Joint Committee On Human Rights Written Evidence

32.Submission from Gina Large

  As one who was plunged into the nightmare of gender reassignment at the age of 54, after half a century of severe internal distress finally erupted like a volcano, I am writing this personal submission, on behalf of myself and my spouse, in response to the Committee's call for evidence on the practical implications of the Draft Gender Recognition Bill.

  In particular, I want to focus my submissions on two aspects:

    (a)  Firstly on the injustice of demanding that those who remain legally married must divorce, regardless of the wishes and respective rights of the two individuals concerned, and,

    (b)  Secondly on the need for those undergoing gender reassignment to be protected in law against discrimination in the provision of goods, facilities, services and premises.

 (a)   The injustice of imposing divorce as a pre-condition to gender recognition

  As a qualified lawyer, I can understand the logical reasoning behind the drafting of the Bill. On paper, it must appear that to allow the continuation of a pre-existing male-female marriage would be inconsistent with the granting of legal recognition that one of the parties to that marriage has subsequently changed gender. Hence, Clause 3 of the Bill, as drafted, requires the termination of marriages prior to the grant of full gender recognition certificates.

  The Department for Constitutional Affairs has expressed the view that "the Bill's approach, in requiring transsexual people to accept the ending of a male-female marriage as a condition for registration in the new gender, is justified."

  Easily said, but, as one who knows from personal experience the immense suffering gender change itself brings to married couples, I implore the Joint Committee on Human Rights to take a more humane view, to apply the principles of natural justice, and to recommend against the imposition of further suffering.

  The best way I can present and illustrate the issues in real-life human terms, is to enclose, for each Member of the Committee, a personal copy of my recently published autobiography (Gina: The Woman Within ISBN 0954435206, which includes the wife's perspective in Chapter 3 "For Better Or Worse"), together with a copy on audio cassette of the in-depth documentary interview we recently recorded for BBC Radio Lancashire ("Six Words That Changed The World") which was broadcast on 25 August.) I believe these personal accounts will provide a moving insight into what it is really like to be a married couple whose lives have been turned upside down by events beyond their control.

  In this context, I ask the Committee to consider two questions:

  1.  Would it be just and equitable, in accordance with the basic principles of natural justice and the human rights of the individual, to impose upon Joan, my partner, the dissolution of her marriage, entirely against her will, bringing unwarranted stigma, loss of status and loss of rights (particularly pension and widow's rights, which could be a very serious detriment to those nearing pension age) to an innocent party, who has already suffered a great tragedy in her personal life? The Department's commentary on the Bill focuses entirely on the transgendered person, in justifying its requirement " .


. to accept the ending of a male-female marriage as a condition for registration .



". But, surely, there are two parties to a marriage, and each is equally entitled to fair treatment? What of the other spouse's rights? In my case, Joan is not applying for gender recognition. Should the legislation ride roughshod over her rights, in order that Gina can achieve the gender recognition to which she is entitled?

  2.  Would it be just and equitable, in accordance with the basic principles of natural justice and the human rights of the individual, to deny Gina, despite her having satisfied all the proposed tests in the Bill, including surgery, her proper gender recognition, for the sole reason that she feels unable to impose the dissolution of the pre-existing marriage, and the inevitable upheaval as a consequence, against her partner's will, given that her partner has bravely stood by her, and does not deserve to be cast aside in this callous manner. But how could it possibly be regarded as acceptable treatment to condemn Gina, in such circumstances, to forever be treated as "male" in the eyes of the law, and thus exposed to all manner of discrimination?

  Marriage is essentially a personal and private contract between the two individuals concerned, a precious relationship, and its dissolution or continuation should surely be a matter for those parties alone to decide, in their own way and in their own time. In many cases it will take the parties much deliberation to sort out the best way of going forward with their lives, after such a profound change in their relationship. There may be children who need the stability of a family home, or there may be other factors which need to be resolved before the right long term decisions can sensibly be taken. It is, in my submission, a gross violation of the rights of those individuals for the State to demand an immediate divorce as the price of one individual achieving other legal rights, to which he or she has become entitled.

  Why on earth does the proposed legislation, which otherwise has so much merit, have to become locked into making life even more difficult for those couples who have already suffered enough, but choose to remain together, despite the gender change?

