Liberty submissions for Inter-departmental Working Group (1999)

Introduction

Liberty[2] is grateful for the opportunity to comment on this crucial area of discrimination law reform.  Having contributed to the leading case of Sheffield & Horsham v UK [1998] FLR 928 by means of an amicus brief, Liberty wishes to be part of the ongoing review into the rights of trans people in the UK, which the ECHR in the above case noted had been neglected by the UK for many years.

2. 

This paper aims to provide a critique of the current legal framework surrounding protection for trans people against discrimination and considers options for future law reform, including the question of recording sexual identity on official records.

Background - rights for trans people

The European Court of Justice (“ECJ”) decided in the landmark case of PvS & Cornwall [1996] All ER (EC) 397, ECJ to extend the protection of the Equal Treatment Directive 76/207/EEC to trans people: both prior to and after undergoing gender confirmation.  The reasoning of the PvS decision is only partially reflected in the Sex Discrimination (Gender Reassignment) Regulations 1999 (“1999 Regulations”), which bars discrimination in the employment arena alone against those who “intend to undergo” gender confirmation, as well as those who “are undergoing” and those who “have undergone” gender confirmation.

Critique of the 1999 regulations

Definitions and terminology

Liberty believes that the current terminology used, such as gender “reassignment” is unhelpful.  For instance, this term suggests that a person is “changing” their gender identity when they are merely confirming their true gender identity through the assumption of their actual social gender role, and also through hormonal and surgical treatment.[3]

Under the South Australian Equal Opportunity Act 1984 “transsexualism” is expressly included in the definition of “sexuality”: and under that Act it is unlawful to discriminate against a person who was thought to be of a particular “sexuality”, regardless of whether the presumption is correct.  Liberty considers that the 1999 Regulations should be amended to include this type of discrimination, but in relation to discrimination against a person on the basis of their gender identity.  The fundamental objective must be to remove discriminatory behaviour, even if the discriminator is incorrect in his or her presumptions.

Failure to incorporate discrimination outside employment field

The Regulations were meant to be designed to reflect the ECJ’s ruling in P v S that discrimination on grounds of gender confirmation is contrary to the Equal Treatment Directive, which deals with employment and vocational training.  The Government has chosen to bring in legislation in the form of a statutory instrument under the European Communities Act 1972 which inevitably restricts its impact to the employment arena covered by the Equal Treatment Directive and the judgment in P v S.

Liberty argued in its Response to the 1998 Consultation Paper that it would be desirable to extend any amendments to the Sex Discrimination Act 1975 (“the SDA”) to all the areas covered by Part III of the SDA (such as education, goods, facilities, services and premises).  Liberty considers that by restricting the law to the employment field, the legislation fails to address the need to safeguard trans peoples’ rights in other significant areas.  The need to provide such protection was highlighted in paragraph 22 of ECJ’s decision in P v S:

“To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court [and the Government] has a duty to safeguard”.

The Government has not explained why it has not at least extended Part III of the SDA to cover discrimination against trans people.  The failure to do so is a serious deficiency.  Liberty also considers it unsatisfactory that the definition of discrimination in Part I of the SDA will differ from the way the term discrimination is used in Part III.

The present approach lacks coherence and consistency.  In addition to the inherent disadvantages of working within a legal framework, which does not appear to have a sensible, logical basis for the distinctions it makes, there is a significant disadvantage in the maintaining of such distinctions, which, in Liberty’s view, strikes at the fundamental principle underpinning anti-discrimination legislation as a whole, where new areas of unequal and unfair treatment emerge from the law.  At present under domestic law the nonsensical scenario could arise where a trans teacher was protected from discrimination under the SDA, but a sixth form pupil intending to undergo gender confirmation was not protected.

