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Remit:
To consider and report on matters relating to the administration
of civil and criminal justice, the reform of the civil and criminal
law and such other matters as fall within the responsibility of
the Minister for Justice, and the functions of the Lord Advocate
other than as head of the systems of criminal prosecution and
investigations of deaths in Scotland.
Membership:
Pauline McNeill (Convener)
Bill Butler
Marlyn Glen
Michael Matheson
Mr Stewart Maxwell (Deputy Convener)
Margaret Mitchell
Margaret Smith
Committee Clerking Team:
Clerk to the Committee
Alison Walker
Senior Assistant Clerk
Claire Menzies Smith
Assistant Clerk
Douglas Thornton
The Committee reports to the Parliament as follows—
Background
1. At its meeting on 28 January 2004, the Committee took evidence
from the Deputy Minister for Justice in respect of motion S2M-813
in the name of Cathy Jamieson—that the Parliament endorses
the principle of giving transsexual people legal recognition of
their acquired gender and agrees that the provisions in the Gender
Recognition Bill that relate to devolved matters should be considered
by the UK Parliament thereby ensuring a consistent UK approach
and early compliance with the rulings of the European Court of
Human Rights with respect to the Convention rights of transsexual
people under Article 8 (right to respect for private life) and
Article 12 (right to marry). The Scottish Executive memorandum
on the motion is at annex A. The Committee agreed at that meeting
to report to the Parliament on the Gender Recognition Bill (“the
Bill”).
European convention on human rights
2. In July 2002, the European Court of Human Rights found the
UK, in not legally recognising transsexual people in their acquired
gender, to be in contravention of articles 8 and 12 of the European
convention on human rights. The UK consequently needs to give
legal recognition to transsexuals in their acquired gender in
order to meet its human rights obligations.
Gender Recognition Bill
3. The Bill proposes the creation of gender recognition panels,
which would be able to issue gender recognition certificates.
This would enable people to be recognised in their acquired gender
for legal purposes, including being able to get a birth certificate
showing the acquired gender.
Sewel motion
4. The intention to lodge a motion under the Sewel convention
in relation to the Bill was brought to the Committee’s attention
at very short notice; the Committee was therefore unhappy at the
short timescale available for consideration of the Bill, which
was felt to cover a complex and technical area of the law. The
Committee also felt that the consideration of motions under the
Sewel convention was a matter that should be considered by the
Procedures Committee, with particular regard to timescale.
5. A number of concerns were expressed during the evidence session,
which are noted below for the benefit of the Parliament in considering
this motion.
Gender recognition panels
6. In relation to the establishment of gender recognition panels
on a UK basis, members were concerned that the panels should be
openly accessible to applicants, particularly if there were a
single, UK-wide panel located in southern England. There were
particular concerns in relation to the cost of making an application,
which was felt should not be prohibitive and should be a flat
rate for all applicants. The Committee felt that, in order to
achieve accessible costs to applicants, the gender recognition
process should not necessarily be self-financing.
7. The Committee noted that there is a provision in the Bill
for an advocate or solicitor in Scotland of at least seven years’
standing to be deemed to have a relevant legal qualification to
serve as a member of a gender recognition panel. Committee members
agreed that it would be essential that there be Scottish legal
representation on any UK-wide gender recognition panel.
Sexual offences
8. Clause 19 of the Bill relates to gender-specific offences
and reflects the fact that many sexual offences in Scotland are
gender specific, for example, rape is a crime committed by a man
against a woman. The purpose of the clause is to ensure that,
where criminal liability would exist but for the fact that a person
(either as victim or perpetrator) has become of the acquired gender,
that criminal liability should exist regardless of the gender
change.
9. In relation to sexual offences, the Committee welcomed the
Deputy Minister for Justice’s commitment to give further
consideration to issues arising from clause 19(1), particularly
in relation to whether the law covers surgically constructed genitalia.
The Committee also noted that it may wish to revisit this matter
itself.
Divorce
10. Part 2 of Schedule 2 to the Bill creates a new ground for
divorce—granting of an interim gender recognition certificate
to a party to the marriage.
11. The Committee noted the creation of a new ground for divorce.
However, the Committee felt that there should be greater clarity
in relation to the interaction between the dissolving of a marriage
and recognising an acquired gender as proposed by the Bill, with
particular regard to the purpose of the new ground for divorce
and the mechanism for securing a divorce under the proposed system.
Privacy
12. The Committee noted concerns in relation to the privacy
of holders of gender recognition certificates in relation to accessing
services provided by the NHS and other public agencies and felt
that training and guidance for such agencies should be provided.
The Committee also noted concerns about official records being
different from, for example, birth certificates and the circumstances
in which it would be possible to trace from one to the other.
Conclusion
13. The Committee welcomes the tone of the legislation and the
protection it provides in the law for transsexuals and recommends
that the Parliament agree to motion S2M-813. The Committee further
welcomes the Deputy Minister for Justice’s commitment to
bring the Bill before the Parliament again should it be significantly
amended during its passage through the UK Parliament.
