The Problems of Gender Re-Registration

The papers contained in this document have been jointly produced on behalf of: CHANGE, The FTM Network, G&SA, The Gender Trust, GIRES, Liberty and Press For Change, by:

Christine Burns, Tracy Dean, Roz Kaveney, Mark James, Susan Marshall, Claire McNab, Kathleen Redding, Alexander Whinnom, Stephen Whittle

1.   GENDER RE-REGISTRATION: A Recommended Two-Stage Procedure

1.1.   Introduction

1.1.1.   A problem often highlighted in any discussion of legal recognition of gender reassignment is the problem of people who ’revert’ to their original gender role, after a period in their new gender role.

1.1.2.   This arises, on rare occasions, for several reasons:

• Social stigmatisation, prejudice and discrimination against transsexual people is still a significant feature of a minority of British people, and some people who wish to undergo gender reassignment will find that they cannot face the added pressures these things bring to their gender role transition.
• Some transsexual people will develop health complications either as a result of gender reassignment treatment, especially hormone therapies, or for some other reason and so they will not be able to complete the path to surgical reassignment and they will prefer, without that, to revert to their original gender role.
• A few people with gender identity problems will discover that during the ’Real Life Test’^[1] that they are unhappy with the decision they have made, and that gender reassignment is not for them.

1.1.3.   All of these people will all have had to change their name and some public documentation in order to commence the real life test, and they will need to change these back at the time of their decision not to continue in their new gender role.  The problem lies in providing a method whereby these people, along with others who continue to permanent gender reassignment, are enabled an effective means of undergoing the real life test.  In order to do this they will require appropriate documentation recording their ’new’ sex.  However this documentation must not commit all third parties (i.e. those who have a valid interest) to full legal recognition of the ’new’ sex prior to a time where there any risk of the change of sex not being permanent is minimal.

1.1.4.   To resolve this problem we propose a two-stage procedure.  The first stage would ensure that trans people could effectively start the real life test.  The second stage would further allow those for whom the experience of the real life test is successful, and hence will lead to their permanent adoption of their ’new’ sex (gender role), full legal recognition for all purposes, including the validity of a new marriage, in their ’new’ sex.

1.1.5.   We propose the first stage be in many respects similar to the procedures currently followed by transsexual people, but that it further formalises and records the process and provides protection for the transsexual person.  We then propose a second stage allowing those who wish to proceed, with all due precautions, to full re-registration.

1.2.   Stage One: A Statement of Intention

1.2.1.   People who wish to commence the route towards gender re-registration would first undergo a change of social gender.

1.2.2.   This would require:

• a ’statutory declaration’ to the Registrar General that they intend from a certain date to live as a member of the sex opposite to that recorded on their current birth certificate;
• a supporting letter from a medical practitioner stating that the person was undergoing appropriate medical treatment and that they believe the change is intended to be permanent; and
• a statutory declaration of change of name or deed poll witnessed by a legal professional (where the first name(s) recorded on the birth certificate is inappropriate).

[It might be possible, indeed preferable, to conflate the ’declaration of intent’ and the declaration of change of name.] On receipt of this documentation, the Registrar General would issue a Receipt of the Statement of Intention (ROTSI).

1.2.3.   Given that transsexuality can be manifested very early in life, and can cause enormous distress in children so affected, a Receipt of the Statement of Intention (ROTSI) would be granted to a child under the age of 16 on the additional condition that the legal parents or guardians of the child support the application with a statutory declaration to that effect.  This would enable to child to live in the sex in which s/he felt appropriate.

1.3.   The Effect of the Receipt of the Statement of Intention

1.3.1.   A ROTSI would have a marginally wider application than the declaration of change of name currently used by most transsexual people.  A person in possession of a ROTSI would have the right to obtain the alteration and re-issue of many official and civic documents and records in the ’new’ name and sex, including:

• Passport;
• Driving licence;
• NHS records;
• Inland Revenue Records
• Benefit Agency and DSS records;
• Certificates previously issued by exam boards, universities, colleges, professional bodies and similar;
• New pension and insurance schemes, including those managed by their employer; and
• Other documents on which retaining the previous name and/or sex could lead to embarrassment.

NHS and DSS records would retain a reference to the previous name and sex (which would remain confidential on a ’need to know’ basis) but other records should not do so.

1.3.2.   Many of these documents are at present changed on presentation of a declaration of change of name, and a doctor’s letter.  However, as it is only a concessionary procedure, success is often dependent on the good will of individuals.  A few official bodies, at present, (such as exam boards and insurance companies) refuse to recognise transsexual people in their ’new’ sex.  This at present leads to some discrimination and/ or a lack of privacy.

1.3.3.   Any of the newly issued relevant documents e.g. a passport, could then be used to provide confirmation of status should the transsexual person be challenged (for example in public changing rooms), thus preventing discrimination and providing reassurance for other members of the public.

1.3.4.   Two exceptions would be made to the rights of the transsexual person in possession of a ROTSI to be treated for all purposes as a member of their ’new’ sex: marriage in the ’new’ sex; or recording parental status in the ’new’ sex on a birth certificate or adoption certificate would not be not be permitted.

1.3.5.   With the exception of the exclusions mentioned above, a person who had undergone a change of social gender would then be treated for all purposes as belonging to the ’new’ sex.  It is already the case that in law, transsexual people must be so treated for the purposes of employment and vocational training.  However, there remain at present some grey areas (for example discrimination in the provision of goods and services) caused by the ambiguous legal status of transsexual people.  A ROTSI would remove any ambiguity by declaring the transsexual person to be unequivocally of the ’new’ sex for all civil purposes except those explicitly excluded (see above).

