Gender Recognition (Approved Countries and Territories) Order 2011

Monday 27th June 2011 Grand Committee

Considered in Grand Committee

15:54

Moved By

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Gender Recognition (Approved Countries and Territories) Order 2011.

Relevant Documents: 20th Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the order before us today revokes and replaces an order made in 2005 regarding the legal recognition of transsexual people in the gender they live in permanently, their acquired gender. The order prescribes overseas countries and territories with gender recognition processes equivalent to our own. The purpose of this draft order is to enable transsexual people who have gained legal recognition of their acquired gender overseas to apply for legal recognition in the UK through a simplified application process. The order prescribes countries and territories that are approved under the Gender Recognition Act 2004 for the purpose of this application process.

Members of the Committee may find it helpful if I outline the purpose of the Gender Recognition Act before considering this order in more detail. The Gender Recognition Act 2004 enables transsexual people to change their legal gender and gain the rights and responsibilities of their acquired gender. This means, for example, that a transsexual woman—that is, a transsexual person who is born a male but who subsequently transitions to live permanently as a woman—can gain the right to marry a man, or to form a civil partnership with a woman, as well as the right to claim state pension at the pensionable age for women. The Act sets out a stringent set of criteria which all applicants must meet in order to be granted a legal change of gender. Applicants for gender recognition must satisfy an independent judicial body established by the Act, the gender recognition panel, that they meet these criteria.

First, the person must have or have had gender dysphoria, which is the recognised medical condition of feeling oneself driven to present oneself in the appearance of the opposite sex. Secondly, the person must have lived permanently in their acquired gender for the two years prior to the application being made. Thirdly, the person must intend to live in their acquired gender until death. Successful applicants who submit evidence to show that they meet these criteria receive a gender recognition certificate.

Many other countries have their own gender recognition system, and for this reason the Act provides for an alternative application process for those who have gained legal recognition overseas. The intention of the overseas application process is to minimise bureaucracy without compromising the integrity of the criteria set out in the Act. When the Act was passed, Parliament was mindful of the danger of creating a system which might allow transsexual people who could not meet the criteria in the Act to effectively sidestep those criteria. Such people might travel overseas to obtain gender recognition in a country with weaker criteria and then obtain legal recognition in the UK by virtue of that overseas recognition. This would have undermined the robust criteria in the Act agreed by Parliament.

The Act therefore contains a power that puts on a statutory footing the countries and territories which are approved for the purpose of the overseas application process. Applicants submitting an application through this alternative application process must satisfy the gender recognition panel that they have obtained legal recognition in one of those approved countries or territories. An order made in 2005 sets out the countries and territories that are currently approved for the purpose of the overseas application process. At the time that the order was made, those countries and territories were deemed to have a gender recognition system equivalent to our own.

When the 2005 order was approved, it was the view of Parliament that the list of countries and territories approved under the Gender Recognition Act 2004 would have to be amended as countries or territories established new schemes for legal recognition. Gender recognition is a relatively new and fast-developing area of law, and some countries and territories have indeed introduced new systems for legal recognition of a gender change since 2005. There are also some jurisdictions that have amended their existing gender recognition systems. Quite simply, the 2005 order is out of date.

16:00

The order before us today lists the countries and territories that up-to-date research has shown have equivalent robust gender recognition mechanisms to our own. In drawing up the list, the Government were guided by two key factors. First, we included only those countries and territories that provide for legal recognition of a gender change. This reflects the main purpose of the Gender Recognition Act, which is to grant legal recognition. Secondly, we included only those countries and territories where the process for granting legal recognition includes a proper assessment that the individual has taken decisive steps to live fully and permanently in the acquired gender. This reflects the policy behind the Gender Recognition Act as agreed by Parliament.

The order before us today includes the majority of countries and territories listed in the 2005 order, with just two exceptions. One of these is Latvia. Following developments in Latvian case law, the process for legal recognition of a gender change in Latvia is no longer suitably robust. The second country from the 2005 order which does not appear in this order is Serbia and Montenegro, which no longer exists as a unified state. Serbia continues to maintain a gender recognition system broadly comparable to our own, so we have added Serbia to the list. In addition to Serbia, this order includes eight further countries and territories that were not included in 2005. In some cases, such as Uruguay, this is because a mechanism equivalent to our own for legally recognising a gender change has been introduced since 2005. In the case of some countries, such as Croatia, we have identified the country’s gender recognition process for the first time.

