Clause 14: Discrimination

79.     This gives effect to Schedule 6.

80.     Schedule 6 amends the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)). Those enactments, as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999 (S.I. 1999/1102) and Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 (S.R.1999 No.311), already make it unlawful to discriminate against a person in relation to employment and vocational training on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment. However, this is subject to exceptions based on 'genuine occupational qualifications'. If, for example, the nature of the job requires a woman, it is open to the employer to show that it is reasonable to treat a male to female transsexual person as being unsuitable for that job. The amendments made by Schedule 6 mean that these exceptions will not be available once a person has been recognised in the acquired gender. They are then, for the purposes of employment, to be treated as being of their acquired gender (that is, of the opposite sex to their birth sex).

Clause 15: Succession etc

81.     This provides that the fact that a person's gender has become the acquired gender does not affect the distribution of property under a will or other instrument made before the day on which the Act comes into force. For wills or other instruments made after that day, the general principle stated in clause 9(1) will apply, e.g. if a will refers to the 'eldest daughter', and a person who was previously a son becomes the 'eldest daughter' following recognition in the acquired gender, that person (subject to clause 18) will inherit as the 'eldest daughter'.

Clause 16: Peerages

82.     This provides an exception to the proposition stated in clause 9(1). The descent of any peerage or dignity or title of honour will take place as if a person recognised in the acquired gender were still of the birth gender. The same rule applies to any property that passes with it, unless the will or other instrument governing the property departs from this rule by express provision.

Clause 17: Trustees and personal representatives

83.     A trustee or personal representative is responsible for conveying and distributing property from a trust or estate. This clause relieves a trustee or personal representative from any fiduciary duty to inquire whether a gender recognition certificate has been issued to any person or revoked, even if that fact could affect entitlement to property which he is responsible for distributing. The beneficiary will nevertheless retain his or her claim to the property and may enforce this claim, e.g. by following the property into the hands of another person who has received it instead.

Clause 18: Orders where expectations defeated

84.     This makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the acquired gender. If, for example, an instrument governs succession by reference to the 'eldest daughter' of the settlor, and there is an older brother whose gender becomes female under the Bill, then the person who was previously the 'eldest daughter' may cease to enjoy that position. Subsection (2) allows a person who is adversely affected by the different disposition or devolution of the property to make an application to the High Court, or the Court of Session in Scotland. The court, if it is satisfied that it is just to do so, may make such order as it considers appropriate in relation to the person benefiting from the different disposition of the property.

Clause 19: Scottish gender-specific offences

85.     Many sexual offences remain in Scottish law gender-specific and hence consist, for example, specifically of acts committed by a man upon a woman. This section ensures that where criminal liability would exist, but for the fact that a person has become of the acquired gender, that criminal liability should exist regardless of the gender change. Equivalent provisions are not needed for England and Wales as the Sexual Offences Act 2003 introduced gender-neutral terms. A wide-ranging review of sexual offences law is underway in Northern Ireland and will consider the issue of gender-specific offences in that jurisdiction.

Clause 20: Foreign gender change and marriage

86.     Subsection (1) makes explicit that a person who has changed gender in another country or territory is not thereby recognised in the acquired gender in the UK. A person in this position will have to make an application under clause 1.

87.     Subsections (2) to (5) set out the legal status of marriages formed in another country or territory by a person who had already changed gender in that country or territory. These marriages are to have no standing under UK law until the party who has changed gender in another country or territory has also gained recognition in the acquired gender in the UK. The marriage will only be recognised in this way if no other valid marriage has been entered into in the interim and so long as one party had already changed gender in the other country or territory and the other party was not also of that acquired gender.

Clause 21: Prohibition on disclosure of information

88.     Subsections (1) and (2) establish that it is an offence to disclose information about a person's application for a gender recognition certificate or the gender history of a successful applicant. This information is termed 'protected information' under this Bill. Subsection (3) provides that the prohibition extends only to information acquired in 'an official capacity' and so does not cover information acquired purely in a private capacity.

89.     Subsection (4) sets out exceptions to the general prohibition on disclosure. For example, disclosure will not constitute an offence where the person to be identified had consented to the disclosure or where the disclosure is for the purposes of proceedings before a court or tribunal. Subsections (5) and (7) make provision for the Secretary of State to prescribe further circumstances in which disclosure does not constitute an offence. Subsection (6) clarifies that this power is exercisable by the Scottish Ministers, rather than the Secretary of State, where the provision to be made is within the legislative competence of the Scottish Parliament.

