there is a real risk that the true object of the will/settlement
shall be defeated. It seems to Liberty that, particularly in the
modem age, the intention of most testators is to settle assets
on people as such, rather than people of a particular gender (though
gender is unfortunately often used as a form of shorthand to describe
them compendiously), with the result that the structure of draft
clause 10 is likely to result in haphazard rather than intentional
changes in beneficiaries.
44. Indeed, at present clause 10 sits anomalously
with clause 11. Clause 11 provides for peerages and titles, and
land or property attached to them as if there was no acquired
gender. Thus, a Duke with a dynastic estate who acquired a new,
female gender, would continue to be a Duke, with all the rights
and privileges that appertained (eg any stately home, dedicated
trust funds, place in the House of Lords and so forth). Yet such
a situation pertains precisely where gender-based intentions on
the part of settlor/testator (namely the principle of primogeniture)
could be most readily inferred. Doubtless the rationale of the
section is to preserve the status quo ante.
45. Moreover, Liberty can presently discern
no reason why wills should be excluded from the general remedial
or dispensing powers provided by draft clause 13(1). Whilst wills
(as opposed to settlements) may be varied in theory, in practice
a testator may be or remain unaware, of: (a) the fact of someone's
acquired gender; or (b) the potential impact of such event upon
the legal effect of their will, with the result that a similar
remedial power will be required. Finally, Liberty believes that
it is undesirable and contrary to the rule of law to provide a
remedial power of such open texture, with absolutely no guidance
as to the criteria or factors which should influence its exercise.
46. Given these concerns Liberty has asked
Camilla Lamont of Landmark Chambers to provide an advice on the
detailed analysis of clauses 5, 8 and 10 to 13. This is attached
as Appendix A. The advice identifies a number of shortcomings
and pitfalls in the current drafting and makes detailed recommendations
relating thereto which Liberty endorses. Liberty also believes
that the Chancery Bar Association should be consulted upon these
provisions, given their potential to generate unnecessary and
expensive litigation.
47. As such, Liberty recommends that:
(1) clause 10 be remodelled to adopt
the approach of clause 11, such that acquiring a different gender
has no impact upon a will/settlement unless the testator/settlor
so expressly determines.
(2) clause 13 be amended by the deletion
of the words "other than a will" and by the addition
of criteria by which to guide the exercise of remedial powers.
(xiv) Privacy and disclosure of information
48. Again, Liberty welcomes the regime for
the prohibition on disclosure of information introduced by draft
clause 14. Such a section is, in general terms, required by the
need to respect privacy as guaranteed by Article 8 ECHR. However,
Liberty has concerns on several points of detail:
(1) The definition of "official capacity"
is wide, particularly in view of clause 1 4(3)(c), which would
embrace (say) national newspapers or professional journalists.
However, the offence in question does not embrace purely malicious
parties wishing to cause or in fact causing distress (for instance,
a local agitator who circulates unpleasant, denigratory leaflets).
This is wrong in principle. Whilst Liberty is always concerned
about any extensions to the criminal law, we suggest that there
should be a further offence created which is directed at intentional
acts causing offence or distress. We believe this to be justified
for the protection of a vulnerable minority group.
(2) As for the defences envisaged by draft
clause 14(4), Liberty believes that 14(4)(b) requires modification
to deal with the situation of those individuals who are entirely
open and public about their trans status (such as trans campaigners).
Strictly construed the Bill would require anyone wishing to publish
an article about such individuals to obtain specific consent to
disclosing their trans status. Liberty believes that to be an
unjustified restriction on freedom of expression.
(3) However, more generally the defences
in question do not have built into them an explicit proportionality
test. Liberty believes that this is an important oversight. It
cannot be enough that the action is, say, "in the course
of official duties", however misguided. The official (or
employee) in question must have formed a reasonable opinion as
to the relevance of and necessity for disclosure in the particular
form envisaged.
(4) Like Press for Change, Liberty believes
the .scale of the proposed sanction to be insufficient, particularly
for deliberate or repeated disclosures which have the capacity
to cause real and lasting distress and damage.