The order has already been debated and approved in another place. Members raised the question of transsexual citizens from other EU member states, such as Portugal, that are not included in the list. Members wanted to know whether the requirements of the Gender Recognition Act might conflict with their rights as citizens of the European Union. Perhaps I may take this opportunity to assure Members of the Committee that the Gender Recognition Act does not compromise a person’s rights under EU law in any way. Section 21(6) of the Act makes it clear that the Act recognises the right of free movement which all individuals from the European Union and European economic area enjoy.

If an individual has received legal recognition in an EU or EEA country, they must be treated in their acquired gender when visiting or living in the UK. Given the complexity of the law in this area, people in this category are nevertheless encouraged to consider seeking in addition a UK gender recognition certificate in order to secure added certainty as to their position, but that is their choice. While individuals from an EU country not included in the list are unable to take advantage of the simplified applications process, they are free to apply for a UK gender recognition certificate under the standard application process.

A question was also raised in another place about the impact of the order on charities that work on transgender issues. While the order is predominantly an administrative exercise, the Government took the opportunity informally to seek the views of key stakeholder groups. These included charities that work on transgender issues. None raised any concerns about the impact on them, nor did they have any objections to the countries and territories listed in the order.

In summary, the order provides an up-to-date list of those countries and territories that have a gender recognition system we can rely on. A transsexual person who has obtained legal recognition of their acquired gender in any of these countries and territories will have taken decisive steps to live fully and permanently in their acquired gender. I therefore commend this draft order to the Committee and I beg to move.

[Lord Lester of Herne Hill]

My Lords, I thank the Minister for a very comprehensive and informative summary of the position. I very much welcome this update to the Gender Recognition (Approved Countries and Territories) Order. I think that 31 out of the 46 other member states of the Council of Europe are now in the schedule. One hopes that next time there might be 46. It is most welcome that the United States is included—the District of Columbia and all the states of the union except for four. I wish that there could be similar widespread recognition of civil partnerships, civil union and gay marriage. We have, of course, an identical mechanism in our Civil Partnership Act to recognise those unions in other countries. It would be very good indeed if one were able to ensure that a similar range of European countries and the United States also recognised gay marriage, civil partnerships and civil union. This is obviously a sensible measure. I cannot think of any good reason against it and I am very glad that we will approve it.

[Lord Moynihan]

My Lords, I also support the order subject to the continued exemption for competitive sport, which the world of sport promoted and argued for at length in 2004 when the Bill came before this House in the first instance. It may help your Lordships if I briefly summarise the issue at stake there, in seeking reassurance from the Minister that in extending the list we retain the fundamental principle that competitive sport in this country will be exempt from the order, and will continue to be exempt from the Act.

It is important that the voice of sport continues to be heard before the order is accepted, as it could have a fundamental impact on the running of sport and its selection procedures since no surgery is required as a prerequisite for transsexuals to change their sex and have new birth certificates issued, with the full weight of the law backing their newly acquired legal gender not only in this country but in the countries listed in the order.

In pursuing an original amendment to the Bill, which was eventually accepted by the then Minister, the noble Lord, Lord Filkin, I sought to enable UK sporting bodies to continue to make decisions about whether individual transsexual people may take part in competitive sports competitions. At the time I was very conscious that national governing bodies of sport needed to be aware that considerable work would have to done to establish clear reasons for restriction of competition related to fair competition and/or the safety of competitors. The onus of proof is likely to be with the complainant, but the national governing bodies of sport could be vulnerable if policies, procedures and decisions are not robust. Legal precedents, such as the case of Renée Richards, the transgender female who won the right to compete in women’s tennis in the US Supreme Court, are likely to provide further challenges to sport’s regulation of single-sex competition.

There are several potential problems related to the recognition of the physical and physiological advantages attached to men and women in different competitive activities. This was reflected in my amendment, which was accepted by the then Government. It stated:

“A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport”.

Fairness in competition is facilitated by making provision for competition by categories other than sex—for example, age and weight. However, the latter categories are easy to define using the arbitrary limits of date of birth and weight on a specific date before or the day of competition. One of the intentions of the Gender Recognition Act was to protect the rights of individuals who wish to blur the boundaries between genders in their private lives. For sport, that is inherently problematic. It denies the only arbitrary limit between the categories of male and female: genetic sex at birth, as determined by chromosomes. The regulation of single-sex competition in sport currently depends on that arbitrary limit. Since the EHRA allows for the interests of the community at large to override the rights of the few, that arguably would mean that single-sex sporting competition may continue without legal challenge on the basis of sex at birth.