90.     Under subsection (7), a person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Clause 22: Power to modify statutory provisions

91.     This provides the Secretary of State with the power to make an order modifying the operation of any enactment or subordinate legislation in relation to persons who have acquired a new legal gender under this Bill or any description of such persons. This power is strictly limited and is provided due to the entirely novel nature of this legislation. Legislation has made distinctions on the basis of gender for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts. Though a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities, this clause acknowledges the possibility that other instances may come to light in the future.

92.     This power is also extended, for the same reasons, to Scottish Ministers and Northern Ireland departments should they need to modify legislation that falls within the devolved competence of the Scottish Parliament or the Northern Ireland Assembly respectively.

Clause 23: Orders and regulations

93.     This provides that any order-making powers delegated by this Bill will be exercisable by statutory instrument, subject to the negative resolution procedure. This applies to instruments made in each part of the United Kingdom.

Clause 26: Applications within six months of commencement

94.     Clause 26 creates a 'fast-track' procedure for the first six months after commencement of the Bill. Under subsection (2), applicants in the first six months will have to satisfy the criteria set out in clause 2(1) as modified, that is, satisfy the Panel that they have lived in the other gender for six (rather than two) years; and that either they have or have had gender dysphoria, or that they have undergone surgical treatment for the purpose of modifying sexual characteristics.

95.     Under subsection (3), the requirements for medical evidence stated in clause 2(1) to (3) will not be applied to these applicants. Instead, if a person is applying on the basis of having or having had gender dysphoria, the application need only be accompanied by one medical report providing details of the diagnosis of gender dysphoria and details of treatment that the applicant has undergone, is undergoing, or that has been prescribed or planned for the applicant to undergo. This report must be provided by a registered medical practitioner or chartered psychologist practising in the field of gender dysphoria.

96.     If a person is applying on the basis of having undergone surgical treatment for the purpose of modifying sexual characteristics, the application must be accompanied by one medical report containing details of the treatment undergone and any further treatment which has been prescribed or planned. This report must be provided by either a registered medical practitioner, or a chartered psychologist practising in the field of gender dysphoria.

EFFECTS OF THE BILL ON PUBLIC EXPENDITURE

97.     The cost of establishing the Panels, which will determine applications for recognition in the acquired gender, is £0.7m. Downstream costs are minimal and have been identified with other Government departments. The total initial cost associated with the Bill is £1.3m and this will be met from within the departmental spending limit. It is probable, depending on the parliamentary timetable, that costs will be split between two financial years, 2004/05 and 2005/06. The annual running cost will be in the region of £950k for the first year and £350k for subsequent years and this too will be met from within the departmental spending limit.

EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER

98.     Administrative staff will be needed for the secretariat of the Gender Recognition Panels. It is possible that existing staff can be moved to the secretariat. Hence, there may be no effect on the levels of public sector manpower. In any case, it is estimated that the Secretariat will consist of 10 staff in the first year when it is at its busiest and 4 staff thereafter.

REGULATORY APPRAISAL

99.     A Regulatory Impact Assessment (RIA) has been prepared. This will be placed in the Library of the House and on the Department's website. The RIA shows that there is no evidence of a significant impact on any business sector.

COMMENCEMENT

100.     The provisions in the Bill will come into force on a day appointed by an order of the Secretary of State.

EUROPEAN CONVENTION ON HUMAN RIGHTS

101.     The provisions of this Bill raise questions of compatibility in relation to Articles 8, 10, 12 and Protocol 1, Article 1 of the Convention, but the Department is of the view that there is no contravention of any of these Articles. As noted above, this Bill is being brought forward to remedy the breaches of Articles 8 and 12 found by the European Court of Human Rights in Goodwin v United Kingdom, I v United Kingdom (2002).

102.     The legal recognition granted to a transsexual person's acquired gender under the provisions in the Bill will satisfy the person's rights under Article 8 to respect for their private and family life, and remedy the violation of the Convention found in Goodwin and I v United Kingdom.

103.     The procedures which the Bill establishes to enable transsexual people to apply for recognition in the acquired gender will also engage their rights under Article 8. In particular, applicants will be required to provide sensitive personal information when they apply for recognition.