  What is the real problem with allowing, as a special provision, their pre-existing rights to be preserved? There are past precedents for such provisions being included, to prevent a new law adversely and unjustly affecting existing rights, as, for example, with changes in nationality and immigration legislation, which are most often not operated retrospectively against the individual. There is, indeed, precedent within the Bill itself. Clause 8 (1), dealing with Parenthood, provides that, although a person is to be regarded as being of the acquired gender, that person will retain their original status as either father or mother of a child. Illogical? Yes, but here the human factor has evidently been brought into play. By applying the same principle, why cannot the Bill provide that, although a person is to be regarded as being of the acquired gender, the person will retain their original status as either husband or wife of a pre-existing marriage partner, for so long as it is the mutual wish of the partners that the marriage should continue to have legal effect?

  Clause 5 (2) of the Gender Recognition Bill makes clear that the recognition to be granted is not retrospective, in that the new Certificate does not rewrite the gender history of the transsexual person.

  Thus, the issue of a Certificate does not render the previous, lawful marriage invalid, if it was valid at the time it was contracted. Allowing the marriage to continue, therefore, does not sanction "same-sex" marriages, as that was not the situation at the time the marriage took place. Clearly, after gender recognition, the parties would no longer be entitled in law to contract that marriage, but that is not the issue. Similarly, if the transgendered partner wished to exercise his or her right to marry in the future in the new gender, or the other spouse wished to remarry, the previous marriage would have to first be dissolved—but this applies to everyone under the law of bigamy, so gender recognition has no particular relevance here.

  All that is needed is for the Change of Gender Certificate to declare that all rights and status of the parties arising under any pre-existing marriage are protected and preserved for so long as both parties so wish, but, as a consequence of the issue of the Certificate, the said marriage will be voidable at any time thereafter on the application of either or both parties. This would officially record the changed circumstances of the parties, but would leave their options open for the future, rather than arbitrarily force the issue.

  Divorce in England and Wales is currently granted on the basis of the irretrievable breakdown of marriage. This is a question of fact for the petitioner to prove on the evidence. If both parties are saying that, despite the fundamental changes, they are happy to allow the relationship to continue, and intend to remain living together for the foreseeable future, I question how this basic requirement for a divorce can be established? There are currently five grounds which can be relied upon as evidence to prove the irretrievable breakdown: Adultery, Unreasonable Behaviour, Desertion, Two years' separation with consent, or Five years' separation without consent.

  The fact of gender change does not come within the scope or spirit of any of these headings. Desertion or Separation clearly cannot apply if the parties have remained together. "Unreasonable Behaviour" would arguably be a ground for the spouse of a transgendered person, but only if that spouse finds the turn of events intolerable. Acceptance, toleration or rejection of the changed circumstances is a matter of personal choice, and not a decision that should be imposed by the State.

  By the same token, there is nothing in matrimonial law to say that a marriage becomes invalid if the parties are no longer capable of sexual intercourse as a couple—if there was to be such a principle, then a sizeable proportion of marriages would become invalid because of illness, accident, incapacity, old age etc.

  I am mindful that, in parallel with the proposals for Gender Recognition, there are legislative proposals for the introduction of legally-recognised Civil Partnerships, conferring rights on same-sex partners. If the consensus of opinion should be that conversion of the previous marriage to a new civil partnership is the more appropriate course after recognition of gender change, I don't have a problem in principle with this provided that, with mutual consent, the procedure of changeover can be made painless and automatic, as an integral part of the process of gender recognition ie without the parties themselves having to go through the stigma and unpleasantness of a divorce. If this were to be an acceptable solution then the Change of Gender Certificate would need to be empowered to declare that all rights of the parties from any pre-existing marriage are, by the consent of both parties, henceforth protected and preserved and recognised in law as a civil partnership. I am sure that, if the will is there, a suitable legal process could be worked out, to provide continuity of the relationship in law.

  In conclusion on this point, only those married couples who are personally affected by gender change can possibly know the extent of the human suffering this entails, for themselves and their families. It is terribly wrong, and surely a violation of human rights, for the State to seek to impose divorce, unless and until the parties themselves are ready to pursue separate lives. This must be left for them to decide, in their own time, and free of any external pressures. But, in the meantime and possibly for ever, to deny the transgendered citizen his or her legal entitlement to recognition, to condemn that person to be treated by society and the establishment as a lesser being (a "freak" to be blunt) must be a blatant denial of that person's human rights.

  On behalf of myself, and my courageous partner, I urge the Committee to strongly recommend against imposing divorce as a pre-condition of gender recognition.

