British Government Policy
Concerning Transsexual People
Forward
The Lord Chancellor’s Department within H.M. Government has recently published its report on “Government Policy concerning Transsexual People”. I strongly recommend that those of you who have an interest in this subject obtain a copy of the report and read it in full. It is available on the internet and can be found on website...
http://www.lcd.gov.uk/constitution/transsex/policy.htm.
As a service to our members, the following is a synopsis of the report with comment which hopefully you will find helpful but we would stress that to avoid confusion you should read the full report.
Introduction
There are a small number of people in the United Kingdom – perhaps just a few thousand – who are not comfortable with their gender identity. Some may feel they have been born into the wrong body, whilst others come to feel that their gender identity has become incompatible with the gender registered at birth. Estimates vary, but perhaps one man in every 12,000 feels he is a woman. The proportion of women who feel they are men is smaller, but they too are convinced that their birth gender does not match their gender identity. They are transsexual people.
The deep conviction that gender identity (believing oneself to be a man or a woman) does not match one's appearance and/or anatomy is called gender dysphoria or gender identity disorder. It can be so strong that individuals are driven to presenting themselves in the opposite gender. Some people experience this incompatibility of identity and body in childhood; others later in life. Once experienced, the feelings are unlikely to disappear but it may take many years to cross over – or "transition" - completely from the original into the acquired gender.
Terminology
Transsexual people feel the deep conviction to present themselves in the appearance of the opposite sex.
They may change their name and identity to live in the acquired gender. Some take hormones and cosmetic treatments to alter their appearance and physical characteristics. Some undergo surgery to change their bodies to conform more to their acquired gender. These people are all transsexual. (Sometimes they refer to themselves as transgender – a broader term that includes people temporarily changing their gender and appearance as well as transsexual people.)
Transsexualism or 'gender dysphoria' is a widely recognised medical condition that the Government's Chief Medical Officer has confirmed may properly be treated under the National Health Service as well as privately. There are five specialist centres catering for gender identity disorders in England, at Charing Cross in London and in Leeds, Newcastle, Nottingham and Sheffield. GPs and psychiatrists tend to refer patients to these clinics for expert diagnosis and, as appropriate, courses of counselling, hormone treatment and possibly surgery. The recognised stages of gender re-assignment are:
· Social changes – assume new name and gender, inform family and friends, live and work in the chosen gender role (the so-called "real-life experience");
· Hormonal and other treatments – following psychiatric assessment, provision of cross-gender hormone prescriptions (where medically suitable) and possibly cosmetic means to aid appearance in the acquired gender;
· Surgical gender re-assignment – primary surgery may be performed to remove the sexual and reproductive characteristics of the original gender, and/or to create characteristics appropriate to the new gender. Surgery is not usually performed until the transsexual person has spent at least two years living successfully in the "real-life experience".
(Editor’s Comment. Clearly, this is not to be undertaken lightly, since surgery cannot be reversed. The “real life experience” will provide all interested parties, including the transsexual person, with a degree of proof that quality of life will be improved. Many TVs flirt with the idea of gender reassignment when “dressed” but this is temporary. They prefer to move freely backwards and forwards between gender roles.)
At all these stages, psychological and psychiatric services are usually deployed in support. Although most transsexual people take hormones to modify their sexual characteristics, not all are able to have surgery, for medical and other reasons. Gender reassignment surgery is a major procedure with limited numbers of consultants trained to undertake some aspects of the surgery. The decision on whether the procedure is funded by the NHS is taken by Primary Care Trusts. Many transsexual people are able to live successfully in the new gender without undergoing invasive surgery.
Once they are living permanently in their acquired gender, most transsexual people want their official documentation to reflect their new gender identity. They may obtain some official documents (including passports, National Insurance cards and driving licences) in their new name and gender, and the Department for Work and Pensions will make special arrangements for handling their records sensitively. Many private companies too have special arrangements for transsexual people. They are not currently entitled, however, to have their birth certificates revised, nor to enjoy any rights legally confined to persons of the gender to which they feel they belong. They cannot marry in their acquired gender, nor draw the State pension at the age appropriate to that gender.
