Transgender rights: How did we get here? Part 2: Changing legal sex status
This is the second part of two articles looking at the history of how the transgender laws we have today came about and the decisions that were made along the way. It is hoped this will give women a deeper understanding of the laws that now impact on our single-sex spaces and services and highlight how best to challenge the aspects of today’s law that are either unclear, outdated or simply bad for women and wider society.
This article focuses on how the law was developed that now makes it possible to change your legal sex on a birth certificate (Gender Recognition Act 2004). My other article (Part 1) focuses on how anti-discrimination laws have developed leading to the Equality Act 2010 we have today. A comprehensive guide to the Equality Act 2010 and women’s rights by Fair Play for Women is available here.
I am not a lawyer and I offer no legal interpretation of the law. I am presenting the facts based on publicly available case files and parliamentary records; all fully referenced.
1) It all began in 2002….
By 2002 a number cases had already been taken to the European Court of Human Rights (ECHR) challenging the UK’s lack of legal recognition of gender; Rees v UK (1986), Cossey v UK (1990), Sheffield & Horsham v UK (1998). In all cases the UK was found not in breach of Article 8 of the Convention on Human Rights (right to a private life) because fair balance had been struck between the general interest of the community and the interests of the individual. The authorities showed adequate respect for privacy because they had taken steps to minimise intrusive enquiries (for example, by allowing transsexuals to be issued with driving licences, passports and other types of documents in their new name and gender).
However, by the turn of the millennium social attitudes were changing. The UK had introduced new anti-discrimination laws to protect transsexuals in 1999. Many other European countries had started to allow a person’s birth certificate to be changed after gender reassignment surgery. In contrast, and despite gender reassignment surgery being legal and publicly funded, the UK still did not give full legal recognition to the new gender identity.
This landmark case in 2002 was the first time the European Court of Human Rights ruled that not allowing a transsexual to change their sex legally did in fact contravene Article 8 and Article 12 of the Convention on Human Rights; right to privacy and the right to marry.
i) The ECHR should not be confused with the European Courts of Justice (ECJ). The ECJ rules on matters of EU law. In contrast, the ECHR is an international court established by the European Convention on Human Rights adopted by the Council of Europe and all of its 47 member states. The UK’s departure from the EU will not affect membership of the Council of Europe)
ii) The right to marry was breached as a consequence of there being no legal recognition of the new gender of a transsexual. This meant that a transsexual now living as a women would not be able to marry a man because this would be considered a same-sex marriage based on his legal sex. Same sex marriage did not become legal in the UK until 2014.
a) Background of case:
Christine Goodwin is a male-born post-op transsexual. At age 48 she began to live full-time in role as a woman and five years later under went gender reassignment surgery in 1990. In 1996, Christine Goodwin started work with a new employer and was required to provide a National Insurance (NI) number. Although she requested the allocation of a new NI number from the Department of Social Security, this was rejected and she eventually gave the new employer her NI number. Christine claims that this allowed her employer to find out about her past history living as a man and this led to problems with discrimination at work. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft to the police, for fear that the investigation would require her to reveal her identity.
b) The decision making process:
The ECHR sat as a Grand Chamber composed of the 17 judges. Extracts from the courts assessment and decision are copied below and gives an interesting insight into the thinking at the time. It is very clear that the court’s decision was based on there being a very small community of post-op transsexuals whose legal recognition of a new gender would not be expected to have major repercussions in wider society. On balance any inconvenience to society was offset by the greater good of enhancing the human rights of this small number of transsexual people. The situation back then is clearly very different to what we face today.
“The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully provided is not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone……it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.
….given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, [nor] can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment.
It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals.
…..evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.
….. To make a further exception in the case of transsexuals (a category estimated as including some 2,000-5,000 persons in the United Kingdom according to the Interdepartmental Working Group Report, p. 26) would not, in the Court’s view, pose the threat of overturning the entire system.
….The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have….. any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals.
…..No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.
Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.
