Transsexuals - Departmental Interests

The Machinery of Government and Standards Group
23 April, 1996

Introduction  Department of Health  Home Office  Department of Education and Employment  Lord Chancellor’s Department  The Scottish Office  Office for National Statistics  Other Interested Departments  Conclusion

Introduction

Transsexuals

1. In his letter of 5 February to the Parliamentary Under Secreatary, Department of Health, rounding off ministerial correspondence on Mr Alex Carlile’s Gender Identity (Registration and Civil Status) Bill, the Lord President said:

"I can see the case for some collective discussion on this issue, although I think it would need to be on the basis of concrete proposals.  I can also see some force in Michael Forsyth’s point that there is some uncertainty about where within Government, the lead interest lies.  It may not be that any one Department will lead on all the issues raised in the correspondence, but I am asking Cabinet Office to consider this further…."

2. This note reports the conclusions of the Machinery of Government study requested by the Lord president.  We have borne in mind the undertaking given by Mr Horam during the debate on Mr Alex Carlile’s Bill in the house on 2 February:

"the Goverment recognise the importance of the issues … We shall carefully consider the issues raised by the Bill."

3. It seems to us that the best and most economical way of meeting this undertaking would be for Ministers to start from first principles and look at, and form a view on, possible approaches to the overall issue of transsexualism.  Possible policy approaches seem to fall within the following spectrum:

• status quo. Justify and defend the current position, confining further work to the development of coping strategies against the risk of adverse judgements in domestic courts or the ECHR.
• amelioration. Identify and remove the most pressing disadvantages which stand in the way of transsexuals playing a full part in society in their chosen gender.
• positive endorsement. Give transsexuals full civic and legal rights in their acquired gender.

4. Only in the light of that collective judgement would ministers commission more detailed work if necessary.  The alternative approach - a paper reviewing the implications for, and possible changes to, different laws, policies and practices which arise from transsexuals’ pressure for improved rights could entail a good deal of ultimately nugatory effort in preparing a policy equivalent of the January 1996 legal analysis which the Attorney General commissioned in 1991.  The priority should be a relatively short paper (to which the legal analysis could be attached), explaining the background; listing the key "demands" made by transsexuals and (briefly) the issues they raise; and inviting Ministers to indicate whether they want more detailed work done and if so whether it should, in the terms used in this paper, assume a policy of no change, amelioration or positive endorsement.

5. We have therefore defined our remit as seeking to identify who is best placed to lead on preparation of a broad general policy paper which would enable Ministers to form an overall view.  (We would distinguish this task from the question of who should lead on further work on transsexuals following Ministerial consideration, the answer to which must depend on the overall policy direction Ministers decide to take.)

6. We have completed a round of consultations with interested Departments and, as did the earlier paper from the Legal Secretariat to the Law Officers, this has shown that there are consequential implications for law, policy and practice across a broad range of Government business.  It has also confirmed that there is no obvious lead-Department in that there is no identifiable single issue of principle which rests to be decided by one Department and to which all other issues raised for Government are logically subsidiary.

7. In the absence of any such defining principle, we have considered whether there is any single touchstone issue which, both in the minds of transsexuals themselves and amongst the general public, can be said to have primacy in determining and demonstrating society’s approach to transsexuals.  Having examined all the main issues in this light (Annex A), we have concluded that it is law and policy on marriage which stands out as such an issue.  This, in our view, makes the Home Office the Department best placed to lead and co-ordinate the work necessary to produce a paper from first principles as outlined in paragraphs 3 and 4 above.

8. We do not think that the question which we have addressed admits of a right answer.  Nonetheless, we do believe that the commissioned paper would be best generated by a Department which would be directly and significantly affected by the range of policy options and so be able to offer a [?] policy/assessment of the implications of "concrete proposals" on which ministers want to base their general policy discussion.

9. In particular we are conscious that the LSLO report of January this year was itself the product of a commission in late 1990 - early 1991.  It is now well over two months since we took up this more limited task.

