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Session 2003 - 04|
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|Gender Recognition Bill [HL]|
These notes refer to the Gender Recognition Bill [HL]
GENDER RECOGNITION BILL [HL]
1. These explanatory notes relate to the Gender Recognition Bill [HL] as introduced in the House of Lords on 27th November 2003. They have been prepared by the Department for Constitutional Affairs to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The purpose of the Gender Recognition Bill is to provide transsexual people with legal recognition in their acquired gender. Legal recognition will follow from the issue of a full gender recognition certificate by a Gender Recognition Panel. Before issuing a certificate, the Panel must be satisfied that the applicant:
Where applicants have been recognised under the law of another country or territory as having changed gender, the Panel need only be satisfied that the country or territory in question has been approved by the Secretary of State.
4. In practical terms, legal recognition will have the effect that, for example, a male-to-female transsexual person will be legally recognised as a woman in English law. On the issue of a full gender recognition certificate, the person will be entitled to a new birth certificate reflecting the acquired gender (provided a UK birth register entry already exists for the person) and will be able to marry someone of the opposite gender to his or her acquired gender.5. Transsexual people are not, at present, recognised in their acquired gender under the law of any part of the United Kingdom. Although transsexual people may obtain some official documents in their new name and gender, they cannot obtain new birth certificates and they cannot enjoy any rights confined by law to people of the gender to which they feel they belong. For instance, they cannot marry in their acquired gender. These issues were first considered by an Interdepartmental Working Group convened in 1999. The Government announced its intention to bring forward legislation in this area on 13th December 2002. A draft Bill was published on 11th July 2003, and has undergone pre-legislative scrutiny by the Joint Committee on Human Rights.
6. On 11th July 2002, the European Court of Human Rights delivered its judgements in the case of Goodwin v The United Kingdom and I v The United Kingdom (2002) 35 EHRR 18. The Court found that the UK had breached the Convention rights of these two transsexual people, under Articles 8 (the right to respect for private life) and 12 (the right to marry). The UK Government has a positive obligation under international law to secure the Convention rights and freedoms and must rectify these ongoing breaches.
7. On 10th April 2003, the House of Lords gave judgment in the case of Bellinger v Bellinger  2 All ER 593. Mrs. Bellinger, a male-to-female transsexual person, was seeking legal recognition of her 1981 marriage to a man. Their Lordships were sympathetic to Mrs Bellinger's plight but ruled that the marriage was void. They declared that Section 11(c) of the Matrimonial Causes Act 1973 was incompatible with the Human Rights Act 1998. The result of this is that legislation is needed to enable transsexual people to marry in their new gender.
8. In the Bill:
COMMENTARY ON CLAUSES
Clause 1: Applications
9. This sets out who may apply for a gender recognition certificate and who determines that application. It also gives effect to Schedule 1.
10. Under subsection (1) applications may be made by someone living in the other gender, (subsection (1)(a)), or by someone who has changed gender in another jurisdiction (subsection (1)(b)). An applicant must be aged at least 18.
11. Under subsection (3) a Gender Recognition Panel will determine an application for a gender recognition certificate.
12. Subsection (4) gives effect to Schedule 1 which makes provisions for Gender Recognition Panels. The Panels will determine applications for gender recognition certificates. Paragraph 1 prescribes the eligibility criteria for the legal and medical members to be appointed by the Lord Chancellor, after consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. Paragraph 2 provides that, after similiar consultation, the Lord Chancellor must appoint one of the legal members as the President and one as the Vice-President.
13. Paragraphs 4 and 5 of Schedule 1 set out the requirements for the constitution of individual Panels. An application under section 1(1)(a), on the basis of 'living in the other gender', must be determined by a Panel including at least one legal and one medical member. Any other application may be determined by a legal member sitting alone. The President is given the power to determine the membership of Panels within these requirements. The President may also decide that certain applications require a Panel comprising more than the minimum number of members. Paragraph 6 stipulates some of the procedure of the Panels and provides that the President may give directions on other matters of detail, after consulting with the Council on Tribunals. Paragraphs 9 and 10 provide that Panel members may not become members of the House of Commons or the Northern Ireland Assembly. The disqualification from the House of Commons automatically applies also to the Welsh Assembly. It is envisaged that a similar disqualification will apply for the Scottish Parliament and that this will be effected through an Order in Council.
