As a service to our readers the Northern Concord print below a synopsis of the “Report Of The Interdepartmental Working Group On Transsexual People” published by the United Kingdom Home Office in April 2000. It shows a growing enlightenment to the plight of transsexuals within our society.
A
copy of the full report can be obtained from the Home Office website
(address
at the bottom of this page).
Report
Of The
Interdepartmental Working Group
On Transsexual People
April 2000.
The Working Group was set up by the Home Secretary
in April 1999 with the following terms of reference: to consider, with
particular reference to birth certificates, the need for appropriate legal
measures to address the problems experienced by transsexual people, having due
regard to scientific and societal developments, and measures undertaken in other
countries to deal with this issue.
We were asked to report to Ministers by Easter 2000.
Our membership was as follows:
Home
Office (Chair)
Department for Education & Employment
Foreign & Commonwealth Office
General Register Office for Northern Ireland
General Register Office for Scotland
Department of Health
Office of Law Reform, Northern Ireland
Lord Chancellor’s Department
Office for National Statistics
Scottish Executive
Department of Social Security
National Assembly for Wales
Transsexualism
The
Medical Condition
1.1 People with gender dysphoria or gender identity disorder live with
a conviction that their physical anatomy is incompatible with their true gender
role. They have an overwhelming desire to live and function in the opposite
biological sex.
Some people become aware of their transsexualism as
children while others discover their feelings later in life. Once experienced
these feelings are unlikely to disappear.
1.2 The cause of the condition remains obscure.
Many transsexual people benefit from counselling and
others live happier lives following hormone treatment and gender reassignment
surgery.
Incidence
1.3 Studies carried out in the Netherlands suggest that the prevalence
of transsexualism is between 1:11,900 and 1:17,000 in men over 15 years of age.
The number of female-to-male transsexual people is far smaller, possibly in the
region of one to every five male-to-female transsexual people. These estimates
are supported by a recent study carried out in primary care units in Scotland
which estimated the relevance in men over 15 years at 1:12,400, with an
approximate sex ratio of one to four in favour of male to female patients. These
studies suggest that in this country there are between 1,300 and 2,000 male to
female and between 250 and 400 female to male transsexual people. Press for
Change, however, estimate the figures at around 5,000 post-operative transsexual
people.
1.4 The main NHS centre providing specialist care for adults in
England is at Charing Cross Hospital in London. There are smaller services in
Leeds, Leicester, Newcastle and Bristol. The Gender Identity Clinic at Charing
Cross Hospital saw almost 470 new cases last year and have roughly 1,000 active
patients. Data on the number of gender reassignment operations performed in the
NHS is collected as part of the Hospital Episode Statistics. In 1997/8 (the
latest data available) there were 44 male-to-female operations and 4
female-to-male operations. A study of private-public mix of acute hospital care
published by the Association of British Insurers recorded 104 gender
reassignment operations in the private sector in 1997/8.
Gender
Reassignment
1.5 Gender reassignment is commonly termed a sex change, but in
reality it is an alteration only in a person’s physical characteristics. The
biological sex of an individual is determined by their chromosomes, which cannot
be changed. What can be achieved through the transsexual person’s own efforts,
and with counselling, drugs and surgery is social, hormonal and surgical
reassignment.
1.7 At present, in certain circumstances, a transsexual person’s
acquired gender is recognized where the issue is one of identifying the
individual rather than determining their legal status. Thus, on the production
of evidence that a person is living as a member of the opposite sex (e.g. a
letter from the medical practitioner) documents such as a driving licence,
passport, car registration document, National Insurance and medical card may be
issued in the new identity. This has eased some of the difficulties faced by
transsexual people.
Transsexual
People’s Concerns
1.8 The most frequently mentioned concerns of transsexual people are
the wish to have a birth certificate showing their new gender, to marry in that
gender and, most importantly, the grant of legal recognition of their acquired
gender for all purposes.
