Gordon Brown writes to UK Gay Community ahead of Pride

A few weeks ago I wrote about the experience of attending the first ever reception for Lesbian, Gay, Bisexual and Trans people at Ten Downing Street.

The Brown family then, and now, seem to really be prepared to make their support for LGBT causes very visible. Next weekend, for instance, Gordon's wife Sarah will be joining the London Pride March.

In advance of next weekend's London Pride festivities, the Prime Minister has sent a letter to all of us who attended his reception. We are invited to share it widely, so here is the full text:

10 Downing Street, London SW1A 2AA

Pride London is one of the highlights of the London summer and I'm pleased to welcome one million LGBT marchers from across the country and around the world.

I'm very proud of all that this Government has achieved on LGBT rights these last 12 years – often in the face of fierce opposition. From equalising the age of consent, lifting the ban on military service, introducing gay adoption and creating civil partnerships to scrapping section 28, introducing the Gender Recognition Act and banning discrimination at work and in the provision of goods and services, we've taken massive strides towards equality. More recently, we have taken action to tackle homophobic bullying in schools, made incitement to homophobic hate a crime, secured unprecedented lesbian fertility rights and introduced the Equality Bill.

But I also know that we quite simply couldn't have done it without the activism of our out and proud LGBT community, so I hope you're very proud of what your campaigning has achieved: you've changed laws, you've changed lives, you've changed the world.

Together we've done a lot – but we can never be complacent and must always be vigilant to see that progress isn't reversed.

This government is committed to standing at your shoulders in the fight for equality and we are guided by one very simple principle when it comes to LGBT rights: you can't legislate love.

Best wishes and have a great Pride,

Gordon Brown

PFC’s Submission to the Joint Committee on Human Rights

The Equality Bill has nearly finished its' committee stage scrutiny in the House of Commons and, after a report debate and third reading, is expected to pass the first stage on the way to becoming law. The second stage will be when the Bill returns to be similarly debated and scrutinised by committee in the House of Lords in the Autumn.

MPs from all sides in committee have attempted to change aspects of the Bill which lobby organisations have misgivings about – mostly without much success.

MPs Lynne Featherstone, Evan Harris and Tim Boswell have presented a number of amendments recommended by the trans rights organisation Press for Change. The Government has not acceded to these.

Unfortunately it has not been possible to publish anything previously about PFC's recommendations, because their briefing paper was ring fenced by warnings about their intellectual property and PFC have not published anything themselves in the public domain. However, the group's submission to the committee is available in this format on the Parliament Web Site.

The fact that the Government has resisted these desired amendments in committee is not the last word on the matter. MPs have the opportunity to raise the issues again at second reading in the Commons (and, if necessary force a division for all MPs to vote). During the summer the Joint Committee on Human Rights (JCHR - a standing committee with members from both Houses of Parliament) will scrutinise the Bill as well – as they do for all legislation impacting Human Rights.

Press for Change has again issued a submission to the JCHR. Again, unfortunately, they've failed to publish it online in a form where people can go and read what they've said. (They merely emailed a blind list of interested parties).

I'm not proposing to comment on that way of working, however I think it is vital that more people should be able to understand the issues which they are raising. Therefore I'm using this Blog to paraphrase their submission, which will eventually be published on the Parliament web site in full in any case.

PFC begin by explaining who they are.

Press for Change (PFC) is the largest representative organisation for trans people in the UK. Formed in 1992 to "seek respect and equality for all trans people in the UK", through case law, legislation, and social change, it reaches around 2,500 transgender and transsexual people in the UK. This response is supported by over 21 other organisations for trans and gender variant people.

Then they summarise their concerns.

1. The problems and limitations, and legal issues, of using the term of 'Gender reassignment' as the characteristic determining protection in the Bill.
   
2. The inappropriateness of the phrase 'Gender Reassignment' to provide protection to children and adolescents who express their gender differently from that expected.
   
3. The Bill's apparent allowing of school bodies to harass children and adolescents because they possess the characteristic of 'Gender Reassignment'.
   
4. The unlawful misuse of an exemption to the Bill's protection because of the characteristic of 'Gender Reassignment' in the provision of a Single Sex Services.
   
5. The unlawful inclusion of a Genuine Occupational Qualification that a Person not be a Transsexual Person.
   

We are also extremely concerned about the areas where the Bill attempts to undermine EU and ECHR caselaw, legislation and rights under the European Convention on Human Rights.

On the topic of whether the legislation should refer to 'Gender Reassignment' (as at present) or 'Gender Identity' (as PFC advocate) they say:

PFC welcomes believes the definition as suggested is unclear and will leave many members of the trans community unprotected.

First , it defines a protected characteristic by reference to a course of medical treatment and includes in that definition persons who do not undergo such treatment. Furthermore, we believe that "gender reassignment" is relevant to a protected characteristic, it is not however a protected characteristic itself.

