Official Report 235KB pdf
I welcome our next group of witnesses, from whom we will take evidence on gender recognition. It is understood that a Sewel motion on the Gender Recognition Bill will come before the Parliament in the new year. Although we are unsure of the precise timing of that, the committee felt that it was important to take evidence on the bill. The clerks will produce a summary of the evidence from today's session and from the written submissions. We will then submit that to the Executive when we know exactly what is happening. I apologise for the lack of clarity on where today's evidence is going.
It is a very complex situation or, rather, the situation has been made very complex. The situation is actually very simple, given that gender dysphoria is a medical condition like any other medical condition. Unfortunately, because it relates to gender, that makes everything complicated.
Without the bill, transsexual men, whom I work with and support, fear that somebody may find out that they were born a different gender. Their lives can become difficult because of prejudice and discrimination. The bill will help people to live ordinary lives without the fear of being outed and the ramifications that that might have for their employment and housing, for their families, and for their personal safety and security.
Does the bill go far enough towards providing the required improvements?
Certain elements of the bill create institutional outing for transgender people—particularly people in my circumstances. I am legally married. To claim my human rights and change my birth certificate, I would have to divorce my wife and—if the correct legislation is passed, as we hope it will be—ultimately convert my marriage to a civil partnership. However, the civil partnership offered is only same-sex civil partnership, which in itself is a form of outing. To achieve what the Government says is my basic human right—to be recognised as who I am—I would be institutionally outed twice. Divorce proceedings are a matter of public record. There are tabloid journalists who make a steady living out of trawling court records looking for what they regard as newsworthy stories.
The bill goes a long way towards addressing most of the issues, although the Sex Discrimination Act 1975 should be extended to cover discrimination against trans people in the provision of goods and services. As things stand, trans people are protected in employment, so although an organisation would not be able to discriminate against somebody in employment, it could refuse to serve that person, for example. That is a mismatch.
I have a supplementary question that I would like to put to Andrea Brown. Paragraph 28 of the explanatory notes to the bill says, under the heading "Clause 9: General":
There are two distinct systems—the way in which gender recognition will be handled in England and the better way in which it will be handled in Scotland. That affects those of us unfortunate enough to have been not only born a man but born in England—I will be subject to the lesser practice.
If you were asked to produce your birth certificate, would you need to produce one that was dated today? If so, people might ask you questions about your age.
Yes, it would arouse suspicions. The system would be better in Scotland, in as much as there would be a gender recognition register. All inquiries about people's antecedents and birth certificates would automatically entail an examination of that information, and those are the only details that they would be given—not that there would be any change in those details. The birth certificate that is issued to someone today would be germane to the type of certificate that would have been issued when they were born. Birth certificates might change every 10 years. I was born in 1953 so if I could get a new birth certificate through the Scottish system, I would get a 1953 birth certificate.
All the written evidence that we have received so far indicates that there is a preference for the age limit in Scotland to be set at 16, to tie in with the legal age for marriage. As you know, the bill currently gives the age of 18 for gender re-registration. Will the panellists comment further on that? Are you content with the other criteria for registration?
The way I see it, at the age of 16 you can finish compulsory education, get a job, live on your own and have responsibilities, but you cannot get gender recognition. I see that as a discrepancy.
I have no preference on the matter, but the issue clearly affects younger people. I return to what was said before about birth certificates. It might appear that, if I were to get a new certificate today, it would register me as being 49 years younger than I am. Although I think that that would be marvellous—
I thought that, too.
I understand that that will not be the case. My birth is registered in England as well, and my new certificate would register my true date of birth.
The certificate would give the true date of birth, but it would be issued in the style of a certificate for a new birth in 2003.
The requirements for the certificate are generally reasonable. However, because the legal age of capacity in Scotland is 16, the age limit in the bill should tie in with all other requirements. If someone can legally marry at 16, the age for gender re-registration should match up.
