Joint Committee On Human Rights Twelfth Report

2 Gender Recognition Bill

Date introduced to the House of Lords

Current Bill Number

Previous Reports

27 November 2003

House of Lords 56

4th Report of Session 2003-04


2.1 We reported on the Draft Gender Recognition Bill in our Nineteenth Report of last Session.[43] We reported on the Bill as introduced in our Fourth Report of this Session.[44] Since making that report, we have received a letter dated 25 March 2004 from the Christian Institute enclosing an Opinion from James Dingemans QC[45] on the implications of certain provisions of the Bill for religious liberties. The Bill completed its Committee Stage in the House of Commons on 16 March 2004. At present there is no date for remaining stages.

2.2 The Opinion considers three concerns that the provisions of the Bill interfere with the religious freedoms of individuals:

(1) the criminalisation of the disclosure of a person's gender history in circumstances where the person believes that it is necessary to do so to act consistently with their religious beliefs;

(2) the Bill exposes religious bodies to litigation by transsexuals asserting a right to marry; and

(3) the Bill increases the prospect of litigation against religious bodies generally.

We consider that only the first of these, concerning disclosure, raises a serious human rights issue warranting further consideration.


2.3 The Opinion argues that:

  • Religious beliefs on transsexualism, as set out in the document Christian Beliefs on Transsexualism,[46] are within the scope of protection of Article 9 ECHR.
  • Religious organisations have a right under Article 9 to regulate themselves in accordance with their beliefs and to enforce uniformity amongst their membership.
  • Criminalising disclosures of a person's gender history by people who have acquired that information in connection with their functions as a member of a voluntary organisation is an infringement of Article 9 ECHR insofar as it interferes with the right of members of a religious organisation to regulate themselves in accordance with their beliefs and to act out and enforce uniformity.
  • To be compatible with Article 9 ECHR, the Bill must therefore permit disclosures necessary to allow religious organisations to regulate themselves in accordance with their beliefs.

2.4 The Opinion and covering letter from the Christian Institute state that the JCHR did not expressly consider the position of religious organisations when it reported on the Bill. This is not altogether correct. In our Fourth Report of Session 2003-04, we gave detailed consideration to the evidence of the Evangelical Alliance on the draft Bill.[47] We considered the argument made by the Evangelical Alliance that the provisions protecting the privacy of those who have acquired a new gender would violate the right of others, including religious groups, under Article 10 ECHR, to receive truthful information about a person's gender.[48] Religious groups were argued to have a legitimate interest in knowing the gender of those who participate in their activities.

2.5 We set out in that report our reasons for finding this argument unpersuasive.[49] In our view any right to the information would have to be based on the right of the person seeking disclosure of the information to respect for his or her private or family life under Article 8. We considered it very likely that the Bill's restrictions on disclosure could properly be regarded as necessary in a democratic society (i.e., a proportionate response to a pressing social need) for the purpose of protecting the right of the transsexual person to respect for his or her private life.

2.6 The point which is now made by the Christian Institute is in substance very similar to that which was made by the Evangelical Alliance, and which we considered in our earlier Report. The difference is that whereas the Evangelical Alliance relied on the right of religious organisations to obtain information under Article 10 ECHR, the Christian Institute relies directly on the right to manifest one's beliefs under Article 9 ECHR. In light of the Christian Institute's express reliance on Article 9, we have considered again whether the disclosure provisions in the Bill are compatible with Convention rights.

2.7 We are not persuaded by the argument that to be compatible with Article 9 ECHR, the Bill must permit disclosures necessary to allow religious organisations to regulate themselves in accordance with their beliefs. There are two principal reasons why we have reached this view.

2.8 First, we consider that on the current state of the Strasbourg case-law, as applied by domestic courts under the Human Rights Act 1998, the disclosure provisions do not constitute an interference with Article 9 because the practice relied upon, namely the regulation of the religious organisation in question so as to exclude transsexuals, is outside the scope of Article 9's protection, because it is not a direct expression of such belief, but rather a practice motivated by such belief.[50] Acts which do not directly express belief, but are motivated by such belief, are not manifestations of religion or belief within the meaning of Article 9(1) and therefore do not attract the protection of that Article.[51]

2.9 We find this distinction, although true to the Strasbourg case-law, a difficult distinction to apply in practice, and we therefore prefer to rely on our second reason for concluding that there is no breach of Article 9 in failing to exempt from the disclosure provisions disclosures for the purposes of religious organisations enforcing uniformity in their membership.

