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Publications > Forms & Guidance > Risk management

Final Regulatory Impact Assessment

Gender Recognition Bill

November 2003


1.  Title of proposal


Gender Recognition Bill


2.  Purpose and intended effect of measure


Objective
The Bill is designed to provide transsexual people with the opportunity to gain legal recognition in their acquired gender.

The Bill applies to England, Wales and Northern Ireland. It applies to Scotland for reserved matters and the Scottish Executive will invite the Scottish Parliament to approve a Sewel motion so that it applies for devolved matters as well.

The background
Transsexual people, some of whom may have lived in their acquired gender for many years, are not treated as being of that gender in law. They do not have access to any of the rights or responsibilities confined to people of that gender. They are not able to change their birth certificates. They live in a state of limbo, between the gender in which they are living and the gender in which they were born; because that is how the law defines them.

The Bill will mean that transsexual people who have taken decisive steps to live fully and permanently in the acquired gender will for the first time be afforded the opportunity to be recognised in law as being of that gender and to have all the rights and responsibilities appropriate to that gender. The Bill will give transsexual people the right, from the date of recognition, to marry in their acquired gender and be given birth certificates reflecting the acquired gender. A person recognised in the acquired gender will be able to obtain benefits and State Pension just like anyone else of that gender.

In July 2002, the European Court of Human Rights (ECtHR), in the cases of Goodwin and 'I', found that the UK was in breach of its Convention obligations under Article 8 (the right to respect for private life) and Article 12 (the right to marry) in not providing transsexual people with a means to recognition in the acquired gender. All other signatories to the Convention, with the exception of Ireland and Andorra, provide transsexual people with legal recognition in their acquired gender. Since the ECtHR judgements, the House of Lords has given judgement in the case of Bellinger v Bellinger. The House of Lords made a Declaration of Incompatibility, citing the lack of provision for a transsexual person to marry in the acquired gender.

There are estimated to be around 5,000 transsexual people in the UK. Transsexualism or gender dysphoria involves feelings of being 'in the wrong body' and wanting to live permanently as a member of the opposite gender. A degree of recognition is already extended to transsexual people in the United Kingdom. Psychiatric, hormonal and surgical treatment is available, including on the NHS, and a range of documentation such as passports and driving licenses may be issued in the new name and gender. This limited degree of recognition does not however meet the concerns of transsexual people or the standards set by the ECtHR.

Risk assessment
There are at least two risks to be considered.

  1. The risk to individuals who have gender dysphoria
Transsexual people remain in a state of limbo between the gender in which they are living and the gender in which they are recognised in law. They have to deal with a range of embarrassing and distressing situations as a consequence. Press for Change, a lobby group for the rights of transsexual people, has figures to suggest that 80% of people who suffer from gender dysphoria seriously contemplate suicide. Rectification of the human rights breaches would help to reduce this risk.

  2. The risk of legal challenge
The Government has an obligation under international law to rectify breaches of Convention rights. If the Government does not take steps to do so, there is a very real risk of further legal challenges. There are a number of such challenges already before the courts. There is also an outstanding Declaration of Incompatibility from the House of Lords.

Scaling the Issue
There are no firm figures on the number of transsexual people in the UK.

The Inland Revenue and Department for Work and Pensions have around 4,000 cases marked as 'nationally sensitive' because the individual has stated that he or she is transsexual. Groups representing the community estimate that there are 5,000 transsexual people in the United Kingdom. As noted above, transsexual people can change their name and gender on passports and driving licences. Figures from the Passport Agency and DVLA also suggest that the population is close to 5,000. That is the figure that will be used for the remainder of this RIA.

In terms of the risk of legal challenge, the likelihood is certainly extremely high. Legal challenges will continue to expose the Government to criticism and embarrassment. Different legal challenges may well focus on different aspects of the problem and a miscellaneous list of human rights breaches may develop.

