19 th November 2008
Gender Recognition (Jersey) Law 200-
Background
On 11th July 2002, the European Court of Human Rights delivered its judgment in the cases of Goodwin v United Kingdom and I v United Kingdom. In those cases it found that the United Kingdom had breached the Article 8 ECHR rights (right to respect for private life) and Article 12 ECHR rights (right to marry) of the two transsexual people involved.
These judgments have the effect that all State parties to the ECHR now have a positive obligation under international law to secure the ECHR rights and freedoms identified in Goodwin and I and must rectify any ongoing breaches by providing for the legal recognition of changes in gender by transsexual people and by permitting transsexual people to marry in their acquired gender.
The ECHR was ratified by the United Kingdom on behalf of Jersey on 23rd October, 1953. This ratification enabled persons to bring actions in European Court of Human Rights against the United Kingdom (as the State party with international responsibility for Jersey) for breaches by Jersey of the ECHR rights.
On 10th December, 2006 the Human Rights (Jersey) Law 2000 was brought into force in Jersey. It enshrined the ECHR rights in the law of Jersey and enabled persons to bring actions in the Courts of Jersey for breaches by Jersey of the ECHR rights.
The Strategic Plan 2006-2011 of the States of Jersey provides at Commitment 3.1 that –
“Basic rights and equal opportunities are established for all sectors of society”.
Jersey has therefore made a longstanding and continuing commitment to protecting the ECHR rights and as a result has an obligation to ensure that its law complies with the judgments of the European Court of Human Rights in Goodwin and I.
Currently, changes in gender of transsexual people are not recognised under the law of Jersey. Although transsexual people are able to obtain some official documents in their new name and gender, they cannot obtain new birth certificates or enjoy any rights confined by law to people of the gender to which they have changed. For instance, they cannot marry in the gender to which they have changed. The law of Jersey therefore requires amendment to bring it into line with the judgments in Goodwin and I.
In order to achieve this amendment the drafting of this Law was first considered in 2003 by the then Home Affairs Committee and then by the Legislation Committee. In 2005 the Legislation Committee agreed that the Policy and Resources Committee should take this matter forward and law drafting time was secured in 2006. Subsequently, the Legislation Advisory Panel and Law Officers’ Department have brought forward this Law for approval.
Recommendation:
The Chief Minister is recommended to approve the lodging au Greffe of the Gender Recognition (Jersey) Law 200- as soon as is practicable.
Kate Power
Policy and Research Officer
19 th November 2008