§ The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton)On 11 July the European Court of Human Rights delivered its judgments in the cases ofGoodwin v The United Kingdom and "I" v The United Kingdom. The Court found that the United Kingdom had breached the Convention rights of these two transsexual people, under Articles 8 and 12 (the right to respect for private life and the right to marry). In answer to Questions before the Parliamentary recess, colleagues and I made clear the Government's commitment to announce later in the year how we proposed to implement the rulings.
The Interdepartmental Working Group, whose initial report the then Home Secretary presented to Parliament in July 2000, had recently been reconvened to give further consideration to the implications of giving transsexual people full legal recognition in their acquired gender. In light of the Goodwin and "I" judgments, the Group's terms of reference were expanded and it was tasked to report in October. Ministers have now collectively considered the recommendations received from officials.
We will aim to publish, in due course, a draft outline Bill to give legal recognition in their acquired gender to transsexual people who can demonstrate that they have taken decisive steps towards living fully and permanently in the gender acquired since they were registered at birth. That will make it possible for them (if otherwise eligible) to marry in their acquired gender.
The Government are committed, therefore, to legislating as soon as possible to give transsexual people their Convention rights. Whether Parliament at Westminster should legislate for the whole of the UK on this matter is under consideration, particularly in view of the inter-relationship between devolved and reserved policy aspects.
Except where limited exceptions will be created in the legislation, we propose that formal recognition in the acquired gender will bring with it the rights and responsibilities appropriate to that gender—normally, from the date that the change is recognised. It is expected that rights and obligations previously incurred will continue, in most areas; a parent, for example, who changes gender, will not lose his or her obligations—and rights—as father or mother to the child.
Provision will be needed for disclosure to be requested in certain circumstances. For example, insurance and pension companies, whose decisions on cover and premiums depend on gender and medical history, may need to continue to require full disclosure, where relevant and subject to data protection and other legislation. The Criminal Records Bureau must be able to demand full disclosure for clearance to work with 37WS children and other vulnerable people; but I am pleased to announce that modifications have been made to their procedures, so that the privacy of transsexual people in relation to their former identity is fully respected. Procedures have been similarly modified in Scotland.
Changing legal identity is a serious step, with significant consequences. It is important that no-one should embark upon formal recognition in the acquired gender without convincing evidence. We will therefore propose that applications should be scrutinised by an authorising body, given legal powers to assess medical evidence before the transsexual person is allowed to register in the new gender. In some cases, where the person undertook gender reassignment years earlier, and has lived successfully in the acquired gender, that assessment may be straightforward. In other cases, the authorising body will need to be assured that, in addition to meeting medical criteria, the transsexual person has lived successfully in the acquired gender for at least two years. The medical criteria may include medical treatments to modify the person's sexual characteristics, but the Government will not require surgery as a condition of registration in the acquired gender.
We do not intend history to be re-written. Original birth records will remain in existence, unamended, and will continue to be made available when needed. But the authorising body will empower the Registrar General to create a new record in relation to the transsexual person, from which a new certificate stating acquired name and gender may be drawn. This certificate will be indistinguishable from a birth certificate, in order to 38WS remedy the breaches of Article 8 identified by the European Court of Human Rights. The link between the original and the revised record will remain confidential within the Registrar General's office.
We are committed to facilitating, as fully as possible, transsexual people's assimilation into the gender to which they feel they belong. We share the Court's view that society may reasonably be expected to tolerate a minority of individuals living in dignity and worth in accordance with the identity they are driven to assume. We do not seek, however, to erase all trace of their former identity. We have concluded that there is no need for transsexual people to be given new National Insurance numbers on registering in their acquired gender. NI numbers give no indication of gender, and employment and data protection legislation should give adequate protection against careless or malicious disclosure in the rare instances where the number enables a link to be made between former and current identities.
Our aim is to ensure that in future transsexual people will be better protected from having constantly and unnecessarily to reveal their history. Our legislation will enable transsexual people confidently to take up those rights which have been denied to them in society—including the right to marry in their acquired gender—while preserving other obligations entered into in the original gender. We will be pleased to receive comments on our proposals, which deserve the support of all who have in the past expressed concern at the lack of legal recognition of transsexual people in the United Kingdom.