2.10 Our second reason for concluding that there is no breach of Article 9 is that any interference with Article 9 rights is justified for essentially the same reason as given in paragraph 4.39 of our earlier Report. The right relied on by the Christian Institute is part of the right to manifest one's religious beliefs. As such, it is capable of being limited under Article 9(2), provided the limitation is proportionate. In our view the protection of the competing privacy right of transsexuals under Article 8 justifies the interference, given the fundamental importance of the interest at stake, as recognised by the Court of Human Rights.[52] The importance of the competing Article 8 rights, which go to the very core of an individual's identity, in our view means that, in any balancing exercise against the practice of enforcing uniformity amongst the members of a religion, the Article 8 rights must prevail.

2.11 The Committee therefore does not agree that the Bill, as it is currently worded, infringes Article 9 in the way alleged in the Opinion.

The Conscientious Objection Provision

2.12 However, there is one respect in which we do have a concern about compatibility of the Bill's disclosure provisions with Article 9.

2.13 The Bill properly gives effect to the right to freedom of conscience in the first sentence of Article 9(1) by providing a "conscientious objection" exception to the obligation on clergy in England and Wales to solemnise a marriage.[53] However, it would be a criminal offence under the Bill for a person to disclose to such clergy the information about a person's gender history which would entitle them to avail themselves of the conscientious objection exception.

2.14 Given that the purpose of the exception from the obligation to solemnise a marriage is to protect the Article 9 right of the individual member of the clergy, there is a risk that criminalising disclosure to them of information which would enable them to avail themselves of the right conscientiously to object will be seen as an interference with the underlying Article 9 right, or at least an impediment to the effectiveness of the protection for that right.

2.15 It would be possible to remedy this in a straightforward manner by amending clause 22(4) of the Bill to add an additional exception to the general prohibition on disclosure, where "the disclosure is to a member of the clergy to enable them to avail themselves of the exception in s. 5B of the Marriage Act 1949".

2.16 However, such provision could also be made by the Secretary of State by order, in exercise of the power in clause 22(5) of the Bill to make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence. Under clause 22(7), such an order may make provision permitting disclosure to persons of a specified description and for specified purposes. An order could therefore be made to the same effect as the amendment suggested above.

2.17 We draw this matter to the attention of each House.

43   Nineteenth Report of Session 2002-03, Draft Gender Recognition Bill, HL Paper 188, HC 1276. Back

44   Fourth Report of Session 2003-04, Scrutiny of Bills: Second Progress Report, HL Paper 34, HC 303. Back

45   See Appendix 3 Back

46   Christian Institute, March 2004 Back

47   Fourth Report of Session 2003-04, op cit., paras 4.34-4.40. Back

48   Ibid., para. 4.38 Back

49   Ibid., para. 4.39 Back

50   See Arrowsmith v UK19 DR 5 (1980), applied by the Court of Appeal in R (Williamson) v Secretary of State for Education and Employment [2003] QB 1300. Back

51   Some of the examples given in para. 5 of the Opinion of the reasons why religious organisations wish to be exempt from the criminalisation of disclosure demonstrate that the practices it is sought to defend are not direct expressions of belief but motivated by belief: for example, it is said that individual churches wish to be free to decide who should join or lead ladies' prayer meetings and who should use ladies' lavatories. Back

52   Implicit support for this conclusion can be derived from the decision of the High Court in R (on the application of Amicus & others) v Secretary of State for Trade and Industry [2004] EWHC 860 (Admin) (26 April 2004), in which the religious exemption from the Employment Equality (Sexual Orientation) Regulations 2003 (Regulation 7) was read very narrowly as affording an exception "only in very limited circumstances" (para. 115), in light of the importance of the principle of equal treatment. Back

53   Schedule 4, para. 3, inserting new s. 5B into the Marriage Act 1949. Back

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