Gender Recognition: the best we can get

Claire McNab, Press for Change

Msftedit;UKPFC News, 20 October, 2003

The final version of the Gender Recognition Bill will be very similar to the draft bill published in July. It won't be all we want, but it will still be a very good piece of law - better than any similar law anywhere in the world.

PFC vice-president Claire McNab explains why it this bill is not just the best we can get, but why we need to support it. (Amended - see endnote)



Issue 24
Winter 2003


Nobody in government ever promises in advance that any particular item will be included in the Queen's speech which will open the new session of Parliament at the end of November. It does not include a full list of the bills which the government plans to introduce. Instead, she presents an "outline" of the government's programme, including the phrase "Other measures will be laid before you" - but she doesn't list all of those "other measures". However, in December or January, Parliament will then start to debate the Gender Recognition Bill.

A short bill means a short debate.

By modern standards, this will be a short and (relatively) simple bill. It sets out to do one job: to give us legal recognition. That's all. It does that job well - not perfectly, but better than any similar law in any other country. It is not the one-and-only-big chance to win everything we want. Other issues will have to wait for another day.

"Gender recognition" is what it says on the tin, and gender recognition is what's inside. Other laws have hundreds of clauses, but this one will have about 25 or 30. And because it is a short bill, it won't get much Parliamentary time. Both sides in the Commons and the Lords want to keep most of their debating time for the big pieces of legislation, so debate on the Gender Recognition Bill will be very limited.

What that means, of course, is that there will be very little scope for MPs and Lords to change the bill. A few small tweaks, perhaps, maybe one argument over a major issue - but there simply won't be time for lots of lengthy speeches about the merits of fine-tuning each clause.

It's not just that there won't be time: most MPs don't want to get into the details. I have spent a lot of the last week talking to senior Parliamentarians, and very few show any interest at all in the details of the bill. I heard the same answers many times, in different words, but nearly all the conversations amounted to: "We support the bill, I don't think we need to discuss it any further". Nothing hostile, no reason to doubt the sincerity of their support - but a clear indication that few MPs will be particularly interested in considering amendments to the Bill.

With the exception of a small number of MPs who have taken a close and detailed interest in our issues, most MPs clearly want to support a bill which they know is a long-overdue reform; but they also don't want to be accused of spending too much time on it. There are a lot of other issues on which their constituents want action: transport, the health service, Iraq, issues which fill their postbags in a way that our plight doesn't. Most MPs want a quick vote to see us right, and then move on.

None of my sources can identify any political party in Parliament which will oppose the Bill. For example, The Conservatives may not be leading the cheers, but there is no sign that they want to be seen as "the nasty party" again, or devote their energy to this issue. There simply isn't any mileage in it, no support to be won by organising themselves against us. Meanwhile, the third- and fourth- biggest parties in the Commons, the Liberal Democrats and the SNP, have long-standing policies in favour of gender recognition, and their support is assured.

Of course, there will probably be a few lone MPs who will object to details of the bill, or who may choose to denounce the whole thing: but they will be lonely voices.

What about the Lords?

The Lords may be a different matter. The Party whips have less power there, and there are many more independent members (called "crossbenchers" in the Lords), as well as the bishops. Some of the Anglican Bishops remain very hostile to the principle of the Bill, but it now seems unlikely that they will do more than try to change the details - they can see that this piece of legislation is not going to be stopped.

They and their allies may want to attack the privacy provisions, to allow church people to check whether someone is trans. They may want to include a requirement for surgery, and they may want the Gender Recognition panels to be bigger and more investigatory. They may also want exclusions to the principle of "legal recognition for all purposes".

The Government will oppose all such changes, and the effectiveness of any opposition will depend on how many allies the rejectionists can get. So far, it seems that it will be very difficult for any coalition to develop, for any group to begin to gather in which our opponents will support each others' concerns - but we can't be sure.

We know that the bishops and other alarmist voices have their supporters in the Lords, but we have to remember that trans people have a lot of powerful friends there too. Several well-respected peers are publicly known supporters, and more are coming forward all the time. In the last few years, most of the hereditary peers have gone, and younger, more liberal, peers have been appointed: the upper house has changed a lot in the last few years.