ANNEX A
SEWEL MEMORANDUM FOR GENDER RECOGNITION BILL
Motion
1. The motion to be put to the Parliament is:
Gender Recognition Bill: That the Parliament endorses the principle
of giving transsexual people legal recognition of their acquired
gender and agrees that the provisions in the Gender Recognition
Bill that relate to devolved matters should be considered by the
UK Parliament thereby ensuring a consistent UK approach and early
compliance with the rulings of the European Court of Human Rights
with respect to the Convention rights of transsexual people under
Article 8 (right to respect for private life) and Article 12 (right
to marry).
Background
2. Transsexual people are not, at present, recognised in their
acquired gender under the law in any part of the United Kingdom.
Although transsexual people may obtain some official documentation
in their new name and gender, such as driving licences and passports,
they cannot obtain new birth certificates and they cannot enjoy
any rights confined by law to their acquired gender. For example,
they cannot marry in their acquired gender.
3. On 11th July 2002, the European Court of Human Rights delivered
its judgements in the case of Goodwin v The United Kingdom and
I v The United Kingdom (2002) 35 EHRR 18. The Court found that
the UK had breached the Convention rights of these two transsexual
people, under Article 8 (right to respect for private life) and
Article 12 (right to marry). Scotland, like the rest of the United
Kingdom, must rectify the breaches and secure the Convention rights
of transsexual people.
Purpose of the Gender Recognition Bill
4. The purpose of the Gender Recognition Bill is to provide
for the legal recognition of the acquired gender of transsexual
people. The Bill provides for the establishment of Gender Recognition
Panels comprising legal and medical members to determine applications
for gender recognition certificates from transsexual people. Before
issuing a certificate, the Panel must be satisfied that the applicant:
• has, or has had, gender dysphoria;
• has lived in the acquired gender throughout the preceding
two years; and
• intends to continue to live in the acquired gender until
death.
5. If the Panel is satisfied on the basis of the evidence which
it receives that the applicant meets the criteria then a full
gender recognition certificate will be issued unless the applicant
is married. This will have the effect of providing full legal
recognition of the transsexual person’s acquired gender.
A male-to-female transsexual person for example, will be legally
recognised as a female under the law in any part of the United
Kingdom. If a UK birth register entry exists, then the person
will be entitled to a new birth certificate reflecting their acquired
gender. They will be able to marry someone of the opposite gender
to their acquired gender.
6. If the applicant is married, an interim gender recognition
certificate will be issued. The Bill makes provision for courts
to end a marriage on the ground that an interim gender recognition
certificate has been issued to one party and to issue a full gender
recognition certificate to that party. To give legal recognition
of a transsexual person’s acquired gender without the dissolution
of a pre-existing marriage would have the effect that the marriage
would be subsisting as a marriage between two parties of the same
legal gender.
7. The Bill makes supplementary provisions including a prohibition
on disclosure of information relating to a person’s application
for a certificate, and an initial ‘fast-track’ application
procedure for transsexual people who have lived in their acquired
gender for at least six years. As these applicants will have been
living in the acquired gender for a longer period, the criteria
to be applied are slightly different.
Why a UK Approach?
8. The Scottish Executive believes that a UK approach offers
a pragmatic and timely way forward for a number of reasons:
• The legal recognition of transsexual people combines
reserved and devolved policy areas. The devolved areas include
process issues particularly the creation and maintenance of a
Gender Recognition Register and the provision of birth certificates
reflecting the acquired gender of a transsexual person, and the
right to marry in the acquired gender. Some of the legal consequences
are reserved particularly pensions, benefits and insurance consequences.