Perusal of the case law illustrates that the employment context is only one of many in relation to which discrimination encountered by trans people undermines their status as citizens.  The arguments of those appearing before the Court in Sheffield & Horsham v UK were illustrative:

“The Applicants (male to female transsexuals) stated that under UK law they continue to be regarded as being of the male sex and to suffer prejudice on that account.  The failure to give legal recognition to their new gender had serious consequences for the way in which they conducted their lives, compelling them to identify themselves frequently in public contexts in a gender, which they had renounced.  This was a matter of profound hurt and distress and an affront to their dignity.  Ms Sheffield’s experiences provided a convincing account of the extreme disadvantages which beset post-operative transsexuals and of how the current legal situation operated to the detriment of their privacy and even exposed them to the risk of penalties for the offence of perjury.  For her part, Ms Horsham claimed that she had to abandon her residence in the UK in order to avoid the difficulties which she encountered there as a transsexual.” (Page 937E-F)

The impact of the European Convention (in particular Articles 8 and 14) on the 1999 Regulations

The fact that the 1999 Regulations go no further than the employment arena is in itself likely to infringe the European Convention on Human Rights (“Convention”).  For instance, discrimination against trans people in the fields of education, goods, facilities, services and premises are likely to be unlawful in particular pursuant to Article 8 (right to private, family and home life), Article 1 First Protocol (right to peaceful enjoyment of possessions), Article 2 First Protocol (right not to be denied of your right to education) and Article 14 (right to enjoy the Convention rights free from discrimination on any ground).

The inadequacies of the health care of trans people might also give rise to claims under Article 2 of the Convention (right to life), for instance where there has been an unwarranted delay in the receipt of surgery for several years, which has led to clinical depression and greater risks of suicide.

Furthermore, the refusal to afford full legal recognition to gender confirmation and the confirmed gender identity (for example by not permitting trans people to at least have their birth certificates amended or notated with the true gender identity) deprives trans people of a congruent civil status.  This goes to the heart of the guarantee in Article 8 to ensure the protection of personal identity.  Liberty would also support the call by groups such as GIRES in their bid to have future birth certificates remove all reference to sex/gender identity of the child.  Refer to pages 5 to 14 below.

The dissenting judgments in Sheffield & Horsham v UK support the view that a failure to afford such legal recognition (and protect trans people against discrimination in other areas, such as education, goods, facilities, services and premises which must inevitably flow from such full legal recognition) may be a breach of Article 8 and, significantly, in view of the clearly identifiable trend in this area of law, be held to be so by the ECHR in future decisions.  Liberty would support the concerns as expressed by Judge Casadevall in his summary of the position, in his partly dissenting judgment at page 951 (see appendix to submissions).

Liberty urges the Government to extend discrimination legislation to prohibit discrimination against trans people in all fields, at the very least as covered by the SDA, but also for instance as envisaged by the European Convention (e.g.  relating to freedom of association and peaceful assembly and the right to privacy).

Just as with age discrimination, Liberty is not confident that methods, which stop short of legislation will be truly effective in the fight to stamp out discrimination against trans people.  The remaining steps should be taken before the Human Rights Act comes into force.

Liberty’s other concern regarding the 1999 Regulations relates to the exceptions permitted under the heading of “genuine occupational qualifications”.  Regulation 4 provides that it is not unlawful to discriminate on grounds of gender confirmation where a person’s sex is a genuine occupational qualification for that job and the employer can show that his or her treatment of the person is reasonable in view of section 7(2) or any other relevant circumstances (our emphasis).  Liberty is concerned that this key exception might be used by employers to argue that they require a “biological” man or woman for specific jobs.  There should not be any such exception applied in the case of trans people.  This exception reinforces the discriminatory stereotypes and misunderstandings applied to trans people: it allows third parties, such as employers, to assert that a trans person is of their unwanted biological sex (in particular in terms of that person’s sexual organs), where that trans person has personally renounced that biological sex.  It also implicitly rejects the fact that a trans person is confirming their true gender identity and undermines their legal status in that gender identity.  Accordingly, it denies the trans person their right to self determination, including the right to confirm their true gender identity.  In any event, when any reasonableness test is applied and when relevant circumstances are taken into account, due respect must be paid towards a trans person’s privacy and her/his need to be regarded as a member of the gender to which s/he has been confirmed or to which confirmation is sought.

At present under the 1999 Regulations trans people cannot enforce their right to use the facilities of their confirmed gender identity outside the employment arena.  We argue that it is a violation of the Convention, in particular under Articles 3, 8 and 14 to insist on a trans person using separate facilities such as a disabled toilet.  The appropriate time for changing from one set of single sex facilities to the other is at the time the true social gender is assumed and confirmed by the individual rather than at the point of surgery.

