The Draft Gender Recognition Bill
Claire McNab (Press for Change) Edited by Jed Bland
Compiled from a series of messages from Claire McNab of Press for Change. Any errors or misconceptions are entirely mine. Most of you, of course, will have already read much of it in PfC News. However, it leads us to ask how many of our readers don't have access to the Net. If they would like more detail, please would they write to the Editor via the Gendys box. Tracy Dean has published a chart outlining the proposed procedures. Jed will provide printed copies for those who want them. However, since the chart is a colour-coded A3 sheet, he would appreciate £1.50 in postage stamps or a cheque (made out to Jed Bland) to cover the cost of photocopying and postage.
A Little History.
In December the government announced its intention to change the law, to allow us to change our birth certificates and, crucially, the government promised that the change on paper would amount to a change of sex for all legal purposes.
Once that decision had been made by ministers, the wheels of government then began to turn.
Those of you who have read PFC's press release will have noticed that the only area where we criticise the draft bill is in its requirement that existing marriages be dissolved before trans people can complete the re-registration process. Press For Change has obviously considered the draft bill in much closer detail, and they have been working closely with officials in government to help them understand how the crucial details need to be arranged to ensure that the law will work properly for all trans people.
For several years, trans issues had been largely the responsibility of two or three people in the Lord Chancellors Department (LCD), who co-ordinated the Interdepartmental Working Group on Transsexual People. After December's decision to legislate, a new Gender Registration Division was set up, with several new staff brought in to work full-time on trans rights. They are currently structured as a "Bill Team" - people whose job is to produce a Bill, and help ministers ensure that it is passed by Parliament.
The Bill team started by reading all the mountains of paper-work which had been generated over the last few years, and making sure that they fully understood all the issues involved in turning the minister's decision into a workable law. One can't stress enough how much detail they have gone into, or how thoroughly and how quickly they worked to ensure that they had the full picture. These are experienced people, who have worked on many other pieces of legislation, and they are highly skilled.
The process of drafting a Bill is not easy. Many of the issues affect other government departments, and for every item involved, the approval of those other departments has to be sought and obtained, with the reasoning explained, and objections overcome or accepted. This Bill will be a relatively short one by most standards, but even so it has been a revelation to find just how much detailed liaison work is required, and how many people are involved. It would be easy to dismiss this as nit-picking or excessive bureaucracy, but that would be wrong - it's a matter of being absolutely sure that everything works, and will continue to work for all the years that the law will be in effect.
One of the most impressive things about the work of the Bill Team has been their sheer attention to detail. Press for Change has spent years repeatedly helping to explain to the officials all the variety of circumstances which trans people have faced, and how diverse our community is and now, as they have been working to turn that information into clauses of a law, they have been responding to a seemingly endless stream of questions about how particular approaches might affect real people, as well raising all the points which we need to stress.
It is impossible to explain in detail all of the issues which have been examined so carefully, but I will just take one area as an example. A simplistic understanding of how people go through gender transition would assume that trans people go to a gender identity clinic, spend a few years being assessed and then have surgery arranged by the clinic (GIC). Of course, that's only the case for some people. Others may use only private medicine, and never set foot in a GIC; others may attend a GIC for a while, and then go private - or they may switch from the private sector to a GIC. Some people will have surgery arranged by a GIC, others may have it privately, and many have surgery overseas; others have some surgery, but not all they would want - and plenty may have no surgery at all. The process may take as little as twelve months, it usually takes several years, it's not unusual for it to take a decade - and for some people it has taken as much as thirty years. People may have started their transition in the last few years, or they may have completed it forty years ago.
The re-registration process may require some evidence of how people transitioned, and what medical treatment they had - but it would be frighteningly easy for the law to make incorrect assumptions about what documents people might have available, or whether the doctors involved would still be alive, let alone available to write a letter confirming that they had provided treatment. The concern is that this new law will be one which works for all of us, and hundreds of hours have been spent examining all these details.
Unfortunately, civil servants can't do this sort of exploratory work in public: they have to be free to consider the options and ask questions and explore solutions without each step of their work being waved around as if it was the end-result. It's in all our interest to make sure that this work is done - not just in considering the pathways through transition, but in dozens of other areas.
Our Press Response
The crucial thing to remember about the publicity is that the press won't be covering the story in much detail. A few hundred words (at most) in each of the broadsheet papers, much less in the tabloids - there isn't much space to get more than one or two quotes from us in there. Similarly, the broadcast news (radio and television) is giving the announcement very little coverage.
So - given that we can only say something very short, what do we want to say to the press? Do we say we like it, that we like parts of it, that we dislike it - or that we're not sure? That's about all we can say - there simply isn't room for much more detail.