Are you all content with the provisions to establish gender recognition panels, as outlined in schedule 1, or do you have any comments to make on the make-up of the panels?
My understanding is that because the bill clearly defines when panels should accept or refuse applications, little room is left for discretion. Clearly, I would like a gender recognition panel, with Scottish representatives, to be set up in Scotland. If there is to be an appeals process, a lot of people would find it expensive to travel to the panel if it were set up in the south of England. It would also be nice to have people on the panel who have experience of what our lives are like, but I would not argue too strongly for that, because many issues are more important.
The bill states that members of the panel can be legal members or medical members. Is that enough?
There are some well-qualified professional trans people in both those professions.
So you would be happy with that.
I do not see that there is any other option. Panel members would be considering matters of medical fact and legal fact. Yes, it would be nice to have a lay person on such a panel—purely on the basis of what is reasonable to the man on the Clapham omnibus—but that increases the chance of somebody being unsympathetic. It is a difficult situation. I am happy with the projected set-up. We do not need to be too concerned about it. We will judge the situation on the results. If it became apparent that something was wrong with the system, we would look for something to happen.
Concerns were raised by Press for Change about the potential cost to applicants of providing reports as evidence to the gender recognition panel. The evidence that we received from young transsexuals suggested that the cost of applying should be no more than the current cost of applying for a passport, and that the fee should be waived completely for applicants who receive benefits such as income support. The concern was also raised in evidence that fees might rise into the hundreds of pounds. What are the panel's views on those issues?
It has been indicated that the process has to be self-financing, but because of the number of people that we are talking about, the cost would be hundreds of pounds or, in one case in particular, thousands of pounds. I am in employment, but it will be difficult for me to find that kind of money, as it will be for a lot of people.
Could you expand on the case in which the cost would be thousands of pounds?
Volume 2 of the 19th report by the Joint Committee on Human Rights, on the Draft Gender Recognition Bill, contains the evidence that was taken by the committee and includes a graph showing the three options.
While Zara Strange is finding that information, I will add a comment on fees. The Gender Identity Research and Education Society commissioned a survey a couple of years ago into the employment, or otherwise, of transsexual people. It revealed that a growing number of transsexual people are on long-term health benefits, often with the collusion of general practitioners. Given the lack of protection that exists, people find that maintaining a life under the stress of work is detrimental to health. It is probable that more than half the transsexuals in the United Kingdom are on benefits rather than in work. As Zara Strange said, it is difficult for people who are working to find the money. For people who are on benefits, it would be impossible.
I refer to page 78 of volume 2 of the 19th report by the Joint Committee on Human Rights. The whole process, on a full-recovery basis, would cost £833, according to the Government's estimates. On top of that, there are fees for a statutory declaration. The process is different in England, but if Andrea Brown wanted to have a solicitor make a declaration, for example, that would cost up to £135. People also need a medical certificate, which can cost between £25 and £50. If someone transitioned a long time ago and their doctor's records had been lost, they might have to go through the full process again, in which case they would need three consultations. If they went private because they could not wait for the NHS, the consultations would cost £600. If they wanted a copy of their birth certificate, that would cost £11; a new birth certificate would also cost £11. If we add all that together, it comes to £1,640, so although applying for the registration certificate costs only £833, a lot of other expenses are involved.
In terms of equal opportunities, will those costs exclude poor people? It is only richer people who will be able to access the system.
I stayed in employment throughout my initial transition, but so that I could have my chest surgery when I could be off work, I had to fund my transition myself. If I had gone through the NHS, I would have had to go for surgery when the NHS wanted me to go. That might not have suited my employment at the time, so I ended up funding my transition so that I could stay in employment. Even though I was earning a wage, an extra cost on top of the transition would have made it even more difficult to access.
