The term gender dysphoria (GD) is seen by many trans people as too medical. GD is not synonymous with transsexualism; it refers specifically to the personal experience of the dissonance between the phenotype and associated gender role and the innate gender identity. Since the draft bill relies on medical assessment of an individual’s history, it is crucial that the language of the draft bill reflects the language and concepts used in the medical evidence that must accompany applications. The bill excludes ‘mental’ and the question of whether GD is a mental disorder or a hormonal or chromosomal disorder will result in a vast amount of deliberation.
The GRP have the power to require other evidence, as well as medical and diagnostic evidence, in order to make a decision on the application. A disadvantage of this though, is the applicant may pre-empt this by providing other evidence. These extra requirements are not meticulous and it is not feasible to pre-empt any extra information the GRP might require. Their power to call for further evidence is open to abuse and grants the GRP a lot of discretion. It might be useful to have a check on this power by the panel explaining why extra evidence is needed. If the panel is to retain this power to request more evidence, the Bill should provide a mechanism for appeals against that request in order to avoid judicial review.
The Bill doesn’t provide that at least one member of each GRP must have experience of the subject area. It would be of great help for there to be a layperson on the panel, either from the transsexual community or someone who had experience of working with transsexual issues in the workplace.
After the Bill’s entry into force, the first 6 months will be reserved for the ‘older’ applicants. This means those people who have been waiting years for this change in law. They must have been in their new gender for at least 6 years. This is a fast-track procedure, which has been welcomed by many ‘older’ applicants. The scrutiny of the application however is the same whether the applicant have undergone gender reassignment surgery or not. The only difference is applicants who have had reassignment surgery need a medical report from their family doctor whilst those who haven’t need to get this report from a psychiatrist. It is clear that it is fair that these people should have their application processed first.
By restricting applications in the first 6 months the panel’s workload is spread out over the first year, however the bill does not allow the fast-track procedure to continue after the first 6 months, putting those unable to apply in that time at an unfair disadvantage. This could be for reasons such as illness or being overseas travelling. Also, people who transitioned over a decade ago may not be in any contact with the trans community and may not be aware of such a deadline.
Applicants who miss the deadline will have to meet stricter requirements subsequently – they may not have access to medical records and doctors that treated them may not be available. They might have to return to a gender identity specialist and have many consultations to gain another report, which could be expensive and intrusive. It might be better for these people if the bill was amended to allow the fast-track process to remain available after the 6-month period but only to those who can show that they were eligible to apply in the initial period.
If a GRC is obtained, it will provide legal recognition in the new gender for all purposes including the right to marry, a new birth certificate, new pension rights and discrimination protection.
However, if an applicant is married the marriage would be regarded as a same sex relationship and would be incompatible with the law. Application for a GRC would have to be accompanied by divorce.
GIRES opposes this as it compels trans individuals and their spouses, either to end their marriages or it obliges trans partners to remain assigned to the wrong gender when others are claiming their new status as a fundamental human right.
The bill is responding to the breach of human rights that has existed, in that trans individuals have been unable to have a document recognising their gender identity. This has now been accepted as unjust and unequal treatment. But, forcing a choice between two unacceptable propositions is in itself an abuse of human rights. The law would therefore breach Article 14, the result being that 2 otherwise identical people (one married, one not) would have different employment rights. Trans people in existing marriages without a GRC may be regarded as a risk to vulnerable people. To obtain protection against such discrimination, a married trans person must end a successful marriage to the detriment, emotional and financial, to the spouse and children.
It seems completely inappropriate, in an age when society generally exhibits such a lamentable lack of stability in family life, that families, who seek to remain a unit, should be destabilised in this way. The government are however bringing in proposals and cannot possibly satisfy every aspect of a trans person’s life.
Full legal recognition doesn’t affect things that occurred previously, accordingly prior marriages will be valid and any maintenance from a divorce will exist. An exception is where the partner of a trans man has received fertility treatment and born children as a result. Prior to issue or a GRC, the man was a stranger to the children in law, but the GRC automatically gives him the status of ‘father’ but only if he was the mother’s partner at the time of treatment and they sought treatment together. He can then apply to have his name on the birth certificate. This legal status won’t be retrospective but only from the time of his acceptance as a father. The bill must clarify which transsexual men may apply for recognition as parents. The retention of parental rights and responsibilities and the provision in clause 8 (2) is a welcomed proposal.