(5) Moreover, there is a complete absence
of any civil remedies, most obviously a right of action to recover
damages for distress or other loss. To some extent section 8 HRA
1998 and/or section 13 of the Data Protection Act and/or the tort
of confidence might provide a remedy, but the deficiencies of
these remedies for privacy issues have been exhaustively analysed
by the European Court of Human Rights in the case of Peck v
United Kingdom (2003) 36 EHRR 719. In many circumstances (eg
an employee known by colleagues to have had gender reassignment
surgery) the information in question could not sensibly be described
as "confidential" under the present public domain test,
such that a trans individual will have no private remedy against
a private party (including a newspaper) repeatedly and/or invasively
disseminating information connected to that person's transsexuality
or former life and thus to a highly intimate part of private life.
49. Liberty therefore recommends that
clause 14 be amended: to provide far an offence of disclosure
by any party deliberately causing harm or distress; to provide
for a reformulated defence on consent; to provide for increased
sanctions; and to provide civil law remedies for breach of privacy.
(xv) Transitional provisions
50. Liberty endorses the simplified
fast-track procedure envisaged by clause 19, but suggests that
(for similar reasons to those advanced by Press for Change) that
the time-limit for such applications be extended to one year,
and that such time limit may be extended where "good reason"
for failing to apply earlier can be shown.
51. Liberty notes and accepts the absence
of any retrospective validation of marriages, but contends that
provision needs to be made to take into account (where relevant)
previous attempts to marry (for instance, wherever the duration
of any relationship is material).
Thomas de la Mare
Blackstone Chambers
Joanne Sawyer
Liberty
15 September 2003
APPENDIX A
In the Matter of the Draft Gender Recognition
Bill
OPINION
1. I have been asked to advise Liberty as
to clauses 5, 8, and 10 to 13 of the Draft Gender Recognition
Bill.
2. In general I am of the opinion that certain
clauses (particularly clauses 5, 10 and 13) of the Draft Bill
have the potential to operate unfairly in the construction of
wills and other settlements both in relation to trans people and
other third parties.
General concern as to retrospective effect of
the Draft Bill and a FGRC in interpreting documents.
3. There is immediate scope for argument
arising under clause 5(2) since following the issue of a FGRC
to a person that persons' gender becomes the acquired gender (under
clause 5(1)) but this:
(i) is expressed not to affect things done,
or events occurring, before the time when the certificate is issued;
but
(ii) does operate for the interpretation
of enactments passed, and instruments and other documents made,
before that time (as well as those passed or made afterwards).
4. The difficulty arises as follows: a document
or other instrument executed prior to the FGRC is a "thing
done" before the FGRC is issued yet it is to be construed
as though the FGRC was not issued. Therefore there is potential
scope for a document to mean one thing before the issue of a FGRC
and another thing after.
5. There is a danger that clause 5(2) falls
foul of the general aspiration of the rule of law in that it operates
retrospectively to documents executed by persons who must be taken
to have had a settled understanding of the law as to gender at
that time. It could operate in practice very unfairly in relation
to the construction of documents and instruments executed (i)
before the bringing into force of the Draft Bill; (ii) after the
bringing into, force of the Draft Bill but before the issue of
a FGRC; and (iii) in some cases, to those executed or taking effect
after the issue of a FGRC (especially if the donor is unaware
of the fact of the FGRC or as to its consequences).
6. Whilst the issue of a FGRC does not affect
the status of the person as a father or mother of a child (clause
8) there is no equivalent provision to ensure that the issue of
a FGRC to a child (whilst over 18 years) does not affect the status
of that person as a son or a daughter, grandson or granddaughter,
godson or goddaughter, sister or brother etc. Whilst this may
be the whole point of the Draft Bill it will, in combination with
clauses 5 and 10-13, potentially have considerable adverse consequences
for trans people issued with a FGRC in respect to their entitlements
on the death of a parent or other relative. Conversely, in some
instances it will confer a windfall on trans people at the expense
of other family members.
