Joint Committee On Human Rights Written Evidence

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.


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.


  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 AuthorityBack

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

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