Clause 2: Determination of applications
14. The criteria for a successful application under clause 1(1)(a) ('living in the other gender') are set out in subsection (1): the applicant must have, or have had, gender dysphoria; have lived in the acquired gender for at least two years before making the application; intend to continue to live in the acquired gender for the rest of his or her life; and provide the evidence required by or under Clause 3.
15. Subsection (2) provides that applications made under clause 1(1)(b) must be granted if the evidence requirements are met and if the Panel is satisfied that the gender change occurred under the law of an 'approved country or territory'. Subsection (4) provides the Secretary of State with the power to prescribe what is an 'approved country or territory' for this purpose. This power will be used to prescribe those countries that have recognition criteria which are at least as rigorous as those in the Bill.
Clause 3: Evidence
16. This stipulates what evidence must be provided as part of an application for a gender recognition certificate. Subsections (1) to (3) set out what medical evidence is needed for an application on the basis of 'living in the other gender' (clause 1(1)(a)). There must be a report from a registered medical practitioner, or a chartered psychologist, either of whom must be practising in the field of gender dysphoria. This report must include details of diagnosis. The second report need not be from a medical professional practising in the field of gender dysphoria, but could be from any registered medical practitioner or chartered psychologist. At least one of the reports must include details of any treatment that the applicant has undergone, is undergoing or that is prescribed or planned, for the purposes of modifying sexual characteristics.
17. Under subsection (4), an application must also include a statutory declaration by the applicant, stating that the applicant meets the conditions as to having lived in the acquired gender for at least two years and intending to continue to do so.
18. Subsection (5) provides that for applications under clause 1(1)(b), having changed gender under the law of another country or territory, evidence of this change is required.
19. There are also some evidence provisions shared by both types of application, and these are set out in subsection (6). Hence, an application must include a statutory declaration as to whether or not the applicant is married. Subsection (6)(b) provides the Secretary of State with the power to specify, in effect, the further content of an application form. Hence, for example, an application will need to include details of name, date of birth, and correspondence address. Legislation does not typically go into such detail. Subsections (6)(c) and (d) provide the Panel with the flexibility to specify other evidence that will enable them better to determine whether the applicant meets the criteria for a successful application and provide the applicant with the right to supply other evidence pertaining to the criteria. When the Panels have been established there will be notes for applicants clarifying what evidence the Panel will regard as useful for satisfying the criteria set out in clause 2.
Clause 4: Successful applications
20. This stipulates that where a Panel has granted an application, it must issue a gender recognition certificate to the applicant. If the applicant is married, the certificate will be an interim gender recognition certificate. Subsection (4) brings Schedule 2 into effect. Schedule 2 provides that, in England, Wales and Northern Ireland, the fact that an interim gender recognition certificate has been issued to either party to a marriage is a ground for that marriage being voidable. Proceedings for dissolution on this basis must however be begun within six months of the issue of the interim certificate. In Scotland, on account of differences in marriage law, the grant of an interim certificate will provide a ground for divorce, rather than make the marriage voidable.
Clause 5: Subsequent issue of full certificates
21. Subsection (1) provides that where a court ends a marriage on the ground that an interim gender recognition certificate has been issued to one party, it must also issue a full gender recognition certificate to that party. However, under the remaining provisions of this section, if the marriage is dissolved or annulled on some other ground, in proceedings started within six months of the grant of an interim gender recognition certificate, or if the spouse of the person to whom an interim certificate has been issued dies within this period, the person with the interim certificate may apply again to the Panel and the Panel must issue a full certificate if satisfied that the applicant is no longer married.
Clause 6: Errors in certificates
22. This makes provision for the correction of a gender recognition certificate. The application for correction must go to either the Panel or the court, depending on who issued the certificate. An application for a correction will be granted and a corrected certificate issued if the Panel or court is satisfied that the certificate contains an error.