1.9 The following comments in recent submissions to the Working Group
are typical of the correspondence received from and on behalf of the transsexual
community in recent years:
- “[...] all trans people should have the right to
marry, including those undergoing or having undergone gender reassignment
confirmation” (Liberty)
- “After treatment [...] there can be no valid
reason why an amended birth certificate should not be issued and a marriage
ceremony take place. [...]
Gender reassignment has nothing to do with sexual preference but,
if you have the brain of a woman, think like a woman, now have the body of a
woman and live your life as a woman, the law should not be capable of turning
this on its head and depriving you of a fundamental human right – happiness
with the partner of your choice” (The
Northern Concord)
- “[Transsexual people should] have the right to
marry a member of the opposite gender, and to have all the benefits that accrue
with marriage for ourselves and our partners. [They should also] have the right
to retain a marriage celebrated before gender reassignment was undertaken”.
(Press for Change)
European
Court of Human Rights
1.10 The United Kingdom’s treatment of transsexual people has been
challenged several times before the European Court of Human Rights (ECHR) under
Article 8 (the right to respect for private and family life) and Article 12 (the
right to marry and found a family). In none of these cases has the majority of
the Court found against the UK but there has on a number of occasions been a
significant minority for the applicant.
1.11 The most recent case, in which judgement was given in July 1998,
was brought by two male-to- female transsexuals. They complained, under Article
8, that failure to grant legal recognition of their acquired gender constituted
an interference with their rights to respect for their private lives and, under
Article 12, that this prevented them from contracting a valid marriage with a
man.
They also claimed a breach of Article 14 in
conjunction with Article 8, contending that transsexual people alone were
compelled to describe themselves frequently and in public by a gender which did
not accord with their external appearance. 1.12 The Court found in favour of the
UK by a margin of 11 to 9 (Article 8) and 18 to 2 (Article 12), and that there
was no case to answer in respect of Article 14. It recognised that although both
applicants had experienced incidents which had been a source of embarrassment
and distress, there were occasions when justification of proof of gender might
be necessary, and that these did not occur so frequently as to infringe
disproportionately on the right to respect for private life. As in earlier
cases, it noted that Article 12 referred to traditional marriage between persons
of opposite biological sex and was concerned to protect marriage as the basis of
the family. The UK’s prohibition on marriage between people of the same
biological sex therefore did not constitute a violation of Article 12.
1.13 However, the Court also said that: “despite its statements in
the Rees and Cossey cases on the importance of keeping the need for appropriate
legal measure in this area under review, having regard in particular to
scientific and legal developments, it would appear that the responding State has
not taken any steps to do so [...] the Court reiterates that this area needs to
be kept under review by contracting States.”
Representations
1.14
The Working Group invited written comments from organisations
representing transsexual people and others with an interest in this issue.
Submissions were received from the following organisations:
Beaumont Society
British Medical Association
Gender Identity Research & Education.
Press for Change
Change
1.15 The Working Group received comments from 99 individuals, almost
all from transsexual people and their friends and families, and from Members of
Parliament. The Group also met representatives of seven transsexual
organisations
(Press for Change, Change, the FTM Network, the
Gender & Sexuality Alliance, GIRES, Liberty and the Gender Trust).
Their presentation was very comprehensive and copies
of this and its subsequent submission are
attached at Annexes 2 and 3 of the report available on the Home Office web site.
Broadly speaking, it covers the following:
Annex
2
Meeting the Needs of Transsexual People
1
Introduction- Covers the support work being undertaken by the various support
groups.
2.1
What Transsexual People Want- The real issues when one considers the question of
birth certificates and the right to marry.
2.2
Gender Recognition – Changes required in the Civil
Registration System and why those changes are thought to be
necessary.
2.3 Legal Marriage – Its justification.
3 Why Now is the Time for
Change.