Many transsexual people want to keep their past life in their birth gender private, and object to having to produce a birth certificate in their former name and gender. They want to be recognised legally in their new gender – for example, for State pension purposes; to enjoy, so far as possible, privacy and protection from identification in their original gender; and some wish to marry in the acquired gender. It is these rights, currently unavailable to transsexual people in the United Kingdom, which the Government's proposals will address.
What transsexualism is not
Transsexualism is not transvestism or cross-dressing for sexual thrill, psychological comfort, or compulsion.
It is not an orientation towards people of the same sex.
It is not related to paedophilia.
It has nothing to do with drag queens.
Transsexual people do not choose their gender identity. Transsexualism is an overpowering sense of different gender identity rather than any sexual orientation: transsexual people may be heterosexual, gay/lesbian or celibate.
It is not a mental illness. It is a condition considered in itself to be free of other pathology (though transsexual people can suffer depression or illnesses like anyone else).
(Editor’s Comment. Readers of our magazine "Cross Talk" will know that we subscribe to these views totally. Transsexualism is not an advanced form of transvestism. You do not progress from one to the other.)
There is no single common approach in other countries to the transsexual condition and the complex issues that it raises. However, all other EU Member States except Ireland already give legal recognition to gender change, as do many other countries in Europe and the Commonwealth and many American States.
The Government's approach to transsexualism
The Government is sympathetic to the plight of transsexual people. Clearly, theirs is an overwhelming and difficult situation. Gender underpins most of our societal arrangements and statutes. It is an essential quality, concerning our sense of who we are and what sort of people we identify with. The process of transition – of recognising and acting on the desire to "come out" in the opposite gender – is a very significant step to take and one which may have profound effects on relationships – with families, employers and workmates, friends and acquaintances.
The Interdepartmental Working Group on Transsexual People was set up in April 1999 to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexual people. The Working Group's report was presented to Parliament in July 2000.
Combating discrimination at work
This Government also introduced the Sex Discrimination (Gender Reassignment) Regulations 1999, which amended the Sex Discrimination Act 1975 to protect transsexual people against discrimination in employment and vocational training.
This protection begins from the time when a transsexual person makes it known that he or she intends to undergo gender reassignment, and remains in being when the gender reassignment is complete. Limited exceptions apply in relation to certain types of employment (for example, posts involving physical searching, or living in dormitory accommodation).
The Government is now considering whether, once legal recognition is given to a transsexual person's acquired gender, these exceptions should be modified.
The Interdepartmental Working Group on Transsexual People was reconvened in 2002, chaired by officials at the Lord Chancellor's Department, and met for the first time on 9th July. Its new terms of reference were:
"In the light of the report of the Interdepartmental Working Group on Transsexual People and more recent relevant developments, to re-examine the implications of granting full legal status to transsexual people in their acquired gender; and to make recommendations".
Concern for human rights and diversity
"The Government has explicitly made a commitment to providing opportunity for all. This commitment underpins the many initiatives being taken forward to tackle poverty and social exclusion.
"It remains a sad fact that there continue to be identifiable groups who are at a disadvantage and are discriminated against simply by virtue of their disability, gender, race, sexual orientation or some other characteristic. We believe that this is wrong. We are taking steps to remove unfair discrimination and to promote equality of opportunity."
Rosie Winterton MP
Parliamentary Secretary at the Lord Chancellor's Department
On 11 July the European Court of Human Rights delivered its judgments in the cases of Goodwin -v- The United Kingdom and I -v- The United Kingdom. The Court found that the United Kingdom had breached the Convention rights of these two transsexual people, under Articles 8 and 12 (the right to respect for private life and the right to marry). In answer to Questions before the Parliamentary recess, colleagues and I made clear the Government's commitment to announce later in the year how we proposed to implement the rulings.
The Interdepartmental Working Group, whose initial report the then Home Secretary presented to Parliament in July 2000, had recently been reconvened to give further consideration to the implications of giving transsexual people full legal recognition in their acquired gender. In light of the Goodwin and "I" judgments, the Group's terms of reference were expanded and it was tasked to report in October. Ministers have now collectively considered the recommendations received from officials.
Legislation
We will aim to publish, in due course, a draft outline Bill to give legal recognition in their acquired gender to transsexual people who can demonstrate that they have taken decisive steps towards living fully and permanently in the gender acquired since they were registered at birth. That will make it possible for them (if otherwise eligible) to marry in their acquired gender.