An impact in cost terms can also be estimated. The applicant in Goodwin claimed total damages of £78,200. Using the figure of 5,000, even if we assume that only 10% of transsexual people will bring legal challenges in the face of continuing inaction to remedy human rights breaches, this could cost the Government in excess of £39m.

In the case of Goodwin, the ECtHR in fact only ordered the UK Government to pay costs. These amounted to around £28,800. The cost to the Government can therefore be revised to £14.4m. In addition, there is the cost of preparing for and arguing these cases.

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3.  The Options


Option 1: Do nothing
The Government is obliged to rectify breaches of international law. A declaration of incompatibility with the Convention can be made by a UK court and its effect is similar, i.e. if the Government does nothing, the pressure to legislate will continue to build and further challenges and claims for compensation will continue to be brought.

Option 2: Remedial Order
Ministers may amend a provision in primary legislation if it is incompatible with a Convention obligation of the UK. Amending s.11(c) of the Matrimonial Cause Act 1973 in this way would enable transsexual people to marry in their acquired gender, i.e. one of the human rights breaches could be rectified.

Option 3: Primary legislation
This is the only way to rectify all human rights breaches, establish a rigorous and credible process for gender recognition and ensure full legal recognition in the acquired gender across the range of situations in which gender is significant in law.

These options were analysed in the Partial RIA, published at the same time as a draft Bill, and the third was shown to be the most appropriate.

Primary legislation
A Draft Bill was published for pre-legislative scrutiny on 11th July. The Joint Committee on Human Rights is expected to publish its report shortly.

Using primary legislation is the only way to rectify all human rights breaches and ensure full legal recognition in the acquired gender across the range of situations in which gender is significant in law.

Business sectors affected
There are potential impacts on:

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4.  Benefits


Option 1: Do nothing
There would be no direct impact on the business areas mentioned. The pressure to make informal arrangements for dealing with transsexual people would remain. Business sectors may or may not respond to this pressure.

Option 2: Remedial Order
A Remedial Order would be a simple and swift means of dealing with one of the breaches of Convention rights. It would have some impact (details in the Costs section below) but the impact would be more limited than for Option 3.

Option 3: Primary legislation
The Bill will set up a framework to provide full recognition for transsexual people in the acquired gender. The Bill will also fulfil the UK's obligations under international law. In addition to addressing the needs of transsexual people themselves, this should largely eliminate the risk of further legal challenges in this area.

It will have an impact on the business areas identified (see Costs below) but the legislative process will allow this impact to be managed, planned for and properly debated in Parliament. In any case, officials have worked closely with stakeholders from across the range of business areas that will be affected and no significant adverse impacts have been identified. Using primary legislation will also allow for the creation of a robust and credible process whereby recognition in the acquired gender is granted.

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5.  Costs


The potential impact of each option is minimal, as the number of individuals involved is very small. Potential costs of the options are outlined below.

Option 1: Do nothing
The risk of legal challenge and the costs associated with that risk would remain high. There will also be a cost to Government Departments in terms of preparing for the legal challenges. It is worth noting that some of the costs associated with changing the way transsexual people are treated will be incurred in any event, as business sectors will remain under pressure to change their practices and taking the lead of the Passport Agency, DVLA and many employers, some will change their practices voluntarily.

Option 2: Remedial Order
The costs will be negligible, as the numbers of people involved are so small. The majority of transsexual people are unmarried and if the only change in the law is to allow transsexual people to marry in their acquired gender, the impact to be assessed pertains to a small minority of 5,000 people.

There would be some minimal costs to several sectors involving changing records and the payment of different levels of benefit or pensions to reflect married status. There would also be additional costs, both financial and organisational, for the Registrars General, as if recognition in the acquired gender was only to count for the purposes of marriage, it is probable that the Registrars General would have to consider applications.

Option 3: Primary legislation
Although Option 3 goes further than Option 2, its impacts are still minimal as the number of individuals affected remains small. Costs to various business sectors are outlined below.