1.4.   Stage Two: The Issue of a ’Gender Confirmation’ Certificate

1.4.1.   People who wished to undergo full gender re-registration would be permitted to make an application no less than two years after the date of issue of a ROTSI.  Such a delay would eliminate the vast majority of the small minority of people whom, for whatever reason, decide not to continue living permanently in their ’new’ sex.

1.4.2.   An application for full re-registration would require:

• that the person seeking the Gender Confirmation Certificate had reached the age of 18
• a ROTSI at least two years old (unless they adduce further evidence that they had been living in their ’new sex’ for a period of time prior to legislation in this area, and this period of time would then be deducted from this requirement^[2]);
• a ’statutory declaration’ that the person had lived for a period of at least two years as a member of the sex opposite to that recorded on their birth certificate, and that they intended to continue to do so; and
• a supporting letter from a medical practitioner stating that the person had undergone or was undergoing appropriate medical treatment and that they believed the change to be permanent

On receipt of this documentation he person undergoing gender re-registration would then be issued with a Replacement ’Birth Certificate’ (a Gender Confirmation Certificate) in their ’new’ name and sex.  This would be an ’adoption style’ certificate, looking to the general enquirer as if a copy of an ordinary birth certificate, and it would not retain any reference to the originally recorded name and sex.  It could be traced to the original birth record by the Registrar General as the Registrar General would keep a ’Gender Confirmation Certificate Register’, similar to the Adoption Register already maintained.

1.4.3.   A Gender Confirmation Certificate would not normally be issued below the age of 18, though it may be issued when a person is 16 or over with their parent’s consent.  This is because not all transsexual children will necessarily wish as adults to live permanently in the ’new’ sex - it is acknowledged that some do ’grow out of’ their feelings.

1.5.   The Effect of the New ’Gender Confirmation’ Certificate

1.5.1.   The Gender Confirmation Certificate would give the transsexual person full legal and civic recognition as a member of the ’new’ sex from the date of issue.  This would include: the ability to contract a legal marriage in the ’new’ sex and the ability to record parental status as if of the ’new’ sex on a birth certificate or adoption certificate

1.5.2.   A ROTSI together with the Gender Confirmation Certificate could also be used to obtain alteration and re-issue of any remaining official and civic documents and records in the ’new’ name and sex, with the exception of:

• marriage certificates issued in the previous name and sex; and
• records of any unspent criminal convictions in the previous name and sex, although these may be annotated to also record the new name and sex.

1.5.3.   These exceptions protect, in the first instance, the rights of the other party in an earlier marriage.  In the second instance, they ensure the veracity of the historical record of previous convictions.  It would be a necessary requirement that those people with unspent convictions in the previous name and sex disclose them where legally obligated to do so.

1.5.4.   Birth or adoption certificates for children under the age of 16 which record parental status in the previous name and sex would be altered at the request of the person undergoing re-registration providing this did not result in a new record which recorded two parents of the same sex.

1.5.5.   Birth or adoption certificates for children under the age of 16 on which the name of the father was omitted at the time of registration because he was not eligible to be recorded on account of his (at that time) birth certificate showing the female sex would be altered to include the father’s details after his re-registration, if jointly requested by the person undergoing re-registration, and the mother of the children, as recorded on the birth certificate.

1.5.6.   Birth or adoption certificates for children of 16 and over would similarly be altered but only on the joint application of the transsexual parent and the person whose certificate it is, providing this did not result in a new record which recorded two parents of the same sex.

1.5.7.   The confidential details of the Gender Confirmation Register which would indicate the record of the previous identity of the person undergoing re-registration would be kept by the Registrar General, and would be made available to third parties only if they could show they had a genuine need.  All other records of the previous name and sex, including those in NHS and DSS records, would be removed, or in cases where this is clearly impossible (for example a patient’s medical notes) access to them would be available to third parties only if they can show they have a genuine need to know.  This would assist in protecting the privacy of the transsexual person.

1.5.8.   Commitments undertaken in the previous name and sex will remain regardless of the issue of a Gender Confirmation Certificate.  A marriage undertaken in the previous name and sex would remain in existence even after the issue of a Gender Confirmation Certificate if both parties wished it^[3].  However, if either party to the marriage wishes, they should be granted a divorce at the point at which the Gender Confirmation Certificate is issued.

1.5.9.   Even where a marriage is ended as a result of re-registration, the parties to the marriage would remain obligated in exactly the same way as would pertain in a divorce under ordinary circumstances, for example, for maintenance payments or a share in a pension.

1.5.10.   Existing parental status would also remain, regardless of whether the name and sex is altered on the birth or adoption certificate of another person (see above).  That is, a person recorded as a parent or adoptive parent will retain all the obligations of parental status, for example, for supporting a child financially.  Thus the children of the re-registered person may make the usual claims on a parent, for example, to inherit the financial obligations of the parent whether an estate is intestate or not.

1.5.11.   Any other legally binding contract would also remain binding, although any documentation relating to it would normally be altered to reflect the ’new’ name and sex.

1.6.   Conclusion

1.6.1.   In the event that despite having completed the two-stage process, a person changes their mind about proceeding towards gender re-registration, it would be necessary to go through a similar process as that outlined above.  This would ensure that any obligations or commitments made, during the period when the person was living as a member of the opposite sex, remain.  In our view it is highly unlikely, that there will be many instances of errors outside the two-year period, i.e. those who decide they do not wish to proceed are highly unlikely to have incurred new marital or parental responsibilities.

2.   GENDER RE-REGISTRATION: The Requirement of Sterility?

2.1.   Introduction

2.1.1.   This paper addresses any proposal for transsexual people to comply with a requirement that they are permanently, and / or surgically, rendered infertile before receiving a ’Gender Confirmation’ form of birth certificate or other legal recognition of their new gender status.

