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.
SCHEDULE 1—GENDER
RECOGNITION PANEL
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.
SCHEDULE 2—REGISTRATION
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.
SCHEDULE 3—MARRIAGE
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.
CONCLUSION
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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