We remind the Government that it agreed at the Amsterdam Inter-governmental Conference in June 1997 that there should be protection against discrimination based on sex, race, ethnic background, religion, belief, disability, age or sexual orientation.  It is likely that Article 13 of the Amsterdam Treaty will provide protection relating to fields beyond employment (in particular, provision of goods, facilities and services, education and housing).  Liberty’s view is that the Treaty will cover discrimination against all trans people both prior to and after surgery.  Therefore the law of the European Community, in line with the trend in the European Court of Human Rights referred to above and elucidated upon below, is moving towards a greater recognition and protection of the legal rights of trans people.

Alteration of documents

Amendment of birth certificates

Of 37 European Member States 23 permit change of the birth certificate to reflect the confirmed gender identity of the person.  Only the UK, Ireland, Andorra and Albania positively prohibit this change.  The latter two states do not permit gender confirmation at all.  Only two US states refuse to amend the biological sex stated on a birth certificate.

Some examples of the way that the Courts have dealt with issue of changing official records follow.

The ECJ case of Konstantinidis [1993] ECR I-1191 was not concerned with confirmation of gender.  Rather, Mr.  Konstantinidis wished to change the spelling of his name on his marriage certificate and argued that the German authorities’ refusal to permit him to do so amounted as a breach of European Community Law.  Advocate General Jacob said at paragraph 26 of the judgment:

“Birth, marriage and death are the most significant and sacred events in a person’s existence.  The entries made in official registers to record such events and the corresponding certificates issued to the person concerned are of such obvious importance that the migrant worker should be entitled to demand that he, like any citizen of the host country be properly identified in those documents and have his name written in a manner which is not insulting and offensive to him.  From a purely practical viewpoint it should in any event be noted that even if Mr.  Konstantinidis is legally free to write his name as he pleases for social and professional purposes, he would inevitably feel some pressure to use the spelling prescribed for official documents; discrepancies between those documents and his everyday practice, regarding the spelling of his name, might cause him inconvenience and embarrassment and would a source of unnecessary confusion for all concerned”.

The reasons for changing the certificate in the above case were not related to the confirmation of gender, but were concerned with the alteration of a historical record, and the AG’s appreciation of the difficulty of squaring the name used everyday with the name on the register, is of assistance when considering the difficulties trans people face in relation to official records, although trans people face more acute problems for instance as to discrimination as a result of having to disclose their former biological sexual identity.

In X, Y and Z (Application No.  21830/93 22 April 1997) the ECHR gave its judgment on the basis that the available information did not reveal a “common standard” amongst the member states with regard to the legal rights of trans people but instead concluded there existed a “diversity of practice” and “little common ground”, so supported the margin of appreciation argument to be discussed below.

In the judgment of the ECHR in Sheffield & Horsham v UK, the majority gave the following reasons for their view that no breach of Article 8 was caused by the UK’s refusal to amend the birth certificates of the two applicants:

The margin of appreciation has been upheld by the ECHR on a diminishing basis, as can be seen from the judgment of Sheffield & Horsham v UK where there was a very narrow majority (11:9).

Liberty suggested in their submissions to the ECHR in Sheffield & Horsham v UK that the social developments and current circumstances in the rest of Europe and much of the international community undermined a claim to the “margin of appreciation” with respect to trans people’s rights.  Whilst the majority in Sheffield & Horsham v UK did not find in favour of the applicants the dissenting judges had these comments to make:

These are some of the reasons put forward by the ECHR judges for no longer supporting the margin of appreciation.  The following additional arguments can be made against it.

First, there is little evidence to suggest that alteration of birth certificates would cause “social disruption”.  In the member states, which permit such change (including Sweden, Belgium, Luxembourg, Spain, Italy, Switzerland, Denmark and Germany) there have been no adverse social, administrative, or legal consequences documented.  The integration of trans people into these societies has not caused notable controversy.

Set against the paucity of evidence that amendments cause any social disruption, is the impact upon an individual of failing to amend official documentation, which is disproportionately detrimental and adverse.  The trans person is exposed to the unwarranted intrusion into their private life and trauma both socially and professionally of revealing her/his past biological sexual identity: which the trans person personally has rejected, and denies that person the right to confirm their true gender identity and be accepted in all respects in that gender identity.