2.2.   A History of Compulsory Sterilisation

2.2.1.   In the past there have been various attempts to impose compulsory sterilisation on groups within society.  These are seen, nowadays, as a thing of the past.  On occasion they were seen to result from public policy mistakes, as in the consequences of the United States Supreme Court decision in Buck v Bell (1925)^[4] in which it was held that ‘three generations of imbeciles are enough’.  Alternatively they were seen as being the practical embodiment of extreme racism as in the Nazi sterilisation and killing programmes of the 1930s and 1940s.

2.2.2.   In all of these cases, what was being proposed was overtly intended as negative eugenics, an attempt to cleanse the gene pool of degenerate elements and an attempt to save money in the next generation.  A common reaction to an alleged crisis of over-fertility among ’problem elements’ was that ’we are going to be eaten out of house and home by lunatics and mental deficients.’ (Lord Ridell, newspaper proprietor and hospitals board member).

2.2.3.   These ideas were discredited, partly by the more overtly inhumane and racist negative eugenics being practised in Nazi Germany and large parts of the USA, and partly by the realisation that the massive genetic drift being postulated was bad science^[5].  The Labour Party and the Churches allied against any attempt to bring enabling legislation based on the pro-eugenics Brock Report of 1937^[6].  The Brock Committee was seen as overly biased towards the Eugenics Society line, and indeed many of its members were members of the Eugenics Society^[7].

2.2.4.   For a variety of reasons, the Scandinavian countries, parts of Canada and the USA continued to practice negative eugenics on a large scale well into the mid 1970s.  Sterilisation of the poor, particularly of the racially different poor, has continued to be advocated in various jurisdictions of the US.  However it has come to be generally accepted in the United Kingdom that the compulsory restriction of other people’s fertility was an attack on their human rights.

2.2.5.   Historically, in the United Kingdom, state authorised sterilisation was allowed on those women with mental handicap or mental illness.  In many early cases, though, the definition of both was extended, via the idea of moral deficiency, to cover any woman, usually any working-class woman, of whose sexual morals there was sanctioned disapproval.  The heyday of such proposals was the first four decades of the present century, but they have been overtly and covertly reconsidered from time to time.  Generally English and European Human Rights law might now be said to prevent interference in the right of the individual to become a parent, unless for the clear beneficial and therapeutic reasons of that person^[8].  In the English case of Re D (a minor) (wardship: sterilisation) (1976) it was held, on interpretation, that any sterilisation performed in the absence of consent and for non-therapeutic reasons involves a deprivation of that right^[9].

2.3.   Modern Examples of Sterility Requirements for Legal Recognition of Gender Change

2.3.1.   In considering legal recognition of the change of gender status of transsexual people, enabling them to contract legal marriages in their new gender role, a few nation states have required, along with a commitment to permanent change of social gender presentation, medical confirmation that the transsexual person has undergone a sterilisation procedure.

2.3.2.   The legislation from several jurisdictions including Germany, Sweden, Holland and a very few North American states requires this to be certified as a matter of course before a legal change of ‘sex’ or ‘gender’ will be allowed.  For example the German legislation (TSG) requires that the transsexual person is ‘continuously non-reproductive’^[10].  Similarly Swedish law requires that an applicant for a legal recognition to effect a change of sex must: have been sterilised or at least incapable of procreating^[11].

2.3.3.   Technically, what these legislative examples call for, for transsexual people, is not compulsory sterilisation but sterilisation as a quid pro quo for a desired benefit.  The best historical analogy is with the proposals made by some elements within the Eugenics Society during the 1930 to make permanent sterilisation a condition for the receipt of unemployment and social security payments.  This proposal was instrumental in building opposition both to compulsory sterilisation and sterilisation ’through the back door’ - that of making offers that people cannot refuse.

2.3.4.   The adoption of sterilisation as a precondition for gender reassignment has never been explicitly linked to negative eugenics; indeed, when proposed, it has been treated as a priori good sense that needs no specific justification^[12].  It seems likely, however, that negative eugenics is a significant part of the complex of ideas involved.  Those states in which there are sterility requirements for the transsexual person in exchange for legal recognition are generally those where, in the past, negative eugenics, the forced sterilisation of unfit, asocial, groups of people was accepted medical practice.  It is of interest here that they are requirements of the juridical systems of these countries rather than of states which might be seen to have a far worse human rights record such as Turkey and South Africa.  Undoubtedly the discourses which led to the ‘hygienic’ practices of the past, in those countries, are still just bubbling under the surface..

2.4.   To What Extent is Confirmed Sterility a Necessary Requirement in Considering Legal Recognition of Gender Change:

2.4.1.   The lifelong hormone treatment that transsexual people will undergo will, of itself, after a short time period, in most cases render infertility in both transsexual women and transsexual men.  In such cases, any specific requirement for sterilisation procedures is both redundant and irrelevant.  The genital reassignment option available to transsexual women at the present time automatically makes further reproductive ability impossible.

2.4.2.   However, it is acknowledged, that not all transsexual women are medically in a position to choose such surgery because of other health problems and sometimes health problems can make it difficult for some individuals to take a large enough dose of hormones for fertility to cease.  Waiting lists under the NHS, and, in some cases, personal or ideological objections to genital surgery as the inevitable corollary of transgender or transsexual identification, may delay or prevent surgery for several years.

2.4.3.   Similarly it is not inevitably the case that surgical options for transsexual men will remove the option of fertility at some later date.  Indeed, the substantial medical risks involved in hysterectomy, phalloplasty and the surgical closing of the vaginal opening are such that many or most transsexual men choose to forgo these surgical procedures.

2.4.4.   To refuse these people access to legal recognition of their gender role will create a further, but smaller, group of people who will face legally sanctioned discrimination based purely upon medical conditions.

