25.Submission from Mrs C[54]
1 SUMMARY
1.1 In July 2002, the judgements of the
European Court of Human Rights in Goodwin and I v UK found the
UK to be in breach of its obligations under the European Convention
on Human Rights on two counts: 1) under article 8 the right to
respect for private life, and 2) under article 12—the right
to marry.
1.2 Paragraph 50 of the explanatory notes
that accompany the Draft Gender Recognition Bill state that the
Department has considered the impact of the provisions of the
draft bill on the article 8 (private and family life) rights of
individuals and families.
1.3 The draft bill assumes that all married
transsexual people will want to dissolve their marriages in order
to obtain a new birth certificate in their acquired gender. This
is an incorrect assumption.
1 .4 The bill makes no provision for people
who feel that divorce is wrong. It therefore excludes married
transsexual people—insisting that they dissolve their marriages
before they can realise their right to respect for private life.
1.5 Whether or not the department considers
it pertinent to issue a new birth certificate in the acquired
gender, the government still has to meet its obligation under
the European Convention on Human Rights article 8—the right
to respect for private life. It must do this for all people, however
they decide to live their lives.
1.6 This document explores evidence that
in certain circumstances the draft bill may fail to adequately
implement the right to privacy for married transsexual people.
1.7 This document explores evidence that
in certain circumstances the draft bill may cause detriment to
the mental welfare of married transsexual people.
1.8 This document explores evidence that
in certain circumstances the draft bill may place married transsexual
people in a worse state of gender recognition than the current
legislation.
1.9 Section 8 of this document proposes
a number of measures that could be used to help secure privacy,
health and socio legal status for such people.
2. ABOUT THE
AUTHOR
2.1 Name: Mrs C
2.2 Gender Status: Gender re-assigned.
2.3 Work Status: Fully employed in the
civil service.
2.4 Marital Status: Married since July
1986, with two children ages 11 and 13.
2.5 Family Status: Living in a celibate
partnership, and still very much in love. Committed to providing
the best environment and financial security for our children.
2.6 Family History: My partner and I
knew I had Gender Identity Disorder before we married. At the
time, neither of us knew that my condition would get progressively
worse to the point where I was suicidal and socially dysfunctional,
and where I had no other choice but to undergo gender reassignment.
2.7 Basis: This evidence is submitted
on an individual basis.
3. MORAL ISSUES
FACING THE
GOVERNMENT
3.1 Allowing transsexual people to obtain
full legal recognition in their acquired gender but remain married
would create instances of same sex marriages. This is not compatible
with the rest of UK law, which does not allow same sex couples
to marry. (A civil registration scheme is being considered that
will allow same sex couples to obtain marriage privileges, but
without being considered married.)
3.2 On the other hand, through the draft
bill, the Government could be seen to be encouraging people to
disrespect marriage in favour of obtaining their rights to privacy.
Many people view marriage as a holy institution: passing a bill
that is seen to disrespect marriage may cause the Government to
lose favour with such people.
4. THE DILEMMA
FACING TRANSSEXUALS
IN A
FAMILY SITUATION
4.1 My own marriage partnership has survived
my gender reassignment, and remains a loving and committed partnership.
The draft bill proposes that I must first dissolve my marriage
before I can be issued with a new birth certificate.
4.2 The effect of dissolving my marriage
on my family is huge:
— Dissolving a marriage involves legal
representation, and therefore costs a lot of money. Although partly
funded by the NHS, gender reassignment also costs a significant
amount. For male to female transsexual people, the total cost
of removing facial hair with electrolysis is around £8000,
and the cost of breast augmentation is around £4000. Specialist
cosmetic surgery can easily inflate this figure from £12,000
into the £30,000 to £40,000 price range. Personally,
I have spent £40,000 so far, and I have another £5,000
remaining in my budget. Female to male transsexuals experience
similar costs. The need to employ a solicitor to dissolve a marriage
places an extra strain on family finances.