Clause 7: Applications: supplementary
23. Subsection (1) allows the Secretary of State to specify the form and manner of applications to the Gender Recognition Panel, for example how and where the application is to be made, after consultation with the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland.
24. Subsection (2) makes provision for an application fee, the amount of which will be specified by the Secretary of State and which may differ according to circumstances. The fee will not be refundable.
Clause 8: Appeals etc.
25. This provides the applicant with a right of appeal on a point of law to the High Court, or Court of Session in Scotland, and subsection (5) provides the Secretary of State with the right to refer a case to the High Court or Court of Session if he considers that the grant of an application was secured by fraud.
26. Subsection (4) stipulates that if an application under clause 1(1) is rejected the applicant may not make a further application until six months have elapsed.
Clause 9: General
27. Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person's gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and she would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.
28. Subsection (2) provides amplification of subsection (1), making clear that the recognition is not retrospective, so the certificate does not rewrite the gender history of the transsexual person, and that the new gender applies for the interpretation of enactments, instruments and documents made before as well as after the issue of a certificate.
29. Subsection (3) means that the general proposition is subject to exceptions made by the remainder of the Bill and, for the future, by any other enactment or subordinate legislation.
Clause 10: Registration
30. This provides the mechanisms by which individuals who have received recognition in the acquired gender and who have a UK birth register entry will have new entries created to reflect the acquired gender. Subsection (4) brings Schedule 3 into effect. The UK has three Registrars General, covering England and Wales, Scotland, and Northern Ireland. There is separate legislation covering the functions of each and hence Schedule 3 is divided into three parts.
31. Paragraph 2 of Schedule 3 requires the Registrar General for England and Wales to create a Gender Recognition Register ("GRR"). This Register will not be open to public inspection or search.
32. Paragraph 3 ensures that the issue of a gender recognition certificate obliges the Registrar General to make an entry in the GRR and to mark the original entry referring to the birth (or adoption) of the transsexual person to show that the original entry has been superseded. This will ensure that caution is exercised when an application is received for a certificate from the original birth (or adoption) record. If applicants for a birth certificate provide details of the name recorded on the birth certificate, they will be issued with a certificate from the birth record. If they supply the details recorded on the GRR, they will receive a certificate compiled from the entry in the GRR. The mark linking the two entries will be chosen carefully to ensure that the fact that an entry is contained in the GRR is not apparent. The mark will not be included in any certificate compiled from the entries on the register.
33. Paragraph 4 provides that the annual index to birth records will include entries relating to the GRR. Such entries will be recorded in the index in the year in which the new record is created. The entry for a transsexual person's birth record will remain in the index for the year in which the birth was originally registered. The index will not disclose the fact that an entry relates to a record in the GRR.
34. Paragraphs 5 and 6 make provision for certified copies to be made of any entry on the GRR and to be issued to anyone who would be entitled to a certified copy of the original entry relating to the transsexual person. They ensure that it will not be apparent from the certified copy that it is compiled from the GRR. Such certificates will look the same as any other birth (or adoption) certificate.
35. Paragraph 7 give the Register General the same power to re-register a birth recorded in the GRR to show a person as the father as a registrar would have under section 10 of the Births and Deaths Registration Act 1953. Paragraph 8 gives the Registrar General the power to correct an entry in the GRR in the same way as the original entry could be corrected.
36. Paragraph 9 provides for any entry in the GRR, or mark relating to that entry in the original register, to be cancelled if the gender recognition certificate is revoked. Paragraph 10 provides that a certified copy of an entry in the GRR will have the same evidential value as a certified copy of the entry in the original register.
37. Paragraph 11 disapplies certain requirements of the Regulatory Reform Act 2001 and allows an Order under that Act to be made reforming the law in Part 1 of the Schedule (England and Wales) even if such an Order is made less than two years after the Gender Recognition Bill is enacted, without preliminary consultation and without the period of Parliamentary consideration which must precede laying. The requirement for approval of the Order by resolution of each House of Parliament remains. The processes have already begun for making an Order under the Regulatory Reform Act which will reform the legislation relating to the registration of births, marriages and deaths, and currently it is proposed to have an Order ready for Parliamentary scrutiny early in 2004. If this provision is not made, either the Order will have to be delayed, or the GRR will need to be kept in the 'old' format even though the format of other registers has been updated.