2.4.5.   Further though, even where medical or surgical procedures have permanently ruled out future reproductive capacity, modern techniques such as the freezing of sperm or ova are available to transsexual people just as they are to anyone else.  The same will presumably apply to possible (and probable) future developments such as the cloning of human organs or the rewriting of genetic code.

2.5.   The Right to Found A Family

2.5.1.   The right to found a family is embodied in the United Nations Declaration of Human Rights, and the European Convention on Human Rights which will be embodied in English Law by the Human Rights Act.

2.5.2.   Government and the medical profession have had, in their dealings with transsexual people, a long history of misunderstanding and of ill-judged attempts at social policing^[13].  An area of misunderstanding has been the unexamined assumptions that gender dysphoria automatically rules out a desire for reproduction and family life.  Many transsexual people are not interested in bringing up children, and many are; a normal human range of variation applies here.

2.5.3.   One interpretation of this failure to consider fully the issues, and the possible options^[14] in this area with patients is that by ’policing’ this area of transsexual people’s lives, the range of options for varieties of family life available to all of society is automatically reduced.  Any discussion about protecting the family often means this in practice.

2.5.4.   An other possible interpretation is that transsexual people are held automatically to be likely to be bad parents because they offer bad gender roles, or they are more prone to perpetrate certain sorts of abuse or neglect.  These fallacies are rarely challenged, however research with the children of transsexual parents has shown them to be as likely to be well balanced and heterosexually orientated as any other group of children^[15].

2.5.5.   It is accordingly hard to see why sterilisation and restriction of transsexual people’s fertility should be proposed as a positive good, unless as a piece of negative eugenics.  Just as in the history of negative eugenics it becomes illogical to discuss the ‘best interests’ of the child, if the child can never be born.  If the claim is made that transsexual people are not suitable for parenthood, then they are refused access to parenthood, and this supports the claim because there is no evidence to the contrary.

2.5.6.   However neither government nor the medical and other caring professions have ever made any particular attempt to restrict the participation of transsexual people in family life, though many jurisdictions, including the UK, have made adoption difficult because of the intrinsic ’marriage’ requirements contained in their adoption laws.  But many transsexual women and men will have already become parents prior to transition to their new gender role and most of them are diligent in helping care for those children.  This continues even when the parents have separated due to the gender role transition, if the transsexual person is permitted access.  Furthermore, after transition, many more transsexual people become involved in the rearing of children which their partner will have within their relationship with the transsexual person, by whatever means, or children whom their partner has had in the past

2.5.7.   Any proposed restriction on fertility will achieve little if anything.  Without these restrictions, transsexual people are already generally infertile shortly after commencing reassignment treatment.  Yet despite this infertility many of them already participate in the raising of children.  Any such restriction will fail, as medically induced infertility already fails, to ensure that children do not have an experience of being raised by a transsexual person, and it is undoubtedly the case, anyway, that children who are cared for by transsexual people do not suffer from that care^[16].

2.6.   Conclusion:

2.6.1.   There are clear questions that those who wish to demand sterilisation as a part of the standard transsexual trajectory must consider.  They are:

• How can the requirement for compulsory sterility be applied equitably?

  It cannot.  To do so in some cases would mean that the individuals concerned will be forced to undergo medical or surgical procedures that will endanger their health, and in some cases risk their life, in order to avoid the discrimination and social stigma they would reap as a result of being excluded from a legal recognition that others would be able to obtain.

• Can the requirement for compulsory sterility be consistent with human dignity and human rights?

  It cannot.  To require it is nothing more than the practice of negative eugenics - the presumption that some people are less worthy or raising children.  The only way to oppose eugenics is to ensure that human rights come first.  The idea of excluding from parenthood a set of people because they have certain characteristics which have no relevance to their ability to be a good parent must be outlawed because it runs counter to the dignity of human beings, who are unique, free and responsible for their actions.

• Could the requirement for compulsory sterility be policed in practice?

  It could not be.  The reality is that transsexual people will, and always have, found a way to live in their social gender role.  Those transsexual people who wish to do so will, as they always have done, find ways of participating fully in their society and that includes the raising of children.

3.   PROTECTING STABLE FAMILIES: Issues regarding a change in civil status for trans people who are already married

3.1.   Introduction

3.1.1.   A problem often highlighted in any discussion of legal recognition of gender reassignment is the problem of people who have contracted a legal marriage in their former gender role, and who, with their spouse, do not wish to end that marriage prior to or at the time of gender reassignment, or the legal recognition of their new ’sex’.

3.1.2.   In our experience, most marriages involving transsexual people which are already in existence at the point when gender transition begins (“transsexual marriages”), will break down as a result of the transition, whether because of the change in the nature of the relationship or as a result of the intense stress experienced by both parties during the process.

3.1.3.   As gender transition becomes more socially acceptable and access to medical treatment improves, there has been a reduction in the age at which people start the process and a consequent decline in the number of “transsexual marriages”.  We expect this trend to continue.

3.1.4.   Nonetheless, there remains a significant minority of “transsexual marriages” which both parties wish to preserve.

3.2.   The Issues

3.2.1.   Many jurisdictions which have adopted procedures for changing the civil status of a transsexual person to reflect their true gender have required that an existing marriage be dissolved before such a change can be made.  We believe that such a requirement is not legally necessary, and that it severely disadvantages not only the transsexual people to whom it is applied, but also their partners and their families.

3.2.2.   It has been the policy of successive UK governments to protect and support families, and to recognise the importance of mutual family dependency as a force for social cohesion and stability and as an important economic unit, especially for children.  Marriage is not just a mechanism by which people attain important rights in society, it is also the means by which they assume and exercise responsibilities to others.  Without families, children are less likely to thrive: without families, adults suffer poorer physical and mental health, and lack support in times of difficulty.  Without families, people of any age are more likely to require the support of social services.  Without families, those individuals require increasing amounts of government funded resources and financial support.  To require couples involved in a “transsexual marriage” to divorce against their will would therefore undermine many other areas of social policy.