3.3
Increased Recognition of
the Condition
3.4
The Promotion of Equal Rights
3.5
The Effect of the Current Obstacles
3.6
The Continuation of an Evolutionary Process “we are very much part of a more
tolerant and inclusive society”.
3.7 The Promotion of Social Acceptance “Social
Exclusion must not continue”.
4
What You (the government) Can Do
4.3
Changes to Civil
Registration
4.3.3
A Gender Confirmation Birth
Certificate
4.4
Enabling Valid Marriage
4.5
Monitoring Transphobic
Crime
4.6
Protection from Intrusive
Media Attention.
5
The Requirements for Civil
Status Recognition
6
Conclusion
Appendix
A
– Expert Witness Statement provided by Professor Louis Gooren of the
University Hospital of the Vrije Universiteit of Amsterdam. This addresses the
question of whether transsexuality is an intersex condition.
Appendix
B
– Comment from Dr.Z-J.Playdon of the Post Graduate Medical Centre of the
University of London. This discusses the nature of medical ‘proof’ as
regards intersex conditions.
Annex
3
The Problems of Gender Re-Registration
1
Gender Re-Registration: A Recommended Two-Stage Procedure.
1.1Introduction
- Addressing the problem of those who revert to their original gender role.
1.2
A Statement of Intention – for people wishing to commence
the route towards gender re-registration.
1.3
The Effect of the Receipt of the Statement of Intention.
1.4
The Issue of a ‘Gender Confirmation Certificate’.
1.5
The Effect of the new ‘Gender Confirmation Certificate’.
2
Gender Re-Registration; The Requirement of Sterility
2.2
A History of Compulsory Sterilisation
2.3
Modern Examples of Sterility Requirements for Legal
Recognition of Gender Change.
2.4
To What Extent is Confirmed Sterility a Necessary Requirement
in Considering Legal Recognition of Gender Change?
2.5
The Right to Found a Family.
3
Protecting Stable Families
3.2
The Issues – Divorce as a Pre-condition.
3.3
Protecting Families Established Prior to the Gender Change.
3.4
Religious Sensitivities
3.5
Legal Issues- Hyde v Hyde (1868)
3.6
Conclusion
4
Implications for Sport and the Provision of Changing Facilities.
4.2
Participation Problems.
4.3
The Legal Position.
4.4
Facilities – The Legal Position.
Having given due consideration to the above, the
Working Group proceeded as follows:
Options
for Change
1.16
We have identified three options
-
to retain the status quo and leave the law unchanged;
-
to issue birth certificates showing a transsexual person’s new name and, possibly sex
-
to grant full legal recognition of the acquired gender.
1.17 We looked in particular at the following areas:
-
birth registration
-
marriage
-
family law
-
the Criminal Justice System
-
pensions and benefits
-
insurance
-
employment
-
sport.
Practice
in Other Countries
1.18 The Working Group is grateful to British diplomatic missions in a
number of European and Commonwealth countries for information about the
treatment there of transsexual people. This material shows that there is no
common approach to the transsexual condition and the issues to which it gives
rise. Although there is a growing tendency to recognise a transsexual person’s
acquired gender, the pre-conditions for and extent of such recognition vary
considerably. Some countries have not yet addressed all the issues affected by
the change. Full details are set out at Annex 4 and covers:
Australia
Three
States have made statutory provisions for transsexual people.
Canada
A
change of gender is recognised in Canada. The States of Alberta, Quebec and
Ontario are covered in detail.
New
Zealand
Re-registration
of a transsexual person’s acquired gender was made possible by the Births,
Deaths and Marriages Act 1995. Marriage and a new Birth Certificate are possible
under New Zealand law.
European
Countries
Austria, Belgium, Denmark , France, Germany and
Sweden all provide legal recognition of a Gender Change, including marriage.
Greece
There is no law covering a gender change but transsexual
persons can change their name and identity papers. Legal consequences are not
clear.