Revealing the original biological sexual identity necessitates public consumption of intimate details which the individual will frequently wish to put behind him or herself, in addition to which is the discriminatory attitude of some others who attach a social stigma to trans people of being regarded as “neither one thing nor the other”.  The risk of such marginalisation prevents individuals from being able to fully integrate in society.  Trans people may chose not to apply for certain jobs, to stay away from specific social scenarios, to avoid jury service or assisting the police in inquiries, and to refrain from volunteering their services in nurseries or hospitals or arenas: where the fact of their previous biological sexual identity might be raised and the “veracity” of their confirmed gender identity might be questioned by those with their own discriminatory stereotypes of trans people and their own lack of understanding of the process of gender confirmation.

Gender confirmation is a difficult process full of anguish and personal struggle.  That the process is made harder by the denial of recognition of civil status, is a continuous and unjustified infringement of trans peoples’ rights to privacy and expression of their own confirmed gender identity.

Furthermore, in the light of the case law and the evidence from other Member States no margin of appreciation argument can or should be maintained.  It may be useful and may assist the working party to consider the following examples which further support our contention, even if these systems are not ideal and have their own shortcomings:

The position in Germany. German legislation provides for two separate procedures to accommodate the needs of the pre and post-operative trans person.  The first section of the Transsexual Law (“TSG”) 1980 provides that a German citizen, or a homeless foreigner who is stateless, or a foreign refugee or an asylum seeker who is resident in Germany, can change their forenames to ones more appropriate to their gender role.  The requirements are that they should be at least 25 years old and that the assumption can be safely made that it is improbable that they will change their feelings of the need to confirm their true gender identity and undergo surgery to correct their former biological sexual identity.

The trans applicant brings her/his application to the Regional Court where the interests of the public are represented by a state-appointed legal representative.  The trans person must submit independent reports from two experts in the gender confirmation field, which reports must confirm that according to scientific evidence it is improbable that the applicant will change her/his feelings of needing to confirm their true gender identity.

Once an order to change the forenames has been made, the trans person and her/his relatives are obliged to state only the new name for official records and registers.

The applicant may apply for the decision to be annulled if in the future s/he feels the wrong decision has been made.  An annulment cannot take place if the trans person adopts or has a child after her/his name is changed or if s/he marries using the new name.  (In the UK anyone can change their name by deed poll, so this initial step would not aid trans people here further.)

The TSG 1980 goes on to provide for the “establishment of belonging to a sex group”; a procedure for post-operative trans people, which allows the Court to establish that the individual can now be considered as belonging to the “other” sex from that stated in her/his birth certificate.  Certain requirements are imposed for applying for the change, some of which are discriminatory in themselves and give rise to potential violations of the Convention (e.g.  requirement that the trans person is not married).

The trans person must state the forenames s/he is going to use and must provide expert reports demonstrating that certain criteria have been met.  From the date of the court’s decision the trans person is to be regarded as belonging to their confirmed gender identity and any rights or duties dependent on gender are to be governed by her/his confirmed gender identity.  (It is not clear what happens to those whose health does not permit them to undergo the operative changes, but one should note that the legislation does not specify that the operation be a penectomy or vaginoplasty, or a hysterectomy or phalloplasty.  The question of just how much surgery is required is still being debated in the German Courts.)

The birth certificate is rectified and the only persons with access to this are the individual concerned and government officials.  The trans person may also be issued with a “personal status certificate”.  It appears that for benefits such as pensions and insurance it is still possible to determine the original biological sex from a form of the birth certificate.

The position in the Netherlands.  According to Dutch law every Dutch person who is convinced of belonging to a sex other than that set out in their birth certificate and who has been physically adapted to the desired sex as far as this is possible and justified (from a medical and psychological point of view), can request a court to order that the indication of sex on the birth certificate is modified.  Certain pre-conditions are applied prior to such modification, again some of which are discriminatory and give rise to potential violations of the Convention (e.g.  requirement that the trans person is not married).