3.3.   Protecting Families

3.3.1.   There is currently no situation in English law where parties to a marriage which was valid at the time when it was conducted who both wish that marriage to continue, can be required to dissolve that marriage, or to choose between the continuation of that marriage and the recognition of other legal rights.

3.3.2.   If the government were to provide that the change of gender status of a transsexual person could not be recognised without the prior dissolution of an existing marriage, this would place such a person in the invidious position of being forced to choose between on the one hand recognition of their core identity (with all its consequences for preservation of privacy and protection from discrimination), and on the other the preservation of their family.  We believe that in the circumstances of being faced with such an invidious choice, transsexual persons, their partners, and quite possibly their children would have grounds for action under the Human Rights Act to assert their rights under Article 8 of The European Convention of Human Rights: “Everyone has the right to respect for his private and family life…”.

3.3.3.   Whether or not such a challenge would succeed at the present time, there can be no doubt that if such a situation were brought about, the government would have created a new class of disadvantaged people, at least half of whom would not even be transsexual.  Arguably, this class would also include members of the couple’s extended family.

3.3.4.   Though only a small proportion of marriages survive the stresses of gender transition, in those which do, the bond between the couple and their family continues to provide an important mechanism for social stability and for the well-being of the members of that family.

3.3.5.   It has been the policy of successive governments to recognise the importance of the family as the best environment in which to raise children.  We support this policy, and hope that the government will not require that the children of “transsexual marriages” should be deprived by law from the benefits of this protective and supportive environment.

3.3.6.   In our experience, a significant proportion of the marriages which do survive beyond gender transition are those involving older persons, where it is less likely that there will be dependent children.  On the other hand, it is likely that matters such as pension, inheritance and taxation rights will be regarded as of crucial importance when one or both parties to a marriage is/are approaching retirement.  The difference marital status can make in these areas for a cohabiting couple is very considerable.

3.3.7.   Compulsory divorce may also prove the final straw for a relationship which has otherwise survived the vicissitudes of transition.  If that were so, and the couple separated, it has to be recognised that older persons are less likely to form new partnerships, so even the legal ability to conduct a new marriage would, for many, remain a theoretical right rather than one which they were in a position to exercise.  Realistically they would be likely to remain single, with all the extra burdens on social services this could involve, such as the lack of a carer for those who became ill or disabled, and difficulties in obtaining consent for medical procedures or for the management of financial affairs if a person were no longer capable of making any necessary decisions.

3.4.   Religious Sensitivities

3.4.1.   The definition of marriage as the union of a man and a woman is common to all the great religions, although it may be argued that in the case of Christianity, which adopted marriage as a sacrament only after several centuries, it is not a central tenet of that religion.  Nonetheless, we accept that in practice all the major Christian denominations in the UK, in common with other major faiths such as Judaism and Islam, continue to place a high value on marriage, though not all define it as an exclusive partnership between a man and a woman.

3.4.2.   Nevertheless, it is notable that the Roman Catholic Church, which of the major Christian denominations is the most strict in its definitions of marriage and in its requirement for priestly celibacy, has managed to accommodate the paradoxes raised by the ordination within its rites of married persons who were formerly priests in the Anglican rite.  It has simply required that whilst the existing marriages of such priests will be recognised as an ongoing commitment in the eyes of God which should be upheld, they will not be permitted to remarry on the death of their partner or the break-up of the marriage.  We would suggest that a useful analogy could be drawn between this pragmatic solution to a doctrinal problem and recognition of the continued validity and sanctity of the marriage vows made by the parties to a “transsexual marriage”.  The Catholic Church’s successful reconciliation of apparently conflicting principles may also provide a helpful pointer to a way in which difficulties posed for the concept of civil marriage might be resolved.

3.4.3.   In our pluralist society there is increasing divergence between the provisions of secular law with regard to marriage, and the generally stricter provisions of the religions to which many people adhere.  For example, even though the major Christian denominations do not recognise divorce, the state provides the legal mechanisms to facilitate the dissolution of marriage for those who wish it; nor does the state replicate in law the severe penalties which some religions impose for adultery.

3.4.4.   In this instance, as in others, we contend that it is not for the state to impose on individuals the doctrines of a church, but to provide a mechanism by which social realities may be accommodated.  It remains a matter for each individual and their faith community to reconcile any conflict inherent in their own situation.

3.5.   Legal Issues

3.5.1.   Marriage was defined in Hyde v. Hyde (1868) as “a voluntary union for life of one man and one woman to the exclusion of all others”.  The Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties to it are not respectively male and female.

3.5.2.   This creates an obvious anomaly if a transsexual person is legally recognised in the gender in which s/he identifies: a marriage which previously fulfilled Hyde’s criteria as being between a man and a woman would, after legal recognition of the change of gender status of the transsexual partner, become a marriage between two persons of the same sex.

3.5.3.   We note, however, that English law has in many respects moved far beyond the constraints of the decision in Hyde:

• The concept of marriage as a union for life has been downgraded to the status of an aspiration rather than of an irrevocable commitment: 2 out of 3 of marriages now end in legally-sanctioned divorce;
• Marriage is no longer required in all circumstances to be “to the exclusion of all others”: divorce is no longer granted automatically in cases of adultery, and there are circumstances in which polygamous marriages validated outside the UK are recognised in UK law, for example for the purposes of some welfare benefits.

3.5.4.   To respect the wishes of a couple who wanted to remain married after the transsexual partner had been recognised in their new social gender, it would not be necessary to make any extension to current law, nor further to dilute the Hyde decision.  We submit that it is possible within existing frameworks for such marriages to be recognised as an accepted anomaly, without undermining existing provisions or creating a precedent for further change to the basis of marriage.  After all, the outward appearance of the anomaly already exists and seems not to cause any significant problem.