 (b)   The need for those undergoing gender reassignment to be protected in law against discrimination in the provision of goods, facilities, services and premises

  Sadly, due to widespread ignorance and misconceptions, gender reassignment still attracts much mindless bigotry, prejudice and discrimination. The basic requirement for anyone seeking medical help for this distressing condition is to first go out and live fully and openly in the desired gender, to prove that one can fit in and survive in society, this being what is known as "the real life test". Truly a "sink or swim" test for the gender dysphoric sufferer. But what is so unjust here is that these vulnerable and, most often, very frightened individuals are being sent out into a world in which, with the exception only of employment /recruitment/training, it is perfectly lawful and acceptable to discriminate against that person, and to treat in all respects as a second-class and unequal citizen.

  To comply a ruling of the European Court of Justice (ECJ) that the dismissal of an employee undergoing gender reassignment was contrary to the European Equal Treatment Directive, the Sex Discrimination (Gender Reassignment) Regulations were introduced in 1999 (S.I. 1999/1102), to make it unlawful to discriminate against a person in relation to employment and vocational training on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment.

  In all other respects, such persons remain open to discrimination. Although it is rightly illegal to discriminate and treat less favourably on the grounds of being of the female gender, or on grounds of race, colour, nationality or ethnic origin, or on the grounds of any physical or mental disability it remains perfectly acceptable in law to discriminate against those who are on the difficult road to gender reassignment, many of whom will be on the verge of suicide because of the way large sections of society treat this medical disorder. This is no exaggeration, I speak from personal experience.

  So a hotel, pub, club, restaurant, shop, landlord, taxi driver, or any other service provider must not treat a woman unfairly on the grounds of gender, but is free to treat anyone going through gender reassignment as unfairly and disrespectfully as they wish, without any sanction or restraint. To say "get out, we don't serve blacks, or Irish, or Yanks, or women, or disabled people here" would bring the wrath of the law down, but to say "get out, we don't serve transsexual freaks here" is perfectly lawful. The fact that Government has persistently turned a blind eye to this anomaly, will by implication condone such treatment in the eyes of the Great British public and some sections of the media who take a perverse delight in ridiculing and abusing transsexuals, with impunity. It is giving out the wrong message, and the lack of a positive lead from the top makes it that much more difficult for transsexuals to take their rightful place in a diverse society.

  In my submission, the Gender Recognition Bill is the appropriate opportunity to urgently redress this injustice, and to give to those poor souls who intend to undergo, are undergoing or have undergone gender reassignment, the same protections against discrimination in society as are already conferred on others under the Sex Discrimination Act, the Race Relations Act and the Disability Discrimination Act.

  Thus, it would become unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate, on the grounds of gender reassignment, against a person who seeks to obtain or use those goods, facilities or services

    (a)  by refusing or deliberately omitting to provide that person with any of them, or

    (b)  by refusing or deliberately omitting to provide that person with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal.

  This protection against discrimination would apply to access to and the use of any place which members of the public or a section of the public are permitted to enter, to accommodation in a hotel, boarding house or other similar establishment, to facilities by way of banking or insurance or for grants, loans, credit or finance, to facilities for education, to facilities for entertainment, recreation or refreshment, to facilities for transport or travel, to the services of any profession or trade, or any local or other public authority, and in relation to the offer, occupation or eviction from housing accommodation. In short, to the basic necessities of being able to live a full and normal life in society, with the human respect and dignity to which we should all be entitled.

  In my conclusion on this second point, I can do no better than quote the words of Julie Mellor, Chair of the Equal Opportunities Commission, who said in a press statement issued on 10 May, 1999:

    "the EOC believes that the legality of discrimination against transsexuals, however blatant and unfair, will continue to be unclear in other fields such as education and access to goods, facilities and services. In the EOC's recent recommendations for updating the sex equality laws, Equality in the 21st Century, we said it should include a guarantee of freedom from discrimination on grounds of gender reassignment. Protection against discrimination should apply to transsexuals in all fields. We can see no reasonable justification for confining protection for transsexuals to employment. It is a failure to respect the dignity and freedom to which an individual is entitled. We urge the Government to regard this as a first step towards eliminating unfair discrimination against transsexuals in all areas."

  I respectfully urge the Committee to seize this opportunity and to strongly recommend to Parliament that this glaring omission in the equality laws should be redressed, once and for all, as part of the legislation now under discussion.

29 August 2003

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 4 December 2003