The Government is committed, therefore, to legislating as soon as possible to give transsexual people their Convention rights. Whether Parliament at Westminster should legislate for the whole of the UK on this matter is under consideration, particularly in view of the inter-relationship between devolved and reserved policy aspects.
Rights
Except where limited exceptions will be created in the legislation, we propose that formal recognition in the acquired gender will bring with it the rights and responsibilities appropriate to that gender - normally, from the date that the change is recognised. Registration in the new gender will not cancel out rights and obligations previously incurred. A parent, for example, who changes gender, will not lose his or her obligations - and rights - as father or mother to the child.
Provision will be needed for disclosure to be requested in certain circumstances. For example, insurance and pension companies, whose decisions on cover and premiums depend on gender and medical history, may need to continue to require full disclosure, where relevant and subject to data protection and other legislation. The Criminal Records Bureau must be able to demand full disclosure for clearance to work with children and other vulnerable people; but I am pleased to announce that modifications have been made to their procedures, so that the privacy of transsexual people in relation to their former identity is fully respected. Procedures have been similarly modified in Scotland.
Recognition
Changing legal identity is a serious step, with significant consequences. It is important that no-one should embark upon formal recognition in the acquired gender without convincing evidence. We will therefore propose that applications should be scrutinised by an authorising body, given legal powers to assess medical evidence before the transsexual person is allowed to register in the new gender. In some cases, where the person undertook gender reassignment years earlier, and has lived successfully in the acquired gender, that assessment may be straightforward. In other cases, the authorising body will need to be assured that, in addition to meeting medical criteria, the transsexual person has lived successfully in the acquired gender for at least two years. The medical criteria may include medical treatments to modify the person's sexual characteristics, but the Government will not require surgery as a condition of registration in the acquired gender.
We do not intend history to be re-written. Original birth records will remain in existence, unamended, and will continue to be made available when needed. But the authorising body will empower the Registrar General to create a new record in relation to the transsexual person, from which a new certificate stating acquired name and gender may be drawn. This certificate will be indistinguishable from a birth certificate, in order to remedy the breaches of Article 8 identified by the European Court of Human Rights. The link between the original and the revised record will remain confidential within the Registrar General's office.
We are committed to facilitating, as fully as possible, transsexual people's assimilation into the gender to which they feel they belong. We share the Court's view that society may reasonably be expected to tolerate a minority of individuals living in dignity and worth in accordance with the identity they are driven to assume. We do not seek, however, to erase all trace of their former identity. We have concluded that there is no need for transsexual people to be given new National Insurance numbers on registering in their acquired gender. NI numbers give no indication of gender, and employment and data protection legislation should give adequate protection against careless or malicious disclosure in the rare instances where the number enables a link to be made between former and current identities.
Our aim is to ensure that in future transsexual people will be better protected from having constantly and unnecessarily to reveal their history. Our legislation will enable transsexual people confidently to take up those rights which have been denied to them in society - including the right to marry in their acquired gender - while preserving other obligations entered into in the original gender. We will be pleased to receive comments on our proposals, which deserve the support of all who have in the past expressed concern at the lack of legal recognition of transsexual people in the United Kingdom.
Work to combat prejudice and discrimination against transsexual people is already under way in the criminal justice field
The Prison Service's Equal Opportunities Policy says that prison officers who have undergone gender reassignment, and been accepted by the Prison Service in their acquired gender, may carry out the normal physical searching duties of an officer of that gender.
The Crown Prosecution Service is working to encourage more reporting of "hate crimes" against transsexual people, along with gay men, lesbians and bisexual people.
The Equality Sub-Committee of the Association of Chief Police Officers is soon to consider a paper from the Gay Police Association, highlighting the difficulties transsexual people face.
Plans for the reform of the rape laws recently announced by the Home Secretary will remove any doubt that transsexual people have the same protection under the law as other people.
A forthcoming case in the House of Lords – that of Bellinger v Bellinger, which is due to be heard on 20-21 January 2003 – will again raise the issue of transsexual people being unable to marry in their acquired gender. The Government has made clear its intention to bring forward legislation to resolve this problem.
The Government appreciates the help and support provided to transsexual people in the UK by many social and health agencies, the churches, and transsexual campaign and support groups. Personal support and detailed advice is available within the transsexual community, for example through the websites of organisations like Press for Change and the Gender Trust.
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