3.5.5.   Allowing such marriages to continue would not create any precedent for a marriage ceremony to be contracted between persons of the same sex.  That would remain a separate issue, which we hope that the law will one day accommodate, but it is not what we are seeking here.

3.6.   Conclusion

3.6.1.   A marriage which was valid at the time it was contracted, but which, following recognition of the changed gender status of one partner, became a marriage between a man and a man or a woman and a woman, would still be dissoluble by an action of either party on grounds of separation or irretrievable breakdown.  Up to now, the courts have also accepted gender transition as a ground for divorce under the category of “unreasonable behaviour”.

3.6.2.   Without change to the existing law, it would therefore be possible for a “transsexual marriage” to continue as long as both parties wished, and there would still be a mechanism by which either party could dissolve the marriage.

3.6.3.   The arrangements for the equitable division of property and for access to and custody of children laid down under divorce legislation provide a better mechanism for the dissolution of a family than the harsher process of annulment.  We would therefore recommend that the Matrimonial Causes Act 1973 be amended to clarify the situation, by explicitly providing that, whilst the gender transition of one partner would continue to constitute grounds for divorce, it would be not of itself render such a marriage voidable.  This would also protect such a family from the possibility of a third-party challenge to the validity of any ongoing marriage, such as that made successfully in Texas in the case of Littleton v. Prang (Texas Appeals Court, October 1999), and remove the possibility of complications arising under inheritance law.

3.6.4.   In any case, for a “transsexual marriage” to be deemed voidable on the grounds that it was no longer between persons of the opposite sex would to be in effect to create a new and ill-defined category of nullity.  Existing provisions allow for nullity only on grounds of non-consummation or of the partners not being of the opposite sex; yet in a marriage which had produced children, neither circumstance could be deemed to apply: the children of such a marriage would have good grounds to challenge the breach of their right to a family.  This would effectively be a form of retrospective nullity, breaching the general principle that legislation cannot have retrospective effect.

3.6.5.   It could also be argued (as it has been successfully in the past) even where there are no children of a marriage that the marriage has indeed been consummated.  It cannot be good law to create a situation in which persons whose marriage has previously been legitimate can find themselves involved in litigation over such intimate matters.

3.6.6.   We therefore believe that to allow or require nullity proceedings in the case of “transsexual marriages” would be likely to lead to uncertainty and prolonged litigation both for the individuals involved and for the state, as those involved sought to protect their rights.  Permitting “transsexual marriages” to continue would require the addressing of some minor administrative issues relating to other areas of law which distinguish between married and unmarried persons, such as tax and social security provisions.  However, we note that where such marriages survive at present, government departments have succeeded in accommodating the changed situation.  We see no reason why they should not continue to do so, though some adjustment of administrative procedures might be useful to clarify the situation for all concerned and to preserve privacy.

4.   GENDER CONFIRMATION CERTIFICATES: The Implications For Sport And The Provision Of Changing Facilities

4.1.   Introduction

4.1.1.   We have recommended to the Interdepartmental Working Group that a Gender Confirmation Certificate (GCC) be issued after a waiting period of two years.  This paper considers the implications of the issuance of such a GCC on sport and the provision of changing facilities.  It explores the impact that such would have on the ability of transsexual people to compete without discrimination alongside others of their reassigned gender and the impact that participants and administrators feel that it would have on sporting fairness.  The following questions have been specifically addressed:

• Should the issuing of a GCC, which replaced but not nullified the original birth certificate, allow a transsexual person to compete in single sex competitive sports and would any changes in the law be required to make that possible?
• In what ways would the issuing of a GCC affect the operator of sporting, leisure and other public or private venues, specifically regarding the provision of adequate changing and washing facilities and what changes in the law would be necessary to deal with any resultant problems?

4.2.   Participation Problems

4.2.1.   Several problems have been encountered whilst researching these points.  Firstly, the near total lack of information on and understanding of this subject.  The bodies consulted for this paper had not considered these points to be live issues.  This was either because the position of transsexual persons had not been thought of, or because it was assumed that were a problem to arise, the matter would be settled by production of the person’s birth certificate.  As such, the governing bodies’ rules and in some cases the law, are totally silent on how transsexual persons should be treated in their sports.

4.2.2.   Secondly, where the issue has been considered, the procedure has been somewhat discredited.  For example, the IOC has had specific procedures in place for gender verification for sporting purposes.  Such tests have been compulsory at the higher levels of sports competition.  However, they have proved to be controversial over the years since their introduction.  As an experiment, the IOC has suspended such general tests for the 2000 Games in Sydney.  Nonetheless, the IOC still feels that some tests are essential to ensure fairness amongst competitors where possible and will have a team of medical experts in Sydney to target individual athletes if they are deemed suspicious.

4.2.3.   Finally, there is an alternative viewpoint; that the issue would never be a problem at the higher levels of sport.  A person who had undergone female-to-male reassignment would, in the normal course of events, fail a doping test on the grounds of having excessive amounts of testosterone in their system.  A participant who had undergone male-to-female reassignment would create more problems as oestrogen is not considered to be performance enhancing.  Nonetheless, it is recognised that such medication will generally reduce the strength of the person receiving it.  In disputed cases, the governing body would be likely to require production of the participant’s birth certificate, bringing the problem full circle.

4.2.4.   From a pragmatic perspective the point must be made that, at the lower levels of sport, the transsexual person may never be noticed as being anything other than a person of their reassigned gender.  However, some transsexual persons are subjected to discrimination and there are currently no apparently lawful means by which they can obtain redress, when that discrimination relates to the provision of goods and services.