I give that background purely to set the scene for asking the Minister whether, irrespective of the legislation in each of the territories and countries in the order, governing bodies of sport in this country will still have the final word in determining those who enter into either the male or the female category, at whatever level of competitive sport. Should that remain the case, as I understand that it does, the order will have my full support. I look to the Minister for reassurance on that.

[Lord Bach]

My Lords, I can be brief. The Opposition support the order. I thank the Minister and other speakers in the debate; I thank him particularly for the clear way in which he outlined the order. I ask him to respond to the interesting points made by the noble Lord, Lord Moynihan, about the position as regards sport.

This is clearly an affirmative order; it has to come before the Committee. There will be changes in the future, of course; I hope that other countries come on to the list rather than countries coming off it. Will it really be necessary to bring that to a Committee sitting in this House and the other place, or is there any way around that? I do not know whether the previous Government willingly made this an affirmative order or whether it was forced on them by the then Opposition; it could have been either. In my view, if this is the sort of order to come forward, it would be much better for it not to be affirmative.

[Lord McNally]

My Lords, I thank the speakers who have participated in the debate. The noble Lord, Lord Lester, has a long and proud history in such legislation. Like him, I welcome the fact that we live in a world of growing tolerance in this area, which for the individuals concerned needs tolerance and understanding.

The noble Lord, Lord Moynihan, raised an important point and one on which I will try to give some clarification. The effect of a UK gender recognition certificate is the same regardless of whether it is obtained under the overseas application process or the standard application process. The overseas application process simply enables a transsexual person to obtain legal recognition in the UK through a simplified process if they have already satisfied authorities overseas that they live fully and permanently in their acquired gender. It does not enable a person to be treated in the UK as they would be in their home state. The effect of a gender recognition certificate is subject to UK law. That includes a transsexual person’s right to compete in competitive sporting events in the UK.

As originally drafted, Section 19 of the Gender Recognition Act made it lawful to prohibit a transsexual person with a gender recognition certificate from participating in a sporting event in their acquired gender if the restrictions were necessary to secure fair competition or the safety of other competitors. The Equality Act 2010 presented an opportunity to replace Section 19 and an overlapping provision of the Sex Discrimination Act 1975. After all, the Gender Recognition Act is not intended to protect transsexual people from discrimination; rather, it provides a mechanism whereby a transsexual person can obtain a change of legal status that reflects the gender in which they live permanently. Protection from discrimination lies in equality legislation. For this reason, Section 19 of the Gender Recognition Act and Section 44(2) of the Sex Discrimination Act were repealed and their effect replicated in Section 195(2) of the Equality Act. That provision makes it lawful to restrict participation of transsexual people in separate sporting competitions for men and women if this is necessary to secure fair competition and the safety of competitors. The participation of a transsexual person from overseas in a competitive sporting event in the UK is subject to these provisions. This remains the case even if that person has obtained a UK gender recognition certificate. I hope that that gives the noble Lord, Lord Moynihan, the clarity and reassurance that he sought. I know how important that is.

I was intrigued by the final question of the noble Lord, Lord Bach. We would have to amend the procedure for future orders but it is a valid point. I suspect that, at the time, Parliament was still getting used to this whole idea. We may need to look at the procedure and discuss matters through the usual channels to see if it can be done without the necessary affirmative resolution. Perhaps this is something that will only come before the House once every four or five years as updates are made. It is a valid point and I will take it back.

[Lord Lester of Herne Hill]

In looking at this again, one might look at the Civil Partnership Act. My memory is that that Act, with similar provisions, does not require the affirmative procedure every time we recognise another jurisdiction in the way that we are doing here. It might just be worth looking at. Of course, my memory is always faulty but I have just an idea that it might be a way of dealing with that. It would need amendment but I can think of no logical reason for treating civil partnerships differently from general recognition of equality.

[Lord McNally]

I always know that a distinguished QC saying, “My memory might be faulty,” means that he is absolutely accurate in what he says. Again, that is an extremely helpful suggestion. When I take this back to the House authorities, the point that the noble Lord, Lord Bach, has made and the suggestion from my noble friend Lord Lester may be the way forward.

[Lord Moynihan]

Before the Minister concludes his remarks, I thank him for clarifying the position and emphasising the fact that governing bodies of sport would be entitled to exclude a male-to-female transsexual person if competitive parity of the safety of other competitors was at stake. I should have declared my interest as chairman of the British Olympic Association and apologise to the House for not having done so.

Motion agreed.