To obtain a GRC, the applicant must be unmarried, but if married applicants have met the other requirements, they will be provided with an Interim Gender Recognition Certificate (IGRC). This does not provide any legal recognition in the new gender. It will allow one of the parties to the marriage to seek an annulment, avoiding the necessity for divorce. After the marriage has ended they can then apply for a GRC. The application must be within 6 months of the ending of the marriage.
This section of the bill needs to recognise the financial and social needs of those couples in pre-existing marriages, which will become same sex unions. This could be done by giving full-financial protection by allowing such marriages to become registered same sex partnerships immediately after the annulment.
There is a safeguard in the bill for the non-transsexual spouse. The transsexual must disclose their history as a transsexual otherwise the spouse can seek to have the marriage annulled on grounds that it is voidable. The bill provides a conscience clause whereby ministers of the Church of England can refuse to perform a marriage ceremony where one partner is transsexual. This clause is a condition moderating those who don’t approve of such marriages, bur should have little meaning in practice for those transsexuals who want to e discreet about their past. A spouse who decides after marriage that they didn’t want to be married to a transsexual cannot seek annulment unless they can demonstrate that at the time of the marriage they were unaware of their history.
The Christian Institute has voiced it concerns about religious liberties. Under the proposals, registrars in registry offices will be responsible for transsexual marriages. Colin Hart said, “Many registrars will not want to conduct such partnership ceremonies or transsexuals marriages. No church minister who holds to the historic Christian faith would want to marry people of the same sex.”
A person’s entitlement to a benefit under a will isn’t affected by change of legal gender, if there’s a specific intention included in a will that it should not do so. If a person expected inheritance, which was defeated by the legal change of gender, can apply to the High Court to have a share or the property they didn’t inherit.
The bill proposes removing the exemptions from jobs with genuine occupational qualifications. These exemptions for religious posts will continue to exist. The bill doesn’t acknowledge that trans people are frequently discriminated against because they are transsexual. There is little protection in employment for anyone who wants to undergo, undergoing or who’ve undergone reassignment surgery.
Though it has been welcomed to remove exemptions from Gender Reassignment (Sex Discrimination Act) Regulations 1999, they aren’t very relevant as police services providing social services have provision for employment of transsexuals.
The extension of discrimination protection is too limited, leaving huge loopholes in areas of goods, housing and services. Discrimination often occurs even if they have a GRC. The bill also fails to lengthen any further protection to those undertaking the ‘real life test’ in the workplace leaving them vulnerable and so being required to use inappropriate facilities until they get their GRC.
This section of the bill should be extended to include discrimination protection against employment for posts in religious organisations.
Privacy has always been a grave concern because the government, doctors, psychiatrists and the transsexual themselves have gone to a lot of trouble to ensure transsexuals can gain legal recognition. The section of the bill is to ensure that information isn’t divulged that reveals all of the transsexuals’ history causing more embarrassment.
The bill makes it an offence for anyone who has acquired the information about a GRC application in his/her official capacity to disclose this information to any other person. If a disclosure does occur, the person will face, on conviction, a level 5 fine, currently up to £5000.
The bill provides a mechanism whereby the area where disclosure can be legal can be extended by an order of Government. Disclosure is potentially illegal unless the transsexual person has given written permission with details of circumstances in which they’ll permit disclosure. The bill should allow the courts the option of imposing a custodial sentence where disclosure is of more than one person.
The Evangelical Alliance UK has accused the Government of trying to “pull the wool over the public’s eyes” in the Gender Recognition Bill. They believe the bill is ill conceived and is being sneaked through because the government realises that amongst its consequences will be the creation of institutional secrecy, same sex marriages and deception. Dr Horrocks, Public Affairs Manager says, “The Bill is anti family and will undermine marriage and normal family relationships. It is being rushed through with little consideration for the long-term damage that it may cause to society and trans people themselves. We believe this bill is fuelled by a flawed decision in the ECHR and fundamentally ignores scientific fact and common sense in favour of extreme political correctness. We believe that this bill will seek to force society to collude with deception.”
In contrast, the Minister at the Department for Constitutional Affairs, Lord Filkin says, “I believe that the Gender Recognition Bill is farsighted. It honours the Government’s commitment to guarantee the rights of transsexual people and brings us in line with the overwhelming majority of our European partners. It establishes a robust and authoritative process that will sustain a credible system for the future giving transsexual people the legal recognition to which they are entitled.”