The Scottish Parliament could provide partial legal recognition
of a transsexual person’s acquired gender but not the reserved
policy aspects. Including Scottish provisions in the Gender Recognition
Bill will deliver comprehensive legal recognition of the acquired
gender of transsexual people in Scotland;
• A UK approach offers the swiftest means of Scotland remedying
the breaches of the Convention rights of the estimated 500 transsexual
people living in Scotland. It is not clear when a suitable Scottish
legislative vehicle or slot would be identified but it would certainly
lag behind the Gender Recognition Bill which has commenced its
Parliamentary passage in the House of Lords;
• If there were marked differences in the legal recognition
of transsexual people north and south of the border, this could
give rise to cross-border issues. For example, would a post-recognition
marriage contracted in one jurisdiction be recognised in another
jurisdiction for marriage-related purposes? Or, would a transsexual
person living in Scotland but with a birth register entry in England
find that legal recognition in Scotland is sufficient to secure
a new birth certificate from the Registrar General? Including
Scottish provisions in the Gender Recognition Bill ensures consistency
in process and effect of legally recognising the acquired gender
of transsexual people;
• Given the small numbers, once the initial tranche of
applications has been processed, there are likely to be a very
small number of Scottish applications in any one year which would
mean that the cost of maintaining a distinct mechanism in Scotland
for providing legal recognition of transsexual people would be
disproportionately high and could drive up the cost to the applicants
and/or the cost to the public purse. A UK approach is therefore
cost-effective;
• The Gender Recognition Bill provides for the Panel to
determine an application without a hearing unless a hearing is
considered necessary. The process is expected in most instances
to be paper-based so geographic distance for transsexual people
living in Scotland is likely to arise in extremely few cases;
Scottish Provisions in the Gender Recognition Bill
9. In proposing that the Gender Recognition Bill should extend
to Scotland, the Scottish Executive recognises a number of Scottish
provisions are required to ensure that the legislation takes account
of Scottish law. The following provisions have been made:
• 5(1)(b) provides for a Scottish court granting a decree
of divorce on the ground that an interim gender recognition certificate
has been issued to a party to the marriage to issue a full gender
recognition certificate sending a copy to the Secretary of State;
• 8(1) provides for an applicant to appeal to the Court
of Session on a point of law against a decision by the Panel to
reject the application and 8(5) provides for the Secretary of
State to refer a case to the Court of Session where he considers
that the granting of an application was secured by fraud;
• 18(2) provides for a person to apply to the Court of
Session for an order if they consider that they have been adversely
affected by the disposition or devolution of property as a consequence
of the legal recognition of the acquired gender of a transsexual
person;
• 19 relates to gender-specific offences and reflects the
fact that many sexual offences in Scotland are gender specific,
for example, rape is a crime committed by a man against a woman.
The purpose of the section is to ensure that where criminal liability
would exist but for the fact that a person (either as victim or
perpetrator) has become of the acquired gender, that criminal
liability should exist regardless of the gender change;
• 21(6) provides for Scottish Ministers to prescribe circumstances
within devolved competence further to 21(4) in which disclosure
of information does not constitute an offence;
• 22(2) provides Scottish Ministers with the power to make
an order modifying the operation of any enactment or subordinate
legislation within devolved competence in relation to persons
who have acquired a new legal gender under this Bill. Legislation
has made distinctions on the basis of gender for a considerable
time. A thorough analysis has been undertaken of instances in
which the facility to change gender may cause difficulties or
complexities. This provision safeguards against the possibility
of other instances coming to light in the future and ensures that
they can be dealt with in Scotland;
• 23(1), 23(2) and 23(4) provide that powers delegated
to Scottish Ministers by the Gender Recognition Bill will be exercised
by statutory instrument, subject to the negative resolution procedure
• Schedule 1, 1(3)(b) provides for an advocate or solicitor
in Scotland of at least seven year’s standing to be deemed
to have a relevant legal qualification to serve as a member of
a Gender Recognition Panel;
• Part 2 of Schedule 2 amends the Divorce (Scotland) Act
1976 to provide for the granting of an interim recognition certificate
to constitute grounds for divorce
• Part 2 of Schedule 3 requires the Registrar General for
Scotland to create and maintain a Gender Recognition Register;
• Part 2 of Schedule 4 amends the Marriage (Scotland) Act
1977 to ensure that where one party to a marriage is regarded
as being of the acquired gender, the restrictions on marriage
cover relationships flowing from any previous marriage in the
birth gender - for example, a male-to-female transsexual person
who is granted a full gender recognition certificate may not marry
her ex-wife’s father;
10. The Gender Recognition Bill also requires the Secretary of
State to consult Scottish Ministers on specific issues including
the membership and choice of President of the Gender Recognition
Panel, the list of approved countries for applicants who have
secured legal recognition in other jurisdictions, additional information
or evidence to support applications, the form and manner of applications
to the Panel and the content and form of gender recognition certificates.
Financial Consequences
11. The UK Government estimate that the cost of establishing
the Gender Recognition Panels to determine applications will be
approximately £0.7 million and that all other costs will
be met from within Departmental spending limits. These costs have
been calculated on the basis of extending the Panel’s activities
to Scotland and no financial contribution from Scotland towards
the running of the Panel is sought. There will be a very moderate
cost associated with creating and maintaining the Gender Recognition
Register in Scotland. The General Register Office for Scotland
will meet this from within current resources.
Conclusion
12. Scotland, like the rest of the United Kingdom, is obliged
to comply with the judgements of the European Court of Human Rights
in relation to the Convention rights of transsexual people. Including
Scottish provisions within the Gender Recognition Bill offers
the swiftest, most cost-effective means of remedying the human
rights breaches and delivering comprehensive legal recognition
of the acquired gender of transsexual people embracing devolved
and reserved policy consequences. A UK wide approach will also
ensure consistency in the process of determining legal recognition
and the legal consequences flowing from recognition of the acquired
gender of a transsexual person thereby avoiding cross-border issues.
Relevant Scottish provisions have been included within the Gender
Recognition Bill to ensure that the legislation is fully workable
in Scotland.
Scottish Executive
January 2004
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