Several of the bill's provisions around marriage are complex—and marriage can be complex at the best of times. I would like to investigate a few of those provisions. Andrea Brown has outlined how her particular set of circumstances would be affected. Will you outline how people feel about the fact that people who are in marriages, a significant minority of whom will wish to stay in their marriage, will have to divorce? That will have an impact on their families and on benefits, financial security and other aspects of their lives.
The marriage issue has become a minefield, but in fact it is quite simple. It is particularly simple in Scotland, because there is nothing in Scots law to say that people cannot maintain a same-sex marriage; the law says simply that people cannot enter into such a marriage. There is no reason why Scots law could not be invoked today to say that the very small number of people who are lucky enough to have a marriage that is strong enough to cope with the transition should not remain married.
You note the lack of a seamless transition from marriage to civil partnership. During the transitional period, people could stay in and try not to get knocked down by a bus. However, when we are dealing with rights such as pension rights, which are dependent on the length of a marriage, the transition could be seen as a break. Those rights could be affected by a break of even one day. The relatively small number of people who want to request an interim gender recognition certificate and to indicate that they wish to retain their marriage could do both things at the same time.
Even then, there would be problems. People may have rights because of the length of their marriage, but they will lose those rights because civil partnership registration is not retrospective—it begins at day 1. The outcome is not satisfactory in any way.
If someone wanted to use the interim certificate provision, which is restricted to six months, but civil partnerships were not in place by the end of that period, they might have to reapply, which has inherent costs. Alternatively, people could decide that they wanted to divorce anyway.
The bill also takes it as read that the divorce proceedings will proceed within six months, which I do not think is possible for us. Someone could lose their interim certificate and have to start again. There are several inherent weaknesses in the bill and that is one of them. We end up going round in a spiral, because one thing leads to another, which has a knock-on effect that in turn affects something else.
How can we get out of that cycle? Should the bill be amended to allow full gender recognition without the requirement to dissolve an existing marriage first? Is that the only way in which we can avoid getting into that cycle?
It is probably the case that nearly a majority of the other member states of the European Union now recognise same-sex marriages. We are talking about the bill because it has been forced on the United Kingdom by the EU saying that the vast majority of people are recognising same-sex marriages. Until the bill is enacted, the UK will be keeping exclusive company with Andorra and Albania. Those are the only two other countries that will not renew a birth certificate, so the UK is a member of quite an exclusive club. Andorra is known for stamps, and the history of Albania on human rights issues leaves a lot to be desired. Ultimately, the UK will have to recognise same-sex marriages.
According to the figure that we have, there are about 300 transsexuals who are known to the medical profession in Scotland. That figure is probably lower than the actual number. It has been suggested to me that the percentage of people in such a situation who might want to retain marriages is no higher than 10 per cent—in fact, it is nearer 5 per cent. Is it fair to say that we are talking about roughly 5 per cent of 300 people?
When it comes to statistics, I share Jonathan Swift's view that there are
We are talking about a handful of people.
Yes, we are talking about a handful of people who are in exceptional circumstances. We are not talking about the thin end of a wedge, opening any floodgates or radically changing any laws; we are asking that the law not be changed.
Notwithstanding what Andrea Brown has said, I want to record my view that, as schedule 2 stands, I support the proposed Scottish way of proceeding on divorce or annulment on the basis that an interim gender recognition certificate has been granted. In England and Northern Ireland, an application to dissolve a marriage has to go before the courts within six months. I see no logic for that. I want to put it on record that I am pleased that the Scottish Parliament will not make that requirement and that anyone who has an interim certificate will be able to apply at any time, not just within the first six months. I think that that is a great move.
I want to comment on the marriage situation from a religious point of view. There are people who will not want to be divorced, because they had a religious marriage ceremony. I am a member of the Metropolitan Community Church in Edinburgh, some of whose members have had a Christian wedding ceremony and have a legal marriage, which would have to be dissolved in order for them to be allowed to change their gender. It seems strange that somebody would have to deny a commitment that they have made in front of God and their family and friends in order to change their gender. It is important to remember that there are people for whom marriage is not just a legal matter but has religious significance as well.