EXTENT OF
RETROSPECTIVE EFFECT
AND POSSIBLE
REVOCATIONS
(1) Wills
7. In some instances documents such as the
wills of living persons can be altered by codicil or the revocation
of a will and the execution of a new will. Therefore it is of
course open for a testator (prior to his or her death) to change
his or her will if a FGRC is issued in relation to one of his
or her children.
8. There is a concern that the general public
will not be aware of the possible need to alter their wills following
the issue of a FGRC. People often execute wills, put them in a
draw or in a solicitor's safe and do not think about them again.
There will be a few cases in which such revocation is practically
impossible (due to the testator dying very shortly after the issue
of a FGRC or the illness or incapacity of the testator after the
FGRC). Some testators may not know of the fact of FGRC issue or
may not appreciate its consequences.
9. This concern applies equally to persons
who execute wills and other documents after the issue of a FGRC
and the bringing into force of the Draft Bill. Although professional
assistance in preparing a will is relatively inexpensive many
people are unwilling to spend money in this regard and many people
make "home made" wills and may unintentionally name
intended beneficiaries in gender specific terms, namely to "my
sons" rather than to named beneficiaries such as "to
my sons A and B" or "to A and B". Again these testators
may not know of the fact of FGRC issue or as to its consequences.
(2) Settlements
10. Trust settlements cannot be amended!
Revoked in the absence of an express power in the settlement or
the agreement of all the beneficiaries (which is often impossible
due to lack of consent of living adult beneficiaries or the fact
that children or future unborn beneficiaries cannot give consent
such that a court application is required under the Variation
of Trusts Act 1958)[21]
However effected, such variations can and often do have considerable
adverse tax consequences for the parties involved.
11. As with wills, though perhaps more frequently,
trusts may be drafted in gender specific terms rather than to
named individuals, especially as many settlements are intended
to continue throughout the perpetuity period and envisage that
unborn children will in due course have beneficial entitlements
under the settlement. Beneficiaries are often defined as part
of a class rather than by name. Such gender reference may be (and
frequently is) inadvertent. On the other hand it is of course
possible that a settlor may have intentionally desired to make
a distinction between sons and daughters. For example, a settlor
may have wished to make greater provision for his male heirs and/or
provide for his daughters only until marriage (although such provisions
are less frequent these days for obvious reasons). I would have
thought it extremely unlikely that many (if indeed any) settlors
had specifically addressed the issue of gender change in executing
such documentation.
POSSIBLE SCENARIOS
ON CURRENT
DRAFTING
Scenarios A and B: Wills
12. There is considerable cause for concern
in the field of wills due to the fact that wills which may have
been executed prior to a FGRC will be construed as at the date
of death of the testator. It is a well established principle of
will construction that it should be construed from death (often
described as the principle that a will speaks from death). Take
the following scenario, Scenario A:
A testator has two sons, A and B. He executes
a will leaving his entire estate to "my sons". Subsequently
B changes gender in that a FGRC is issued. The testator, thinking
nothing of it, does not amend his will to leave his estate to
"my son and my daughter" or to "A and B" but
his understanding is always that A and B will benefit. On his
death, under the draft Bill, it is strongly arguable (especially
in the light of the express provision in clause 5(2)) that A would
take the entire estate and B would not have any right to apply
under clause 13 as wills are expressly excluded from that provision.
This would be the combined effect of the fact that (i) "a
will speaks from death" and takes effect after the issue
of the FGRC such that it would be very difficult to contend that
it was an act done prior FGRC issue and (ii) the issue of the
FGRC and consequent change of gender means that on a construction
in accordance with clause 5(2), B is on the testator's death no
longer his "son" but his "daughter". The testator's
intentions would therefore be defeated and B deprived of her inheritance
merely by virtue of her status as a trans person. The court would
have no jurisdiction to remedy the situation.
13. Conversely in some situations the trans
person may obtain a windfall, contrary to the intentions of the
testator as can be demonstrated by Scenario B as follows:
A testator has a son A and 2 daughters B and
C. He wishes to exclude A from his estate and executes a will
leaving his estate "to my daughters in equal shares".