38. Parts 2 and 3 of Schedule 3 make equivalent provision in relation to Scotland and Northern Ireland.
Clause 11: Marriage
39. This gives effect to Schedule 4.
40. Paragraphs 1 and 2 of Schedule 4 adjust the restrictions on marriage under section 1 of the Marriage Act 1949. There are, for example, restrictions on marriage between a woman and her ex-husband's father. The adjustments made here will mean that where one party to the marriage is regarded as being of the acquired gender, the restrictions cover relationships flowing from any previous marriage in the birth gender, i.e. a woman who is a male-to-female transsexual person may not marry her ex-wife's father. This provision is mirrored for Scotland in paragraph 7 and for Northern Ireland in paragraph 8.
41. Paragraph 3 amends the Marriage Act 1949 to provide an additional exception to the obligation on clergy in the Church of England and the Church in Wales to solemnise marriages. No such provision is needed for Northern Ireland or Scotland as there is no obligation to solemnise marriages on the clergy of churches in those jurisdictions.
42. Paragraphs 4 to 6 amend the Matrimonial Causes Act 1973 so that if at the time of the marriage one party to the marriage did not know that the other was previously of another gender, the former may seek to annul the marriage. Equivalent provision is made for Northern Ireland in paragraph 9. Scotland does not have the same concept of voidable marriage.
Clause 12: Parenthood
43. This provides that though a person is regarded as being of the acquired gender, the person will retain their original status as either father or mother of a child. The continuity of parental rights and responsibilities is thus ensured.
Clause 13: Social security benefits and pensions
44. This brings Schedule 5 into effect.
45. Paragraphs 3 to 6 of Schedule 5 are designed to ensure that transsexual people are treated according to their acquired gender in so far as certain survivor's benefits are concerned. The benefits in question are Widowed Mother's Allowance, Widow's Pension, Widowed Parent's Allowance, Incapacity Benefit and Category A retirement pension.
46. Under Paragraph 3 where, immediately before a full certificate is issued, a female-to-male transsexual person with dependant children is, or but for the absence of a claim would be, entitled to Widowed Mother's Allowance under section 37 of the 1992 Act (as defined in paragraph 2(1) of Schedule 5), that person will not be entitled to that Allowance after the certificate is issued. The reason for this is that Widowed Mother's Allowance is gender specific and it must therefore be brought to an end on legal recognition as a man. Widowed Parent's Allowance will be available instead to such a person in accordance with the normal rules. Under sub-paragraph (2) of paragraph 3 it will not be necessary to make a claim for Widowed Parent's Allowance where the person is entitled to Widowed Mother's Allowance immediately before the full certificate is issued.
47. Paragraph 4 ensures that where, immediately before a full certificate is issued, a female-to-male transsexual person is entitled to a Widow's Pension under section 38 of the 1992 Act, that person will not be entitled to that Pension after the certificate is issued. Widow's Pension is gender specific and must therefore also be brought to an end on legal recognition as a man.
48. Under paragraph 5 where, immediately before a full certificate is issued, a male-to-female transsexual person is, or but for the absence of a claim would be, entitled to Widowed Parent's Allowance under section 39A of the 1992 Act, that person will continue to be eligible for that Allowance after the certificate is issued. Widowed Parent's Allowance is gender neutral.
49. Paragraph 6 ensures that where, immediately before a full certificate is issued, a person is entitled to Incapacity Benefit, or a Category A retirement pension, under section 40 or 41 of the 1992 Act (which provisions are gender specific), that person will not be so entitled after the certificate is issued.
50. Paragraphs 7 to 12 deal with Retirement Pensions. At present, there are differences in the treatment of men and women for the purposes of Retirement Pensions. The main difference is that men reach pensionable age at 65, while women reach pensionable age at 60. These inequalities will begin to disappear from April 2010, but the equalisation process will not be complete until 2020.