The press launch was neither the time nor the place to raise those issues of detail. The draft bill rates very highly on most of our key checkpoints, but fails sadly on one, as will be described.
We could have decided that with that one major failing, the draft bill should be rejected - but that would have left everyone with nothing. Much better, instead, to try to improve a draft bill which is in other ways very good.
That left us a decision on how to respond to its publication: to welcome it, or say "not sure". And on that point, the decision was easy.
The government has kept the promise it made to trans people in December. They said they would produce a draft bill, and exactly one year after the ECtHR decision, here it is. In publishing the draft, the minister faced attacks from several fronts: from those religious people such as the EA, who oppose it entirely; from those elsewhere in government and the Labour party who argue that the government should not use any of its time to try to help minorities; and from that minority of medics who sneer at us.
Were we, as a community, to leave the minister to hang out to dry?
Would it have been right for us to leave him facing attack from several fronts, without any public supporters, when the people who would benefit from the draft bill were sniping because the draft is not perfect?
That would be no way for us as a community to treat a minister who has had the political courage and integrity to stand up and say for the first time that our rights are fundamental to an inclusive society. It would leave the minister with little confidence that we would ever support his efforts, and leave him on a path where he might reasonably fear he could never satisfy anyone.
So we did the honest thing: we said that the draft bill represents a good overall balance. It is a balance between the need for safeguards to give the public confidence that Gender Recognition will not be abused, and our need for a recognition process which will not exclude trans people and which is not too intrusive or too slow.
The press does not have time or space to consider all the details: they want to know "do you like it or not?" So we did the decent thing: we said a big "thank you".
A press battle is not an effective way to sort out the details, especially because the press is unlikely to understand the details even if they had the space to consider them. There's a time for everything, and raising the details now would have been seen all round as nitpicking, important as those details are.
Even more importantly, if a minister is publicly challenged on the details of the draft, he is likely to have to defend them: sadly, the press and public are not kind to ministers who say "maybe it could be better". Publicly driving ministers into a corner would only make it harder for government to offer the improvements and clarifications we will seek.
Apart from the substantial failing, that married transsexual people must dissolve their marriages before continuing, what do we find?.
1. Is there provision for people who have not had surgery?
Yes - surgery is not a requirement. (However, to reassure those who think that surgery is important, the draft bill doesn't ignore surgery - those who have had will be asked for details)
2. Is there full recognition for all purposes?
Yes - no exceptions, no get-outs - the ideas floated in December about exceptions for insurance, pensions and sport have all been dropped
3. Can trans people marry?
Yes, subject to the same rules anyone else, but with the addition of a requirement to tell our spouses about our trans history before we marry. This is really just a logical companion to the existing requirement to tell your fiancee if you know you are infertile: being infertile is not a legal problem in itself, but you could have a problem if you know you that are infertile and don't tell your partner.
4. Is there provision for people born overseas?
Yes - recognition for those already recognised in other countries, and also for those born overseas who have not already been recognised abroad.
5. What about people with children?
Trans people with children will be treated no differently when they apply for recognition. Unlike Japan, trans people who have children will not be discriminated against in the recognition process, and the laws specifically says that they retain parental rights and responsibilities.
6. Is privacy protected?
Yes. The register of transsexual people and its index are specifically excluded from public access.
On point after point, the answer to the key questions is yes: the draft bill addresses the issues we wanted addressed, in the way we wanted them addressed. It includes things which many trans people have told us over the years that Press For Change could never hope to achieve, such as a non-surgical route to gender recognition.
It is not perfect. There are several areas of detail which are ambiguous, and may not provide adequate protection against a future government making unpleasant changes to the implementation of the Act. On all of those points, we will be seeking changes - some of the issues to raise are covered below.
There are many more such points, and PfC is preparing a more detailed analysis of the Bill, which will be ready soon. This analysis is very important for all of us, so it is important not to rush it - we have to get it right.
It behoves those who wish to comment on the draft bill to read it carefully. Several people have rushed into knee-jerk reactions without having done so.
Among these are suggestions that the draft forbids any clergyman to marry a trans person if the church rules forbid it. There is a "conscience clause" allowing a minister to refuse to marry a trans person which applies only to the Anglican church. All other churches remain free to refuse anyone for any reason, as has always been the case: only the established church has a duty to marry any couple.
Some have expressed surprise that Press For Change had actually welcomed the clause allowing clergymen to refuse to conduct a marriage in their church for trans people. They assumed that this must be a mistake: a mistyped phrase, or a misunderstanding by a journalist reporting my comment.
Not so: the vice-presidents of Press For Change had no hesitation in deciding to welcome that clause, without reservation.