A then has a FGRC issued in her favour. The testator fails to
address the issue by re writing his will. On his death, A would
be arguably treated as a daughter and then be entitled to a third
of the estate, thereby depriving the two sisters of a proportion
of their inheritance.
14. In the absence of clause 5(2) the courts
would in my opinion be likely to attempt to construe such documents
purposively by analogy to the recent orthodoxy on contractual
interpretation[22]
thereby giving effect to the testator's clear intentions but in
the light of clause 5(2) the court might find that its hands were
tied on this issue such that it should construe the word "son"
or "daughter" as meaning just that, leaving no room
for ambiguity and the possibility of a purposive construction.
In any event it is not appropriate for legislation to be drafted
ambiguously on the assumption that the court will construe it
purposively.
15. In the above scenarios, the testators
could not possibly have been expected to say "I express the
wish that any change of gender under the Act shall not affect
the disposal of my property". The "Act" will in
many cases not have been in force at the time of execution. I
have never seen a will or settlement which contains this sort
of provision for gender alteration in any event and it is likely
that clause 10 will be of no assistance at all. In reality testators
in future who are aware of the possible pitfalls will simply refer
to their children by name rather than by gender. Related issues
in relation to clause 10 are dealt with, below.
Scenario C: Settlements
16. Similar issues arise in relation to
settlements. Take, for example, Scenario C (which could quite
easily occur given that the drafting below would be standard).
A female settlor (beyond child bearing age) has
two sons, A and B (who at the time of settlement have three children
between them but the possibility of further children of A and
B arises) and settles a trust fund in one of three possible ways
as follows:
(i) "On trust for my sons during their
lifetimes and on the death of the last of my surviving sons to
my sons' children living at that date in equal shares absolutely";
(ii) "On trust for A and B during their
lifetimes and on the death of the survivor of them to their children
living at that date in equal shares absolutely";
(iii) "On trust for my sons during their
lifetimes and on the death of the last of my surviving sons to
my grandchildren living at that date in equal shares absolutely".
17. It is clear that as at the date of the
settlement, A and B have a life interest in the fund.
18. But then, following the settlement,
B has a FGRC issued in her favour. The effect of the issue of
the FGRC raises considerable difficulties in relation to the construction
of the deed.
19. It is arguable that under drafts (i)
and (iii) B's life interest ceases on the issue of the FGRC as
on a construction of the deed at that date she is no longer a
"son" of the settlor. Alternatively it could be argued
that the deed should be construed as an act done before the issue
of the FGRC and therefore be unaffected. There is considerable
uncertainty as to the continuation of the interest which any trustee
would properly be advised to resolve by the issue of a "construction
summons" (by which I mean a Part 8 claim in the High Court)
at considerable expense to the trust fund (and hence the beneficiaries).
There is conceptual difficulty with a document meaning one thing
before and after the issue of a FGRC. In these cases the courts
might be tempted to construe the document as an act done before
the issue of a FGRC but this is by no means certain given the
express terms of clause 5(2) as I have set out above.
20. Under draft (i) it is also questionable
whether B's children's entitlements would fail to vest in due
course as a consequence of the issue of a FGRC. It is potentially
arguable under clause 8 of the Draft Bill, that they should not
but the settlement is drafted by reference to the children of
the settlor's sons and in my opinion the better view is that "the
settlor's sons' children" would only include A's children
if B were deemed a daughter for these purposes since the remaining
grandchildren would properly be treated as the settlor's daughter's
children and not her son's children.
21. Under draft (ii) the entitlements would
not change as a result of the issue of a FGRC as the reference
is not gender specific. However, as above, there would be scope
for argument if the trust was for "my sons A and B during
their lifetimes . . ."
22. Under draft (iii), B might lose the
benefit of the life interest as aforesaid but A and B's children
would benefit given their description as grandchildren (such that
their entitlement is not dependent upon the gender of their parent).