51. Paragraph 7 relates to Category A pensions. Category A pensions are derived from the pensioner's own National Insurance contributions. Sub-paragraph (1) sets out the general provision that any question as to current or future entitlement to a Category A pension after the full gender recognition certificate is issued shall be determined on the basis of the transsexual person's new gender. That entitlement is to be calculated on the basis that the transsexual person's gender had always been the acquired gender. This ensures that, for instance, a man who becomes a woman will be assessed using the working life appropriate to a woman.
52. Sub-paragraph (2) makes clear that where a woman who is in receipt of a Category A pension changes gender before the age of 65 (i.e. the age when men can get a Retirement Pension) then entitlement to that pension will cease (a new claim for a Category A pension can be made as a man at age 65).
53. Sub-paragraph (3) provides that where a man changes gender and at the time he is under 65, but has attained the age at which a woman reaches pensionable age, for the purpose of determining entitlement to a Category A pension, that person will be treated as attaining the pensionable age for a woman when the full gender recognition certificate is issued.
54. Sub-paragraph (4) makes an exception to sub-paragraph (1). It provides that in determining entitlement in accordance with sub-paragraph (1), any
55. Sub-paragraph (5) provides that deferment of Category A pensions is covered by paragraph 10.
56. Paragraph 8 deals with Category B pensions (and increases to Category A pensions resulting from entitlement to Category B pensions). Category B pensions are based on the contributions of a spouse or former spouse. At present married women, widows and widowers can derive entitlement to Category B pensions. From 2010 Category B pensions will become available to married men and in addition current differences in the rules for widows and widowers will be addressed. Currently sections 48A and 51A of the 1992 Act apply only to married women, section 48B applies only to widows and section 51 only to widowers. Sections 48BB and 52 apply equally to men and women.
57. Sub-paragraph (1) sets out the general provision that any question as to current or future entitlement to a Category B pension or an increase to a Category A pension shall be determined on the basis of the transsexual person's acquired gender after the full gender recognition certificate is issued.
58. Sub-paragraph (2), in conjunction with sub-paragraph (1) provides that where a woman is entitled to a Category B pension or an increase in her Category A pension then, if she changes gender, she may lose it. This would happen where it would not be available to a man in the same circumstances. Examples of this occurring include where immediately before the full gender recognition certificate is issued:
59. Sub-paragraph (3) provides that where a man changes gender and at the time he is under 65, but has attained the age at which a woman reaches pensionable age, for the purpose of determining entitlement to a Category B pension, that person will be treated as attaining the pensionable age for a woman when the full gender recognition certificate is issued.
60. Sub-paragraph (4) provides that a man who changes gender cannot get a Category B pension on the grounds of having been widowed if he would not have been entitled to one as a widower under section 51 of the 1992 Act. Sub-paragraph (5) provides that deferment of Category B pensions is covered by paragraph 10.
61. Paragraph 9 deals with shared additional pensions, which can derive from a pension sharing order granted when a marriage is dissolved.
62. Sub-paragraph (1) provides that any question relating to entitlement to, or the rate of, a shared additional pension shall be determined on the basis of the transsexual person attaining pensionable age on the same date as someone of the acquired gender and at the same age.
63. Sub-paragraph (2) makes clear that where a woman who is in receipt of a shared additional pension changes gender before the age of 65 then entitlement to that pension will cease (a new claim can be made as a man at age 65).
64. Sub-paragraph (3) provides that where a man changes gender and at the time he is under 65, but has attained the age at which a woman reaches pensionable age, for the purpose of determining entitlement to a shared additional pension, that person will be treated as attaining the pensionable age for a woman when the full gender recognition certificate is issued.
65. Sub-paragraph (4) provides that deferment of shared additional pension is covered by paragraph 10.
66. Paragraph 10 deals with deferment of Category A and B pensions and of shared additional pensions. Where a person defers claiming such a pension immediately on reaching pensionable age, he shall get an increase in the pension when it is claimed. This paragraph provides that for any period of deferral before a full gender recognition certificate is issued, the deferral for that period will only be effective if it could also have been made in the acquired gender.
