Government's reply to PFC's response to Government anouncement
Rosie Winterton responds to PFC’s recommendations
22nd February 2003
PRESS FOR CHANGE: RESPONSE TO THE GOVERNMENT’S ANNOUNCEMENT OF 13 DECEMBER
Thank you for your considered response to the points made in my announcement of 13 December which set out how the Government intends to legislate to give transsexual people their rights under the European Convention on Human Rights.
I can offer the following points. As I am sure you will understand, consideration is still being given to a number of your concerns, and my response reflects this. I can assure you, however, that all these matters (and others) are receiving attention. I hope you will forgive me for condensing some of your recommendations for ease of response.
Recommendations in paragraphs 2-8 and 8.4: that legislation be progressed quickly and that practical adjustments be allowed in the meantime.
As you know we aim to publish, in due course, a draft outline Bill to give legal recognition in their acquired gender to transsexual people who can demonstrate that they have taken decisive steps towards living fully and permanently in the gender acquired since they were registered at birth. That will make it possible for them (if otherwise eligible) to marry in their acquired gender. We hope that the draft outline Bill can be published during this Parliamentary session, with primary legislation being brought forward when Parliamentary time allows. Although we have considered whether any practical adjustments can be allowed in the meantime, we believe that primary legislation will be needed before the judgments in Goodwin v the United Kingdom and “]” v The United Kingdom can be implemented. This is partly because there is no legal definition of a transsexual person and apparatus for formal recognition needs to be established.
Recommendations 8.1 -8.3: that “data collection” be undertaken by ONS pre-Bill to speed applications and inform Government
While the Government could receive and count the numbers of possible applications for legal recognition, ONS itself will have no role in assessing applications when the law is in place nor in advising the authorising body we expect to install. It would not be helpful or appropriate, in the meantime, for any Government department or agency to deal with such applications. To do so may mislead individuals into thinking their application had been considered and could lead to misunderstandings. The General Register Office for Scotland takes a similar view.
Recommendation 13.1: that a uniform date of implementation be agreed with the devolved administrations
As I said in my announcement, the Government is committed to legislating as soon as possible to give transsexual people their Convention rights. Whether Parliament at Westminster should legislate for the whole of the UK on this matter is under consideration, particularly in view of the inter-relationship between devolved and reserved policy aspects. As you say, many of the relevant matters fall within the responsibility of the devolved administration in Scotland and would have fallen within the responsibility of the Northern Ireland Executive until suspension of devolved arrangements. Such matters were not transferred to the National Assembly for Wales under the Government of Wales Act and remain the responsibility of the Westminster Parliament. The Scottish Executive is committed to reforming the law as soon as reasonably practicable. How this will be best achieved will be a matter for the new Scottish Executive and Scottish Parliament following the Scottish elections in May. In Northern Ireland, officials are currently considering the implications of the Goodwin and ’OJ” judgments. There are no plans in either jurisdiction for legislation to be implemented in advance of that in England and Wales.
Recommendations 13.2 -13.3 and 17.1: that legislation be framed to allow recognition for all legal purposes and for all UK citizens
As you know, we propose that fonnal recognition in the acquired gender will bring with it the rights and responsibilities appropriate to that gender -nonnally, from the date that the change is recognised. There may be limited exceptions created in the legislation. The scope for recognition is being considered in drafting the outline Bill.
Recommendations 17.2 -17.4: that State pension be granted at the age appropriate to the acquired gender
The Government is still considering how claims from recognised transsexual people will be dealt with, once the legislation is in place. Weare looking at all the issues mentioned in the Press for Change response.
Recommendation 17.5: that existing marriages be retained with preservation of rights and benefits
Recommendations 20.1 -20.3: that insurance and pension companies be required to show good reasons for disclosure; that schemes follow the acquired gender; and that doctors be excused from full disclosure, where appropriate
These recommendations too, are receiving urgent consideration.
Recommendations 22.1 -22.2: that former names not be revealed by the Criminal Records Bureau unless good reasons exist (eg sex-specific offences)
The CRB studied this point very carefully when considering the implications of the Goodwin and “I” cases. It is accepted that the position outlined in your proposals will affect only a very small number of CRB’ s transsexual customers. The right to privacy is not absolute and the CRB has to weigh the rights of vulnerable people to be protected against the rights of listed people when devising processes.
The CRB’ s primary purpose is to aid safer recruitment. In the vast majority of cases, the right to privacy can override the need to provide registered bodies with details of previous name and gender. But where a criminal record is discovered, it is considered necessary for full details to be revealed.
Your paper expressed concern that a person’s details would be made known to a prospective employer if, for example details of a minor motoring offence had been recorded. Part V of the Police Act 1997 places the CRB under an obligation to disclose all convictions that appear on the Police National Computer. However, only recordable offences should appear on the PNC (those carrying the possibility of imprisonment, plus others which are not imprisonable but which have been designated in law as recordable). Although there is a possibility that a minor offence (not on the PNC) could be turned up in the course of a local police search for an enhanced disclosure, it would only be disclosed if, in the judgement of the Chief Officer, it was relevant to the matter in hand.
Recommendations 26.1 -26.7: that a scrutinising body conducts an administrative or paper exercise on the basis of proof of name-change and 2 years’ living in the new gender; that further evidence be sought, if necessary; that re-applications or appeals be allowed; and that a trans person be part of the scrutinising panel
The composition, procedures and powers of the authorising body are being considered. My announcement, on 13 December, spelled out our position on eligibility for recognition.
Recommendation 26.8: that State pension and National Insurance records be amended from the date of name-change for recognised individuals
Both the Department for Work and Pensions and the Inland Revenue expect to amend current procedures concerning National Insurance records, following the introduction of legislation.
Recommendation 26.9: that a trans man be allowed to register his name as father on a birth certificate, with the mother’s agreement
We are considering the possibility and implications of retrospective registration.
Recommendation 28.1: that new records be maintained in the acquired names (that is, surnames as well as forenames)
This is still under consideration. Plans for reform of the registration service in the longer term will remove the need for certificates for official purposes and will allow people to record changes of name.
Recommendations 30.1 -30.2: that new National Insurance numbers and identifiers are provided on request or that all former names and gender details are expunged from records, after formal recognition
In my announcement in December, I said the Government does not intend to issue new National Insurance numbers following gender re-assignment. Such numbers are not gender-specific. It is essential that records are held under one number to ensure that data are recorded accurately and that people will be able to receive their proper benefit entitlement.
While the Department for Work and Pensions and the Inland Revenue will be working to amend procedures to reflect future legislation and protect individual privacy, it will not be possible to expunge all details of former gender and names from records. Any such action could place data integrity and the benefit entitlements of the individual and any dependants at unacceptable risk.
I hope this reply is helpful. I am aware that I cannot go as far as you would like on a number of topics, but we are addressing your concerns. The proposed draft Bill will demonstrate this.
ROSIE WINTERTON