23. It is unlikely that the settlor in Scenario
C would have been aware that the minor differences in drafting
in the three clauses would have such dramatic differences to the
settlement. Most settlors and their legal representatives would
treat all three drafts as having the same effect. The difficulties
arise most acutely in relation to settlements that have already
been executed (and are extremely difficult if not impossible to
alter as I have said above) but will also result in an added "pitfall"
for future settlement drafting.
24. I assume that there are likely to be
few trans people relative to the overall population. It is therefore
highly unlikely that settlors and testators (who themselves will
not usually be the trans person in question and may well not have
any real understanding of these issues) are going to be alerted
to need to deal with such possible issues in their documentation
and clause 10 is likely to be redundant.
25. In this situation (ie in relation to
settlements) clause 13 could assist but this is dependent on expensive
and uncertain court litigation which will involve the possible
instruction of several firms of solicitors and Counsel to represent
various interests (such as A, the trustees, the unborn children
of A, the unborn children of B, the minor children of A, the minor
children of B etc). Clause 13 will be dealt with in more detail
below.
Presumption in clause 10
26. In my view; the presumption in clause
10 should be reversed. It seems to be more appropriate if the
presumption were that donors intend to give to/confer rights on
particular individuals regardless of their gender status rather
than the other way around. The presumption as drafted in my view
endorses a negative attitude towards the recognition of gender
alteration. It gives the impression by way of a presumption that
gender is more important to the settlor/testator (and by implication
the general public) than the individual concerned which, in reality,
is unlikely to be the case in the majority of situations. There
is also, an anomaly between clauses 10 and 11. Under clause 11
a Duke with a dynastic estate who acquired a new, female gender,
would continue to be a Duke, with all the rights and privileges
that appertained. Yet such a situation pertains precisely where
gender-based intentions on the part of the settlor (namely the
principle of primogeniture) could be most readily inferred.
27. In my opinion clauses 5(2) and 10 should
be amended so that any instrument or document (as opposed to any
enactment) executed or entered into before the issue of a FGRC,
should be construed by reference to the gender of any person at
the time of execution of the document or instrument. Therefore
trans people's and other parties' entitlements would be unaffected
by the issue of an FGRC in relation to documents executed previously.
The proviso in clause 10 should be reversed namely that the aforesaid
principle would be subject to any contrary intention expressly
included by the settlor or testator in the instrument or document.
28. It should be noted that clause 13 might
then become superfluous but this will depend on the exact amendments
that are made and whether clause 5(2) is amended for all, or merely
a category of documents.
Clause 12
29. I also have concerns about the word
"purchaser" in clause 12(3). As a matter of the law
of property (and or restitution) a beneficiary can trace property
into the hands of all recipients other than the bona fide purchaser
for value.
30. In my opinion consideration should be
given to amending the word "purchaser" in clause 12(3)
to refer to a "bona fide purchaser for value" or "a
purchaser for value without notice (either actual, constructive
or inferred)" of the true beneficiary's interest.
31. Without such amendment the following
scenario, Scenario D, could happen:
A testator has two sons, A and B. B then has
a FGRC issued in her favour. The testator then executes a will
leaving his house to "my son A and my daughter" (intending
the reference to my daughter as being to B). The executor, not
knowing of the FGRC takes the view that the testator does not
have a daughter and distributes solely to A by vesting the property
in him. Under clause 12(1) the executor cannot be liable for distributing
in ignorance of the FGRC. B could trace her entitlement into A's
hands but A might "transfer" the house to C for £1
in order to defeat his sister's entitlement, perhaps on the basis
of some oral understanding or arrangement. Under clause 12(3)
as drafted, B would have no right to trace into the house in C's
hands. The proposed amendment would close off this potential scenario
since C, whilst a purchaser, would not be a bona fide purchaser.
Clause 13
32. I am concerned about the general scheme
of clauses 10-13 of the Draft Bill which is in essence to deprive
trans people of their entitlements on a death of or settlement
made by their parents where reference to such child is in gender
terms but then to confer a general power on the court to adjust
such property rights. There is also the possibility that a trans
person may gain a windfall which is equally inappropriate as it
is likely to be contrary to the intentions of the settlor/testator.
