20 February 2004

The Second Reading debate in the House of Commons on the Gender Recognition Bill will be on 23 February 2004.  The Bill resolves a serious legal anomaly, by providing legal recognition for the UK’s 5000 transsexual people who have undergone a change of gender.  The UK is one of only four countries in the whole of Europe not to already have some legal mechanism for recognizing change of sex: the others are Andorra, Albania and Ireland.

The Gender Recognition Bill is the product of several years work by the Department for Constitutional Affairs, which has consulted widely with stakeholders.

The following briefing giving more information on the Bill has been sent on a cross party basis to all MPs with a parliamentary email address from:

LYNNE JONES MP (Lab)

SHAUN WOODWARD MP (Lab)

ANDREW MITCHELL MP (Con)

EVAN HARRIS MP (Lib Dem)

What the Bill does

The Gender Recognition Bill provides legal recognition for people who have undergone a change of gender; transsexual people. It includes measures to protect the privacy of those who have changed gender, and safeguards to protect the rights of third parties.

The Bill does not include new anti-discrimination measures.

Who are transsexual people

There are about 5,000 people in the UK who have undergone a medical process known as “gender reassignment”.  Of these, about 70% are “male-to-female” transsexual people (or “trans women”), and 30% are “female-to-male” or (“trans men”).

It is important to note that the Bill does not create transsexual people; it offers legal recognition to those who have already taken decisive steps to change their gender.  The process of gender reassignment is internationally recognized as a medical procedure, and has a proven track record of success for the small number of people for whom it is medically necessary.

Why this bill is needed

Transsexual people live and function in society in the gender to which they have been reassigned.  However, because the UK has not so far legally recognized this change, they face conflicts between the reality of their lives and their anomalous legal status.  For example, a transsexual man may not currently marry a woman, which leaves transsexual people without legal security for their families.

The privacy of transsexual people is also routinely breached, because although some official documentation (passports, driving licence etc) is changed, their birth certificates are not.  This requires transsexual people to reveal their history whenever a birth certificate must be presented, and also requires them to disclose their status when legal sex is at issue, such as when applying for certain jobs or seeking insurance or pensions.

How the bill works

The Gender Recognition Bill establishes panels which will review the evidence submitted by applicants.  This will include medical evidence of treatment undergone, and evidence that the change of gender is permanent.

Successful applicants will receive a “Gender Recognition Certificate”, which recognises their change of gender for all legal purposes.  Those born in the UK will also receive a new birth certificate.

Frequently-asked questions

1.       Isn’t sex determined at birth, and defined by chromosomes?
In most cases, yes.  But chromosomes are not always an accurate predictor of gender, and there are many possible variations and anomalies, as Lord Winston explained to the House of Lords (Lords Hansard 3 Feb 2004 : Column 619).  Transsexual people are amongst the small minority whose medical circumstances do not neatly fit the notion of chromosomal determinism.

2.       How does the privacy protection work?
Clause 22 of the Bill creates a new criminal offence for unauthorised disclosure of the fact that a person holds a Gender Recognition Certificate, if that information was acquired in an official capacity.  There is no prohibition on gossip, and there is no offence unless the information is disclosed.  The Bill lists situations in which disclosure is legal.

3.       What will happen to the original birth record?
It will remain unchanged, and a new record will be created.  Any person in possession of the relevant details may apply for a copy of either record. However, the link between the old and new records will be kept secret so that (for example) an application for a copy of the new birth record will reveal neither the existence of a previous record nor any link to it.

4.       Does the issue of a new birth certificate not undermine the integrity of the historical record?
No: the original record will remain intact, and copies will continue to be publicly available.  Similar provisions for the creation of a new birth record exist for those whose parents were not married at time of birth, and for adopted children.

5.       What about those who object on religious grounds?
The major faiths have varied views on transsexual people, and most are accepting.  However, churches and other religious bodies remain free at law to exclude transsexual people if they wish – the bill includes no new anti-discrimination measures.  Since Anglican churches have a legal duty to marry eligible persons, the Bill includes a specific “conscience clause” to allow ministers to refuse those who they reasonably believe to be transsexual.  No similar exemption is provided for other denominations, because it is unnecessary: other denominations have no legal duty to conduct marriages.

6.       Are churches entitled to check whether someone is transsexual, e.g. before marrying them?
No.  Churches have no general power to check on the status of potential members or those who want to marry.   There are many grounds on which churches may reject a potential member or refuse to conduct a marriage, and these vary between the different faiths (for example, some churches refuse marriage to divorcees or to people who do not regularly worship at that church).  In each case, the church or religious body is entitled to refuse membership or marriage if it cannot satisfy itself about the issue in question but has no special power to access official records.

7.       Do church ministers risk being fined?
A fine can only be imposed on successful prosecution for unauthorised disclosure of a person’s transsexual history.  Ministers routinely handle deeply personal and confidential information about their parishioners.  Due respect for confidentiality is an essential part of their role, and no change would be required to existing good practice.

8.       How will this affect investigation of crimes?
Clause 22, subsection 4(f) provides an explicit exemption to the privacy protection, to allow disclosure “for the purpose of preventing or investigating crime”.  Subsection (5) provides further powers for the Secretary of State to prescribe circumstances in which disclosure is permitted.  The Criminal Records Bureau already has in place procedures for transsexual people, which ensure that full access to criminal records is maintained.

9.       What about sport?
Clause 18 provides sporting bodies with flexibility to deal with the issues raised by transsexual competitors.  This clause was inserted in The House of Lords, after peers raised concerns that the exemptions in Section 44 of the Sex Discrimination Act might not be sufficiently clear.

Contacts and Information

·         Press For Change, campaign group for transsexual people: tel: 01274 – 424 500 (Claire McNab)
http://www.pfc.org.uk
click for email

·          The Gender Recognition Division, Dept For Constitutional Affairs: tel: 020 7210 8205
http://www.dca.gov.uk/constitution/transsex/

·          Parliamentary Forum on Transsexualism, Lynne Jones MP
http://www. lynnejones.org.uk/transsex.htm
click for email

Party Spokespeople

·          David Lammy MP, Labour

·          Tim Boswell MP, Conservative

·          Evan Harris MP, Liberal Democrats

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