However, it isn’t only transsexuals who are in need of reform to the current law. The lack of rights for cohabitants has been in the headlines for many years now and the need for reform becomes more urgent. Law that exists for cohabitants is incoherent and in some cases non-existent. There’s concern that some cohabitants suffer financially when their relationships break down due to inadequate protection in law afforded to them. The pressure for reform has largely been from the gay community for homosexuals to assume privileges and responsibilities recognised by society that are legally enforceable.
In 2002,it was estimated by ‘Social Trends 32’ that one in six unmarried adults is cohabiting in heterosexual relationships; live births outside marriage was 80% in 2000. Approximately 50% of couples now live together before marriage, which shows that cohabitation is no longer, an exception but a normal arrangement.
The Government has recognised it as a crucial matter of equality and in 2002, two Private Members’ Bills were introduced in Parliament. Each was proposing a system of registration of cohabitants’ status. These reforms give protection from the economic disadvantage of cohabitation within a more logical and structured system to those who need it.
It isn’t being suggested that cohabitants have the same rights as married couples, but they should have some protection. Marriage however won’t be weakened; a clear public discernment of the financial and legal implications of cohabitation as against marriage may emphasize the importance of marriage.
Legislation should be passed to allow registration of same sex relationships and to offer them rights and responsibilities equivalent to those for married couples.
All cohabitating couples should be required to register their relationship, by marriage for opposite sex couples, or by a registration system for single sex couples. This would provide certainty however the most probable sufferers of injustice- the vulnerable, pressurised, and ill-formed or naïve would be unlikely to register their relationship and so wouldn’t benefit.
Dishonest partners in opposite sex relationships would be given the opportunity to decide whether registration would be more financially advantageous on relationship breakdown, thus setting up a ‘two-tier’ system possibly causing more hardship than before.
This system of registration would however offer formalisation of relationship for same sex couples, which is fair considering that they should have the same rights and remedies that are available in marriage. This would ensure conformity with Human Rights Act requirements in respect of non-discrimination.
A problem arises however in defining cohabitants. The Law Society recommends that it should be ‘two people living together as a couple’, but should only acquire rights if they have lived together for over 2 years or have had a relevant child together. This assists many disadvantaged by current law, but doesn’t solve problems for the wider population.
The law on transsexuals and cohabitants is complex, and is a very sensitive issue. Throughout the years the Government has been criticised for not bringing in reforms but even now society is quick to condemn the Government’s actions. This is an area of family law, which has needed reform for many years.
The Bill has suggested many reforms for transsexuals and although the Bill has its drawbacks, the Government has answered their criticisms. The Government cannot possibly satisfy every need of every transsexual person, or a company such as Evangelical Alliance UK or people like Colin Hart due to its varying proposals, but it has taken important steps towards given them the fair and righteous treatment transsexuals deserve.
BIBLIOGRAPHY
Family Law – Cretney
Family Law Statute Book 2003-2004
CASES:
Bellinger v Bellinger
Corbett v Corbett
Goodwin v UK
WORD COUNT - 3409
Same sex marriage was held to be void.
Court of Appeal upheld the Corbett interpretation of the law and rejected arguments that it was inconsistent with the provisions of the European Convention on Human Rights.
Matrimonial Causes Act 1973.
Right to respect for a private life and the Right to marry.
This is the first case relating to transsexual discrimination in the work place along with I v UK.
In section 1 (9) a of the bill.
According to s5 (1) of the Bill.
Otherwise known as a pre-existing marriage.
The Gender Identity Research and Education Society is a charity which is dedicated to the welfare of trans individuals and sincerely supports the government’s work to bring the proposed legislation to this point.
The trans person who remains married cannot avoid 1999 employment restrictions, which the unmarried person escapes (Sex Discrimination [Gender Reassignment] Regulations 1999)
by virtue of subsection (3) of s28 Human Fertilisation and Embryology Act 1990. – Man to be treated as father of child conceived by reason of treatment services provided for him and a woman together.
recognising that a female to male transsexual may be recognised as the father to a child whose conception was assisted by HFEA treatment.
Being over 18years old, diagnosed as having GD, having lived in role for 2 years and provided GRP with required proof of these 3 elements with a processing fee.
This includes the information when a person is working in a public office, such as government, a local authority, the police service or a volunteer in an organisation. It also includes any employer and when anyone provides services.
The Households and Families sections.
A child who is the parties’ child biologically, adopted by the parties during their relationship, in respect of who, there’s a joint Residence Order in favour of the parties, born to either of the parties as a result of fertility treatment, born as a result of non-commercial surrogacy arrangement.
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