Along with the application the individual must submit a copy of the birth certificate and a joint declaration of her/his appointed experts.  If permission is granted for the certificate to be changed first names can also be changed on request.  This process takes around 3 months.  In contrast to most member states where trans peoples’ rights are laid down by the executive or in caselaw, the Dutch civil code enshrines the procedure described above.  A “female to male” trans person living as a man in a marriage or in a marriage-style relationship becomes by law the father of a child born to the woman he marries or lives with and will be registered as the father of the child.

In summary, Liberty believes that the argument as to margin of appreciation can no longer be maintained and can no longer stand in the way of denying trans people their right to determine and confirm their true gender identity.

Liberty would also question the circumstances in which there could be a justification for retaining some record of the birth biological sex.  Arguments in favour of having such a historical record are raised in particular, in relation to insurance and pensions on the basis of the difference in the lifespan of women as compared with men.  Arguments as to sex discrimination arise as a result of the difference in treatment between men and women in this context.  Accordingly, Liberty believes that there will not be any situations in which there could be a justification for retaining the record of a person’s birth biological sex, and a trans person should be treated as being of the gender identity to which they are undergoing or have undergone confirmation.  If ever any circumstances could be raised justifying the retention of the record of a person’s birth biological sex, it is vital that the interests of the State wishing to have access to the record of birth sex be balanced against the trans persons’ desire for privacy and ability to assert their true gender identity.

Disclosure of records identifying birth sex

In many Member States official documentation showing sex must be shown for the purposes of insurance.  An amended birth certificate for these purposes is of more assistance to the individual than a rectified document, if that document must be disclosed to third parties.  There is a procedure in Finland to protect trans people from unnecessary disclosure of the sex originally registered on official documentation.

One concern noted by the majority in Sheffield & Horsham v UK was the likelihood of occasions arising where individuals would have “justified” requests made to them to provide proof of gender as well as medical history, examples given by the Court as being life assurance contrasts, motor insurance, and checks on criminal records.  The Court balanced against this need the efforts made by the UK to minimise intrusive inquiries into their gender status by allowing trans people to be issued with driving licences, passports and other types of official documents in their new name and confirmed gender identity.  It noted that the use of birth certificates as a form of identification is discouraged.

None of the above would have assisted Ms Sheffield who told the Court in Strasbourg that various records apart from her birth certificates such as social security and police records continued to record her original name and biological sex.  This had embarrassed her when standing surety for a friend, dissuaded her from acting as an alibi for another friend and prevented her from pursuing an inquiry regarding whether her past details were held on police computer files under the Data Protection Act 1984.

The dissenting judges did not accept that this need to retain some historical record meant that the applicant’s claim should fail.  At page 950 of the judgment the minority judgment states:

“If the State can make exceptions in the case of driving licences, passports and adoptive children, solutions can be found which respect the dignity and sense of privacy of post-operative transsexuals…  it must be possible for the law to provide for transsexuals to be given prospective legal recognition of their new sexual identity without necessarily destroying the historical nature of the birth register as a record of fact.”

And further at page 951:

“Admittedly it is not for the Court to dictate, or even indicate, the measures to be taken in the present case, the respondent State having a free choice of means, provided that these are compatible with the obligation to respect private life as protected by the Convention.  But I would also agree on this point with the Commission’s opinion that it would not be too difficult for domestic law to be changed so as to give the applicants, by whatever means were deemed appropriate, legal recognition of their new post-operative identity, without necessarily destroying or impairing the historical nature of the British system for the registration of births (if not by correction then at least by means of an addition, a margin note or simply a comment in order to reflect the present situation.”

In summary, when considering the alteration of documents, even if it could be shown that it is necessary for some records to retain a reference to the original sex (of which Liberty is not convinced unless evidence is produced to support such a contention), Liberty can see no justification for such records to be disclosed to anyone other than those who have a direct involvement in the administration of such records.  The definition of “involvement” should be narrowly interpreted with the trans persons’ consent being required for any disclosure other than that which is essential.  Of course the individual may voluntarily disclose the fact of their confirmed gender identity, but if employers need to disclose information to insurance underwriters or benefit agencies, prior consent in writing must be obtained.

Marriage and children

Liberty believes that all trans people should have the right to marry, including those undergoing or having undergone gender confirmation.  Furthermore, there should be no discrimination against trans people whether they be pre or post operative in relation to the adoption, custody of, access to or fostering of children.

