http://www.gires.org.uk/consultations-ips.php
National Identity Scheme Consultation Response
Submitted on behalf of the Gender Identity Research and Education Society
Robin Woodland
Identity Cards Act Secondary Legislation Consultation
Home Office
Identity and Passport Service
Allington Towers
19 Allington Street
London SW1E 5EB
Dear Robin,
National Identity Scheme Consultation Response
Submitted on behalf of the Gender Identity Research and Education Society
These comments follow from study of your document “IDENTITY CARDS ACT SECONDARY LEGISLATION: A CONSULTATION” with particular focus on how the National Identity System system will affect transgender and transsexual people.
It is pleasing to see that requirements of the Gender Recognition Act are explicitly recognised, although it would be helpful to see an example of how this would operate in practice with respect to the various fields in the database in particular: “other names by which he is or has been known” and “record of all previous applications and amendments”.
The GRA operates retrospectively. The GRC is deliberately designed to provide no audit trail to any prior identity which has for all legal purposes been expunged. The GRC does not provide evidence of any change of name or gender; it is just a statement of legal status and a confirmation that the gender recognition process is complete. You can see an example of such a certificate here I assume that any records showing previous identification data would be permanently deleted and removed from any backup systems; please confirm this interpretation.
Whether or not a person provides you with any Gender Recognition Certificate, from the moment of its issue no government department may treat that person in other than their legal gender. The Gender Recognition Act states 9(1)(2) “… it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).”
Subsequent to the issue of the GRC, attempts to research information as described in 2.37 will fail. Also credit rating agencies are required by the GRA to “break” links between any past records and current identity; as a matter of courtesy they will often do this well before the issue of a GRC when they are convinced that the person is living permanently in their preferred gender; section 2.37 seems to fail to recognise this reality.
In sections 3.4(d) and particularly 3.10 of the consultation document “These changes or any known errors should be notified by the individual within a period of 3 months from the day on which the change of circumstance occurred or the individual became aware of the error (regulation 5).” The implication is that the issue of a GRC is a change in circumstances and that this has to be notified. In fact, the GRA operates retrospectively and thus intrinsically there is no change. In any case the change, if it were treated as such, takes place at the moment of birth and the three month deadline is thence breached. The burden of ensuring that the national identification database properly records the through life status of the person in the acquired gender thus lies with the government. An example of this can be seen in how HMRC records are \immediately and automatically updated and secured upon the award of the GRC.
Regarding page 18 - Paragraph 2.45(a), there seems little point in stating that the identity number will not indicate gender; because the card itself will include a gender category.
We suggest that this consultation document fails to represent and understand fully the situation of transsexual people. It does acknowledge that there are people in the overall transgendered community who wish to live in two genders. However, it appears not to appreciate that this may be a permanent state, for example a gender variant individual may for fear of loss of family and job. In this situation the individual would not change gender role at home or at work but still might wish to attend social events in a different gender role. The two card system attempts to provide a useful and compassionate mechanism for these people. However, suspicions may be aroused and embarrassing questions asked if the second ID card were marked as being “not for travel”.
On page 46, “Dual Gendered” is defined as “an individual who has been diagnosed with gender dysphoria, but has not yet obtained a gender recognition certificate”. It should be recognised that some people do choose to live dual gendered lives without any medical diagnosis, treatment or supervision. They should be able to obtain two ID cards to facilitate that way of living.
In such cases, contrary to what is stated on Page 17 – Paragraph 2.41, all information gathered may not be protected by the Data Protection Act because it is not a physical or mental health or condition see Part 1 – (2)(e) of the Act.
The NIS proposal does not recognise that, during the process of transition, people's appearance changes rapidly and regular revision of photographs is needed.
There is very considerable concern (which we must assume others have voiced) about the ability of trans people in transition to travel overseas prior to the award of the GRC. The current system that allows passports to be issued in a gender that differs from that on their birth certificate with supporting medical evidence works well and is the envy of much of the trans community elsewhere in the world. Would this still continue or would the UK now insist on people having travel documents with misaligned name, appearance and gender marker?
It is far from clear how many of the processes described to deal with gender variant people are seen as working and these seem to have been devised without understanding how the various other government processes work and the practicality of gender transition. It appears that these have evolved significantly in the past few years and it may be the evidence you have received is out of date or been misunderstood. GIRES would be delighted to meet you and update you on the practicalities.
Yours sincerely,
Stephenne Rhodes
stephenne@gires.org.uk
Impact Assessment - http://www.gires.org.uk/assets/Consulta ... ssment.pdf