104.     Requiring applicants to provide such information is an interference with their right under Article 8 to respect for their private life. However, it is necessary to assist the Panel in determining whether an applicant meets the criteria for recognition, and so that recognition in the acquired gender is only given to those transsexual people who meet the prescribed criteria. Requiring production of, for example, medical information, is a proportionate means of meeting this aim. The rights of applicants under Article 8 to protection against disclosure of personal information without their consent will be satisfied both by protection given under the Data Protection Act 1998, and by the prohibition on disclosure contained in clause 21 of the Bill.

105.     The Bill contains provisions requiring the termination of marriages prior to the grant of full gender recognition certificates. This engages the Article 8 rights both of married individuals seeking recognition of their acquired gender, and of their families. It also engages rights under Article 12 (the right to marry).

106.     The European Court recognised in Goodwin and I that the most appropriate means of achieving legal recognition for transsexual people remained a matter within the state's margin of appreciation, and that it is for the state to determine the conditions under which gender recognition should be accorded or under which existing marriages should cease to be valid, and the formalities for future marriage including information to be disclosed to intended spouses.

107.     The Department is satisfied that the Bill's approach, which requires transsexual people to accept the ending of a male-female marriage as a condition for registration in the new gender, is justified under Article 8(2). We consider that it is legitimate to preserve marriage as a union of an opposite sex couple. This cannot be achieved unless an existing marriage is ended before full recognition is given in the acquired gender to a party to that marriage. Once legal recognition is given to civil partnerships between same sex couples, it will be possible to limit the disruption to the couple, ensuring that the requirement that the existing marriage should end will not end the couple's relationship, but only the form in which it is given legal recognition.

108.     For similar reasons, the Department is of the view that the requirement to end existing marriages is compatible with Article 12 (right to marry). That article only protects the right to marry an individual of the opposite gender, and specifically subjects the exercise of the right to national laws. We consider that requiring this category of marriage to end, in circumstances where it would otherwise be transformed into a same-sex marriage, is a permissible use of national law.

109.     Schedule 5 of the Bill sets out the consequences the grant of a full gender recognition certificate will have in relation to state benefits (including state retirement pensions) and Guaranteed Minimum Pensions. In summary, these provisions ensure that a transsexual person who has been granted a full gender recognition certificate will be entitled to the state benefits which are appropriate to his or her acquired gender, and will no longer be entitled to a benefit or pension which is payable only to someone of his or her birth gender. This will affect both the actual benefits which someone receives, and their expectation of receiving such benefits in future.

110.     There is a range of income-related benefits which such a person could expect to receive if he or she did not have sufficient resources to support themselves in the absence of the benefits lost. The availability of these benefits does not mean that a female-to-male transsexual person will never lose out financially as a result of being recognised in a new gender. It does mean that it cannot be assumed that the financial loss, if any, will be sufficient to act as a barrier to someone wishing to be recognised in an acquired gender. Accordingly, the Department is of the view that if there is any interference with the Article 8 rights of a transsexual person as a result of these provisions it is minimal, justified as a means of according full recognition to transsexual people in their acquired gender, and a proportionate means of obtaining that end.

111.     A pension, or any state benefit entitlement to which depends on payment of contributions, could be considered to be a "possession" within the meaning of Article 1, Protocol 1. However, before the right to a benefit protected by Article 1 can be established, the applicant must show that he or she satisfies domestic legal requirements governing the right (JW and EW v United Kingdom Application No 9776/82). It is of the nature of gender specific benefits that entitlement to them is dependent on the applicant being of the required gender. Where a transsexual person ceases to be female, his entitlement to benefits, or pensions, payable only to women will therefore cease, and there will no longer be a possession capable of protection under Article 1. The Department is therefore of the view that the provisions in Schedule 5 do not violate the rights of transsexual people under Article 1, Protocol 1.

112.     The Department is satisfied that the Bill as a whole achieves the Convention-compatible result of establishing a coherent system for giving full legal recognition to transsexual people while safeguarding the rights of other potentially affected individuals, and the Secretary of State for Constitutional Affairs has signed a statement under Section 19(1)(a) of the Human Rights Act 1998. This indicates that he is satisfied that the provisions of the Bill are compatible with the Convention rights (as defined in Section 1 of that Act).