It will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the applicant’s, and other transsexuals’, right to respect for private life and right to marry in compliance with this judgement”
2) Preparation of a UK Gender Recognition bill
Although the ECHR ruling did not happen until 2002 the case itself had been initiated in 1995 by the applicant and first heard by the court in 1999. The UK government (Labour) started preparing for the ruling by setting up an Interdepartmental working group on transsexual people in 1999. This group heard evidence from transgender support organisations like GIRES and Press for Change and published its report in April 2000. This work led to the publication of a draft bill by the government on 11th July 2003. The draft bill was announced in parliament but there is no electronic record of the draft bill available today.
Before the draft bill was presented to parliament the Joint Committee on Human Rights was asked to undertake a process of pre-legislative scrutiny. The joint committee report provides some interesting insights into aspects of the draft bill and some of the questions asked at the time. Extracts included below. Here we can see the concept of including pre-operative transsexual people being introduced, the very first step in the de-medicalisation of the process.
a) Should recognition be limited to post-operative transsexual people?
25. The Draft Bill is couched in terms of gender, not sex. As noted above, gender is a matter of a person’s psychology and social role, and depends on the person’s view of himself or herself and his or her relationships with others, while sex is principally concerned with physical characteristics. The Draft Bill emphasises that it is not concerned with physical characteristics in a number of ways.
28. In our view, the flexible approach adopted by the Government in not restricting recognition to people who have undergone surgical sex reassignment therapy is entirely appropriate, and we welcome it. Allowing people to apply for recognition before, or without, surgery or other specified therapies would avoid discriminating against people who for some medical reason unconnected with their gender are unsuitable for particular kinds of surgical, hormonal or other treatment. It would also allow people in the process of sex or gender reassignment to have their acquired gender recognised by law without waiting an uncertain period for particular types of treatment to become available through the National Health Service if the Gender Recognition Panel is satisfied that they have or have had gender dysphoria, have lived in the acquired gender for two years, and intend to live in that gender for life. The evidence presented to us suggests that the expert professional members of the Panels are unlikely to issue certificates to people who are making a mere lifestyle choice. Indeed, there were suggestions in the evidence that medical experts are sometimes unfairly sceptical about whether a person is suffering from gender dysphoria.
29. We conclude that the Draft Bill represents a sensitive and sensible compromise by allowing pre-operative transsexual people to have their acquired gender recognised, with the Gender Recognition Panel providing a safeguard against premature or frivolous applications. In our view, the absence of a requirement for people to undergo surgical or medical reshaping of their bodies before applying makes it sensible to speak of gender rather than sex in the Draft Bill.
b) Are any legal problems presented by the language of gender rather than sex?
30. While we accept that it is appropriate to speak of gender rather than sex in the Draft Bill, we consider that the language of gender might make it more difficult to be sure that the legislation will produce the required effects
34. Accordingly, we recommend that a further paragraph should be added to clause 5 of the Draft Bill, making it clear that where under any legislation it is necessary to decide the sex of a person who has an acquired gender, or to say whether that person is a man or a woman or male or female, the question must be answered in accordance with the person’s acquired gender, except to the extent that the Draft Bill or the legislation in question provides otherwise expressly or by necessary implication. Without such a provision, we fear that there is a significant risk of the Draft Bill failing to achieve some of its purposes.
The Government has always intended that, once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born male would, in law, become a woman for all purposes. The Government has taken into consideration the Joint Committee’s recommendation and has amended the Bill accordingly. In order to ensure the full legal effect of recognition in the acquired gender, the relevant clause now reads:
9(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
c) Sex discrimination on the ground of the person’s acquired gender
93. Because a person whose acquired gender is recognised under the Draft Bill would be regarded for all purposes as being of that gender, the Government considers that he or she would be treated as a victim of unlawful sex discrimination for all the purposes of the Sex Discrimination Act 1975 if he or she suffers discrimination on the ground that he or she is a person of his or her acquired gender.
94. We hope that the Government is correct, but we are not completely confident. As we pointed out above, in paragraphs 31 to 34, the Draft Bill uses the language of gender rather than sex, while the Sex Discrimination Act 1975 generally makes it unlawful to discriminate on the ground of sex, not gender. To make absolutely sure that the legislation would achieve its intended effect, we recommend that it should expressly state that ‘sex’ in the 1975 Act is to be interpreted as including the acquired gender of a person who has obtained a full gender recognition certificate.