The
Irish Republic
A change is not recognised in Irish Law. However, as
in the U.K., they will issue a passport to someone who has undergone a full
course of medical treatment including full and irreversible gender reassignment.
Marriage is not permitted.
Italy
A change is recognised in Italy after due legal
process. You must apply to the courts which will authorise the appropriate
treatment. Marriage is permitted thereafter.
Luxembourg
There is no legal framework but the matter has been
addressed in case law. An application for recognition of a gender change must be
made. Given judgement, a new birth certificate can be issued. The question of
marriage has not been tested in the courts.
Netherlands
Recognised in Dutch law since 1985. Marriage is also
permitted.
Portugal
Can be recognised by the courts. Following a
positive decision, identity card and birth certificate can be amended
accordingly and a marriage is permitted.
A previous marriage will be declared null and void.
Spain
Following a court order, documents can be issued in
the new name and gender. Transsexual people legally keep the sex they had at
birth.
Devolution
1.19 The work of the Inter-Departmental Working Group covers some
matters which have been devolved to the Scottish Parliament, the Northern
Ireland Assembly and the National Assembly for Wales. It will be for these
administrations, as appropriate, to consider the Working Group’s report and
decide whether, how and when these matters will be taken forward in their
jurisdictions.6
The
Present Position
2.1 In this section of our report we set out the current legal
position in relation to transsexual people.
Birth
registration
law and practice
Registering a birth
2.2 The law requires every birth to be registered by the district
registrar. The details to be registered are set out in regulations and include
the child’s sex. There is no definition of sex in the relevant legislation.
2.3 Information for the registration, including sex, is almost always
provided by a parent of the child. Registrars are also notified of births by the
health service which means that registrars are supplied with details of the sex
of the baby independently.
2.4 If the sex of a child is not evident at birth, parents are advised
to delay the registration until medical investigations have been completed to
determine the sex.
Correcting
a birth registration
2.5 The law provides for an entry in a birth register to be corrected
at any time if it can be shown that an error was made at the time of
registration. This includes the circumstances where the newborn baby was not in
fact of the sex recorded in the register.
2.6 The criteria used for determining sex are the biological criteria:
chromosomal, gonadal and genital congruity. Only in cases of clerical error, or
where the apparent sex of the child was wrongly identified, or where the
biological criteria were not congruent at birth, will a change to the birth
record be considered.
Medical evidence is required to show that the birth
registration was incorrect when it was made.
2.9 Where a birth is re-registered a note is made against the original
record to show that the birth has been re-registered, but the record itself
cannot be searched (searchers have access only to the index, which does not show
that the birth has been re-registered).
Access
to records and certificates
2.10 Alphabetical indexes to birth, death and marriage records are
required to be kept centrally by Registrars General. In England, Wales and
Scotland this is also a requirement at local register offices.
The public have a right to search the indexes and to
buy a certificate from any registration they identify from the indexes. The only
provision for privacy of any information is that governing the link between
original registrations and entries in the adopted children’s register or
parental order register.
2.11 Certificates are copies of entries made in the registers and can
therefore reflect only the information registered. There are two types of birth
certificate: a standard (full) certificate which is a complete copy of all the
details in the register entry, and a short certificate which gives only the
names, sex and date and place of birth recorded in the register.
2.12 Since the early 1990s certificates have contained a warning to the
effect that the certificate is not evidence of the identity of the person
presenting it.
The
examination and explanation of the current legal position continues in some
depth. We give below matters which may be of specific interest.
2.41
Wills- “Concerns have been expressed
that there could be problems where a bequest is named to daughter(s)/son(s) or
other unnamed category of relative”.
In
its submission, Northern Concord stated that the law should be flexible enough
to cope with this problem. This view is accepted in the report.
2.67
Training for Judges-“The Judicial Studies Board is producing an Equal
Treatment Bench Book with the aim of providing practical guidance about the
needs and expectations of those………..at a disadvantage in their dealings
with the legal system”.
