13. Submission from the Northern Ireland
Human Rights Commission
1. The Northern Ireland Human Rights Commission
(the Commission) is a statutory body created by the Northern Ireland
Act 1998. We have a range of functions including reviewing the
adequacy and effectiveness in Northern Ireland of law and practice
relating to the protection of human rights[28]
advising on legislative and other measures which ought to be taken
to protect human rights[29]
advising on whether a Bill is compatible with human rights[30]
and promoting understanding and awareness of the importance of
human rights in Northern Ireland[31]2. The
Commission welcomes the initiative to provide for legal recognition
of the acquired gender of transsexual people through the Draft
Gender Recognition Bill. This legislation will allow for the decisions
of the European Court of Human Rights (ECtHR) in the Goodwin
and I cases to be implemented fully in domestic law.
3. However, the Commission is concerned
about the delay between the decision of the ECtHR and the introduction
of legislation in the United Kingdom. This is particularly distressing
for transsexual people since there have been no interim measures
put into place to remedy the ongoing breaches of Articles 8 and
Article 12 of the European Convention of Human Rights (ECHR),
as incorporated in the Human Rights Act 1998 (HRA). Furthermore,
consideration of the legislative requirements was already under
way when the issues came to be decided by the ECtHR: indeed an
Inter-Departmental Working Group produced its review three years
ago. The Commission therefore recommends that this legislation
should be considered as a matter of urgency.
4. The current Draft Bill does not apply
to Northern Ireland but we understand from Lord Filkin's statement
that the intention is that the provisions should be extended thereto
by modification of the Bill. The Commission is supportive of this
approach since some of the issues dealt with are reserved matters,
and Westminster legislation is likely to result in earlier legal
recognition of transsexual people. Lord Filkin's reference to
"the absence of devolved institutions" should not mean
that, should the Northern Ireland Assembly be restored in the
near future, the Bill will be referred back to that Assembly (in
relation to devolved matters for fresh Assembly legislation, or
non-devolved matters on which comment is sought) with a consequent
delay in reform. The Commission is concerned that the Government
should work with the devolved administrations to ensure a smooth
implementation of the legislation across the state, and that devolved
matters are considered in a reasonable timeframe.
5. The following comments address some points
that in the Commission's view have an effect on the human rights
of the transsexual person or their family.
APPLICATIONS FOR
GENDER RECOGNITION
People covered by the legislation
6. In relation to people covered by the
draft Bill, the scope is greater than that of the Sex Discrimination
(Gender Reassignment) Regulations l999[32]
which protect only transsexual people who intend to undergo, are
undergoing or have undergone gender reassignment under medical
supervision. Though the more inclusive approach chosen in this
draft Bill is welcomed, a harmonisation is necessary with existing
legislation in order to avoid creating legal uncertainty for people
who come under the scope of the Bill but may not be protected
by the 1999 Regulations. The Commission therefore recommends that
the present Bill should amend the definition in the 1999 Regulations
to extend their coverage to any person whose gender has become
the acquired gender under the Gender Recognition Act 2003.
Age limit
7. The draft legislation does not allow
the possibility of recognising the gender identity of a transsexual
person below the age of 18. The Commission recalls that the ECHR
rights apply to all individuals living within the jurisdiction
of the United Kingdom regardless of their age. To the extent that
gender recognition is a human right, access to that right ought
not to be restricted by age.
8. In the same context, account should be
taken of the obligations assumed by the United Kingdom under the
United Nations Convention on the Rights of the Child, and particularly
that under Article 3(1): "In all actions concerning children,
whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration."
Also relevant is Article 8(2): "Where a child is illegally
deprived of some or all of the elements of his or her identity,
States Parties shall provide appropriate assistance and protection,
with a view to re-establishing speedily his or her identity."
To the extent that, in any given case, a child's best interests
may be served by recognition of a gender identity other than the
one recognised at birth, the state is obliged to make that possible.
9. The position advanced in the Draft Bill
differs from the proposals presented by the Equality Network in
Scotland. In its proposals for the legal recognition of the gender
identity of transsexual people in Scotland, the suggested minimum
age for re-registration is 16 "although younger people should
be able to do so with their parents'/carers' support and agreement"[33]
The Commission supports this view in the light of the Gillick
principle[34]
in which the court found that children under 16 can give valid
consent to medical treatment without parental knowledge or consent.
If found "Gillick-competent" by the court, a child should
be able to complete the treatment required to achieve gender recognition,
and should not then be denied recognition solely on grounds of
age.
10. Some experts have also argued that an
early diagnosis and treatment of transsexualism before puberty
will ease the process of gender reassignment since it may prevent
the development of secondary sexual characteristics[35]
It might sometimes be the case that requiring a young person with
a confirmed diagnosis of gender dysphoria to proceed through puberty
before treatment, knowing that he or she will subsequently have
a much more difficult transition to the acquired gender, could
amount to an infringement of the young person's rights. If young
persons are competent to decide on taking hormones or other medical
treatment for gender dysphoria, possibly including undergoing
complete gender reassignment surgery, they should be able to have
their gender recognised in law.