At the beginning of the meeting, the convener said that we are a little bit in the dark with regard to timings. The likelihood is that Westminster will legislate for Scotland by way of a Sewel motion. Is the panel content with that? The convener said that we felt that it was important to take evidence so that when we debate the Sewel motion—the time scale is likely to be short—we will have an idea of what the issues are.
As opposed to waiting longer and allowing the Scottish Parliament to deal with the matter separately?
Yes. The Scottish Parliament is able to legislate only on devolved matters and not on reserved matters, such as pensions.
We would like equality throughout the UK, because many of us were born in one country and live in another. We continually move about and, for all that is said, we quite like each other. Time is of the essence and, although I voted for a Scottish Parliament, if a Sewel motion can produce a result quicker, on a purely selfish basis, I would like the legislation to be passed as soon as possible.
Overall, the bill is good. There are things in it that could be changed, but the Sewel motion is the best way forward, because it will be quicker.
All the witnesses are nodding, so I take it that that is the consensus.
My question is on consultation. You have raised points about flaws and discrepancies in the bill. The evidence notes that neither the Joint Committee on Human Rights nor transsexual people have had any opportunity to scrutinise the new provision. That would seem to raise issues regarding the consultation process during the development of the legislation. Were panel members involved in consultation on the bill and are you satisfied with how the process has been handled?
I have been involved through the Equality Network for a long time. I feel that I am in something of a cleft stick because, like Zara Strange, I want the bill to be made law as soon as possible, but I know that that automatically cuts down consultation time. Given that certain things that we thought had been accepted during the consultation have either failed to appear in the bill or been changed radically, a little more consultation time on the bill would do no harm.
Like Andrea and probably every witness sitting at the table, we have spent a long time, often many years, considering these issues. It has not come as a shock. We anticipated some issues, particularly those that had a Scottish element.
It is interesting that pensions were mentioned in all your submissions. How would the panel like the issue of pensions to be handled for those who, once they reregister gender, are likely to lose a pension that they are already receiving?
Pensions are similar to so much else in the situation. There are not many people who would form exceptions to what is being proposed, but there are some. There is a difference between dealing with the situation as it is and creating a problem for the future.
Is that the only group that is affected?
It is a very noticeable and self-evident group. There are also problems with private pensions. I do not understand why it appears to be impossible to say that, in certain very limited situations, things should just be allowed to stay as they are. We are not saying that all trans men should be entitled to a pension at 60. We are just saying that if someone is over 60 when the bill is enacted, and they are in transition, they should be allowed to continue.
The retirement age is going to be equalised between 2015 and 2020, so any precedent will be only for the short term.
Is that the witnesses' general view?
From the people that Transmen Scotland has spoken to, it is clear that there are trans men who will fall into that category of being between the ages of 60 and 64. There might not be a huge number of them, but there will be some. They have often been economically disadvantaged in the past because their employment was lower paid when they were female, they have not been able to do the jobs that they might have wanted to do, and they were made to retire at 60. We certainly support a change so that the position becomes more equal and we think that such people should retain their pensions until the pension age is made equal for everyone.
My second question has partly been answered, but I ask all the witnesses to express their views on the fast-track procedure in clause 26 of the bill.
In general, it is a good idea, but there could be an issue with young people whom I represent. For example, someone aged 13 or 14 may have known that they were transsexual and have every intention to live in role as the bill will require, but, because of their situation—perhaps living in a family in which it is not practically possible to do that—they may miss three years, so it will appear that they did not live in role for that three-year period, when they may have done everything that was reasonably possible to do so. That might also raise the question of what evidence is acceptable to show that somebody has lived in role: would it be a name-change document in England or would it be acceptable for a parent, a medical practitioner or a psychologist to say, "Yes, this person has lived in role," although they might not have a diagnosis that dates back to the correct stage?