The quick explanation is that freedom of religion is an important human right - and that includes the freedom to believe weird and daft things, such as the belief that trans people are somehow flawed in the eyes of God. If a minister in a church wants to believe that, that's their privilege - and it is our privilege to find another church or go to a registry office. It would be no more appropriate for trans people to try to use the law to dictate what people believe in their churches than it is for the churches to try to use the law to tell us how to live our lives.
In any case, most churches are already free to choose who they will accept for marriage: this "conscience clause" merely extends the same freedom to the Church of England.
The most important thing to remember about PFC is that we are not just a transsexual rights campaign - we are a human rights campaign, working for the rights of transsexual people. That may seem like two ways of saying the same thing, but isn't: it is our way of stressing that we are not looking for special privileges for transsexual people, and that we are not blind to the needs of others in our diverse society.
So, whatever anyone's religion (or lack of it), they have a right to their beliefs, as long as they don't impose them on others - and as human rights campaigners, we support that right.
The Church of England and the Church in Wales are "established churches". Their head is the Queen, their bishops are appointed by the Queen on the advice of the government, and their running is controlled by law. The Church of Scotland is the established Church in Scotland, with similar controls by the state. They are the "official" state churches and their duty in law is that they cannot refuse to marry anyone in the parish who is legally eligible to marry. (The exception is if you are divorced, in which case you can be refused).
All the other churches in this country are voluntary bodies. They may be new or old, they may be part of a long-established tradition or they may represent a new group - but they exist because their members want them to exist, not because the law says anything in particular about them. Methodists, Quakers, Presbyterians, Baptists, Roman Catholics, Congregationalists, Pentecostalists - there are lots of such churches. They can refuse without giving a reason: no wedding because you are not a full member of their church, or because they are jealous of your good looks. It's a free society: the church makes the rules, and if the minister breaks them it is purely a matter for church discipline, not for the law.
Without the "conscience clause", the draft Gender Recognition Bill would have required an Anglican minister (but not any other sort of Church minister) to marry a trans person even if they believed it was deeply wrong to do so. If they refused, they could be prosecuted.
That isn't religious freedom: that would be the State telling people what to believe. This business of freedom is a two-way street. We seek our rights, and we respect the rights of others to do things differently - but not to impose their values on us. Historically, some churches have made a pretty bad job of living on their side of that two-way street. Morally, these religious zealots are following a rather ugly path. It's a take-take-take approach: they want freedom for themselves, but they want to use the law to require everyone else to follow their beliefs. There is no sign of any of the two-way respect which underpins a free society.
Another misconception is why the Bill provides for limited circumstances where a marriage may be annulled by a spouse who did not know their partner was trans. Some have associated this with annulment for mentally incapacitated people or those with venereal disease, rather being comparable to the provisions for people who fail to disclose known infertility. This isn't singling out trans people - it is part of a general principle that people should be honest with those they are marrying.
You'll reads lots of comments written in haste, but don't take them as gospel, and don't rush to hasty conclusions!
Please don't assume that because the Bill doesn't explicitly say that a particular nasty thing will be prevented, that it is going to happen. And remember - this is only a draft. It can be changed before the final it is laid before parliament, and parliament can amend it.
This isn't the end of the story.
Some parts of the act will inevitably have to be worded so as to prevent the most flexible processes which the cynics might fear, rather than to prevent the most rigid processes which we would fear - but that doesn't mean that the actual implementation will be nasty. We'd all prefer a law that prevents all possible forms of nastiness in the recognition process, and that's what we will keep on seeking - but please remember that the law can still work for us even if we don't finally succeed in getting that clarity.
The next step will be for the draft bill to be considered by Parliament's Joint Committee on Human Rights meeting. They will seek evidence, consider it, and publish a report. The government will then revise the draft bill, having considered the committe's report and other submissions
As soon as possible, Press For Change will publish a detailed analysis of the draft bill, which we hope will - with your further input - form the basis of Press For Change's submission to the JCHR. Within the next few days, we will set up feedback mechanisms to register all your concerns and observations. Then we will start to seek the changes that are needed.
We won't get everything we want. No law can ever be watertight against every last possibility of abuse, and few bills pass through parliament unamended.
Remember too, that this bill doesn't just need to satisfy us: it also needs to satisfy others, such as members of parliament who are concerned about the possibility of the recognition process being abused.
The government has put in a lot of work to get this draft bill finished, and they are determined that the end result will be a working Gender Recognition process. If they enact a law which excludes lots of us, or which sets up a process which we cannot afford, then it's not just us who lose - they would be left looking very stupid. We're in this together now. Government has started the process of changing the law for trans people, and they are heading in the right direction. Having published a draft bill, they are now committed to seeing it through - there is no going back.