11. As it stands this age limitation interferes
with the right to marry since a young person is allowed to marry
in Northern Ireland from the age of 16 (s.22 of the Marriage (Northern
Ireland) Order 2003). A transsexual young person would be deprived
of this right until the age of 18, and this appears to found a
breach of Article 12 combined with Article 14 of the HRA on grounds
of gender identity.
12. The Commission therefore recommends
that the age limit be removed.
Approved Country
13. The Commission welcomes the possibility
for an application to be granted if the gender recognition occurred
in another country (clause 1). However, it is not clear what is
meant by the notion of "approved country or territory".
The Commission would like to know on which criteria will approval
be conferred by the Secretary of State.
Fee
14. The Commission is concerned that a non-refundable
fee (clause 4(2)) is to be paid by the person applying for gender
recognition and that no amount has been fixed in the draft legislation
or schedule. On which grounds will this amount be determined?
The Commission is concerned that this amount may constitute an
impediment to the application by a transsexual person.
15. The purpose of a formal recognition
of gender is to permit the person concerned to access, in Lord
Filkin's words, "all the rights and responsibilities appropriate
to that gender". It is thus a process designed as much to
allow the state to meet its obligations to protect the rights
of the individual as to the individual to secure their entitlements.
Given that the state needs to recognise gender in order to meet
its obligations, the state should bear all the expense associated
therewith. The Commission therefore recommends that there should
be no fee chargeable for a successful application. Whether it
would be appropriate to charge any fee for an application that
did not succeed is perhaps another matter, but it is difficult
to imagine that so many ill-founded applications will be made
as to justify a cost recovery scheme.
Family life and privacy
16. The end of a marriage contracted prior
to gender recognition is, under clause 3(5) and (6), a condition
for the acquired gender to be recognised on an ongoing basis.
This condition affects family links of transsexual people, their
partners and their descendants. Despite clause 8(1) of the draft
legislation (which mentions that the parenthood of a transsexual
person will not be affected by the gender recognition) the Commission
is concerned that the children born prior to the gender recognition
will be affected by this requirement to annul or dissolve the
marriage prior to recognition. This is not dealt with adequately
in the Draft Bill which does not reflect the potential impact
of this dissolution on the succession rights of the offspring
of the transsexual person. Specifically, the succession rights
that would otherwise apply when a married parent dies intestate
would, in relation to the property of a parent who has been recognised
in an acquired gender, appear to cease upon the end of the marriage
unless the parent has made a will or other instrument satisfying
clause 10. This if we have correctly understood the intention
of the relevant clauses-appears to require the parent to "opt
in" by way of a separate legal instrument in order to preserve
the rights of the offspring; we would prefer that there be a presumption
in favour of those rights subsisting, unless a will or other instrument
provided to the contrary.
17. Another issue remains in relation to
the name and gender of the transsexual person on the birth certificate
of their offspring; will the name and gender of birth of the parent
be changed to reflect the recognised gender, or will these details
be maintained on the birth certificate of the offspring? In either
case there are implications for the right to private life of the
transsexual person. This needs to be clarified and thought through
in this legislation as it creates uncertainty in relationship
to the rights of transsexual person and their family.
Other relevant issues
18. The Commission would like to encourage
extension of the legislation protecting transsexual people from
discrimination to cover not just the employment field but access
to goods, facilities and services. This is very important to protect
the human rights and dignity of transsexual people living in the
UK. It is particularly important in the context of Northern Ireland,
which is in the process of developing a Single Equality Bill to
harmonise equality legislation. In this context it seems timely
to consider the validity of limitations in the Sex Discrimination
(Gender Reassignment) Regulations.
15 October 2003
28 Northern Ireland Act 1998, s 69(1). Back
29
ibid, s 69(3). Back
30
ibid, s 69(4). Back
31
ibid, s 69(6). Back
32
For Great Britain (SI 1999 No. 1102); in Northern Ireland, the
Sex Discrimination (Gender Reassignment) (Northern Ireland) Regulations
1999 (SR 1999 No. 311). Back
33
Proposals for the legal recognition of the gender identity of
transsexual people in Scotland, consultation draft, 8.1.03, p4. Back
34
Developed in the case Gillick v West Norfolk and Wisbech Area
Health Authority. Back
35
Whittle, S. & Downs, C. (2000) "Seeking a Gendered Adolescence:
Legal and Ethical Problems of Puberty Suppression among Adolescents
with Gender Dysphoria" in E. Heinze (ed.) Children's Rights:
of Innocence and Autonomy, Dartmouth Press, pp 195-208. Back
| 
