The Good, The Bad and The Ugly of the New GerBil

Unchanged | Restructuring | New Stuff | What’s Gone | Some Small Changes | Two ugly stings in the tail | Action

Four-and-a-half months after the draft Gender Recognition Bill (GerBil) appeared in July, we can now see the final shape of the government’s proposals to parliament.

The full Gender Recognition Bill was finally published on Friday, and debate will begin in about two weeks, at Second Reading.  (You can read the bill on the parliamentary website)

So, what has changed since the draft GerBil?

The quick answer is: some restructuring, a lot of extra detail, and a few changes — which include the good, the bad and the ugly. Unfortunately, there are two real horrors in there.

Unchanged

The overall structure of the bill has not changed. It still offers recognition for all legal purposes, it still does not require people to undergo surgery, and it still requires married transsexual people to dissolve their marriages before obtaining a full Gender Recognition Certificate (GRC).

Restructuring

Several of the longer sections in the draft bill have been split in two. As a result, all the section numbers have changed — so care is needed when making comparisons with the draft bill.

New Stuff

The schedules to the bill have grown huge. That’s partly because each schedule has to separately address the laws of Scotland and of Northern Ireland, as well as the previous provisions for England and Wales.

Schedule 5, which deals with pensions and benefit, is all new — those provisions were not ready in time for the draft bill. One of the truly ugly sections of the new bill is in schedule 5.

What’s Gone

Section 8(2) of the draft GerBil set out a mechanism for recognising trans men as the fathers of their partner’s children. Sadly, that provision has been removed from the final bill.

The DCA has privately explained its reasons for this. It seems that further consultation with the Department of Health revealed that it would difficult to demonstrate from the records in fertility clinics whether the father had been party to the treatment, as would be required under the Human Fertilisation and Embryology Act. This was not an objection in principle, just a realisation that there were serious problems in the availability of evidence. There was also concern that introducing what might appear to be retrospective acknowledgement of ’fatherhood’ might impose civil liabilities on others for their actions in the past.

This regrettable change will be deeply disappointing to the couples affected, but the reasons do seem justifiable. The effect on the couples will not be disastrous: they will still be able to jointly adopt the child, so long as the father obtains a gender recognition certificate and marries his female partner. So the father can still be legally recognised, through a different route.

Some Small Changes

Some of the changes are small, but welcome.

1. Privacy protection has been usefully strengthened, though not as much as we would have like. Section 14(4)(d) of the draft bill allowed disclosure where it was “in the course of official duties”, but this wide exemption has been removed from the final bill. That is a very important change, and very welcome — but the final bill retains the unqualified exemption for disclosure made in connection with court proceedings.
2. Section 10 of the draft bill provided that the gender recognition would not affect the disposal of property under a will. Section 15 of the final bill usefully simplifies the proposal, and makes it clear that acquired gender will apply in a will written after the Gender Recognition Act comes into effect.

Two good and useful changes arise out of review meetings which the DCA held with community groups in October, to assess how the application process might work:

3. Section 2(6) of the draft bill required applicants to submit a birth certificate with their application. Under the new bill, a birth certificate will not be required.
4. Section 5(1) of the final version of the bill now provides that a full gender recognition certificate (GRC) will be issued by a court which annuls a marriage on the basis of an interim GRC. In the draft bill, section 3(5) required a further application to the gender recognition panel before a full GRC was issued. This means that if the couple concerned want to register a civil partnership, they can do so straight away, without having to wait for the panels to send them a full GRC.

Two ugly stings in the tail

Now, the bad news. Two items in the final bill are nasty and unnecessary. Neither of these nasties was discussed with PFC or any other representatives of the trans community.

Even more alarmingly, neither of them was available for consideration by the JCHR, which could have been expected to have some sharp words to say about them.

The first of these nasties places an expiry date on an interim GRC, and the other will deprive some old men of their pension.

