The Gender Recognition Bill
Below is a copy of the Minister's response on this Bill. It helps to set out the current situation:
17th May 2004
The Gender Recognition Bill
Thank you for your letter of 6 April addressed to David Lammy with which you enclose correspondence from the Evangelical Alliance regarding proposed amendments to the Gender Recognition Bill. I am replying as Minister responsible for the Gender Recognition Bill and for the Government's policy on transsexual people.
I hope that it is helpful for me to set out the Government's perspective on the issues that have been raised.
The Government believes that it is fundamental to an inclusive society that individuals and groups are given the rights to which they are legitimately entitled and, wherever possible, be allowed to live their lives as they determine. Giving legal recognition to transsexual people is an important part of the Government's agenda for tackling social exclusion in all areas of society. There is a strong tradition of legislation in this country that has sought to respond to the concerns and needs of minority groups, whether these be ethnic minorities, people that are disabled, or now, with this Bill, transsexual people.
As you will know, this Bill has a long history. Indeed, the Government has been working on the issues affecting transsexual people since 1999. This work led to our announcement in December 2002 that legislation would be brought forward in this area and to the publication of a draft Bill in July 2003, for pre-legislative scrutiny by the Joint Committee on Human Rights.
The Gender Recognition Bill has also been influenced by the judgments of the European Court of Human Rights. The Court, in interpreting the European Convention on Human Rights, which has been given further effect in the UK through the Human Rights Act 1998, has stated that a system for recognising transsexual people in their acquired gender must exist and that transsexual people must be granted their rights under Article 8, the right to respect for private life, and Article 12, the right to marry. The House of Lords, in the case of Bellinger, stated that transsexual people ought to have a means of marrying in their acquired gender.
The Bill will establish Gender Recognition Panels with the power to assess applications from transsexual people seeking legal recognition in their acquired gender. Applicants will have to provide evidence supporting their applications in accordance with prescribed legal and medical criteria. Legal recognition will follow from the issue of a gender recognition certificate by the Gender Recognition Panel and the successful applicant's gender becomes for all purposes 'the acquired gender'. The gender recognition certificate will entitle the successful applicant to a new birth certificate reflecting their acquired gender.
The Bill defines information about a person's application to the Gender Recognition Panel for gender recognition and a person's gender history as 'protected information'. This means that wherever a person acquires the information in an official capacity, disclosure of the information is an offence. However, the Bill also contains a series of exemptions that allow such information to be disclosed for valid public policy reasons. For example, where that information is required for the prevention or investigation of crime. The Bill does not seek to prohibit disclosure where the information was acquired in a private capacity. Moreover, it will not be an offence to disclose 'protected information' where it does not enable the person to be identified or where the individual to whom the information relates gives their consent to the disclosure.
This means that if, for example, a religious minister felt that it was important to pass the information on in the discharge of his pastoral responsibilities, he should seek the consent of the person to whom the information relates. That is the appropriate and sensitive way for this information to be handled and the Government expects that ministers will exercise their discretion in these matters, as they do in many other matters relating to their parishioners or members.
The Gender Recognition Bill will enable transsexual people who have gained legal recognition in their acquired gender to marry someone of the opposite legal gender. Whether a transsexual person is able to marry someone of the opposite legal gender will depend on his or her gender in law. Marriages contracted by transsexual people once their change of gender has been legally recognised will be valid marriages between a male and a female, not same-sex marriages.
The Government does not believe that the Gender Recognition Bill compromises the freedom of religious organisations. The Bill protects the rights and freedoms of others, where this is appropriate. For example, where a person is marrying in his or her acquired gender, the Bill protects the freedom of conscience of ministers of the Church of England and the Church in Wales by freeing them from their general obligation to solemnise the marriages of parishioners. A minister of these churches will be able to refuse to solemnise a marriage if that minister reasonably believes that one of the parties to the marriage is recognised in the acquired gender. Ministers of other religions do not require a similar exception, as they are not obliged to solemnise marriages. They already have freedom of conscience in this matter.
The question of whether religious organisations can exclude transsexual people from participation in religious activities has been the subject of debate at each stage of the Bill's progress through Parliament. The Government is of the view that in most situations religious organisations would not wish to discriminate against transsexual people, but would seek to recognise the humanity in them and welcome them as part of their faith community. There is, however, nothing in the Bill that would force a church to accept a transsexual person as a member, or as a minister. Under the existing law, religious organisations are free to make decisions setting the rules for membership, visitors, communicants, and worshippers.
The Gender Recognition Bill is concerned with providing transsexual people with access to a means of gaining legal recognition in their acquired gender. It is not an anti-discrimination Bill. It is not necessarily possible to stop people bringing weak cases to the courts. However, neither the Sex Discrimination Act 1975 nor this Bill extends protection to transsexual people in terms of membership of a religious organisation or the provision of benefits, facilities or services. We do not therefore think that a legal challenge from a male-to-female transsexual person wishing, for example, to use a ladies' toilet or attend a ladies' prayer meeting would be successful.
The Evangelical Alliance maintains that transsexualism has a psychological, not physical cause. Certainly, the Government (and the European Court of Human Rights) has acknowledged that opinion is divided in some parts of the medical profession. The Government supports the position of the European Court of Human Rights that the remaining controversy over the nature and cause of transsexualism must no longer stand in the way of transsexual people enjoying their basic human rights. The Lord Chancellor said in November 2002, "I am persuaded by the Court's view that the continuous scientific and medical debate about the exact causes of the condition is of diminished relevance". It is time to move on, not least so that the UK can meet its obligations to the European Court of Human Rights. The Government's understanding of transsexualism is based firmly on the Chief Medical Officer's recognition of gender dysphoria as a medical condition that may require treatment.
I fear it unlikely that the Evangelical Alliance will find much to sway their views in what I have said, however, I do think it worth considering that transsexual people have long existed within our society. This legislation does not create them; it just gives them legal recognition and the rights and privacy to which they are entitled. The Government can see no reason to suppose that transsexual people are out to cause embarrassment and offence or to suppose that they will seek to create situations that are difficult for themselves and others. Typically, rather than trying to attract attention to themselves, transsexual people are keen to live their lives in a discreet and ordinary way. Most transsexual people are aware of public sensitivities and take care to avoid causing alarm or offence. Any situations that do arise can usually be resolved with a little common sense and goodwill.
Further information on the Government's approach to issues affecting transsexual people is available from our website at www.dca.gov.uk/constitution/transsex.
Yours sincerely,
LORD GEOFFREY FILKIN
