The Government welcomes the publication of the report of the Joint Committee on Human Rights' pre-legislative scrutiny of the Draft Gender Recognition Bill. It would like to thank all those who submitted evidence to the Joint Committee during its period of scrutiny, and to extend that thanks to the members of the Committee for their diligent and sensitive consideration of the draft Bill. The report is a cogent analysis of the issues and will prove an invaluable reference point during the parliamentary passage of the Bill.
The purpose of the Gender Recognition Bill is to give transsexual people legal recognition in their acquired gender ensuring that, for the first time, transsexual people are afforded all the rights and responsibilities appropriate to that gender. This Bill brings to fruition the work the Interdepartmental Working Group on Transsexual People started in 1999 and honours the Government's commitment to implement the judgments of the European Court of Human Rights and to ensure that transsexual people are given the rights that respect their identity.
The Bill allows transsexual people, who have taken decisive steps to live fully and permanently in their acquired gender, to gain legal recognition in that gender. It will give transsexual people the right, from the date of recognition, to marry in their acquired gender and be given birth certificates that recognise their acquired gender. Transsexual people will be able to obtain benefits and pensions just like anyone else of that gender.
The Government is committed to understanding and recognising the needs and aspirations of those members of our society who are in a minority. The Gender Recognition Bill shows that the Government is committed to securing rights for transsexual people and to their social and legal inclusion. It goes beyond what is strictly required by the European Court; if the Bill is enacted, the UK will have possibly the most progressive system for gender recognition in Europe.
The Bill applies to England, Wales and Northern Ireland. It applies to Scotland for reserved matters and the Scottish Executive has confirmed that a Sewel motion will be placed before the Scottish Parliament on devolved aspects of the Bill. All parts of the UK must make provision for gender recognition if the UK is to fulfil its obligations under the European Convention on Human Rights.
The Gender Recognition Bill received its first reading in the House of Lords on 27 November. The issues that the Bill seeks to address are a matter of priority for the Government and, more importantly, for the transsexual community. The Government therefore felt that this Bill should begin its passage as soon as possible, especially as the Joint Committee was, on the whole, satisfied that the Bill brings the UK into compliance with the European Convention on Human Rights.
| We recommend that a further paragraph should be added to clause 5 of the Draft Bill, making it clear that where under any legislation it is necessary to decide the sex of a person who has an acquired gender, or to say whether that person is a man or a woman or male or female, the question must be answered in accordance with the person's acquired gender, except to the extent that the Draft Bill or the legislation in question provides otherwise expressly or by necessary implication. Without such a provision, we fear that there is a significant risk of the Draft Bill failing to achieve some of its purposes. (Paragraph 34) To make absolutely sure that the legislation would achieve its intended effect, we recommend that it should expressly state that 'sex' in the Sex Discrimination Act 1975 is interpreted as including the acquired gender of a person who has obtained a full gender recognition certificate. (Paragraph 94) |
The Government has always intended 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 male would, in law, become a woman for all purposes. The Government has taken into consideration the Joint Committee's recommendation and has amended the Bill accordingly. In order to ensure the full legal effect of recognition in the acquired gender, the relevant clause now reads:
9(1) Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).
| We recommend that the Government should give further thought to the possibility of giving retrospective recognition to a person's acquired gender from the date at which the person can show that he or she would have satisfied the requirements of clause 2 of the Bill had it been in force, at least for the purpose of deciding whether a marriage was void when entered into after that date. (Paragraph 42) There seems to be a particularly strong case for providing in the legislation for retrospective recognition of the acquired gender of a transsexual party to marriages entered into after the European Court of Human Rights judgments of 11 July 2002, and thus for the validity of the marriages themselves. We recommend that the legislation should include such provision. (Paragraph 43) We recommend that the legislation should provide for the successful litigants in Strasbourg and in the House of Lords, and others who had commenced similar proceedings by 11 July 2002 when the Strasbourg judgments were delivered, to have their acquired genders recognised by law from the earliest time at which they can show that they met the criteria for recognition set out in the legislation. Where they entered into marriages after that time, the legislation should provide for the validity of those marriages notwithstanding section 11(c) of the Matrimonial Causes Act 1973. (Paragraph 48) |
The Government has made its position clear on retrospective gender recognition. Having looked again at the issues raised by the Joint Committee, we can see no compelling reason to change this position. The laws relating to legal status, and matters related to legal status, such as marriage, or benefits and pensions, should only have prospective effect. Therefore, it will in all cases be necessary for transsexual people to apply for legal recognition in their acquired gender. Recognition will take effect from the day that an application is granted.
