Gender Recognition Bill 2004 - Hansard records

[PencilsInSpace]

I've found all the debates, written answers etc. for the gender recognition bill when it was going through parliament in 2004.

Does anybody fancy a thread for poring through these?

I think there may be quite a lot in there that we can use to challenge the proposed changes to the GRA. Reading through the debates we can see what the original intentions of the law makers were. Biology hasn't changed since 2004 and neither has male violence. What has changed is the range of people who might seek a GRC and what their intentions are.

I think a case could probably be made that the self ID proposal runs counter to the intentions of the original act.

For example, the very first paragraph of the first written answer, even before the draft bill was published, states that the gender recognition bill was introduced in response to 'the Government's commitment to legislate to allow transsexual people who have taken decisive steps to live fully and permanently in the acquired gender to gain legal recognition in that gender'.

That's not what is happening now. No 'decisive steps' necessary, no living 'fully and permanently' in the acquired gender.

pencils
Have just noticed this thread. I think this is a great idea. Much as I would love to join in discussions ( im so wound up sbout all this its keeping me awake at night) I have very little spare time so wouldnt want to commit and then not live up to that. I hope others will say yes though

Wow! This is an exeptional find!

I will definitely work my way through this to see if there is somr precedent to enforce an equalities impact report and strengthen the demand for a full consultation...there's quite a lot! But I do love to read

I also really want to explore this when I've got more time. You make a good point Pencils. I think there are definitely several legal points to challenge.

The intention of the original act was also to allow for transsexuals to marry, so there may be an argument that the act should have been repealed on the introduction of civil partnerships.

Also, from the Scottish consultation:
"3.08. In 2006, the non-binding Yogyakarta Principles were agreed by a wide-ranging group of human rights law experts, representatives of nongovernmental organisations and others. They set out existing international human rights law and principles, as the authors believe they should be applied to the treatment of lesbian, gay, bisexual and transgender people. Principle 3 asks countries to:

“take all necessary … measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex including birth certificates … reflect the person’s profound self-defined gender identity” and to “ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned”.

3.09. In 2015, Resolution 2048 of the Parliamentary Assembly of the Council of Europe (Resolution 2048) expressed concerns that requiring someone seeking legal recognition of their acquired gender to have been medically treated or diagnosed is a breach of their right to respect for their private life under Article 8 of the ECHR. The resolution calls on all Member States to:

“develop quick, transparent and accessible procedures, based on selfdetermination, for changing the name and registered sex of transgender people on birth certificates, identity cards … and other similar documents”.

3.10. The view of the Scottish Government is that the 2004 Act requirements are unnecessarily intrusive and do not reflect the best practice now embodied in the Yogyakarta Principles and Resolution 2048."

So there is no case law for the proposed law changes under Article 8 of the ECHR, just some 'concerns'. No court decision or EU directive.

Article 8 says:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

I could make a case to legally challenge the GRA on the basis of every point made there - protection of children's health, rights and freedoms of women being curtailed, national security of document change, and so on.

Was the original 2004 Act based on an ECHR case? If so, can this be appealed/judicial review? At a very basic premise we have legislation that states humans can change sex - this is factually incorrect.

I'll come back to this...

IIRC the 2004 act was based on a not unreasonable ECHR case to do with a trans person's right to marry. This predated civil partnerships and now of course we have equal marriage, which makes much of the original intention of the GRA redundant.

Imherefornow - equality impact assessments are to do with the Public Sector Equality Duty. This was part of the Equality Act 2010 so I'm not sure what requirements there were in 2004 to do impact assessments. The requirements are certainly there now though and if a public organisation fails to properly consider how its policies affect people with different protected characteristics they can be legally challenged.

Thelilywhite - TBH I'm not sure how much time I'll have to devote to this either. I don't think we'll manage a forensic line-by-line analysis, but with lots of us just dipping in and out we might find some useful stuff. I'm particularly keen to find the bits where they debate the clause on peerages and titles

Goodwin vs. the UK ECHR 2002. It wasn't just about the right to marry, also the right for TIMs to stop paying national insurance and claim a pension at the same age as women (so that will soon be obsolete as well), some completely reasonable stuff to do with workplace discrimination that is now covered by the EA and some administrative difficulties with the DSS.

I had a light bulb moment the other day re the difference between 'transexual' and 'transgender'. The 2004 Act already caters to transsexuals - those committed to living as women and who have transitioned. I know it's an obvious point but sometimes it's helpful stating the obvious.