33. This will impose on trans persons (and
third persons, usually siblings) additional cost, stress and worry
at a time when they are likely to be coming to terms with the
death of a parent or other family member.
34. The lack of any guidance of the basis
on which the court may exercise, its powers under clause 13 is
concerning. There is no guidance as to when "it may be just
to do so" and in my opinion if this power is to be retained
some guidance should be provided for in the statute[23]
Lack of guidance creates uncertainty and will encourage expensive
and protracted litigation. Factors may include:
(i) whether the dispositive document was
executed before or after commencement of the Act;
(ii) whether the dispositive document was
executed before or after the issue of the FGRC; and
(iii) whether the document contains any indication
that the donor had addressed the gender issue or the possibility
of a FGRC.
35. Given the lack of statutory criteria
there is consequently no guidance as to the scope of relevant
(and therefore admissible) evidence. For example, it is unclear
whether the document be examined on its own terms or whether extrinsic
material may be admitted (for example to demonstrate the donor's
attitude to trans people generally) and if so what and how much.
Litigation under this clause could in my opinion become distasteful
if such factors were admitted. It is difficult to think of any
factors which might weigh in the balance against reversing the
effective "disinheritance" of a trans person or an unintended
windfall conferred on a trans person. In my opinion these observations
in themselves point to the need for such documents to be construed
by reference to gender at the time of execution in the first place
as proposed herein.
36. There appears to be no logical justification
at all for the exclusion of wills from clause 13 of the Draft
Bill. The effects could be equally invidious if not more so given
the fact that there are likely to be vastly more wills than settlements.
In addition wills are more frequently informally created than
settlements which usually involve the instruction of lawyers (due
to complications of drafting and taxation). There is also considerable
overlap as many wills also involve the creation of settlements.
There seems no logical reason to exclude such settlements merely
by reason of their mode of creation.
37. The only possible reason I can think
of for such an exclusion (other than the technical fact that the
testator will in most cases be in a position to alter his or her
will which has been addressed above) is that the draftsman may
have considered that the court already has such power under the
Inheritance (Provision for Family and Dependants) Act 1975 but
that Act is directed at a totally different issue, namely the
failure of the deceased to provide reasonable provision for the
maintenance of the applicant. Although "children" of
the deceased fall into the category of persons who are entitled
to make an application under section 2 of the Act (by section
l(l)(c)), such "child" applicants must show that the
will or intestacy fails to make reasonable provision for "their
maintenance". Therefore an adult child (as all trans people
would inherently be as a FGRC may only be issued to an adult)
will only succeed if and insofar as he or she requires provision
"for his or her maintenance". This would be of no assistance
to financially independent persons who were disinherited merely
because of their trans status (or the trans status of their sibling)
and contrary to any direct intention in that regard on the part
of their parent.
38. In my opinion, clause 13 should be amended
by the deletion of the words "other than a will", although
I question the need for clause 13 at all if (by virtue of the
proposed amendments) property rights are not in essence lost or
gained as a result of the issue of the FGRC in the first place.
If clause 13 is to be retained I am of the opinion that consideration
should be given to introducing statutory criteria against which
any such application could be determined.
ISSUES UNDER
THE INHERITANCE
(PROVISION FOR
FAMILY AND
DEPENDANTS) ACT
1975
39. One class of persons who can make an
application under the 1975 Act are certain cohabitees (other than
spouses and former spouses who are covered by other provisions)
as follows:
"(where the deceased died on or after 1
January 1996) and during the whole of the period of two years
ending immediately before the date when the deceased died, the
person was living—
(a) in the same household as the deceased, and
(b) as the husband or wife of the deceased"[24]
40. It is questionable how this will operate
in respect of a cohabiting man A and woman B where A has a FGRC
issued in her favour such that A and B are both legally women.
In this scenario A and B may continue to live together as a family
unit with real ties. A man and a woman can live together as "husband
and wife" if they operate as a family unit even if they do
not share a bedroom or have sexual relations[25]
and therefore it is clear that the law does, at least in relation
to relationships between men and women, recognise that many couples
have a stable and loving relationship worthy of legal recognition
and protection without sexual relations being a necessary ingredient.