So there is a possibility that the Lords may get frightened into making the legislation more restrictive . . . but unless something happens to frighten them, we stand a reasonable chance of avoiding damage to the bill.

Where's the push coming from?

So there's the picture. In summary, the Commons is unlikely to explore the details, and although some of the Lords may try to restrict our rights, they won't find it easy.,

But there is no sign of any enthusiasm to tweak every last bit of the bill to make sure that we get the best deal possible, and no realistic chance of starting it. We may, perhaps, succeed in one or two small changes - but we will need to choose the issues carefully, weighing up the balance between achievability and benefit.

The biggest push in Parliament will be from those keen to restrict our rights. Our priority must be to stop the bill getting worse, not to make it better.

The government has put a lot of work into shaping the bill. Every clause is being examined in detail, arguments considered, balances weighed, and agreement sought from other departments. Ministers will want as few changes as possible, from whatever direction.

And that brings us back to the question of the bill itself. What will it look like? If the unamended bill is all we can get, is it enough? How much will it differ from the draft bill published in July?

Finalising the bill

The bill laid before Parliament will not be the same as the draft bill: there will be additions and changes.

The first group of changes will come from within government. As promised in the summer, officials are working to add some clauses to the bill. Extra sections will cover extending it to Northern Ireland and to Scotland, and including provisions for pensions and social security.

We do not expect any major problems with the Scottish and Northern Irish provisions. The Equality Network in Scotland is watching progress closely, but indications so far suggest that the proposals are likely to be reasonably straightforward.

Pensions and Social Security are more complicated issues, where technical details may make a big difference to the financial security of many people. It's too early to guess what will be proposed, but we will be pressing for as much consultation as possible on the details as they emerge.

The other source of possible changes is the Joint Committee on Human Rights (JCHR), which is currently doing its pre-legislative scrutiny of the bill, and is likely to report in early November. Press For Change made a detailed submission to the JCHR, based on our analysis of the draft bill and on your feedback, and Liberty also made an excellent submission. Others will have had their say too.

Our information so far is that the JCHR sees its job as quite a narrow one: to consider whether the bill meets its human rights objectives. Of course, this bill is nearly all about human rights - but the JCHR appears to be defining the question as whether it upholds Britain's obligations under the Human Rights Act. That means that while it may make some comments about details, it is unlikely to recommend any major changes unless it believes that part of the bill is wrong in principle. Meanwhile, Government officials have made it clear that unless the JCHR strongly recommends a change, they are unlikely to amend the draft.

So the final bill will not be much changed from the draft. Few of the changes which we have asked for are likely to be included. Where will that leave us?

A good bill

In our JCHR submission, we didn't just try to find flaws in the bill. In section B2, we listed the good bits of the bill, the things we wanted and which are included, such as the lack of a surgery requirement, and the clarity of legal recognition for all purposes.

Then (in section B3) we listed the things we didn't ask for, but which we welcomed - such as the clause which allows Anglican ministers to refuse to marry us.

It's important now to read those two sections carefully. We all want more: but those two sections set out how much we have already won the crucial arguments. The draft bill as published in July would make a better law than any other country has passed to recognise its trans people. Where in the world do trans people get such clear protection of privacy? Where else does the law make it clear that surgery is not a requirement for recognition? Which country's laws say clearly that the change of gender will be recognised for all purposes?

On all those important points, and more, the government has accepted the arguments made by the trans community. They have not simply copied the laws of other nations, they have looked at them and - with Press For Change's help - they have come up with a better solution.

We know that it could be better still. In section B4 of our submission we examined the areas where we want improvement: issues such as better privacy protection, the requirement to dissolve marriages before full gender recognition, the cost of application, and the powers and procedures and composition of the Gender Recognition Panel.

But at this point, we have to stop and face some hard choices.

This or nothing?

The choice we face is not between this bill and some perfect bill. An ideal bill which resolves all our concerns and solves all our problems is not on offer: the choice is between this bill and nothing.

Parliament could reject this bill: MPs or Lords could decide that if the trans community is not fully satisfied, they will throw it out. Unlikely, but possible: why pass a law if it would satisfy nobody?

