Disclosure
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