— Having dissolved my marriage, my
ex spouse and I are no longer each other's next of kin. When one
of us dies, the remaining partner will be forced to pay inheritance
tax. This may necessitate selling the family home in order to
pay the tax liability. Being forced to move house because of bereavement
would be extremely distressing for our children and the surviving
partner.
— Even though we continue to live in
a loving relationship, the surviving partner is not legally able
to authorise funeral arrangements.
— My spouse has already been faced
with the most horrible trauma imaginable—that of their partner
undergoing gender re assignment. Forcing my spouse to also undertake
a divorce is adding to the suffering.
4.3 Like it or not, I am married, I remain
married, and I intend to stay married. I made a commitment to
my spouse to remain married until death, and I swore an oath to
God. I feel this bill should do more to help people like myself,
who wish to honour the `promises we made to our spouses when we
married.
5. HOW THE
DRAFT BILL
MAY FAIL
TO ADEQUATELY
IMPLEMENT THE
RIGHT TO
PRIVACY FOR
TRANSSEXUAL PEOPLE
IN A
FAMILY SITUATION
5.1 Civil service and public sector employers
insist that birth certificates accompany all job applications.
Ministers confirmed this situation to Parliament in 1999.
5.2 Therefore, in order to obtain privacy
in employment situations, transsexual people must first change
their birth certificate.
5.3 Considering the cost of dissolving my
marriage (section 4.2 above), as far as the draft bill stands,
it is my own opinion that I will not be able to change my birth
certificate, as the cost of doing so far outweighs the benefit.
Other transsexual people in a family situation may feel the same
way.
5.4 The draft bill therefore clearly sets
the cost of full gender recognition way above my means, and potentially
above the means of other married transsexual people. I believe
that this is a constructive denial to me of my right to respect
for private life.
5.5 It would be very embarrassing and costly
for the Government to be taken back to the European Court of Human
Rights to face a charge of "constructive denial of the right
to respect for privacy under Article 8 of the Convention".
It would be extremely embarrassing if the Government were to lose.
5.6 I believe the Department should firstly
re consider the requirement to dissolve a marriage before a new
birth certificate can be issued. This would be the cheapest and
simplest solution to the privacy issue. The Department should
re-consider the timing of events in a person's life. When the
marriage was incepted it was a valid marriage between a man and
a woman. Then some time after the marriage, one partner changes
their gender. A marriage does not become invalid when one partner
changes their name, so it should not become invalid when one partner
changes their gender. Life insurance companies keep current policies
based on the gender at inception, and refuse to take a change
of gender into account. So should it be with a marriage.
5.7 However, if the Department continues
to insist that the requirement to dissolve a marriage is still
there, then I think it would be very wise for them to consider
how the draft bill could be amended to improve privacy other than
through changing a birth certificate.
6. HOW THE
DRAFT BILL
MAY BE
OF DETRIMENT
TO THE
MENTAL WELFARE
OF SOME
TRANSSEXUAL PEOPLE
6.1 At the moment, there is no single defining
point at which a person legally and/or socially changes their
gender. Social acceptance seems to occur with gender reassignment
surgery, whereas legal acceptance seems to occur at various points.
The underlying fact being that, due to the gender recorded on
the birth certificate, the individual, legally, never actually
changes their gender at all.
6.2 Once the Gender Recognition Bill becomes
law, social and legal institutions will polarise to accepting
the issue of a new birth certificate to be the only defining point
at which a person's acquired gender is accepted.
6.3 Transsexual people who feel unable to
dissolve their marriages, as discussed in section 4.2, will therefore
have no hope of ever being officially recognised in their acquired
gender.
6.4 Being forced to chose between divorce,
and remaining their birth gender forever, is an impossible choice.
(Married people are aware that divorce will devastate the lives
of their loved ones.) Such an impossible choice is certain to
drive transsexual people into desperation of suicidal proportions.
6.5 My own study of the implications of
the draft bill becoming law has removed my hope for legal recognition.