41. At present it is questionable whether
the courts would construe "living as husband and wife"
in s. 1(1)(ba) of the 1975 Act as applying to same sex relationships
(whether homosexual or following the issue of a FGRC of one cohabiting
partner). As far as I am aware no direct authority exists for
the proposition that a person in a same sex partnership could
apply under section l(l)(ba). However, in light of the decision
of the Court of Appeal in Ghaidan v Godin-Mendoza (2002)
EWCA 1533 as to the construction of a similar phrase in the Rent
Acts in light of the Human Rights Act 1998, it is probable that
same sex couples (whether homosexual couples or those including
a trans person) would be treated as living as though they were
man and wife but this is by no means certain.
42. If such a purposive construction were
not adopted in relation to the 1975 Act, a trans person and/or
his or her partner would on the death of one of them only be able
to make an application under section 1(1)(d) of the 1975 Act by
establishing dependency[26]
This is a greater hurdle to overcome. If the couple were financially
independent, no claim could be made by the survivor even if the
couple had lived together as a unit for many years and even if
reasonable provision should have been made for the survivor's
maintenance.
43. Therefore, in my opinion, consideration
should be given to making specific amendments to the Inheritance
(Provision and Dependants) Act 1975 to deal with cohabiting partners
such that a man and woman are not to be taken as no longer "living
together as husband and wife" in section l(1A) merely by
virtue of the issue of a FGRC to one of them (if indeed that is
the case). This will deal specifically with the very special and
unique situation of relationships where one cohabiting partner
changes gender. This then still leaves open the question as to
whether any such couple were, on the facts of a particular case,
living together as husband and wife. As with all cases this is
a matter of fact and degree but the above approach would have
the advantage that trans people would not be totally excluded
as a consequence of the issue of a FGRC.
FURTHER POINTS
ON MARRIAGE
ISSUES AND
INHERITANCE
44. If a married couple is effectively compelled
to divorce in order for one of them to obtain a FGRC, the trans
person or his or her partner would following divorce (as an unmarried
former spouse under section l(1)(b) of the 1975 Act) have the
right to apply for provision, but the definition of "reasonable
financial provision" for a former spouse is less favourable
than for a spouse. In relation to spouses it means such financial
provision as it would be reasonable for a spouse to receive (whether
or not required for his or her maintenance). For all other categories
of persons (including unmarried former spouses) it is such financial
provision as it would be reasonable for the applicant to receive
for his or her maintenance[27]
45. There may also be issues if spouses
are compelled to divorce as a pre condition to the issue of a
FGRC in relation to the provision that will be made on an intestacy
of one of them under the Administration of Estates Act 1925. The
former spouse will not be entitled on intestacy to a share of
the deceased's estate.
CONCLUSIONS
46. Liberty has obtained my consent to the
annexation of this Opinion to its consultation response on the
Draft Gender Recognition Bill.
Camilla Lamont
Landmark Chambers
4 Breams Buildings
8 September 2003
20 Liberty does not however accept that all the degrees
of relationship currently listed in Section 1 Marriage Act 1949
(as amended by the Marriage (Prohibited Degrees of Relationship)
Act 1986) are necessary. Back
21
This requires the variation to be for the benefit of the children/unborn
and is therefore not directed at the issue in question in the
same way as clause 13. In addition such applications are expensive
and time consuming. Back
22
As per Investors Compensation Scheme Ltd v West Bromwich Building
Society [1998] 1 WLR 896 HL. Back
23
For example compare section 3 of the Inheritance (Provision for
Family and Dependants) Act 1975 which sets out several factors
to be taken into account in this respect (and even then has been
heavily litigated). Back
24
I(PF&D)A 1975, ss. 1(ba) and (1A). Back
25
Re Watson [1999] 1 FLR 878. Back
26
Section 1(1)(d) provides "any person (not being a person
included in the foregoing paragraphs of this subsection) who immediately
before the death of the deceased was being maintained, either
wholly or partly, by the deceased." Back
27
See section 1(2) of the 1975 Act. Back
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