If the Bill is enacted, a successful applicant will be entitled to contract a marriage in his or her acquired gender. The Joint Committee places emphasis on the perceived need to give retrospective recognition to the acquired gender of a transsexual person, who is a party to a marriage. Whether that 'marriage' took place before or after 11 July 2002 is academic. It is a simple fact that any such marriage contracted in the UK is void and, as far as the law is concerned, has therefore never existed.
| Several people thought that the title of the register, 'Transsexual Persons Register', was demeaning, calling to mind the Sex Offenders Register. We are sure that a different name could be found, such as the Gender Recognition Register. (Paragraph 71) |
The Government is pleased that the Joint Committee endorses the system for registering the issue of a gender recognition certificate and acknowledges that the safeguards built into the system are sufficient to ensure confidentiality. The Government agrees that the intended name of the register was not ideal. The name suggested by the Joint Committee, the Gender Recognition Register, is now used throughout the Bill.
| We recommend that the Government should reconsider the requirement for a party to a subsisting marriage to end the marriage before obtaining a full gender recognition certificate. (Paragraph 89) If the Government decides as a matter of principle that the requirement should remain part of the legislation, we recommend that transitional provision should be made to ensure that the requirement will not apply to applications made to Gender Recognition Panels until such time as the relevant provisions of the proposed civil partnership legislation are in force to allow the parties to the marriage to enter into such a partnership with legal consequences. (Paragraph 90). We recommend that the gender recognition legislation should relieve the parties to the marriage of any adverse financial and fiscal consequences of the ending of the marriage by reason of the provisions of the legislation, as long as the parties enter into a civil partnership within a reasonable time if and when the civil partnership legislation is in place. (Paragraph 91) |
The Government recognises that a strong and stable relationship, which has survived the upheaval of one of the parties going through the transition to a different gender, is likely to continue after that person has received legal recognition in the acquired gender.
However, as the Report acknowledges, there is a matter of principle at stake. UK law defines marriage as being between two people of the opposite legal gender. The Government does not intend to see that position changed. Marriage is a distinct institution for opposite-sex couples and the Government believes that it should remain so. We are now planning to legislate so that a same-sex couple can also gain legal recognition for their relationship. This institution of civil partnership will be available to married couples after one partner receives recognition in the acquired gender.
Acquiring a new gender brings with it all the rights, responsibilities and restrictions that currently exist in UK law. In deciding whether to seek legal recognition in the acquired gender a person has to take all of the implications of that change into account, including the effect on an existing marriage. Great care has been taken to ensure that the Bill provides the smoothest possible mechanism to allow a married person to apply to the panel first and seek dissolution of the marriage only when they are assured that a full gender recognition certificate will then be issued.
The practical effects of the dissolution of marriage can be dealt with by the court on making the annulment, for example by a pension-sharing order, or by making provisions regarding the children of the family. The Government will also ensure that, in the development of the draft Bill on civil partnership, the interests of couples who are registering a civil partnership after having previously been married are borne in mind. The Government is keen that the relationship between these two important measures is properly thought through. In particular, as part of the civil partnership proposals, the Government is considering ways in which the gap between the ending of a marriage and the formation of a civil partnership could be minimised. We would hope that the period during which the relationship of the parties has no legal status could be as short as one day.
Should the Gender Recognition Bill be enacted and implemented prior to the civil partnership legislation, it will be for a married transsexual person to decide whether to wait for the implementation of civil partnership proposals or whether to seek gender recognition as soon as the Gender Recognition Panels are in place.
We recommend that the legislation should include provisions amending the sex discrimination legislation to make it unlawful to discriminate against people in the fields of education, housing and the provision of goods, facilities and services on the ground that they have undergone, are undergoing or plan to undergo sex reassignment. The Government should consider whether it would be appropriate to limit protection to people who have obtained a full gender recognition certificate, bearing in mind that there is no such limitation in the provisions of section 2A of the Sex Discrimination Act 1975 which applies to employment and vocational training. (Paragraph 103) |
The Government appreciates the need to protect vulnerable groups in society from discrimination. There are, however, a number of reasons why the Government does not accept the recommendation of the Joint Committee.
Fundamentally, the Gender Recognition Bill is about legal recognition in the acquired gender, and not anti-discrimination law. Whilst the Bill does make amendments to the Sex Discrimination Act, this is only to the extent necessary as a direct consequence of the provisions on recognition.
The Joint Committee is proposing a significant further extension of protection against discrimination. Achieving this in a workable way is not as simple as the Joint Committee suggests. If the Government agreed the need for any such extension, it would need to be properly worked up into appropriate legislation. This would involve an evaluation of the nature of the problem; consideration of the implications and practicalities, including the nature of new burdens on business and the necessity for exceptions in any particular circumstances; and proper consultation with stakeholders. Neither the nature nor the timing of the Gender Recognition Bill make it an appropriate vehicle for such an extension.
The European Commission has recently published a draft directive on sex discrimination in the field of goods and services. Negotiations on this directive will provide the opportunity for us to develop an approach that is shared with our European partners. The process of finalising the draft directive will also enable the Government to consider the detailed implications of extending the law in this way and any exceptions which might be needed to make such a law workable. In the Government's view the question of extending anti-discrimination protection is better considered in that context, and once a recognition system is in place, rather than in the context of the current Bill.