Employers:

Insurance providers:

Private pensions providers

Sporting bodies

Charities that work with or represent transsexual people

Professional organisations

Religious organisations

Solicitors' firms

Not-for-profit legal services providers

Other Government Departments:

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6.  Equity and fairness


There is no disproportionate effect on any business sector or any other group of individuals or sector of society.

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7.  Consultation with small business: the Small Firms' Impact Test


Discussions with the Small Business Service have confirmed that there is no evidence to show that the Bill will have a significant impact on small businesses.

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8.  Competition assessment


None of the options would create a significant cost burden within any particular market. Any costs that are imposed on business are likely to be distributed evenly between firms within specific markets, so that there should be no disproportionate effects. It is therefore considered that none of the options will have any significant effect on competition.

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9.  Enforcement and sanctions


No enforcement mechanism or sanctions are foreseen, although there is criminal liability for the prohibited disclosure of 'protected information' as set out in the Bill.

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10.  Monitoring and review


Major new regulations have to be reviewed within 3 years of coming into force. Moreover the Bill envisages the creation of a Gender Recognition Panel, which will consider applications from those seeking recognition in the acquired gender. The operation of the Panel will be reviewed on a regular basis and it is envisaged that, as with other such bodies, a user group will be set up.

Were either Option 1 or Option 2 to be taken forward, this area of law and practice would have to be monitored constantly and reviewed as legal challenges would continue to ensue and political pressure would continue to build.

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11.  Consultation


Within government
The members of the Interdepartmental Working Group on Transsexual People and the Domestic Affairs Committee were consulted on the content, policy and drafting of the Bill, as well as on the content of this RIA.

The following Departments and public bodies provided input.

-   Criminal Records Bureau
-   Department for Culture, Media and Sport
-   Department for Education and Skills
-   Department for Work and Pensions
-   Department of Health
-   Department of Trade and Industry
-   HM Prisons Service
-   HM Treasury
-   Home Office
-   Inland Revenue
-   Insolvency Service
-   Ministry of Defence
-   National Assembly for Wales
-   Northern Ireland Office
-   Northern Ireland Court Service
-   Office of National Statistics
-   Office of the Deputy Prime Minister
-   Scottish Executive
-   United Kingdom Passport Service
-   Wales Office

Public consultation
The Department consulted with the financial services sector, in particular insurance and private pension providers, to determine how the Government's proposals would affect them. The Department for Culture, Media and Sport undertook a consultation to determine how the Government's proposals will affect sporting bodies in the United Kingdom. The results of these consultations have informed development of the legislation. The regulatory impacts identified by these consultations are described above.

Although there was no formal public consultation exercise on the individual provisions of the proposed legislation, the public and interested bodies were given the opportunity to provide comment on the draft Bill via the pre-legislative scrutiny process. This was conducted by the Joint Committee on Human Rights. The Department has also received comments on the Bill. The response to the Bill has, on the whole, been positive. No further regulatory impacts have been identified as a consequence of consultation.

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12.  Summary and recommendation


The three options, including the final proposal to legislate, do not carry any significant regulatory impact.

The Government announced its intention to proceed with primary legislation on December 13, 2002. This RIA accompanies the Gender Recognition Bill. There are some minor costs involved with this proposal. These costs are justified by the need to provide legal recognition for transsexual people in their acquired gender, the obligation to rectify breaches of Convention rights, and the potential for eliminating the risk of further legal challenges and the costs associated with those challenges.

The public response to the draft Bill was limited and, on the whole, positive. No issues as to regulatory impact were raised. [The report of the Joint Committee on Human Rights has agreed that primary legislation is the only viable option in this area and that transsexual people should be given the opportunity to seek full legal recognition in the acquired gender as soon as possible.]

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13.  Declaration


I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs.


Signed by :-
(Lord Filkin CBE)
Parliamentary Under Secretary
Department for Constitutional Affairs

Date:- 27.11.03

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14.  Contact point


Emran Mian
Bill Manager
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
SW1E 6QW
Tel:- 020 7210 8205
Email:- GRB@dca.gsi.gov.uk

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