I am very much in favour of the fast-track procedure. It is seven years since I went through the changing of the legal documents, so I would just fall into the category in clause 26. To have to go through the full process and go back to the people to whom I was referred years before would be difficult and costly, so I very much support the six-year fast tracking.
All those who have submitted written evidence have expressed concern regarding the recognition of rape in Scots law for post-operative transsexuals. What are the witnesses' views?
In England, the Sexual Offences Act 2003 already specifically mentions surgically constructed genitalia and demonstrates that gender-specific offences apply fully to trans people, so a law already exists and we need only to make the same law for Scotland. It is a necessary amendment to Scots law and, as such an amendment has already been made in England, it could be done without any problems in Scotland as well.
Two months ago, I was stalked—I was followed. It is all recorded with the police. I thought that there was a sexual element to the stalking, but I was loth to report it, and I did so only when a friendly policeman said, "Zara, if you don't, other people could be affected by that person." However, having gone through it, I would not report anything of a sexual nature that happened to me.
Rape is a pressing issue for trans people in general. Probably a third of all male-to-female transsexuals in Scotland whom I know have been raped. Those were not opportunistic rapes; they were targeted rapes. Attitudes have changed: they have changed a great deal in the police, who are much more positive today. I work a lot with police forces in Scotland to help to develop that work.
The issue is quite simple. I believe that, among your papers, you have a paper that includes the Parliament's definition of rape. The definition needs the simple removal of a few words and the addition of the equivalent of the wording in the Sexual Offences Act 2003, which recently passed through the Westminster Parliament. The addition would be:
The issue of rape needs to be addressed outwith the context of the bill. My birth certificate says that I am male. Under Scots law as it stands no one can rape me. The issue of rape is much wider than the bill and it needs to be looked at.
Thank you. The issue is difficult, but it is important that your evidence is put on the record.
Your evidence is harrowing. I want to ask the panel about privacy, which is linked to the issue that we have just discussed and to other issues to do with discrimination. Andrea Brown spoke about her birth certificate. Are the privacy provisions in the bill adequate to protect the identity of people who have reregistered their gender?
Clause 21(4)(c) says—
I am sorry, Maxwell, but we will have to stop for a minute. There is a changeover of technicians and your microphone is not switched on. Right, you can fire away again.
As I said, clause 21(4)(c) says:
On privacy, I recently did some qualitative research workshops with some trans people. One thing that came out of that was that privacy is an issue, particularly within the NHS. There is a definite need for suitable training, guidance and standards within the NHS on the treatment of trans people and privacy issues.
Between the draft bill and the final bill, paragraph (f) was added to clause 21(4). I was pleased to see that, because paragraph (f) states:
Obviously, we are dealing with a Sewel motion, but I would be interested in hearing what the various organisations are doing to try to influence the discussion in Westminster. I spoke to an MP recently who was confused that we were taking evidence on the issue. I am not sure what evidence or areas of work MPs will be looking at. What discussions are under way at Westminster, if any, that you may be able to influence, or through which you can put forward your views on the bill?
There is a committee, which is chaired by—I am not sure which MP it is. Could somebody help me out here? She is a lovely lady. I cannot remember her name, although she is the MP for Birmingham Selly Oak. There are people from Press for Change on that committee, and other organisations have representatives on it, too. Members of that committee have been restricted in what they can say. However, the trans community has been represented on it. It is leap of faith to think that the committee will do what we want it to do, as its members could not tell us what they were doing. Hopefully, that committee will continue its work. It is the old thing, however: it is not quite as if things north of Watford Gap do not happen; it is as if things north of Berwick do not exist. It is important that consideration is given to the subject here, even using a Sewel motion and, as I said, a lot is going on at Westminster.
Thank you very much for your evidence this morning, which will form part of our report on the Sewel motion.
Meeting continued in private until 12:33.