Prisons

The issue of whether the criminal law recognises gender confirmation is relevant to treatment in prisons: including in relation to medical treatment available; segragation of the trans person from the rest of the prison population of the renounced biological sex; intimate searches; identity checks.  Liberty believes the position should be clarified and in particular the position of pre-operative trans people should be recognised.

Pensions

Those who are born after April 1955 retire at 65, be they male or female.  Women born before 1950 retire at 60 and those born between 1950-1955 at between 60 and 65.  Since the legal sex currently remains the same, trans people born before 1955 will retire at the age appropriate to their original biological sex.  Hence a “male to female” trans person born before 1950 will still retire at 60, and not at 65.  The birth biological sex is also used to determine pensions.  Liberty believes that the law governing pensions and retirement should recognise gender confirmation and treat a trans person accordingly.

Funding

In the recent case of R v North West Lancashire Health Authority, ex parte Miss A, D and G [1999] 21 December 1998, the Divisional Court held that a policy of refusing hormone and surgical treatment to trans people was unlawful (on the grounds of being irrational and Wednesbury unreasonable) because it fettered the health authority’s discretion in discharging its duty of providing treatment and facilities for the “prevention of illness and the cure” of persons with “gender dysphoria” or intersex conditions.

The health authority had maintained that such treatment would be refused unless there were exceptional circumstances over and above the clinical need, and that it had exercised its judgment in the allocation of limited healthcare resources.

We note that in the UK, the NHS often does cover gender confirmation surgery although there are unsatisfactorily long waiting lists (e.g.  5 to 12 years).  State assistance does not usually cover electrolysis for removal of male hair growth.

Examples of provision in some other European states provide helpful comparisons.  Gender confirmation surgery is covered in the Netherlands by the social health insurance.  In Finland psychological, hormonal and surgical treatment is subsidised by the state.  In contrast, when the operation is considered as a necessary treatment for intersex conditions in Germany, the state will reimburse in full.  The same is true in Sweden.

Liberty notes that the 1999 Regulations do not provide for protection against discrimination in the field of health services provision.  Liberty believes that express provisions should be made to avoid the N.W.  Lancashire Health Authority scenario reoccurring and to ensure that funding is not withheld on a discriminatory basis.

Conclusion

It remains the case that in the UK, trans people cannot alter or rectify their birth certificates and consequently cannot marry.  Liberty does not accept that there will necessarily be a need for a historical record: and even if so, only in extremely limited circumstances.  If it can be shown that any such historical record is required, Liberty suggests that a note may be added to the register as evidence of the legal recognition of the gender confirmation.  Only those who could demonstrate a need to see the original certificate on grounds justifying derogation under Article 8 would be so permitted.

The dissenting judgments in Sheffield & Horsham v UK emphasised a number of points of crucial importance:

The extensive research undertaken by Liberty, combined with the clear distress caused by the lack of legal rights and remedies afforded to persons who undergo gender confirmation under UK law, demonstrates that the need for the sort of legal protection recognised by the dissenting judgments in Sheffield & Horsham v UK is both necessary and justified.

Liberty urges the Government to enshrine the legal rights of persons at both the pre- and post-operative stage of gender confirmation in legislation.  The Government is asked to recognise the fact that although there is an increasing social acceptance of gender confirmation both in Europe and within this country (among other things the introduction of a trans person’s character in one of the UK’s leading soap operas reflects this) those undergoing gender confirmation make up a very small social group about whom there remains a considerable level of ignorance in the general population and towards whom significant prejudice and consequent discrimination is directed.  Liberty believes that it is therefore vital that the law takes a clear and strong lead in combating such discrimination.  There is no evidence that measures short of legislation will prove powerful enough to achieve this.

This submission also underlines the need for an all-encompassing and coherent approach advocated above.  A legal framework which fails to:

not only breaches the Convention, in particular Articles 8 and 14 (and as such will fall foul of the Human Rights Act when it comes into force) but imparts a confused and confusing message in relation to the need to overcome discrimination.  To so fail would be to miss the opportunity both to acknowledge the increasing acceptance of issues faced by trans people in society and to use the law to transform and extend such acceptance so that the full civil rights of trans people are universally recognised, and protection against discrimination is ensured in all areas of life.