In describing these things, I will try very hard to avoid any of the four-letter words which come to mind. If my language is restrained, please don’t doubt my horror and anger at these proposals.

Time limit on interim GRC

The first change is to the effect of an interim GRC. In the draft bill, an interim certificate had no expiry date, but in the final bill it expires after six months. Section 5(2) of the final bill provides that the interim certificate can only be used to obtain an annulment if the annulment proceedings are issued within six months, or if the spouse dies within six months of the interim GRC.

Effectively, this points a gun at the heads of a married couple. The interim GRC will lapse if a dying spouse fails to die within six months, or a healthy couple will have to make a sudden decision to end their marriage.

This is a brutal, nasty and wholly unnecessary provision. An interim GRC provides no rights at all, except the right to annul a marriage. It is hard to see any harm that could have been caused by the absence of an expiry date.

The only reason I have been offered for this change is a semantic one: that an “interim” certificate should not last forever. That’s just a problem with the label, and the semantic problem could have been easily overcome by simply renaming it as a “qualifying” GRC, or some other such term.

The real reason, I fear, is legal defensiveness. This was denied when I suggested it, but I suspect that the time limit may have been introduced to make it harder for anyone to obtain an interim certificate and then take court action to challenge the legitimacy of the requirement to end a marriage.

Whatever the reason, this proposal adds insult to the injury of the requirement to end a marriage: it deprives married couples of the opportunity to take their time in deciding whether or not to end their marriage.

At its worst, a couple where the non-transsexual partner is dying would still be advised to annul their marriage in case the death occurs after six months, and the certificate has expired. Words cannot express my revulsion at a law which would place anyone in that situation.

All of this is to be enacted without any guarantee that the proposed civil partnerships legislation will be in force, let alone any evidence that a civil partnership would adequately protect their pensions and other financial and legal concerns.

Couples are being given a deadline to annul their marriage. If they meet the deadline, they may have no legal protection for their relationship; if they don’t meet it, the transsexual spouse will have lost the interim GRC.

Once an interim GRC has expired, an application for a new one cannot be made under the fast-track process which applies in the first six months of the bill’s operation. Some people will therefore find it very hard to meet the higher evidential requirements which apply thereafter. Will the panels refuse to issue a further interim GRC in such circumstances? It would be absurd not to, but if they do issue one, it makes a mockery of the process to have to keep on reapplying.

Expect some interesting court cases if this provision is passed— but overturning it will have to be a high priority.

When I spoke to government officials about it, they suggested that the six-month period might be amended in parliament, and invited me to consider a different period. No thanks: the question amounts to how long it is reasonable for a spouse to live, and I refuse to put any time-limit on someone’s life.

It may be that the only change we can win is to increase the time limit: but any limit at all would be a grave injustice.

Taking away a pension

Trans men have until now been regarded in law as female. That means that they are often forced to retire at the age of sixty, and to collect a woman’s pension.

Schedule 5 of the final bill provides that from the day after a full GRC is issued, people will only get a pension if they are entitled to it under the pension rules affecting their newly recognised gender.

For a transsexual man aged between 60 and 65, this means that his pension payments will stop — see Schedule 5, part 2, section 7(2), on page 29.

Consider for a moment the case of a transsexual man forced out of work because he has not had legal recognition. A man in this situation is likely to be one of those who transitioned a long time ago, and endured years or decades of discrimination. He may have had to retire, because he reached the legal age limit; or he may still be working in one of the underpaid jobs which so many transsexual people have ended up in.

Either way, the loss of a pension is a serious blow. The money involved is tiny for the state, but enormous for these individuals managing on the margins.

The principle involved is simple enough: for those applying in the first six months of the bill, under section 25, there should be no loss of any existing pension.

Action

Most of our previous criticisms of the bill remain, but now we have two new areas where we will have to ask parliament to amend the bill.

As soon as possible, we will circulate suggestions for the action you can take to help improve the bill, and remove these nasty new clauses.