67. Paragraph 11 relates to Category C pensions. These are payable to people who were over pensionable age on 5th July 1948 or their wives or widows (if they are over pensionable age). There are still some pensioners getting Category C pensions and for consistency paragraph 11 provides that if a Category C pension is in payment to a married woman or widow then this should be divested on a gender change (as the pension is not available in the same circumstances to men).
68. Paragraphs 12 and 13 deal with graduated retirement benefit. Employees could accrue entitlement to this benefit based on earnings between April 1961 and April 1975. There are different rules for men and women at present. This provision enables amendments to be made to regulations to take account of a person changing gender.
69. Paragraph 14 sets out how entitlement to a Guaranteed Minimum Pension ("GMP") under the Pension Schemes Act 1993 will be affected when a full gender recognition certificate is issued to a person. The Pension Schemes Act 1993 provides that pensionable age in respect of men is 65 and 60 in respect of woman. This difference in pensionable age also affects the accrual rate of GMPs.
70. Sub-paragraph (1) states that for this paragraph "the 1993 Act" means the Pension Schemes Act 1993.
71. Sub-paragraph (2) provides that the amount of a person's accrued GMP entitlement will continue to be determined by reference to the person's birth gender. This is necessary because a person's entitlement to a GMP, like scheme benefits, has already accrued in the past and it is a general principle of the Bill that the issue of a full gender recognition certificate should not affect events that occurred before its issue. Entitlement to State Pension, on the other hand, only arises at the point of claim and will be calculated in accordance with the person's acquired gender. The exception to this is that any increases in the GMP derived from revaluation under section 16 of the 1993 Act will be calculated by reference to a person's GMP pensionable age after the issuing of the full gender recognition certificate.
72. Sub-paragraph (3) provides that a woman's entitlement to a GMP will cease if she changes gender and she is under 65. The person's GMP pensionable age will become 65 and so entitlement to a GMP will commence again when they become 65. The anti-franking requirements set out in Chapter 3 of Part 4 of the Pension Schemes Act will also apply when the person becomes 65. Anti-franking applies where a person, with a contract of employment ending before 1st June 1985, left a pension scheme before pensionable age. It ensures that any indexation or revaluation of GMP does not erode scheme benefits. Instead, any increase is added to the total scheme benefits. Sub-paragraph (4) provides that where a person's GMP ceases under paragraph (3) then any pension already paid is not to be affected. Where a woman had been entitled to a GMP but deferred payment of it then any increases to the GMP because of the deferral will be added to their GMP when they become 65.
73. Sub-paragraph (5) provides that where a man who is aged at least 60 but has not reached 65 changes gender then he will be treated as attaining GMP pensionable age when the full gender recognition certificate is issued.
74. Sub-paragraph (6) provides that where a person changes gender after the age of 65 then their pensionable age for GMP purposes is not affected. As a result such a person's GMP will not be affected by their change of gender.
75. Sub-paragraph (7) makes provision for a person's entitlement to a widow's or widower's GMP to continue following a change of gender. A widow's or widower's GMP will still only be payable to that person where the conditions regarding payability are satisfied.
76. Sub-paragraph (8) provides that where a person's GMP has been secured by an insurance policy or annuity in accordance with section 19 of the Pension Schemes Act 1993, then the issuing of a full gender recognition certificate will not affect the terms of that insurance policy or annuity contract.
77. Paragraph 15 makes parallel provisions under the Pension Schemes (Northern Ireland) Act 1993 in respect of GMPs.
78. Paragraph 16 deals with Equivalent Pension Benefits. These accrued between 1961 and 1975, in place of Graduated Retirement Benefit, for those individuals who had private pensions. The legislation operates differently in respect of men and women. This provision enables modifications to be made to take account of a person's change of gender. Paragraph 17 makes a parallel provision in respect of Equivalent Pension Benefits in respect of Northern Ireland.
|© Parliamentary copyright 2003||Prepared: 28 November 2003|