Race
issues have now been addressed and a section on Gender is currently in
preparation.
2.69
The Association
of Chief Police Officers has adopted “Best Practice Guidelines on dealing with
transvestite and transsexual people. The main points arising are covered in
2.70.
2.86
– 2.88 Employment.
This covers the sex Discrimination Act 1975 and the Sex Discrimination Act
(Gender Reassignment) Regulations which came into force on 1 May 1999.
2.89
– 2.102 Social
Security. This covers the issue of privacy within DSS offices and Special
Section D, a part of the Inland Revenue which supports Nationally Sensitive
Issues. It addresses the various benefits such as Retirement Pension, Adult
Dependency Increases (ADIs), Income Related Benefits (IRBs), Child Benefit and
Guardians Allowance, Child Support and Occupational Pension Schemes.
3.1
– 3.8 New Birth
Certificates.
4.1
– 4.35 Full Legal Recognition. This is well reasoned and looks at the
requirements necessary before full legal recognition could take place.
5.1
– 5.5
Conclusion. This brings us back full circle to the three options available i.e.
retain the status quo, issue birth certificates showing new name and possibly
gender and the granting of full legal recognition.
What
may create some disappointment with many transsexuals is the final sentence on
page 25 “We suggest that before taking a view on these options, the government
may wish to put the issues out to public consideration”. Knowledge of the
transsexual condition is minimal even within the wide spectrum of medical
expertise. It is a specialist subject. It could be argued that the general
public as a whole would have no knowledge of the subject or indeed the impact
current legislation has on transsexuals within the community.
Summary
of Findings
New Birth Certificates
-
Procedures could be put in place for the issue of short birth certificates showing either a person’s new name, with no indication of their gender or showing their new name and new gender (Para 3.2)
-
Such amended certificates would ease transsexuals’ position in certain limited circumstances; but they could not be used as evidence of a person’s identity and the transsexual person would remain of their birth sex (as recorded on the full certificate) for all legal purposes (Para 3.5)
-
The Group identified no areas where a transsexual person might be granted recognition in their acquired gender, in the absence of full legal recognition without leading to confusion and uncertainty (Para 3.8)
Full
Legal Recognition
There
are three stages at which legal recognition for all purposes of a transsexuals
new gender might be granted:
-
Living in the role of the new gender;
-
hormonal treatment; and
-
after surgery (paras 4.6 – 4.9)
Consideration would need to be given to imposing a sterility requirement before allowing a change of sex to be legally recognised (Para 4.16)
-
If a pre-existing marriage continued after one of the partners had changed sex it would, in effect, become a same sex marriage. It might therefore be necessary to require that any previous marriage be dissolved before legal recognition could be given to a change of sex. (Para 4.17)
-
A transsexual person would keep all pre-existing parental rights and responsibilities after changing gender, subject to intervention of the courts. The birth certificates of children born before the change of gender would not be altered The person concerned could also acquire parental responsibilities and rights in their new gender. (Para 4.20)
-
It might still be necessary in certain circumstances for a person’s former identity to be disclosed, for example to allow criminal record checks to be made (Para 4.22)
-
Provision might need to be made in current employment regulations for the continuation of certain exceptions, for example in the period of transition and intimate searches (Para 4.23 ff.)
-
It would be for the governing bodies of individual sports to decide how to address the issues raised by transsexual athletes (Para 4.35)
The
above synopsis has been prepared to help you to find your way around the full
report and is in no way intended as a substitute for the real thing which we
commend to you.
To read or obtain a full copy go to the Home Offices web site at:
http://www.homeoffice.gov.uk/dob/cnu.htm
The British Home Office’s statement is:
Building A Safe, Just and Tolerant Society
© This report is the copyright of the Home Office
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Concord,
P.O. Box 258,
Manchester,
M60 1LN,
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or E-mail JennyB@northernconcord.org.uk
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1987 - 2017
Working for the transgender community for the past 29 years