The bill could run out of time: if dozens of amendments are hotly debated, the Parliamentary business managers will not delay the rest of the government's business. They might have to withdraw the bill, or they might have to abandon whole chunks of it.

Those are nightmare scenarios: we would have lost a good bill which gave secure legal recognition to most trans people, and good privacy protection. Instead of something better, we would have nothing.

The government would still have to find a way of meeting its obligations to the European Court of Human Rights, but no more Parliamentary time would be available in the coming year. The next year is an election year - and no government is likely to risk a minority rights issue in an election year. The next chance might be at least two years later, and more likely three.

Let's explore that scenario for a moment. Three years on, in the 2006-2007 session of Parliament, what would be on offer?

Work on the bill is currently being done by a "bill team" in the Gender Recognition Division of the Department of Constitutional Affairs. If there is no bill, the bill team will be disbanded, and the staff reassigned to other jobs. Someone will probably have part-time responsibility for remembering where the files are, but we will have lost the accumulated expertise of half-a-dozen skilled people who know the issues.

So when the next opportunity arose, the bill would be a short one. Very short: government has put three years of hard work into the current bill, and it won't do that much work again. A second bill would be something which does the bare minimum to meet the requirements of the ECtHR judgment: a blanket requirement for surgery, with the courts taking evidence in an expensive adversarial process where lawyers are needed. Minimal protection of privacy, no recognition "for all purposes", and probably a range of other horrors.

In other words, we would have lost three years to get something much, much worse than what is on offer now. So our only sane choice is to make the best of what is on offer now.

The best we can get

As above, we now expect that the final bill will not include any of the changes we seek, and we won't have much time in Parliament to seek amendments. We will have to prioritise.

The vice-presidents of PFC have considered this carefully, and we want to start a serious dialogue with the community about what those priorities are. What follows is not set in stone: it is our current thinking on what it is most important to try for.

First priority: make sure that people are not excluded from the recognition process.

a) We need solutions to unresolved problems about costs - as in our submission to the JCHR, the recognition process could be prohibitively expensive for many applicants. The steps needed to reduce costs do not require changes to the bill, but this is an issue which we can ask MPs and Lords to raise in Parliament if it is not resolved before the debates start. (We still hope that a solution can be found through our ongoing discussions with government).

b) Try to overturn the requirement to dissolve an existing marriage before a full gender recognition certificate can be issued. This would require an amendment to the Bill, and while we can expect strong support from some MPs, many have already made it clear that they will not support any exception to the government's policy that marriage is for opposite-sex couples, and civil partnership will be made available for same-sex couples. The government will fight hard to defend its policy: after closely-fought internal arguments, ministers seem determined to insist that they must not just prevent a same-sex marriage ceremony being conducted, but prevent a few dozen existing marriages becoming same-sex unions. All the arguments are set out in PFC's submission to the JCHR, and we - all of us campaigners - owe it to the couples affected to make sure that the case is clearly made in Parliament and that workable amendments are tabled. If we lose that argument we hope to be able use the forthcoming Civil Partnerships Bill to establish some sort of mechanism for a smooth transition to a civil partnership for the couples concerned. But unless we succeed in one of those routes, some trans people will be faced with a horribly unfair choice between gender recognition and keeping their legal relationship with their partner.

Note that we have had to rule out seeking retrospective recognition for those couples whose marriages were illegal because they did not have a Gender Recognition Certificate (GRC) at the time. Retrospective recognition would offer no practical benefit to the couples concerned, would be very hard for government to concede, and could create many problems for the legal rights of all trans people.

The second priority, then, will be to seek amendments which will improve the details of the recognition process and the rights of those who gain gender recognition. Some changes here may be easily conceded by ministers in Parliament, while others may be strongly contested. We would do well to select the points which won't provoke too much of a fight.

Here are some of the things which might be worth putting on the priority list:

i) tightening the penalties for unauthorised disclosure of the information that a person holds a GRC

ii) Removing the anomaly affecting two trans people who married each other. Their marriages are currently valid, and would remain valid once they have their GRC; except that the draft bill requires them to dissolve their marriage before they can get their GRCs, and then be free to remarry. There must be an easy way around that problem, to avoid the absurdity of a couple remarrying immediately after ending their marriage.

iii) Tightening the rules around disclosure of trans status in court cases, so that it can only be raised if a judge rules that it is relevant and necessary

iv) Altering the rules on the fast-track process for Gender Recognition, so that those who would be eligible in that period but don't get their applications in on time can still use the fast-track process if they apply later. Without that provision, some people might find it very hard to collect the necessary medical evidence.

