Who first mentioned Yogyakarta and Resolution 2048

This is an information sheet with cut & paste extracts and links to written evidence from the Women and Equalities Committee: Transgender Equality Report (2015).

Page 9

“We also heard from various quarters the view that the UK government should adopt the overarching principles on trans equality embodied in two international declarations:21 • the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, adopted by the International Commission of Jurists in 2007;22 and • Resolution 2048: Discrimination against transgender people in Europe, adopted by the Parliamentary Assembly of the Council of Europe in April 2015.23,”

Footnote

. 21  Qq135, 142, 155; National LGB&T Partnership (TRA 077); LGBT Consortium (TRA 083); UNISON (TRA 116); UK Trans Info TRA 138; Centre for Law & Social Justice, University of Leeds, and Intersex UK (TRA 167); Scottish Transgender Alliance (TRA 225)

Let’s have a closer look at each of those links

1/ Qq135, 142, 155

Oral evidence to the Commitee on 13/10/15

Written evidence provided by : Peter Dunne and Scottish Trans Alliance

Q135 Mrs Drummond: What about other countries? Do they do the same procedure?

Peter Dunne: When we talk about international law and we talk about best practice, we have to take a very realistic view here as well. It is very difficult talking about international human rights law in this area, when gender identity was not discussed at the UN until 2006 and the approach to the way these statutes were developed was, until about 2012, almost one that did not recognise trans people as human beings. So to talk about human rights comparatively is difficult, but there are a number of jurisdictions, particularly in western Europe, which are moving towards a model of self-declaration, and that really is now the gold standard. We saw that in 2012 in Argentina, but it is rapidly happening now in Europe. Ireland has adopted self-declaration; Denmark has adopted self-declaration; Sweden and Norway will do that from 2016; Belgium has committed to self-declaration; Malta has adopted self-declaration.

At the international human rights level, six months ago a resolution was adopted in the Parliamentary Assembly of the Council of Europe. That is not binding and often these are just talking shops, but what is so important about these resolutions is that, very often, they happen as common knowledge and best practice are changing. In 1989, there was a resolution on the recognition of trans identities in law, and it was the time when jurisdictions began to recognise that. In 2010, we had a resolution on moving away from physical medicalisation and intervention, and what was so interesting about the 2015 resolution, only six months ago, was the line, “Develop quick, transparent and accessible procedures, based on self-determination”. That shows that it is now time for self- determination, and that, when we talk about international human rights law, there is very little debate over what is the appropriate standard.

Yes, there are other jurisdictions in Europe that are not doing this, but you have to look at the underlying reasoning. What is their mentality? If you want to be a forward-thinking, human rights-conscious jurisdiction, there really is only one way in which the law can go.

Q142 Chair: James, why does the guidance not clarify this, or am I misinterpreting what you are saying?

James Morton: We would like to see the protected characteristic be gender identity as defined in the Yogyakarta Principles, so it is clear they are fully inclusive. In terms of case law, there is a lot of fear about being a test case. It is incredibly emotionally demanding. You would be scrutinised by the press; your identity may well end up mocked. You do not have a guarantee that there would be reporting restrictions; you might be lucky and get those, but you are not certain to. We have been trying to persuade people to take forward test cases, but people are very nervous of doing so, and we cannot make someone give up years of their life to that process.

The guidance could be stronger and better, but really without moving to a protected characteristic of gender identity there are still these loopholes. There are also non-binary people who decide, for various personal reasons, “I am not going to change the gender in which I live. I am going to continue living in my birth gender, but I might want to share with others that my gender identity is not as simple as that.” However, the act of sharing that information could lead to discrimination, and, because they are not proposing any part of a process of moving away from their gender assigned at birth, they would not have protection. The perception coverage would only be if they were perceived as transsexual, and if they have come out as non-binary, they are being perceived as non-binary, not as transsexual. So even if you had some case law, there would still be these gaps, and that is why we think that the protected characteristic needs to change.

Q155 Chair: Given that a number of countries now do allow that to happen, why do you think that has not been adopted as a system in the UK?

Ashley Reed: Sorry, could you repeat that?

Chair: Historically, there were some sensitivities around having gender recorded as “X” on a passport, for reasons of international relations, but given that other countries are now doing that—I believe Australia has adopted that methodology—that problem must have been resolved. Peter, do you feel that that has not been resolved?

Peter Dunne: There is a concern about international law and whether or not, for example, jurisdictions like the United States would accept some of these passports, so I think that is why it remains. Absolutely there is a movement towards having “X” passports. One of the benefits of the “X” passport as opposed to the birth certificate is that the birth certificate becomes a foundational document. Therefore, rights accrue from the birth certificate and that makes it a bit more difficult, whereas with the passport it is a document about travelling and so, therefore, some of those rights do not happen as much. This is very much a personal view, but I would be in favour of looking towards “X” passports. Certainly in the resolution from the European Council, there was encouragement to consider that issue. The only thing that I would say is when we look at other jurisdictions in terms of “X” recognition, just so that we are open and honest, we have to draw a distinction between those jurisdictions that recognise trans individuals with an “X” marker and those jurisdictions that provide “X” markers for individuals who are intersex. Some jurisdictions provide it for individuals who are intersex and do not provide it for individuals who have a trans identity.

James Morton: The International Civil Aviation Organisation recognises that “X” is an acceptable gender marker, and as long as people are fully informed about their decision to opt in to having an “X” on their passport, then they should be entitled to make the decision about whether certainty about being able to travel to America is or is not more important to them than the recognition of their non-binary gender on their passport.