Departmental Perspectives

Department of Health

1. The department of Health led on Mr Alex Carlile MP’s Gender Identity (Registration and Civil Status) Bill.  However, that was in part because the bill was concerned in particular with Birth Certificates, which were a matter for the OPCS which is now part of the Office for National Statistics, which reports to Treasury Ministers.

2. On one view the Department of Health should take a lead because the issues arise in the way they do as a result of the provision of gender reassignment surgery.  But the question whether surgery should be made available on the NHS has been resolved.  The availability of surgery is not at issue.  The issues are now concerned with the consequences of transsexualism.

3. A separate argument is that the Government’s consideration of transsexualism is best taken forward in the context of issues affecting the Family.  The Secretary of State for Health has responsibility for co-ordination and presentation of cross-Government Family policy.

4. The Department also has responsibility for the Children Act, the law on adoption, and the Human Fertilisation and Embryology Act 1990.  In all of these areas, transsexualism raises potential issues.  (eg what is the position of a female-to-male transsexual who is the partner of an artificially inseminated woman?)

5. Policy on transsexuals, particularly as regards marriage, divorce and legal parenthood, undoubtedly raises issues which must be examined from the perspective, amongst others, of the Family.  Indeed, some of the most difficult problems arise in this area because the right to privacy sought by transsexuals would, if granted, in some sense be at the expense of others, namely spouses, children and other relatives.  Some illustrative examples :

• the right of female-to-male transsexuals to have legal parental responsibility for their children.
• the possibility of a child having two mothers/fathers.
• the right to privacy and the countervailing social expectation that transsexualism ought to be declared in custody/access disputes.
• balancing a child’s right to have decisions on parental responsibility, access etc made in his or her best interests with the right to privacy of the transsexual.

6. All of these are sensitive questions, on which government policy on the Family will be an iportant and possibly decisive factor.  But they are not core issues in the sense that their resolution will not, of themselves, produce a coherent approach to the general issue of transsexualism.

Home Office

7. Two arguments may be advanced for a Home Office lead.  The first is that the most important single issue is the law on marriage, for which the Home Office has responsibilty.  The present position is that transsexuals may marry in their biological, but not their acquired gender.  It is law and policy on marriage which, both for transsexuals themselves and in the general public perception, above all defines society’s general stance the rights of transsexuals.  It would be difficult to defend distinct treatment for transsexuals in other fields, such as employment law, if transsexuals had been granted the right to marry in their acquired gender.  This is not to suggest that the marriage law should be revised, but that it naturally stands at the centre of any review.  A decision on this point would be decisive to the Government’s choice between the three broad approaches identified in the covering note.

8. Although marriage is the most important Home Office policy interest, it is not the only one.  Immigration comes into play in the context of rights of entry for spouses.  The criminal law, particularly sexual offences legislation, would be affected by any change to the status of transsexuals.  The law and policy for single-sex prisons would also be affected.

9. The second argument is that the absence from British law of a general concept of the Citizen and his rights and obligations does not remove the need to begin any analysis of this issue by asking the fundamental question: "what should the civic status of transsexuals be?" and the Home Office is well placed to do that.

10. The Home Office has responsibility for Bill of Rights issues and leads on whether the European Convention on Human Rights should be incorporated into UK law.  Although the questions those issues raise are related, rather than identical, to those posed in relation to the rights of transsexuals, many of the legal issues turn on the provisions of the ECHR.  While the mere fact that a dispute has arisen under the ECHR does not of course give the Home Office a locus, the centrality of the ECHR in determining the rights which transsexuals are claiming does support the view that the Home Office is best placed to lead on and co-ordinate a review from first principles.

Department of Education and Employment

11. Some of the current legal cases are concerned with treatment by employers, although not necessarily with employment law.  The DfEE does have responsibility for Equal Opportunities in the Education and Employment fields and for discrimination on the grounds of sex and marriage.  While these do give it a clear interest they are not sufficiently central for it to be invited to lead, particularly as it does not have any general responsibility for anti-discrimination measures across all walks of life.

