Section 14: Discrimination

77.     This gives effect to Schedule 6.

78.     Schedule 6 amends the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)). Those enactments, as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999 (S.I. 1999/1102) and Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 (S.R.1999 No.311), already make it unlawful to discriminate against a person in relation to employment and vocational training on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment. The definition of gender reassignment in the Sex Discrimination Act and the Order includes any part of a process undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex. A person who has been recognised in the acquired gender under the Gender Recognition Act will therefore necessarily be considered to be undergoing or to have undergone gender reassignment within the meaning of these enactments, and accordingly, discrimination against him or her on this ground will be unlawful. However, this is subject to exceptions based on 'genuine occupational qualifications'. If, for example, the nature of the job requires a woman, it is open to the employer to show that it is reasonable to treat a male to female transsexual person as being unsuitable for that job. The amendments made by Schedule 6 mean that these exceptions will not be available once a person has been recognised in the acquired gender. They are then, for the purposes of employment, to be treated as being of their acquired gender (that is, of the opposite sex to their birth sex). The exceptions in section 19 of the Sex Discrimination Act 1975 and Article 21 of the Sex Discrimination (Northern Ireland) Order 1976, which exempt discrimination in relation to employment, authorisation or qualification for the purposes of an organised religion where that employment, authorisation or qualification is limited to persons who are not undergoing and have not undergone gender reassignment, are not affected. They continue to apply in relation to people who have been recognised in the acquired gender under this Act.

Section 15: Succession etc

79.     This provides that the fact that a person's gender has become the acquired gender does not affect the distribution of property under a will or other instrument made before the day on which the Act comes into force. For wills or other instruments made after that day, the general principle stated in section 9(1) will apply, e.g. if a will refers to the 'eldest daughter', and a person who was previously a son becomes the 'eldest daughter' following recognition in the acquired gender, that person (subject to section 18) will inherit as the 'eldest daughter'.

Section 16: Peerages

80.     This provides an exception to the proposition stated in section 9(1). The descent of any peerage or dignity or title of honour will take place as if a person recognised in the acquired gender were still of the birth gender. The same rule applies to any property that passes with it, unless the will or other instrument governing the property departs from this rule by express provision.

Section 17: Trustees and personal representatives

81.     A trustee or personal representative is responsible for conveying and distributing property from a trust or estate. This section relieves a trustee or personal representative from any fiduciary duty to inquire whether a gender recognition certificate has been issued to any person or revoked, even if that fact could affect entitlement to property which he is responsible for distributing. The beneficiary will nevertheless retain his or her claim to the property and may enforce this claim, e.g. by following the property into the hands of another person who has received it instead.

Section 18: Orders where expectations defeated

82.     This makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the acquired gender. If, for example, an instrument governs succession by reference to the 'eldest daughter' of the settlor, and there is an older brother whose gender becomes female under the Act, then the person who was previously the 'eldest daughter' may cease to enjoy that position. Subsection (2) allows a person who is adversely affected by the different disposition or devolution of the property to make an application to the High Court, or the Court of Session in Scotland. The court, if it is satisfied that it is just to do so, may make such order as it considers appropriate in relation to the person benefiting from the different disposition of the property.

Section 19: Sport

83.     The section provides that a body responsible for regulating participation in competitive sporting events may prohibit or restrict the participation in such events of a person who is recognised in the acquired gender, and is seeking to compete in the acquired gender, if this is necessary to secure fair competition or the safety of other competitors.

Section 20: Gender-specific offences

84.     Many definitions of sexual offences in the law of Scotland and Northern Ireland remain gender-specific and hence refer, for example, specifically to acts committed by a man upon a woman. This section ensures that where criminal liability would exist, but for the fact that a person, either the victim or the perpetrator, has become of the acquired gender, that criminal liability will exist regardless of the gender change. The Sexual Offences Act 2003 introduced gender-neutral terms for England and Wales, but this section extends to England and Wales, as well as Scotland and Northern Ireland, in order to ensure that there is no residual problem.

Section 21: Foreign gender change and marriage

85.     Subsection (1) makes explicit that a person who has changed gender in another country or territory is not thereby recognised in the acquired gender in the UK. Subject to subsection (6), a person in this position will have to make an application under section 1.

86.     Subsections (2) to (5) set out the legal status of marriages formed in another country or territory by a person who had already changed gender in that or any other country or territory. These marriages are to have no standing under UK law until the party who has changed gender in another country or territory has also gained recognition in the acquired gender in the UK. The marriage will only be recognised in this way if no other valid marriage has been entered into in the interim and so long as one party had already changed gender in the other country or territory and the other party was not also of that acquired gender.

