Joint Committee On Human Rights Written Evidence

24.Submission from Jenny Day and Alison Bennett

  1.  It must be clearly stated that the views expressed in this submission are our own personal views. We do not speak for any pressure group or outside body. This submission is made from the point of view of two people who are single in law and have had full sex change surgery many years previously. It is therefore for the committee to assess the validity of our opinions where they touch upon the fights of groups other than those to which we belong directly.

  2.  It is our considered opinion that the drafting team who worked on this bill have, in the main, made a superb job with very few flaws. They are to be congratulated.

  3.  We are concerned that in a commendable attempt to make the legislation as inclusive as possible the drafting team may have fallen into the trap of making things more difficult for the very group whose court action brought about the need for the legislation. It was a series of actions brought by Post Operative Transsexuals (those who had undergone the full Sex Change surgery) which necessitated the need for legislation. The fact that these people now possessed a reasonable facsimile of female sexual organs was an implicit reason for the judgement. However, as we will show in paragraph seven onwards the way that this legislation is framed will make it liable to discriminate against some of these very people. This can not be in the best interest of anyone and we do not believe that it was the drafting team's intention. A law which continues to exclude some of those whose pressure brought about its existence may well leave a path open to further court action which clearly is not in anyone's interest.

  4.  We are aware that some sections of the transgendered community are concerned about conditions requiring married people to divorce before change of gender is recognised. We do not entirely share these concerns. We feel that there could be a danger in making too many special cases and exceptions. If these people wish to remain in a legal relationship then we feel that the right course would be for them to re register their relationship under the forthcoming civil, partnership provisions. It could be argued by some that to wish to remain as "husband and wife" in the face of the evidence might betoken a lack of commitment to changing gender.

  5.  We feel that there should be clear guidelines on what constitutes valid grounds for a gender panel to refuse an application. Otherwise .there would seem to be a danger that a gender panel could effectively become a sort of kangaroo court with arbitrary power of sway over other people lives. The process of consideration of an application, although done in private, must be seen to be fair and transparent and we are concerned that there do not appear to be sufficient statutory guidelines for the panels to ensure consistency of operation.

  6.  We have one major area of concern relating to sections 1 and 19.


  7.  The bill has been drafted so that it may take cognisance of those who have not undergone the full surgical sex change procedures but are living permanently in "role". In order to achieve this, the criteria for application have been heavily predicated on documentary evidence of diagnosis rather than evidence of surgical treatment. Whilst this should not present any difficulty for those patients who are treated after the full provisions of the bill are known, we are very concerned that it will present an unfair barrier to those who were treated a long time in the past.

  8.  In the case of the two authors of this short submission we were both treated over fifteen years ago and have lived successfully in "normal" society in our adopted roles for all of that time. We have deliberately cut ourselves off from other transsexuals and gender clinics believing that successful re integration into society is the ultimate mark of a successful transition and treatment.

  9.  At that time of our treatment the normal documentation required for alteration of passports etc was a surgeon's letter. However this focussed almost exclusively on one aspect of the treatment. Namely that irreversible surgical alteration of the persons sexual organs had taken place. The change was therefore deemed permanent. This letter did not necessarily make any formal mention of diagnosis and therefore might very well not satisfy the requirements of the new legislation. (A specimen is attached as an appendix to this submission.)[53]

  10.  At the time no surgeon operating in the UK would perform surgery unless a qualified psychiatrist had properly diagnosed the person. The legal and healthcare framework of the time made it considerably more difficult to obtain surgery than it is today. Thus the fact that one had been properly diagnosed was therefore completely implicit in the fact that one had obtained UK based surgery at all. So there was no perceived need for a UK surgeon's letter to record this fact. Consequently for a panel to refuse to accept these sorts of letter as satisfactory evidence would be an unwarranted and gross moving of the goal post after the fact. This can only serve to discriminate against those of us who have waited patiently for the law to catch up with our difficulties. This can not be right or what the drafting team intended.