Lord Chancellor’s Department

12. The case for LCD taking the lead is that the issue is essentially about the legal status of transsexuals in society.  The transsexual lobby is above all concerned with change to their legal status, and correction of their misconceptions about the effect of amending their birth certificates would not alter that.

If their concerns were to be met - in whole or in part - it would probably be through a procedure such as issue of certificates following court orders analogous to those issued after adoption orders.  But, whether that or some other means is preferred, the issue is one of legal policy.

Moreover, what ever route is followed the subsidiary questions which arise are also likely to be ones of legal policy.  Examples include: how to minimise problems of retrospectivity, and identification of the preconditions for grant of a court order (eg perhaps that the individual should not be married).

These considerations mean that it may well be for LCD to lead on further work once Ministers have decided the overall policy direction.  But in our judgement they will not be the principal determinants of that decision.  We believe Ministers will wish to take their decision in the light of the political, social, and moral dimensions as well as the legal policy issues.

13. However, LCD has a number of interests: divorce law (where policy would naturally follow that on marriage, although some separate issues also arise); family law including questions of paternity and maternity; inheritance law, where distinction by gender may occur.  It has an interest in the implications for the courts of any legislation to introduce payers to make change of sex orders.  While LCD should be closely involved in further work, policy on two of its principal interests - divorce and family law - is likely to follow leads which lie elsewhere (Home Office and Health respectively) and overall its interests do not place it in the lead.

The Scottish Office

14. In Scotland, the Civil Law Department takes the lead, co-ordinating the interests of other Departments.  The nearest thing to a Whitehall opposite number is LCD (although we understand their functions do not precisely mirror each other) and the Civil Law Department leads for reasons like those at paragraphs 12-13 above.  However, there has to date been no occasion to make any submisison to Scottish Office Ministers on general policy options.

Office for National Statistics

15. The responsibilities of ONS for Birth Registration and administration of Marriage Law place it at the centre of the current legal disputes.  In the case of Marriage Law the Home Office has the policy responsibility.  Policy on Birth Registration, including taking the lead in any review of the role of the Register as a record of historical fact, lies with ONS.  This is one reason why the Department of Health, which at the time had responsibility for OPCS, led on Mr Carlile’s Bill.

16. However, as Mr Horam explained in the House on 2 February, the focus on Birth Registration is partly due to the mistaken belief that, if the Registrar General would agree to alter birth certificates, that would give some sort of full legal status to transsexuals in their acquired gender.  Whatever change in practice or innovation in respect of Registration is made, it will not be for ONS to answer the prior question of what policy objective is being served.  An attempt to review transsexualism from first principles cannot start from the technical recording of biological sex at birth.

Other Interested Departments

17. There are a number of other departments which, while there can be no serious suggestion that they should lead, do have interests which require that they should be involved in developing work.  These are:

• the Department of Social Security (because of different treatment for men and women in the superannuation fields);
• the Welsh and Northern Ireland Offices;
• the department of National Heritage should, we suggest, be kept in touch in case a sport dimension emerges although that appears unlikely at this stage;
• the Legal Secretariat to the Law Officers.

Conclusion

18. The department best equipped to lead and co-ordinate a review of the issues, and generate a paper for the sort of Ministerial consideration now needed, is the Home Office.  The decisive factor is its responsibility for the law on marriage.  In our judgement the law on marriage is the touchstone issue by which one would decide and judge a society’s approach to the problems engendered by transsexualism.  This is not, of course, to suggest that there should be change in marriage law; but rather any review from first principles will need to draw out Minister’s thinking by addressing in concrete terms the implications of the answer they give to the question of whether transsexuals should be legally entitled to marry.

19. The Department lead will, of course, need to be reassessed in the light of Ministers’ eventual decision on the approach to be adopted.