Secondly, 'gender reassignment' may exclude certain transsexual persons who do not seek treatment. 'Changing sex' is not easy, as acknowledged by the European Court of Human Rights, and gender reassignment is a long and arduous road – which surely is not a pre-requisite to one's human rights.

Thirdly, we believe that it is equally counter-intuitive to define the state of mind of a trans persons in deciding whether they would fall within a protected class of persons (asking questions such as: "is the person "proposing" to undergo gender reassignment) rather than focusing on the basis or motivation for the discriminatory behaviour by those discriminating against the person, namely the person's perceived non-adherence to gender norms.

We believe that the term "gender identity" is more apt to providing protection for the groups of persons envisaged by the drafters as requiring protection including those enumerated in explanatory note 57.

Our position is supported by 98% of respondents to the survey who said they believe that protection should be granted to anyone discriminated against on the basis of their gender identity or expression.

This terminology whilst being more appropriate is also in line with international developments. It is also terminology adopted and used by the United Nations and the Council of Europe. , ,

The Scottish Parliament has also used 'transgender identity for 'the Offences (Aggravation by Prejudice) (Scotland) Bill 2009 which has a fully inclusive.

We are concerned with the use of the term 'gender reassignment' as the protecting characteristic in relation to young people, in particular in light of the fact that gender variance in children will remit for the majority of children by adolescence (80-95%) .

The term 'gender reassignment' would expect a young person to comment whether they 'intend to undergo gender reassignment' in the future. It is important to note that many pre-pubertal children will not have heard of, or understand, the possibility of gender reassignment. In addition, in the UK, children below the age of 16 cannot meet the UK clinic's gender reassignment criteria for undergoing gender reassignment or even establish that they wish to do so. Yet, young people considered "gender variant" by others need protection against bullying and victimisation.

Consequently, PFC believes the inclusion of "gender identity" as a defining characteristic in Vol 1, Part 2, Equality - key concepts, Chapter 1 - Protected characteristics, S.7 is essential to protect trans people and gender variant children and adolescents.

On the issue of harassment of children and adolescents they say:

The apparent permission in Vol 1 pt.6, Chapter 1, Section 80, ss.10 for a responsible body of a school to lawfully harass young people, allowing them to be subject to discriminatory behaviour that would violate their dignity, creating a hostile, degrading, humiliating, or offensive environment, because they possess the characteristic of 'Gender idendtity' (or sexual orientation or religion or belief).

This is at odds with the provision in Vol 1 Pt. 2, Chapter 2 , S. 24 Harassment.

Press for Change therefore recommends that the clause Vol 1, Part 6 – Education, Chapter 1 – Schools, S.80, s10 be struck from the face of the bill.

Finally, PFC also assert that the Government is proposing to flout European Union and European Court of Human Rights law in relation to single sex services and employment. They say:

Press for Change is very concerned by the exemption to protection for trans people in Vol II, Sch. 3 Part 6, Gender S. 25 (1) and in Vol. II ,Sch.9, pt. 1 General , ss. 3

Both of these sections fail to acknowledge that where a person has successfully applied for and been awarded a Gender Recognition Certificate (GRC) their gender becomes for all purposes the acquired gender."

And as there have been no problems of trans people applying for single sex jobs or using single sex services inappropriately since the introduction of the Employment Regulations (1999) and Sex Discrimination (Amendment of Legislation) Regulations (2009), it is clear the vast majority of businesses have adapted well to the use of their services by trans people. The provision is also, legally unsound.

PFC believes that the provisions contained in ss. 25 contravene articles 8 and 14 ECHR of those trans persons following the decisions of the European Court of Human Rights, in the cases of Goodwin, and I v United Kingdom (2002), as confirmed by Grant (2006) Furthermore in Bilka-Kaufhaus GmbH v Weber von Hartz (1987) ICR 110 the Court held that for any such justification in anti-discrimination law

"the objective of the (providers) measure must correspond to a real need."

There are also very good reasons for believing that the House of Lords and ECJ will continue to uphold in the question of access to goods and services or employment, the principles contained in the Equal Treatment Directive 2004/113 (ETD 113) will follow the principles of the ETD 76/207. i.e. that a person is recognised as a member of their new gender from the day they transition.

We believe that this has been reflected in practice. In practice, none of the GOQs introduced by the Sex Discrimination (Gender Reassignment) Regulations (1999) have proven to be relevant. There is little case law, and that which there is upheld the rights of the trans person to work in the employment. In A v Chief Constable of West Yorkshire Police [2004] HL. 21, E.W.C.A. Civ 1584, Baroness Hale held that following the decision of the ECJ in the case of KB v NHS Pensions Agency it is clear that

"for the purposes of discrimination (Equal Treatment Directive 1976/2007/EEC) , a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned".