Maybe it would be helpful to spell it out the difference to those jumping on the liberal band wagon - ie., those self identifying are actively deciding not to transition.

Sorry above a bit off topic. I'll have a read too!

Not off topic at all, Regression. This is being talked about as an amendment to an existing law. In fact, it's more like a whole new law that will give a different set of rights to a different group of people.

Yes, that's just it pencils!! The way the current "debate" is going you'd be forgiven for thinking there hadn't been a 2004 Act!

Interesting...so it looks as if it's the Yogykarta Principles that might in part be driving the proposed legislative shift here from protection of those actually transitioning, or transitioned, to anyone who "identifies" as the other sex.

But these principles haven't actually been made into any kind of treaty that anyone has signed up to, nor have they been adopted by the UN.

The principles also deal with sexual preference and gender identity within the same bracket - as if they're the same type of thing. I find that tricky - one seems (to me) to be about freedom to associate, and form relationships with, those people one fancies - the other seems to be about the entitlement to be treated as someone that one's biologically not, without any action on one's own part to change physical state in any way at all. Those feel like qualitatively different issues to me.

one seems (to me) to be about freedom to associate, and form relationships with, those people one fancies - the other seems to be about the entitlement to be treated as someone that one's biologically not, without any action on one's own part to change physical state in any way at all.

Yes this has always confused me. It seems to me like - unless you're a massive homophobe - a man who wants to have sex with other men and a man who wants to wear a dress are very different things.

Seems like it was rushed through:

"The timetable for the Gender Recognition Bill, which had its Second Reading yesterday, was drafted in response to the need to protect the British taxpayer against liabilities as a result of the judgment by the European Court of Human Rights."

I reckon you're right, jellyfrizz:

Baroness Blatch in Address in Reply to Her Majesty's Most Gracious Speech HoL, 04/12/03 - However, this Government have little time or regard for the history, conventions and traditions of this or the other place. There is a universally accepted convention that a line in the gracious Speech should state, "Other measures will be put before you"." That line is included to allow the government of the day the flexibility to introduce legislation later in the parliamentary year that had not been foreseen at the outset or in response to an emergency situation. However, the Government introduced the Gender Recognition Bill—not mentioned in the gracious Speech—the very next day. The Bill must have been in print even as the gracious Speech was being made.

From here (Lords sitting 18/12/03) - The Bill is the product of much thought and consultation with stakeholders over many years. The Interdepartmental Working Group on Transsexual People, set up in 1999, published its report in April 2000, and that work led to the publication of a draft Bill on 11th July 2002.

I found the IWGTP report referred to here (PDF). It's quite long.

From what I can see, it was indeed passed to give people marriage rights, and hasn't really been discussed since.

First legislation was Sex Discrimination (Gender Reassignment) Regulations 1999. Expanded and replaced by Equality Act 2010. www.legislation.gov.uk/uksi/1999/1102/regulation/2/made

I'm not sure the extent to which the Act expanded the law or how much it is a result of activism on existing law.

Official Report of the Grand Committee
Reversal of Application Process

Baroness O'Cathain: "There are two cases in Australia at the moment in which people who have had gender recognition or gender change are actually suing the state for wrongful advice."

I wonder what the outcome of this was?

Wow jellyfrizz that's interesting!

I found this in the PDF report linked above:

Gender Reassignment
1.5 Gender reassignment is commonly termed a sex change, but in reality it is an alteration only in a person’s physical characteristics. The biological sex of an individual is determined by their chromosomes, which cannot be changed. What can be achieved through the transsexual person’s own efforts, and with counselling, drugs and surgery is social, hormonal and surgical reassignment.

This was in 2000, before we discovered all that 'advanced biology', obviously.

IIRC the 2004 act was based on a not unreasonable ECHR case to do with a trans person's right to marry. This predated civil partnerships and now of course we have equal marriage, which makes much of the original intention of the GRA redundant.

Really? So because same sex marriage was not legal, the answer was to add the 2004 act so same sex people could amrry if one declared themselves the opposite sex, rather than you know..just making same sex marriage legal?! Is this a joke?

So, Alan Finch was one of the people. He got his case to the Supreme Court in 2009 but I haven't been able to find any records of the hearing.

It is mentioned many times that the Bill was to help transexuals and that gender dysphoria is a medical condition (also how this is such a small number of people).

Official Report of the Grand Committee; 4GC, Lord Filkin:

"The Bill will give legal recognition to transsexual people in their acquired gender. A person's gender will, subject to the issue of a full gender recognition certificate, become the acquired gender.