While we sort out the important details of the draft bill, we also have to help keep the process rolling. We have to maintain the constant dialogue we have established with government, where we vocally express our concerns and seek changes, and get honest and direct feedback on what might be possible and what we would like and what's essential and what would be difficult and why. If we didn't have that strong a working relationship, and we couldn't talk freely and directly with officials, it would be much harder to find the solutions we all need. Many, many crucial points have already been resolved through that dialogue.
If we weren't talking privately, we could all be jumping up and down making loud noises in public. That would have the advantage that you could all see much more of what's happening, but it would significantly reduce our chances of having our points considered carefully - the government would have to be much more defensive.
So - take heart from the fact that today has happened, in the timescale promised by the government. We have every reason to expect that the next step will happen in an orderly fashion too.
Parliament's first examination of the draft Gender Recognition Bill is about to begin, and the Joint Committee on Human Rights (JCHR) has issued a "call for evidence" Anyone can submit evidence: individuals or organisations. PFC will definitely be making a detailed submission, and I know that many other individuals and groups will also want to contribute. Note, however, that evidence may be published.
The hope is that, through liaison with the other groups in the community, it will be a response which the other groups will all be able to support, something which does not just meet the needs of all trans people but can be seen to have the support of the community.
Individuals may also wish to write their own submissions, and some points will undoubtedly be best made by individuals making their own statements to illustrate the wider points which PFC will make on behalf of the whole community.
One clear example is the draft bill's unfair requirement to dissolve existing marriages before gender recognition is granted - that point will be made so much more powerfully if those affected can explain their situation to the committee. In particular, this will be an excellent opportunity for the spouses of trans people to make their case, and to explain how the bill would deprive them of their right to a family. Others may want to emphasise different points, and to do so through their own submissions.
One point should be stressed is that the JCHR has issued a "call for evidence". That means that it is seeking details of situations relevant to the bill, or a reasoned analysis of the effects of the bill - not simply letters saying "I want section x changed" or "this ain't fair". One circulating email suggested that people "petition" the committee on a particular point - which isn't a useful idea, because that isn't how these committees work. They don't want sackloads of letters saying "please do this" - they want reasons why they should support a particular course of action, preferably with an explanation of how it could be done.
The JCHR's scrutiny of the draft bill is the only real chance to make changes before the final bill is published and laid before Parliament. The government is not holding a public consultation of its own - after several consultation periods along the way, it has now left it to the committee to conduct an independent examination of the government's proposals. Any changes in the final bill are likely to be based on the committee's recommendations.
It's very important that we, as a community, continue to show that we can make our case responsibly and effectively. For some members of the JCHR, this will be their first time considering trans issues, and some of them may never have knowingly met any trans people. (Some committee members are already well-informed - for example, Lord Lester has long been a PFC patron, and has actively supported our cause in the House of Lords and in the media).
If the responses from trans people are confused and disorganised, they are unlikely to form a favourable impression of us. On the other hand, they can be relied upon to listen carefully if we can continue to provide clearly reasoned, well-balanced arguments, illustrated by real examples of the people whose lives and freedoms are at stake.
This is another landmark in our campaign: it is the first time any committee of parliament has ever sat down with the sole purpose of considering the status of trans people. We need to get this one right.
As you know, the draft Gender Recognition Bill proposes that marriages must be dissolved before gender recognition can be completed. We have made it very clear that we want that provision changed - we don't believe that a marriage should have to be dissolved if both spouses want to continue - though, sadly, I believe it is unlikely that we will succeed.
It is, therefore, worth keeping an eye on the Government's proposals for Civil Partnership for same-sex couples. The proposals would allow same-sex couples to register their partnership, to gain legal recognition of their relationship - and secure rights in a whole range of areas.
There are two groups of trans people who should be particularly interested in this:
It is particularly important for the second group (married trans people and their familes) to think about this one, and to consider the proposals - because I know that some people in that situation have not considered it so far. If we don't succeed in winning that argument about preserving marriages, then civil partnerships will be the only way of retaining legal protection for your families unless you decide not to re-register your gender.
In saying this, I'm not suggesting that people should abandon hope of retaining their marriages. What I'm suggesting is that you should look carefully at the deal that might be available if we don't win, and think carefully about how it might work for you.
You may want to think of it as a sort of safety-net, or insurance policy. Now is the time when you can help shape the civil partnerships law.
Whatever you decide to do, if we don't win the right to for people to keep their marriages, then it would make a lot of difference to your options if the civil partnerships law is a good one.
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