As a result, my own mental welfare has already deteriorated.
6.6 Personally, if I was ever in a situation
such as a court and I was declared " . . . legally a man
. . . ", simply because I chose to honour my marriage vows,
the effect on my mental state of mind could be terminal. I would
not be surprised if such judgements would cause transsexual people
to commit suicide.
7. HOW THE
DRAFT BILL
MAY PLACE
SOME TRANSSEXUAL
PEOPLE IN
A WORSE
STATE OF
GENDER RECOGNITION
7.1 At the moment, there is no single defining
point at which a person legally and/or socially changes their
gender. Social acceptance seems to occur with gender reassignment
surgery, whereas legal acceptance seems to occur at various points.
The underlying fact being that, due to the gender recorded on
the birth certificate, the individual, legally, never actually
changes their gender at all.
7.2 Once the Gender Recognition Bill becomes
law, there is a risk that social and legal institutions will polarise
to accepting the issue of a new birth certificate to be the only
defining point at which a person's acquired gender is accepted.
7.3 Transsexual people who feel unable to
dissolve their marriages, as discussed in section 4.2, will therefore
have no hope of ever being officially recognised in their acquired
gender.
7.4 This will lead to numerous situations
where such people are placed in an even larger state of limbo
as to how they are under current legislation.
7.5 The polarisation of legal gender status
on the new birth certificate may give rise to ridiculous situations
where women are sent to male prisons because (for whatever reason)
they never re registered their birth under their new gender.
8. HOW THE
DRAFT BILL
COULD DO
MORE TO
PROTECT THE
PRIVACY, HEALTH
AND SOCIO
LEGAL STATUS
OF TRANSSEXUAL
PEOPLE
8.1 The draft bill assumes that all married
transsexuals will want to divorce their current spouses in order
to obtain a new birth certificate in their acquired gender. That
is not the case with me, and will not be the case with many others.
(See the points made in paragraph 4.2.) The draft bill should
make as much provision as is reasonable to protect these people,
too. Full protection by way of a new birth certificate may not
be possible, however the draft bill could go much further in securing
their privacy, their health and their social and legal status.
8.2 The Department could amend the draft
bill such that it adjusts the Equal Opportunities Act: legislating
against employers being able to ask potential employees to disclose
their gender status. Employers are already not allowed to ask
a person's marital status, whether they are pregnant or intend
to have children, and so on. The effect of this would be to improve
privacy—employers would have to accept an alternative form
of identification other than a person's birth certificate, since
to ask to see a birth certificate would be asking transsexual
people who have not been able to obtain a new birth certificate
to reveal their status.
8.3 The Department could amend the draft
bill such that the interim gender recognition certificate does
not expire, and such that it becomes a legal document of gender
status (superseding the birth certificate). However, the draft
bill could stipulate a list of situations (such as marriage) in
which the interim gender recognition certificate is not accepted
as proof of gender. The effect of such a measure would be to protect
the health and socio legal status of transsexual people, as they
would be legally entitled to use public facilities (toilets, showers,
changing rooms, etc) conducive to their acquired gender.
8.4 The Department has already acknowledged
evidence that a change of gender takes an indeterminate amount
of time. Gender reassignment takes only a few months for some
people, other people take decades. Specifying that the interim
gender recognition certificate is indefinite endorses the fact
that there is no time limit to full gender reassignment. It also
makes it clear that, for most purposes, a person can be recognised
as a member of their acquired gender before the process of reassignment
is fully complete.
8.5 The Government could also promise to
review the bill when it considers the civil registration scheme.
Such a review would have the intention of allowing a married transsexual
person to dissolve their marriage and obtain civil registration
in one legal step. A process that forces civil registration to
follow after a period of time is prone to disaster should one
of the partners die after the marriage is dissolved, but before
civil registration is secured.
6 September 2003
54 The author of this memorandum provided their full
name and address but asked for them not to be printed. Back
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