The draft bill was the point at which the decision was made not to restrict legal recognition of gender to post-op transsexuals. This was beyond the legal precedent set by the ECHR case in which the applicant Goodwin was post-op. The reason for extending provision to people without having had reassignment surgery was to not discriminate against people who, for whatever reason, couldn’t have surgery or to prevent delays while people wait for surgery. Admirable aims, but with major implications in that for the first time fully male-bodied people could now be legally female. The move away from the consideration of physical characteristics was also a step towards the inclusion of a category of people later considered transgender rather than transsexual
A difficulty was noted at the time that we still see today. This is the lack of clarity between the words sex and gender and whether a GRC provides protection under sex discrimination laws. A opportunity to clarify this situation was rejected by the government for reasons unknown.
3) The bill’s passage through the Lords
This government bill started its passage through parliament with the Lords and was proposed by Lord Filkin (Labour). After its introduction (first reading) on 27th November 2003 the draft bill was debated properly for the first time (second reading) on 18th December 2003. The vast majority of the comments concerned issues regarding the bills impact on marriage and religious considerations. However, some issues were raised regarding the impact on the meaning of biological sex and the impact on women. Lord Tebbit being the most strident of objectors.
a) Extracts from the debate at second reading:
Baroness Buscombe: “There are also fundamental issues of human rights in the Bill, affecting individuals who have not themselves undergone a change of gender but may have their rights compromised by a person who has changed gender. For example, it will be possible for an individual to change their gender without undergoing an operation for a sex change. That person will then be quite within his or her rights, as we understand it, to, for example, share a prison cell, nurses’ quarters or sports changing facilities with others of their chosen gender. Even though there is treatment to modify sexual characteristics, should we not consider the feelings of those with whom that person shares very private areas? Whose human rights take precedence? How does one judge in individual circumstances what is balanced and proportionate? It is very difficult for all concerned”
Lord Bishop of Winchester: “If the Bill becomes law as it stands, the words “woman” and “man” will no longer have the meaning that everyone, including the law, has always assumed. In Clauses 2 and 3, the Bill is more widely drawn— I understand why—than, for example, Goodwin, which requires the recognition only of post-operative transsexual persons”.
Lord Tebbit: “My Lords, I do not support the Bill in principle, in any way, up hill or down dale. This is a bad Bill. It is a most offensive Bill. It is certainly offensive to the followers of more than one religion, but I do not intend to make those criticisms today. In the speech of the right reverend Prelate, we heard of some of his telling concerns. Sex cannot be changed. It is no good the Minister shaking his head. Sex is decided by the chromosomes of a human being. If we have XX chromosomes, we are women; if we have XY chromosomes, we are men. I might perhaps accept the Bill if an additional requirement for registering changes of gender were that it had been discovered that those concerned had inappropriate chromosomes for the sex in which they had been registered. That is the only way in which the Bill could avoid telling a lie. So far as I know, there is no law nor any known medical procedure that can change the sex of a human being. The Bill purports to do so. It is therefore an objectionable farce………Moral and constitutional issues are also involved. The Bill requires members of a gender recognition panel, on the production of certain evidence, in broad terms to certify that a person who was born a woman, lived as a woman, married as a woman and has borne children is, despite all that, entitled to be issued with a birth certificate falsely professing that she was born as a male child………..Clause 12, which can only be described as part of the script of a farce in a theatre of the absurd, states that although a woman may be certified as having been born a man, he or she—I do not know which—remains the mother of her children. What an extraordinary mess; it defies logic. ………..The Bill is so bad that it should be taken away, and the Government should think of another way to help people who suffer this acutely distressing psychological illness.”
Lord Goodhart: “My Lords, of course the noble Lord, Lord Tebbit, makes a point that is a justifiable part of the argument. But our belief is that we should recognise that there is a group of people who while, biologically (chromosomally perhaps) are of one sex, are socially and in other respects—psychologically— of a different sex. In those cases, I believe that it is legitimate. It obviously is not compulsory, but it is legitimate for the Government to take the view that they should be treated in relation to the sex to which they socially belong and not to their chromosomal sex.”
Lord Chan: “No mention is made of undergoing reconstructive surgery of the genital organs. It is therefore likely that individuals applying for gender recognition certificates will continue to be men with male sexual organs. About half of male transsexuals have not undergone surgery. If they are then given gender recognition certificates classifying them as females, serious consequences would affect their partners, children and other people, including women who use public toilets. There will doubtless be more reports of outrage by women protesting against the use of their toilets by people possessing gender recognition certificates as women who have male genitalia.”