  11.  This would be the ludicrous situation. Someone who has lived successfully in his or her acquired gender for many decades could be expected to present to a gender identity clinic for rediagnosis just so that the application can be filled out. They have had no contact with the gender world for many decades and would not know whom to contact. Many of the doctors who treated them would have retired. After living a successful life in their new gender from many years it seems highly unlikely that they themselves could recall enough of their pretreatment state of mind to be reliably and accurately re diagnosed. You simply can not re diagnose someone many years after they have been successfully treated and cured (the change is after all supposed to be a cure). Therefore it follows that any doctor required to perform this sort of diagnosis after the fact would have to give the patient the benefit of the doubt. In consequence we would ask what purpose would be served by this procedure other than to make it un necessarily difficult and stressful for an "old timer". Such people arguably have more right to legal recognition than someone who is just being treated. Indeed if the doctor or gender panel refused to give this long term post op patient a "rubber stamp" diagnosis then the possibility would be re awakened that the patient might well choose to resort to the European Court of Human Rights and we would all be back to square one.

  12.  We understand the section 19 was designed to avoid this problem. However we are concerned that it will prove inadequate for the following reasons.


  13.  We note that there are provisions for a fast track procedure for those applying within the first six months after the legislation is operative. This does indeed allow for the differing standards of documentation that those of us who have been post operative for some while will possess. However this qualification has been artificially restricted to a six month time window. This gives rise to three concerns:

  14.  Firstly there will inevitably be an enormous backlog of applications and it would be manifestly unfair to penalise those who fail to get their applications processed within the six months due to delays on the part of the panel. If the operation of this section must indeed be time limited we would suggest 12 months would be more reasonable.

  15.  Secondly there is in our view a real danger that many long term post ops will not get to hear about the changes until it is too late. In our own case despite living together for fifteen years in partnership we have deliberately taken steps to disassociate ourselves from Transsexual groups and to re integrate ourselves into mainstream society. This treatment is supposed to make one into a normal member of society. Thus those of us who successfully transitioned can only really say we have completed the change when we leave the artificial "TS" world and re-join normal people. So were it not for the fact that we are intelligent, educated and interested in current affairs, there would be a considerable danger that we would now be blissfully unaware of the proposed requirement of the legislation and its shortcomings. There is thus a danger that many of the voices heard in this consultation will be those of pressure groups and extremists on all sides who may not accurately represent the opinions of the moderate silent "common sense" majority.

  16.  Thirdly it can be argued that once a person has acquired the genitalia and sexual characteristics of their new sex they NEED the protection and provisions that legal recognition would give them rather more than those who for whatever reason have chosen to retain their original genitalia. This is not to say that those who have not had surgery can never gain recognition. Merely that it should be easier to gain full recognition for those who have had surgery because the risks and consequences of not having legal recognition are more acute for them.

  17.  Without in any way wishing to denigrate the work of the drafting team it would seem to us that in an effort not to discriminate against the small minority who do not undergo surgery they have potentially discriminated against the vast majority who do. There must be permanent and automatic grounds for application for those who have undergone the full sex change surgery. A gender panel should NOT have power to refuse an application from someone who has had full surgery. (Although such provision might have to be framed so that granting of that application would also automatically dissolve any previous marital union.)

  18.  Speaking purely for ourselves we feel that the value of this attempt to include those who have not had surgery in the same legislation may be questionable. We are concerned that it could give rise to confusion in the mind of the wider public. Generally speaking the law uses a test of what a reasonable person would assume. Under this test those who have had surgery and all of the other associated treatments would in all probability pass as members of their adopted gender. Clearly those who had not probably would not. In consequence we worry about people who still retain male genitalia gaining the "right" to enter a place where females are found naked such as a changing room. Bear in mind that the two authors are post operative themselves and so should be reasonably sympathetic. However in all honesty even we would have serious reservations about this state of affairs were it to occur. What none of us wants is a public backlash against this legislation and we feel that giving all transsexuals regardless of genital status full rights could very well produce just such a reaction.

  19.  It does not appear to us desirable that the law brings into effect a set of circumstances where people gain rights which the vast majority of reasonable people would object to. This is as much an error as completely refusing such rights to those with legitimate need for them. In consequence we feel that some reexamination of the balance of this legislation is needed and it may be that there is a need for TWO classes of registration each conferring differing levels of rights and responsibilities, with FULL rights restricted to those who have undergone the full treatment.