87.     Subsection (6) adds the proviso that section 21 is subject to any enforceable community right. This means that a national of another country within the European Union or European Economic Area who has been granted legal recognition of their gender change under the law of that country and has an enforceable right under EC law to recognition of their acquired gender in the UK will not need to make an application under section 1. Similarly, a post-recognition opposite-sex marriage where one of the parties is a EU or EEA national and there is an enforceable right to recognition under European Law will be accepted as a valid marriage in the UK without the need for further application under section 1.

Section 22: Prohibition on disclosure of information

88.     Subsections (1) and (2) establish that it is an offence for a person to disclose information he has acquired in an official capacity about a person's application for a gender recognition certificate or about the gender history of a successful applicant. This information is termed 'protected information' under this Act. Subsection (3) explains what is meant by 'an official capacity'.

89.     Subsection (4) sets out exceptions to the general prohibition on disclosure. For example, disclosure will not constitute an offence where the person to be identified had consented to the disclosure or where the disclosure is for the purposes of proceedings before a court or tribunal. Subsections (5) and (7) make provision for the Secretary of State to prescribe further circumstances in which disclosure does not constitute an offence. Subsection (6) provides that this power is exercisable by the Scottish Ministers, rather than the Secretary of State, where the provision to be made is within the legislative competence of the Scottish Parliament.

90.     Under subsection (8), a person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Section 23: Power to modify statutory provisions

91.     This provides the Secretary of State with the power to make an order modifying the operation of any enactment or subordinate legislation in relation to persons who have acquired a new legal gender under this Act or any description of such persons. This power is strictly limited and is provided due to the entirely novel nature of this legislation. Legislation has made distinctions on the basis of gender for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts. Though a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities, this section acknowledges the possibility that other instances may come to light in the future. Subsection (5) provides that, before an order is made under this section, there must be appropriate consultation with persons likely to be affected by it.

92.     This power is also extended, for the same reasons as given above, to Scottish Ministers and the appropriate Northern Ireland department should they need to modify legislation that falls within the devolved competence of the Scottish Parliament or the Northern Ireland Assembly respectively.

Section 24: Orders and regulations

93.     This provides that any order-making powers conferred by this Act will be exercisable by statutory instrument (statutory rule in Northern Ireland). Any orders under section 2 or paragraph 11 of Schedule 3 must be approved by a resolution of each House of Parliament. Any orders under section 7, 22 or 23 are subject to the negative resolution procedure. Orders or regulations made by the Scottish Ministers or the Northern Ireland department are also subject to negative procedure.

Section 27: Applications within two years of commencement

94.     Section 27 creates a 'fast-track' process for the first two years after commencement of the Act, under which applications may be made on the basis of having lived in the acquired gender for six years. This process is exclusive for the first six months after commencement of the Act, i.e. those transsexual people who have lived in the acquired gender for at least six years will have their applications dealt with first. After this period applications from those transsexual people who can only show that they have lived in the acquired gender for two years will be dealt with according to the normal procedure. However, those transsexual people who are able to show that they have lived in the acquired gender for six years will continue to benefit from the 'fast-track' process for a further eighteen months.

95.     Applicants using this procedure will have to satisfy the criteria set out in section 2(1) as modified, that is, satisfy the Panel that they have lived in the other gender for six (rather than two) years; and that either they have or have had gender dysphoria, or that they have undergone surgical treatment for the purpose of modifying sexual characteristics.

96.     Under subsection (5), the requirements for medical evidence stated in section 3(1) to (3) will not be applied to these applicants. Instead, if a person is applying on the basis of having or having had gender dysphoria, the application need only be accompanied by one medical report providing details of the diagnosis of gender dysphoria and details of treatment that the applicant has undergone, is undergoing, or that has been prescribed or planned for the applicant to undergo. This report must be provided by a registered medical practitioner or chartered psychologist practising in the field of gender dysphoria.

97.     If a person is applying on the basis of having undergone surgical treatment for the purpose of modifying sexual characteristics, the application must be accompanied by one medical report containing details of the treatment undergone and any further treatment which has been prescribed or planned. This report must be provided by either a registered medical practitioner, or a chartered psychologist practising in the field of gender dysphoria.

COMMENCEMENT

98.     The provisions in the Act will come into force on a day appointed by an order of the Secretary of State.

HANSARD REFERENCES

The following table sets out the dates and Hansard references for each stage of this Act's passage through Parliament.