4.2.5.   There are three main concerns regarding the participation of transsexual persons in competitive sport:

• Firstly, the most accepted method of gender verification appears to be the person’s birth certificate.
• Secondly, regarding female to male reassignment, is the problem of the necessary use of testosterone, which is a banned substance.
• Thirdly, regarding male to female reassignment; the potential problem of an over-powerful physique of the reassigned person.

The positions of various bodies are outlined below.

4.2.6.   The International Olympic Committee: The IOC is the only body that formally acknowledges any procedure for gender verification.  First introduced for the 1968 Games in Mexico City, the procedures have been refined and developed over the years.  The tests are only carried out on female participants.

4.2.7.   The main test performed on the female athlete is the Buccal Smear Test.  A smear is taken from the inside of the potential participant’s cheek and tested for the ’SRY’ gene, which indicates maleness.  If this test proves to be inconclusive, further gene testing may be carried out if necessary.  During the past two Olympiads, there has been growing resentment and controversy amongst the athletes regarding having to submit to these tests.  Despite their controversial nature, the tests are, we believe, still to be used selectively at the Sydney 2000 Games.  It is not yet known what the precise nature of these tests will be.

4.2.8.   However, regardless of this point, there is potential for discretion to be exercised in favour of transsexual persons.  Within the mission statement of the recently created World Anti-Doping Agency (WADA), an independent body initiated by the IOC, there is room for the proposal of policy initiatives regarding the use of substances on the banned list.  In article 4.3 of its Draft Mission Statement, WADA states that it will draw up guidelines for the

’legitimate use for therapeutic purposes of substances or methods which could be in conflict with the list.’

4.2.9.   This section could be used by transsexual persons legitimately to justify the use of what would otherwise be considered to be performance enhancing substances.  This would enable participation whilst on a course of testosterone, if it could be shown that the amount taken would not enhance sporting performance, but would only allow the transsexual person to maintain the medically recommended and appropriate testosterone level necessary for their reassignment.

4.2.10.   British Olympic Association /British Olympic Medical Commission: The British Olympic Medical Commission is the official medical arm of the British Olympic Association.  Together with Sport England, they are responsible for doping provisions for Olympic competitors in England and the UK.  As regards gender verification, they apply the provisions of the IOC’s Medical Code discussed above.

4.2.11.   International Amateur Athletic Federation: The IAAF Handbook is silent on gender verification testing.  It is the only International Federation that is affiliated to the IOC that does not follow the IOC’s gender verification procedures.  Again, however, there is a similar provision about the taking of banned substances.  Rule 55(5) states that,

’An athlete may request the Doping Commission to grant prior exemption allowing him to take a substance normally prohibited under IAAF rules.  Such an exemption will only be granted in cases of clear and compelling clinical need.’

This again could be utilised to nullify the problem of taking prescription testosterone.

4.2.12.   Other governing bodies: UK Athletics, the Rugby Football League: To get a cross-section of opinion, two further British governing bodies were contacted to establish whether they had in place any rules or procedures that could be of benefit for transsexual persons.  In both cases, the issue had not been considered by the bodies.  Both considered that appearance in the first instance and the production of a birth certificate where there was any doubt would be sufficient.

4.3.   Sport - The Legal Position

4.3.1.   Under the Sex Discrimination Act 1975 (SDA) section 44, discrimination on the grounds of gender is permitted where, in any sport, game or other activity of a competitive nature, the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man.  This allows for single sex sports competitions.

4.3.2.   If reliance for gender confirmation in sports is placed upon the original birth certificate, then a transsexual person would be unable to participate alongside others of their reassigned gender.  Also, if section 44 SDA is to remain in force, then, as the new Sex Discrimination (Gender Reassignment) Regulations 1999 (Regulations) do not apply to this part of the SDA, it will be possible to discriminate against a transsexual person, in the sporting arena, on the grounds of their undergoing or having undergone reassignment.

4.3.3.   To avoid this problem, section 44 would either have to be substantially rewritten, or repealed.  The Equal Opportunities Commission is currently exploring whether section 44 should be repealed for all levels of sport.  Alternatively the Sex Discrimination (Gender Reassignment) Regulations would have to be extended to include recreation and the receiving of services if section 44 remains in some form.

4.3.4.   Section 44 uses the term “average” to justify discrimination.  Thus any sport where the average woman is at a disadvantage to the average man is allowed to have women only events.  If an individual trans woman then wished to compete in a woman only event, the key question is whether that person is a woman for the purposes of the SDA 1975, section 44, not whether that particular person is stronger or taller or heavier than the average woman.  Obviously, women vary greatly in physical makeup.  Weight may be used to place woman in various categories of competition but that would not discriminate unfairly against a trans woman.

4.3.5.   SDA 1975 section 44 is only discriminatory to the extent that a trans woman is not accepted as a woman and is thereby excluded from women only events.  Our view is that section 44 should not be repealed.  It does serve a useful purpose for the vast majority of sportswomen who wish to be able to participate in fair competitions.

4.3.6.   The question that follows is what action the government should take to prevent discrimination against trans women who wish to participate in competitive sports.  We have to consider the rights of sportswomen generally who may justifiably wish to avoid having to compete against trans women.  The relevant science is unclear.  We recommend to the Home Office Working Group that no action be taken at this time in respect of section 44.

4.3.7.   A further possible basis for discrimination against female-to-male transsexual persons is that they must take testosterone as an essential part of their gender confirming medical treatment.  We see no legislation which would help the sporting bodies to grapple with this issue which forms a part of the highly complex and contentious problem of controlling the improper use of performance enhancing substances.