  20.  We realise that this view will be unpopular with some sections of the Transsexual community. However a democratic consultation has little value if some shades of opinion allow themselves to be silenced by pressure groups calling for "unity". We feel that it is important that the resultant legislation should be acceptable to the widest possible section of general society. We have no wish to see this legislation subsequently repealed should a political party of less Euro sympathy come to power. In this connection we feel that the committee should look very carefully at BOTH simplifying registration for those who have had surgery and some reasonable limitations to the rights granted to those who have not.

  21.  Someone who is post op automatically needs the status that recognition will confer in order to function within society without unreasonable danger of harm or discrimination. This can be clearly seen in the example of a recent court judgement over a male to female transsexual's non existent right to use a ladies toilet.

  22.  The judgement was given in a high court on the basis that the applicants were all male in law. This means that in theory, at least, an applicant who has fully female bodily shape and function can legally assert a right to use a male toilet but is denied the right to a female one appropriate to her bodily functions. We wonder what would have been the result if such a person had wandered into the gents. We suspect that they would then have been arrested for behaviour liable to give rise to a breach of the peace. This is a subtle form of double jeopardy and not consistent with the best traditions of British law. In a public place it is not unreasonable for a person to expect to have the right to use one toilet or another without risk of harassment, injury or legal challenge.

  23.  Clearly having to use a male toilet whilst attired in female fashion could lead to some embarrassment for those who still retain male parts, but live permanently in a different role. However it is a total disaster for those of us who have had surgery, as technically it means that to comply with the law we would have to use a male toilet that may not be designed for someone without male genitalia. It could also put us at extreme risk of rape or other serious harm.

  24.  Although the example above may seem rather trivial it is symptomatic of the kind of practical day to day problem that does arise all too frequently when the way the law treats a person is at variance with their physical bodily attributes. There are many other similar examples but in the interests of brevity we will not cite them. However we believe that by extension of the principals we have demonstrated why the law must be framed in such a way that those who have undergone the fullest treatment must be granted automatic right of registration. In the absence of any other documents all that should be necessary is an examination by the patients own GP to confirm that they have indeed had proper surgery.


  25.  In an ideal world we would like the application .procedure to be entirely redrafted so that those who can prove that they have had the full sex change surgery gain an AUTOMATIC and UNDENIABLE right to recognition. We feel that nothing less will fully satisfy the human rights of the applicants. The gender panels should ONLY have power to "decide" applications from those who are not yet post operative.

  26.  As a very minimum requirement we feel that it is imperative that the requirements for application be re drafted so that rather than being restricted to a six month window, section 19 remains open to anyone who is already long term post operative at the time that the legislation is introduced. Thus people already fully treated prior to the legislation can automatically qualify under the amended provisions of section 19 however long after the bill comes into effect they choose to do so.

  27.  This we feel will remove any chance of unintentional discrimination. Furthermore to fail to make this simple amendment would in our view leave the new legislation open to legal challenge on the grounds that the law is being unequally applied.

  28.  It should be noted that this in no way alters the long term operation of the law, as it is limited to those who underwent treatment BEFORE the legislation was drafted. Thus no new people will qualify for this route of application as time passes.

  29.  It will ensure that no one who could legitimately argue that they had no way of knowing that they would one day be required to produce all this documentation is unfairly disadvantaged.

  30.  It will also take the pressure off the panels who otherwise will face a horrendous rush during the first six months attempting to process many tens of thousands of hurried applications.

  31.  In summary those who are long term post-op and have had the full surgery need to be treated by the law according to their PHYSICAL medical status and not by whether or not they have been measured against some arbitrary set of diagnostic criteria ... diagnostic criteria can change over the years. However once someone has been treated surgically that becomes an irreversible FACT. In a real sense it then matters not why they became post-op. The important fact is that they did. And therefore human rights principles mean that they are entitled to be treated by the law in an appropriate manner. To deny a registration to someone merely because they don't have the right words on a piece of paper, when any competent GP can confirm that they have received irreversible surgical treatment, would not meet the principles of respecting their human rights.

18 August 2003

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