In terms of birth certificates, it is slightly more complicated to introduce an “X”, whereas with a passport you could simply start issuing them tomorrow without passing legislation, but we now write our legislation in a gender-neutral manner. There are a limited number of places where men and women are treated differently in legislation, and most of them need to be looked at again from a binary trans perspective as well. For example, family and parental rights are a bit messy now, in terms of whether a trans man has had gender recognition as male but then gives birth to a child and things like that, so these are things that do require revisiting anyway.

2/ National LGB&T Partnership (TRA 077)

The key issues covered in this response are:

  Adoption of Council of Europe Resolution 2048

Council of Europe Resolution Adoption in the UK

The National LGB&T Partnership calls for the UK government to adopt the Council of Europe’s Resolution 2048, Discrimination against transgender people in Europe, to ensure action to improve trans people’s rights in the UK and to show leadership on this issue across Europe. This resolution has so far been adopted by Ireland, Denmark, Malta and Argentina.

3/ LGBT Consortium (TRA 083)

We would also like to make special reference to the Council of Europe’s resolution on discrimination against trans people http://assembly.coe.int/nw/xml/XRef/X2H-Xref- ViewPDF.asp?FileID=21736&lang=en.

Solution: As per a later point, we would propose removal of the “spousal veto” and we would propose a reduction of the age to be covered by the Gender Recognition Act. We would recommend this to be reduced to 16 or removed entirely. The GRA also needs the removal of medical criteria to define a trans person. The Equality Act should be expanded to cover Gender Identity rather than just Gender Reassignment to allow recognition on non-binary people.

4/ UNISON (TRA 116)

Joint guidance from UNISON and the Scottish Transgender Alliance for trade union reps supporting trans members https://www.unison.org.uk/content/uploads/2013/11/On-line-Catalogue219163.pdf , first reissued in 2013 and currently being updated again, has been widely welcomed and used, demonstrating the appetite for this sort of introductory advice.

. UNISON believes that the terminology of the protected characteristic ‘gender reassignment’ has proved to be insufficiently comprehensive in its coverage of trans people. Further, it has added to the myths and stereotypes about the diverse trans community referred to in 3.4 above. It should be replaced by the term ‘gender identity’ as set out in the Yogyakarta Principles http://www.yogyakartaprinciples.org/

. UNISON also opposes the provision (EA, Schedule 3) that allows service providers to exclude a trans person from a single-sex service where it is judged to be proportionate to do so. This provision leaves it in the hands of a service provider to make this judgment. As the TUC has pointed out, this actually weakens the protection previously provided in the Sex Discrimination Act.

. Further, UNISON calls for the removal of the provision for a genuine occupational requirement that the person not be trans and for the introduction of the possibility of a genuine occupational requirement that the post-holder be a trans person, as exists other protected characteristics.

5/ UK Trans Info TRA 138

5. In April 2015 the Parliamentary Assembly of the Council of Europe adopted with large majority a resolution (“the CoE resolution”) on Discrimination against transgender people in Europe2. They called on member states to “develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people.” The GRA does not meet their recommendations.

5. The GRA is outdated and in urgent need of revision. We recommend the following changes, which are largely in line with the WPATH statement and the CoE resolution:

a. Remove the requirements for medical evidence and evidence of living ‘in the acquired gender’ and replace with a simple administrative system that only requires a statutory declaration as evidence. The UK would then join Argentina, Denmark, Ireland and Malta as world leaders by allowing self-
determination of legal gender.

The Equality Act 2010 does not fully protect all trans and non-binary people, nor does equality legislation in Northern Ireland. We recommend the following changes:

a. Create a new protected characteristic of Gender Identity based upon the definition in The Yogyakarta Principles5 as the current definition of Gender Reassignment doesn’t clearly encompass all trans and non-binary people. A similar recommendation was also included in the CoE resolution.

b. Reverse the situation where a Genuine Occupational Requirement to specify that someone must not be a trans person is legal, but one to specify that they must be a trans person is illegal.

c. Remove the exception allowing providers of single-sex services to legally discriminate against trans and non-binary people which in particular can sometimes make it impossible to access crisis services.

6/ Centre for Law & Social Justice, University of Leeds, and Intersex UK (TRA 167)

. While respecting trans people’s self-defined gender identity (in accordance with the Right to Recognition Before the Law, Principle 3 in the Yogyakarta Principles), such reform removes the requirement of a diagnosis of gender dysphoria as a pre- condition of legal gender recognition,

7/ Scottish Transgender Alliance (TRA 225)

Our recommendations are:

The Yogyakarta Principles definition of gender identity should be used in
order to be fully inclusive of all transgender people

The Equality Act 2010 should be amended to:

o Include gender identity as a protected characteristic
o Remove the exception that allows single sex services to discriminate against trans people
o Remove the genuine occupational requirement (GOR) allowing some jobs to require applicants must be cisgender and replace it with a GOR allowing posts delivering trans-specific services to require applicants must be transgender

Additionally, the Council of Europe explicitly recommends that member states should provide protection from discrimination on grounds of gender identity.(Resolution 2048) We strongly call for the Equality Act to be amended to provide a fully inclusive protected characteristic of ‘gender identity’ using the Yogyakarta Principles definition.

The W&E Committee report continues

27.The Government must also make a clear commitment to abide by the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe. is would provide trans equality policy with a clear set of overall guiding principles which are in keeping with current international best practice.

Conclusions and Recommendations

1. The Government must also make a clear commitment to abide by the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe. is would provide trans equality policy with a clear set of overall guiding principles which are in keeping with current international best practice. (Paragraph 27)

UK Government response to Women and Equalities Committee Report on Transgender Equality

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