The Government's understanding of transsexualism is rightly founded on the Chief Medical Officer's recognition of gender dysphoria as a medical condition that may require treatment. Treatment has been available within the NHS for a considerable time.

The Government have discussed the aims, objectives and impact of the Bill with, among others, the British Medical Association, the General Medical Council, the Royal College of General Practitioners, the Royal College of Psychiatrists and the British Psychological Society.

The principle of legal recognition in the acquired gender is that a person's gender will, subsequent to the issue of a gender recognition certificate, become the acquired gender. That will ensure, on the whole, the continuing effect of gender-specific terms in legislative enactments. The Government have 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. 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.

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 man or woman, or male or female, the question must be answered in accordance with the person's acquired gender.

The Government, and the European Court of Human Rights, have always acknowledged that opinion is divided in some parts of the medical profession on the nature and cause of transsexualism. However, the Government support the position of the European Court of Human rights that the remaining controversy over the nature and aetiology of transsexualism must no longer stand in the way of transsexual people enjoying their basic human rights. That is the central and essential position that we take."

I found this while googling around looking for stuff on the Finch case (didn't find anything specific to that). It appears detransition was already a thing in 2004:

Paradoxically, a growing number of post-operative transsexuals are scathing about their medical care. International research suggests that 3-18% of them come to regret switching gender. The issue has gained public attention since January when the General Medical Council (GMC) began an inquiry into the UK's best-known expert on transsexualism, consultant psychiatrist Russell Reid. Last month the GMC announced that Dr Reid will face a charge of serious professional misconduct over allegations that he has put his patients' health at risk.

Baroness Caithness was looking ahead (my bold):

^At the moment there is an example in the news of a BBC programme in which a transsexual man was referred to as a man. Press for Change, the transsexual rights group is campaigning for the BBC always to refer to transsexuals in their chosen gender. That is indicative of the Orwellian nightmare that the Bill encourages. Will people who refuse to call a transsexual man a woman routinely face that kind of hostility? Given what we established yesterday, which is that the Government believe that many people change their minds and revert to their real gender, or oscillate between the two, how are people to know which gender a person wants to be known as at any particular time? I say again that it is absurd to say that a man can become for all purposes a woman or vice versa.

§ Let us take the example of a woman who obtains a gender recognition certificate, but who does not undergo the surgery. She may be married and, under the Government's proposals, may convert her marriage to a civil partnership. After she receives a certificate declaring that she is for all purposes a man, she and her husband may decide to have a baby; she becomes pregnant; she is booked into a hospital as Mr Smith—the first man to have a baby—and the hospital in all its dealings with her must treat her as a man. Are there not privacy issues for other women in a maternity ward having to share with a man? What about her employers? Presumably, they are not obliged to give her maternity leave as she 1s, for all purposes, a man. Men do not get maternity leave.

§ This is really lurid tabloid headline stuff, I agree, but the Government are leaving themselves wide open to that because they are so much in thrall to transsexual rights advocacy groups. The Government are taking into account their views, and theirs alone, in proposing the Bill. I hope that we shall begin to see some willingness on the part of the Government to think again. I beg to move.^

Also Baroness Caithness:

...I have a horrible feeling that, if this Bill as it stands becomes law, the law of unintended consequences will come in in spades.

It's brilliant that these are being looked at. Well done.

Amazing find, jelly. How were her points responded to? Did someone reassure her that this would never happen?

Can I ask a favour? As we find things, can we post the link to the relevant page so they're easy to find again?

Sorry, yes 64GC (Official Report of the Grand Committee).

Response was basically - v. small and vunerable number of people - must protect them. Stop offending people. Here's a little bit (65GC):

Essentially, the Bill recognises a change of gender and gives it legal effect in certain circumstances and after a proper process. A person in law cannot be more than one gender: they are either male or female, and that is a fact of law. Therefore, although I know what the noble Baroness is getting at, the use of the words, "as if it were", is a way of signalling her distaste for the Bill—and, perhaps, that of others. It adds nothing in the law, except perhaps to convey some gratuitous offence to other people. Therefore, I very much hope that she will not think it necessary to press for those words here and now, having well registered the areas in which she is out of harmony or sympathy with the Bill. They add nothing in law, but they do cause offence.

(Note relevant bit about only two gender in law and only being able to be one on them at a time.)

She withdrew because of process (66GC):

..I know that I cannot press the amendment because we are in Grand Committee, but I want to place my feelings on record and I cannot promise that I will not return to the matter on Report. In the light of that, I beg leave to withdraw the amendment.