Baroness O’Cathain: “Will pubs be able to enforce bans on transsexual people, for example following public complaints on the issue of using female facilities? What will be the situation if a transgendered man competes as a woman in female sports? I shall not go further on that matter. I am sure that my noble friend Lord Moynihan will deal with it, in view of his comments in The Times yesterday. I hate to admit it, but men are usually physically stronger than we are. The whole area of women’s sport could be turned upside-down.”
b) Extracts at committee stage:
As is normal procedure, the bill then moved into Committee phase. At this point amendments to the bill are tabled and decisions made about which should go forward to the third reading and final vote. There were two committee sessions in which all amendments were debated and recorded by Hansard (29th January 2004 and 3rd February 2004). Lord Tebbit tabled a number of amendments to thwart the aims of the bill (called wrecking amendments). The most notable being the Amendment 86 which was opposed by Lord Winston.
Lord Tebbit: Amendment 86: “Notwithstanding any other provisions of the Act, no two persons each possessing XX chromosomes nor each possessing XY chromosomes, nor each possessing genitalia appropriate to the same sex, may be married the one to the other”.
Lord Winston: “Genetics is rapidly changing our understanding of where sex is determined. But to define it simply as genital, hormonal or, as the noble Lord, Lord Tebbit. seeks to do, as gonadal, is a travesty of what really happens”.
This amendment was rejected (Contents, 46; Not-Contents, 121.)
c) Extracts from third reading:
The Lords third reading and final vote happened on 10th February 2004. In his summing up Lord Filkin said:
Lord Filkin: “The central thrust of the case of the noble Lord, Lord Tebbit, was that one’s chromosomes are the beginning and the end of the story. The Bill does not seek to rewrite history. It does not seek to say that what was recorded at birth is not a historical fact. That is a historical fact; it is kept and it is recorded. The Bill recognises that in very limited circumstances, for a very limited number of people—after a proper process of testing, through medical opinion, advice and process test—it is right for the state to give recognition of a change of gender. The Bill does no more than that, but it is right that it does that.”
The Lords passed the bill: Contents, 155; Non-Contents, 57.
Three-quarters of the votes supported the bill. Note the emphasis again at this stage that the Lords were supporting a bill which set out limited circumstances along with proper testing and with the expectation of limited numbers of people. Very different to the position we find ourselves in today.
4) The bill’s passage through the House of Commons
This bill continued its passage through parliament with MP’s debating at the House of Commons. After its introduction (first reading) on 11th February 2004 the draft bill was debated by MP’s for the first time (second reading) on 23rd February 2004.
The vast majority of the comments concerned issues regarding the bills impact on marriage and religious considerations. Worthy of note however was the repeated reassurance that this bill would apply to a very small number of people (a mere 5000) and that most transsexuals will ultimately undergo reassignment surgery. The issue of how this would affect prisons was raised and largely dismissed. Ann Widdecombe opposed the bill for religious reasons however she was also very clear that this bill was bad law. Nevertheless, the second reading was passed with a big majority.
a) Extracts from second reading
Tim Loughton: “Will prisoners be liable to apply for a gender change certificate if they started that exercise before they became prisoners? If so and they are granted a certificate, what will be the accommodation arrangements for that prisoner? Will he or she have to be moved, or is this something else that the Government need to think about but have not, as with pension rights?”
Mr Lammy: “Prisoners can apply and that person will be subject to prison arrangements for their new acquired gender. We are talking about a very small group of people and the hon. Gentleman knows that that situation would arise in limited circumstances”
Mr Lammy: “The original birth record will not, and should not, be erased, because it is a record of a historical fact. The original birth record will remain in existence, and any person who has the original birth details will have access to a certified copy of that record. The point of issuing a new birth certificate is to allow the transsexual person privacy by not revealing their gender history in a public document. We feel that this is a reasonable safeguard for that small group of people.”