This was later confirmed by the ECJ in the case of Sarah Margaret Richards v Secretary of State Pensions and the ECHR in the case of Grant v. United Kingdom [2007] 44 EHRR 1.

Furthermore barring a transsexual person from employment who is in possession of a Gender Recognition Certificate would be unlawful as persons with a GRC have to be treated "for all legal purposes" as a person of that sex. The Gender Recognition Act 2004 amended the SDA 1975 and removed GOQs from applying to persons who held a GRC.

We further believe that the principle can be extended to those trans people who are not living permanently in their preferred gender role.

Press for Change believes that these sections should be rewritten, to make it quite clear that protection already obtained is not to be removed. We would suggest that the protection is extended to :

(3) A person who has the characteristic and a Gender Recognition Certificate is exempt from the provisions contained in ...

(4) A person who has the characteristic and who is living permanently in their preferred gender role, whether or not they are intending to undergo, are undergoing, or have undergone gender reassignment is exempt from the provisions contained in ...

(5) a person who has the characteristic but where the related gender expression does not take place within the (single sex setting)/(workplace) is exempt from the provisions contained in ss.(1)

Letter to Department of Health regarding Number Ten Petition Response

Earlier this year, a petition on the Number Ten Downing Street web site drew many hundreds of signatures protesting the existing policy on gender Dysphoria treatment by Oxfordshire PCT.

The policy agreed to refer patients for assessment of their gender Dysphoria – a process that would involve social transition and hormone treatment (some of which is irreversible) but which then refused to fund any surgeries which clinicians indicated to be necessary to complete a patient's treatment.

Today Number Ten has responded. You can read their response here.

Apart from the fact that the response really says nothing useful in policy terms (other than the fact that the policy is being reviewed), I was disturbed by the poor description of the patient pathway, and what it could imply to those who are not completely familiar with best practice, and the areas where treatment protocols are in active dispute.

I have written immediately to the senior civil servant who would most likely have been involved in drafting the Number Ten response. And if he wasn't involved in the response then that would raise another question.

Here is an extract from what I have said:

Dear 'B'

I have just been notified by the No.10 epetition system about the Government's response to the issues surrounding the current commissioning policy of Oxfordshire PCT concerning gender reassignment treatment. As you know, the present policy – by amounting to a blanket ban in all but name – is unlawful.

I am writing to you personally as I expect that you should have had some input into the text of the response.

What troubles me is that the reply is factually incorrect in the way that it describes the standard patient pathway.

Firstly, the description blurs the distinction between a referral to a CMHT psychiatrist (to rule out psychiatric illness) and the tertiary referral which normally takes place from there to a gender identity specialist service (which need not necessarily be psychiatrist or psychologist led). In doing this the reply over-emphasises the prominence of psychiatry in treatment and implies that gender identity patients have a mental illness. As you know, the direct reverse is true. The point of the two stage referral is to ensure that people who are mentally ill are treated locally for that mental illness. Gender clinics deal with people who are not mentally ill (or in whom the mental illness is unrelated to gender Dysphoria or simply a result of non-treatment of gender Dysphoria).

Secondly, and far more seriously, the No.10 statement implies compulsion in the organisation of the Real Life Experience (RLE) and that endocrine treatment may not be offered until late in an 18 month process. In the worst of the policies I have come across this is never the intention. There is controversy over whether endocrine treatment should start before or in the first three months of RLE – the Parliamentary Forum regards the latter as unethical and cruel (a potential human rights abuse) – but I have never come across anyone proposing that patients should effectively live in drag for extended periods without endocrine treatment to support the other changes they need to make (such as facial hair removal, which is impossible otherwise).

In a sense this emphasis on the non-surgical aspect of the patient pathway is an irrelevance in any case, however, as the petition was about the cruel and unethical policy of embarking patients on a programme like this and then refusing to fund clinically indicated surgery to complete it. The No.10 makes no reference to the place of surgeries in the patient pathway and therefore fails to answer the very essence of the petition.

'B', I've now been working with you for the better part of four years and so I now expect better from the Department, which I'm sure will have been involved in drafting and agreeing this statement.

Please confirm what you are going to do about this.

Yours etc...

The Times updated style guide

From the newly-updated Times style guide:

Sex change. Avoid this inaccurate and potentially offensive shorthand for the process of gender reassignment by surgical and other medical procedures. Note that from a legal perspective, people in the process of gender reassignment should be called by whatever name and honorific they prefer, and that the appropriate personal pronouns reflecting that change should also be used. The Gender Recognition Act 2004 makes it an offence to identify a person who has been granted a gender recognition certificate by their previous name or gender. Note that transgender and transgendered (adjectives, never nouns) are terms used by people with this condition and by the medical profession in preference to the older term transsexual.