4.4.   Facilities Provision - The Legal Position

4.4.1.   The Sex Discrimination (Gender Reassignment) Regulations apply only to employment and vocational training situations.  Discrimination on the basis of being a transsexual person would therefore appear to be lawful where the receiving of services is at issue.  This would mean that providers of sports and other facilities would not be under an obligation to make special provision for transsexual persons.  In the extreme interpretation of these provisions, the provider would not be legally required to provide any access to transsexual persons, as direct discrimination is not unlawful as regards access to services.

4.4.2.   The only protection that the Regulations would give to transsexual persons would be where the facilities were provided as part of the person’s employment or vocational training.  This could lead to some bizarre inconsistencies.  For example, if it was discovered that a transsexual person was playing in a junior side at a professional football club, a matter of recreation or the provision of services, the player could be lawfully discriminated against and either not provided with special facilities or denied access to them altogether.  If, however, the same transsexual person went through the youth system unnoticed and was offered a playing contract or an apprenticeship, he would then appear to be covered by the SDA and the Regulations.  The club would then, prima facie, be lawfully bound to provide the player with the relevant facilities and training opportunities.  Of note is that section 44 is primarily to provide protection to women in sport, and this situation would involve men’s sport.  However, as the regulations are subsidiary to the SDA, it is possible that section 44 SDA would disapply them.  If such a scenario was to come about, then discrimination against the transsexual person would remain lawful.  Such a situation must be avoided.

4.4.3.   The alternative would be that the Regulations would have to be varied to include recreation and the receipt of services.  At this point it must be mentioned that there is some belief that the SDA must be interpreted and read as a whole.  Therefore, as the SDA already provides protection from discrimination on the grounds of gender in the provision of goods and services, then together with the Regulations the same protection should also be extended to transsexual persons.  This would have the effect of removing the above mentioned inconsistency.

4.4.4.   It is recommended elsewhere in this submission to the Working Group that the statutory declaration re change of name should also contain a statement of intent to live permanently in a new gender role.  That document would serve as notice to the Registrar General.  This would save people having to prepare two separate documents.  The two year count down to issue of the GCC could start from the date that the Registrar General received the statutory declaration.  The Registrar General would be required to issue a formal written acknowledgement of receipt but that would have no other purpose, e.g.  it would not be used for identification purposes in changing rooms.  For that the passport or driving licence should suffice.  However, there is currently no lawful basis for forcing an operator of changing rooms to accept those documents as adequate proof of being entitled to use them.  Not even the GCC could be used to that effect in current law.

4.4.5.   To avoid discrimination against transsexual persons in the provision of changing facilities, the government could issue fresh Regulations that clearly extend the protection afforded by the Sex Discrimination Act 1975 to include goods and services.  It is considered likely that if the civil courts considered the question they would determine that the SDA should be read as a whole, and that transsexual people are therefore afforded protection in the provision of goods and services.

4.5.   Conclusion

4.5.1.   The present situation regarding participation by transsexual persons in sport appears to be precarious.  Direct discrimination is lawful in almost all situations.  Whether or not such discrimination is overtly practised, the reliance on birth certificates as proof of gender would effectively prevent normal sports participation.  However, in general, there appears to be little or no formal policy regarding the participation in sports by transsexual persons, leaving the field open to policy developments.

4.5.2.   There has been very little consideration of the status of transsexual people in the sporting world.  At this stage, there is no need for legislation.  Testing of athletes is a controversial and uncertain process given the necessarily intrusive testing which is required and the great difficulties in then objectively determining maleness or femaleness.  There is no reason to suppose that government intervention will be at all helpful to the sporting bodies whose role it is to deal with these problems.  The most that the government might wish to do is issue general policy guidance in connection with the GCC scheme.  The groups involved in the preparation of this paper, perhaps together with the Equal Opportunities Commission, would be pleased to assist in the preparation of such guidance.

4.5.3.   If GCC’s were to be allowed as proof of gender for all social purposes, such as sports participation, the following proposals could then be presented:

• In association with both national and international governing bodies, there should be formulated policies which would allow for participation at the recreational level on the production of a valid GCC.  This would allow the transsexual person to compete alongside those of their reassigned gender.
• At the elite, or professional, levels of sport, attention must be paid to the possibility of any potential competitive advantage that the transsexual person might have as a result of their gender reassignment.
• Thus, following a female-to-male reassignment, for example, a greater testosterone:epitestosterone ratio could be accurately calculated and allowed on the basis of a ’legitimate therapeutic purpose’ or ’compelling clinical need.’ The medical and doping codes of the relevant governing bodies and federations could then be amended such that on production of a valid GCC, the higher testosterone ratio would be permitted.
• The male-to-female reassignments may, potentially, prove more difficult where the transsexual person retains an advantageously strong physique.  In these situations, production of a GCC would allow participation at a recreational level.  In conjunction with the governing bodies and federations, a limit may be proposed that where the transsexual person has an unfair competitive advantage because of their physique, there may be an upper limit to the levels at which they can compete professionally.  Although this is not ideal, it would confront the concerns of the governing bodies whilst allowing the vast majority of non-professional participants to compete freely in the sport of their choice.
• However it should be a requirement that the governing bodies have considered the individual case and have been reasonable in their decision to exclude participation.  This would, for example, include an assessment of the likely advantage that the particular transsexual person would obtain over other women in that particular sport, and at that level of competition.
• Alternatively the Regulations could be amended to include both recreation and the receipt of services.  This would make it unlawful to discriminate against transsexual persons who wished to make use of sports facilities or join sports clubs or leagues.

4.5.4.   The above measures would allow most transsexual persons to compete at almost all levels of all sports.  Discrimination would be made unlawful and the integrity of the sports would also be maintained.  The extension of protection into the provision of goods and services would enable transsexual people to obtain protection against discrimination in their use of changing facilities whether operated in connection with sports and more generally.

Footnotes