Lynne Jones: “The majority of transsexual people want to undergo a medical process that will leave them physically as congruent as possible with their gender identity. This has nothing to do with sexuality. Exactly like other people, transmen and women can be straight, lesbian or gay. The condition is not associated with a particular form of sexuality: indeed, many such people have a lower libido, often as a result of the medical treatment that they have to undergo……On occasions, for medical reasons, it is not possible for people to have the full transition……It is true, however, that the Bill does not require there to have been surgery but requires the individual to demonstrate that they have lived in that role for two years. There are good reasons for that. It may not always be medically possible for people to have the full reassignment surgery, but in my experience, the majority of transsexual people want to undergo the full transition”.
Ann Widdecombe: “Even if the Bill were the most perfect measure, I could not vote for it on the ground of conscience. However, the measure should cause everybody, even those who support its principle, to pause for thought. It is muddled and a legal quagmire. Despite the fact that it has been through the other place, there are massive, important questions that the Minister could not answer today. I do not say that abusively; he simply could not answer them…..No man or woman is an island. When we try to rectify an injustice, we must examine the impact on others and on society. Until we have managed to answer the questions that are raised in that examination, we should not rush into passing the Bill. Again, I stress that even if one accepts the principle—and I make no bones about the fact that I do not —this is a bad Bill.”
The House divided: Ayes 335, Noes 26.
b) The third reading and final vote:
The bill was passed as expected with a strong majority with only 50 votes against. In 2004 Labour had a massive majority of 412 under Tony Blair and all labour votes were in support of the bill. Likewise, the Liberal Democrat’s (with 52 MPs) party line was in favour of the bill. All Lib Dem votes supported the bill. The same for Plaid Cymru (4 MPs) and SNP (5 MPs). Ulster democrats (6 MPs) and the DUP (5MPs) voted against.
Conservative Party MPs were split on the issue, and the party leadership did not issue a whip mandating MPs to take a particular stance on the bill, instead allowing its MPs a free vote. Only 59 of the Conservative Party’s 166 MPs participated in the vote. With 39 against and 20 in support.
The bill was given royal assent on 1st July 2004
4) The Gender Recognition Bill (2004)
The Act clearly sets out that once a GRC is issued, the person’s gender becomes FOR ALL PURPOSES (bar some exceptions) the acquired gender and that person is eligible for a replacement birth certificate indicating their new gender. This means that, uniquely, the person’s legal sex becomes the opposite of their biological sex. In the UK prior to this Act someone’s legal sex had always corresponded to their biological birth sex.
Although the conditions required to change legal gender requires the process to be under the supervision of a medical professional the Act DOES NOT require any form of gender reassignment surgery. At the time, in 2004, the UK was the first European country to not require this for legal gender recognition. Most notably, the UK went beyond the legal requirement set by the ECHR in which the legal precedent had been set for a post-op transsexual. The UK was under no legal obligation to have removed the need for surgery at that point*. The consequence of this decision is of course, that now, not only can a biological male be considered legally female but that they can also be fully, bodily male.
A comprehensive summary of the Gender Recognition Act 2004 has been compiled by Fair Play For Women and can found here.
*In April 2017 The European Court of Human Rights ruled that the requirement for gender reassignment surgery to obtain legal recognition of gender breached Article 8 respect for private life. The 22 remaining states withing the Council of Europe will now be obliged to change their legislation accordingly.
5) Reform of the Gender Recognition Act 2004
The UK government has announced its intention to reform the Gender Recognition Act 2004. This reform aims to remove the need for medical supervision entirely and to no longer require 2 years ‘living in role’. The intention is that the process will simply require a statutory self-declaration of the new gender. Although Fair Play For Women supports the need for transgender rights and legal recognition we strongly oppose these reforms. The consequences of self-declaration will be bad for women and society in general. It will be open to abuse and will threaten the existence of single-sex spaces for women; particularly in prison. More information about the impact of self-declaration of legal gender on the prison system can be read here.
6) Timeline of changes to trans rights over the past 20 years
This diagram shows the introduction and changes to the UK’s gender recognition (above) and sex equality laws (below). In both cases the UK went beyond what was required by the international court rulings and removed the need for gender reassignment surgery. Medical supervision was still required. However, in 2010 anti-discrimination protection for transgender people became based on gender reassignment being a person and non-medical process. Government propose that the same now happens for legal gender change. Fair Play For Women opposes this change because it does not represent a fair balance between the right’s of transgender people and the right’s of women or wider society in general.