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Gender Recognition (Approved Countries and Territories) Order 2011

My Lords, the order before us today revokes and replaces an order made in 2005 regarding the legal recognition of transsexual people in the gender they live in permanently, their acquired gender. The order prescribes overseas countries and territories with gender recognition processes equivalent to our own. The purpose of this draft order is to enable transsexual people who have gained legal recognition of their acquired gender overseas to apply for legal recognition in the UK through a simplified application process. The order prescribes countries and territories that are approved under the Gender Recognition Act 2004 for the purpose of this application process. Members of the Committee may find it helpful if I outline the purpose of the Gender Recognition Act before considering this order in more detail. The Gender Recognition Act 2004 enables transsexual people to change their legal gender and gain the rights and responsibilities of their acquired gender. This means, for example, that a transsexual woman—that is, a transsexual person who is born a male but who subsequently transitions to live permanently as a woman—can gain the right to marry a man, or to form a civil partnership with a woman, as well as the right to claim state pension at the pensionable age for women. The Act sets out a stringent set of criteria which all applicants must meet in order to be granted a legal change of gender. Applicants for gender recognition must satisfy an independent judicial body established by the Act, the gender recognition panel, that they meet these criteria. First, the person must have or have had gender dysphoria, which is the recognised medical condition of feeling oneself driven to present oneself in the appearance of the opposite sex. Secondly, the person must have lived permanently in their acquired gender for the two years prior to the application being made. Thirdly, the person must intend to live in their acquired gender until death. Successful applicants who submit evidence to show that they meet these criteria receive a gender recognition certificate. Many other countries have their own gender recognition system, and for this reason the Act provides for an alternative application process for those who have gained legal recognition overseas. The intention of the overseas application process is to minimise bureaucracy without compromising the integrity of the criteria set out in the Act. When the Act was passed, Parliament was mindful of the danger of creating a system which might allow transsexual people who could not meet the criteria in the Act to effectively sidestep those criteria. Such people might travel overseas to obtain gender recognition in a country with weaker criteria and then obtain legal recognition in the UK by virtue of that overseas recognition. This would have undermined the robust criteria in the Act agreed by Parliament. The Act therefore contains a power that puts on a statutory footing the countries and territories which are approved for the purpose of the overseas application process. Applicants submitting an application through this alternative application process must satisfy the gender recognition panel that they have obtained legal recognition in one of those approved countries or territories. An order made in 2005 sets out the countries and territories that are currently approved for the purpose of the overseas application process. At the time that the order was made, those countries and territories were deemed to have a gender recognition system equivalent to our own. When the 2005 order was approved, it was the view of Parliament that the list of countries and territories approved under the Gender Recognition Act 2004 would have to be amended as countries or territories established new schemes for legal recognition. Gender recognition is a relatively new and fast-developing area of law, and some countries and territories have indeed introduced new systems for legal recognition of a gender change since 2005. There are also some jurisdictions that have amended their existing gender recognition systems. Quite simply, the 2005 order is out of date. The order before us today lists the countries and territories that up-to-date research has shown have equivalent robust gender recognition mechanisms to our own. In drawing up the list, the Government were guided by two key factors. First, we included only those countries and territories that provide for legal recognition of a gender change. This reflects the main purpose of the Gender Recognition Act, which is to grant legal recognition. Secondly, we included only those countries and territories where the process for granting legal recognition includes a proper assessment that the individual has taken decisive steps to live fully and permanently in the acquired gender. This reflects the policy behind the Gender Recognition Act as agreed by Parliament. The order before us today includes the majority of countries and territories listed in the 2005 order, with just two exceptions. One of these is Latvia. Following developments in Latvian case law, the process for legal recognition of a gender change in Latvia is no longer suitably robust. The second country from the 2005 order which does not appear in this order is Serbia and Montenegro, which no longer exists as a unified state. Serbia continues to maintain a gender recognition system broadly comparable to our own, so we have added Serbia to the list. In addition to Serbia, this order includes eight further countries and territories that were not included in 2005. In some cases, such as Uruguay, this is because a mechanism equivalent to our own for legally recognising a gender change has been introduced since 2005. In the case of some countries, such as Croatia, we have identified the country’s gender recognition process for the first time. The order has already been debated and approved in another place. Members raised the question of transsexual citizens from other EU member states, such as Portugal, that are not included in the list. Members wanted to know whether the requirements of the Gender Recognition Act might conflict with their rights as citizens of the European Union. Perhaps I may take this opportunity to assure Members of the Committee that the Gender Recognition Act does not compromise a person’s rights under EU law in any way. Section 21(6) of the Act makes it clear that the Act recognises the right of free movement which all individuals from the European Union and European economic area enjoy. If an individual has received legal recognition in an EU or EEA country, they must be treated in their acquired gender when visiting or living in the UK. Given the complexity of the law in this area, people in this category are nevertheless encouraged to consider seeking in addition a UK gender recognition certificate in order to secure added certainty as to their position, but that is their choice. While individuals from an EU country not included in the list are unable to take advantage of the simplified applications process, they are free to apply for a UK gender recognition certificate under the standard application process. A question was also raised in another place about the impact of the order on charities that work on transgender issues. While the order is predominantly an administrative exercise, the Government took the opportunity informally to seek the views of key stakeholder groups. These included charities that work on transgender issues. None raised any concerns about the impact on them, nor did they have any objections to the countries and territories listed in the order. In summary, the order provides an up-to-date list of those countries and territories that have a gender recognition system we can rely on. A transsexual person who has obtained legal recognition of their acquired gender in any of these countries and territories will have taken decisive steps to live fully and permanently in their acquired gender. I therefore commend this draft order to the Committee and I beg to move.