Joint Committee On Human Rights Written Evidence

17.Submission from the Scottish Human Rights Centre

  The Scottish Human Rights Centre (SHRC) is a NGO, which exists to promote human rights in Scotland through the provision of advice and information, research, scrutiny of parliament and monitoring of international human rights obligations.

  The Scottish Human Rights Centre welcomes the Draft Gender Recognition Bill and encourages the Scottish Parliament to pass the necessary Sewel motion to make the bill applicable in Scotland. Whilst recognising that this is a necessary and forward thinking bill SHRC has some concerns that it does not go far enough to protect the rights of transsexuals.

s.1  Applications

  SHRC wishes clarification of the criteria to be applied regarding an "approved country or territory".

s.2  Evidence

  SHRC believes that s.2(1) is too restrictive and that certification that the individual has lived in their acquired gender for two years and intends to do so permanently should be sufficient evidence. The provisions requiring medical or psychological reports firstly suggest that being transsexual is a disease or is unhealthy which is an inappropriate and inaccurate message and secondly could act as a substantial barrier (due to lack of understanding medical practitioners or the potential costs) to someone wishing to re-register their gender.

  Under s.2(3) an individual must disclose if they are currently having treatment to modify their sexual characteristics and cannot re-register their gender unless they do so. This potentially raises issues of privacy under article 8 ECHR. The requirement to disclose medical treatment may not be a justifiable breach of privacy if another who was not undergoing treatment could legitimately have their gender re-registered without any disclosures. This could also potentially amount to discrimination under article 14 ECHR.

  SHRC suggests that there should be guidelines under s.9 regarding the additional evidence which the Gender Recognition Panel may require to be produced. These guidelines should assist with the prevention of breaches of privacy under article 8 ECHR.

s.3  Certificates

  SHRC disagrees with the provisions in s.3(3) regarding marriage and contends that these provisions could be deemed to be discriminatory. SHRC suggests that the discriminatory factors in the existing law on marriage ie precluding same sex marriages, should not be permitted to taint this piece of legislation and that provision should be made that full gender recognition can be awarded even if the individual remains married provided that their spouse is satisfied with this arrangement. SHRC suggests that the UK Government and Scottish Executive should take this opportunity to review the discriminatory laws on marriage and introduce provisions which give equal legal status to same sex relationships as to mixed sex relationships, however should they fail to do this they should ensure that the provisions in this bill do not discriminate in any way.

  SHRC suggests that there should not be a time limit on the application for upgrading of an interim gender recognition certificate to a full gender recognition certificate. (s.3(5))

s.4  Supplementary

  SHRC recognises that there will be costs involved in re-registration of gender so as a matter of practicality accepts that some fee will be required however suggests that a set fee, similar to that for re-issue of a birth certificate, should be applicable rather than an indeterminate amount set by the Secretary of State.

s.10 & 11  Succession & Peerages

  SHRC believes that gender recognition of the acquired gender should not be permitted to prevent succession of property or peerages. If these discriminatory provisions are to be retained clarification as to whether succession can be affected by an interim or a full gender recognition certification must be provided.

  The provision (s.10) regarding the need to "contract into" succession despite gender re-registration does not appear to sit well with the Scottish provisions regarding legal rights which cannot be contracted into or out of except by ante nuptial agreement.

  S.10 creates a discriminatory situation where transsexuals may be treated differently to other people or to each other based on whether or not a statement has been made allowing them rights of succession. SHRC suggests that the presumption should be in favour of succession and that no statement should be required to be made to confirm this, also that provisions should be made to state that legal rights (in Scotland) are not affected by this bill, whether or not an interim gender recognition certificate has been obtained.

s.14  Prohibition on disclosure of information

  SHRC welcomes that it is an offence for a person who had acquired information in an official capacity to disclose the information to any other person. In particular SHRC welcomes the wide definition of "in an official capacity" which includes not only public bodies but voluntary organisations and private bodies as well in certain circumstances. SHRC however is concerned regarding the exclusions in s.14(4), in particular suggests that s.14(4)(a) should be removed as this provision is too vague and could allow to unwarranted disclosures of personal information. That information cannot be identified is not sufficient justification for disclosure—any disclosure must be for a legitimate purpose which must then be balanced against the potential for harm ie breach of privacy caused by that disclosure. SHRC does not believe that a blanket exclusion based on the individual concerned being unidentifiable is sufficient.

  SHRC also suggests that the bill be extended to make it illegal for contracts or other documents to require disclosure of gender re registration except with regard to medical insurance.

s.16  Money

  SHRC suggests that any fees received under this Act should be used for the promotion of equality and should not be paid into the Consolidated Fund. Also fees should be paid and kept in the country in which the registration takes place.


s.2  President

  SHRC suggests that it should not be a required for the President and Deputy President of the

Panel to be one of the legal members.

s.6  Procedure

  SHRC suggests that there should be provision for a hearing (s.6(4)) if the applicant requests it and that there should be facility to appeal against the decision of the panel.


s.2  Entries into the Transsexual Persons Register

  SHRC suggests that the UK Government should ensure that it has justification for the potential breach of the right to privacy caused by the marking of the register entry of any transsexual as suggested in s.2(3)(b) and making such entries traceable under s.2(3)(c). SHRC does not believe that it would be possible to make such markings without it becoming traceable in some way.


  SHRC recognises that additional provisions, due to the differences between the Scots and English laws of marriage, would be required should this bill be extended to Scotland. SHRC however suggests that there should not be a requirement to disclose any former gender to any prospective spouse if the acquired gender has been recognised under this bill.


  On the whole the Draft Gender Recognition Bill is welcome and progressive however the above concerns along with specific Scottish provisions eg regarding marriage and succession will need to be addressed before the bill can be extended to Scotland.

10 October 2003

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