Those are only four examples, and there are more possibilities. But they illustrate the sort of changes we can usefully seek: small improvements which could be implemented without any effect on the structure of the bill, and which don't clash with broader government policy.

What else?

The government's aim was to get a bill before Parliament as quickly as possible, and to get it right. The narrower the focus, the easier it is to achieve that objective. Apart from anything else, adding others area such as discrimination would involve huge amounts of co-ordination, with ministers from several departments having to share the job of guiding it through..

There are real advantages to us in having a simple bill. It focuses attention on the crucial point: that we have been left outside the law for too long. It gives Parliament a simple choice, by asking only one big question. No masses of detail, no distractions. Moreover, it allows us to focus attention on the details which would help win recognition for more trans people, and better protect the privacy which recognition will bring. The absence of other issues has allowed us concentrate on problems such as the exclusion of married trans people. In a bigger bill, those issues might have been buried: it would have been much harder to choose which issues should be prioritised. We know that the details of this bill are crucial for us, but compared with most other bills, it is straightforward and remember that some things which might have been included will be covered in other imminent legislation. .

Yes, it is just the beginning, there is much more to do. Trans people are excluded from society in so many ways, and gender recognition is only one of the solutions needed.

We know there are still outstanding areas where we need action:

  • Better protection against discrimination: it is still legal to refuse to supply a trans person with goods or services, just because they are trans.
  • Equal treatment in the NHS: far too many NHS funders continue to starve trans people of funding for gender reassignment, and other health issues for trans people are largely ignored
  • Undoing the damage done by years without legal recognition, and years of discrimination: far too many trans people are long-term unemployed or written off as long-term sick
  • Better protection for those in transition, and for transgender people - who, for example, currently lack any protection against discrimination
  • Equality in the family courts: trans birth parents routinely are routinely denied access to children, let alone custody. Access is often granted only on condition that the trans parent presents in their birth gender.
  • Explicit protection in laws banning harassment and incitement to hatred.

A full list would be much, much longer. We are excluded from the mainstream of society in so many ways that we have many more years of campaigning left to do.

No single bill could have righted all of these wrongs without becoming, huge, rambling and unwieldy. For example, extending the Sex Discrimination Act to protect us in the supply of goods and services would require dozens of extra clauses, many of them quite complicated. Those clauses would double the length of the bill, and more than double the Parliamentary time needed. MPs are unlikely to support any attempt to introduce completely new objectives - they too like bills which do what it says on the tin. Sadly, that desperately-needed reform will have to wait until new equality legislation is introduced, probably after the next general election.

Yet, if this bill is passed into law, we will have reached a milestone: Parliament will have shown that it can legislate to protect our rights. In the future, it should be easier, because MPs will, we hope be better informed. What we can say is that no other marginalised group in our society has had its exclusion ended so effectively by one piece of legislation. Racial minorities, disabled people, women, the elderly - all have won many battles over the years, and all still have a long way to go.

We too have a long way to go - but once we have legal recognition of our existence, the rest of the battles will be that much easier.

Further reading

  • PFC submission to the JCHR
  • "No more sex tests" : why PFC does not seek retrospective recognition of marriages

Endnote - It may not be in the Queen's Speech.

Editor's Note : With Claire's help, we have amended this piece to include some points she raised in a later piece "The Gerbil is Not". However the main change regards the possibility of inclusion in the Queen's Speech on 26th November. By the time you receive this, it will have already happened, and you may be worried if the Bill wasn't mentioned. Barring some unforeseen catastrophe, it does have a place in the government's programme of legislation for the next session of parliament.

In a way, if it were to be passed, it would be helpful to us for it happen quietly, since it would attract less attention in certain sections of the media, with the seemingly inevitable misrepresentations.

Web page copyright GENDYS Network. Text copyright of the author. Last amended 31.05.15