Trans people and Identity Card Bill amendments

The following clause has been proposed for the Identity Cards Bill:

(1) This section applies to a person who—
(a) is a transgendered person,
(b) has not been issued with a gender recognition certificate, and
(c) is living in both the birth gender and the acquired gender.

(2) The Secretary of State must make arrangements for the issue to any person falling within subsection (1), on the application of that person, of two copies of a passport or some other form of identity document of comparable standing, one in the birth gender of the person and the other in the acquired gender.

(3) The form of the document referred to in subsection (2) shall be prescribed in regulations made by the Secretary of State by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Any ID card issued to a person falling within subsection (1) shall (notwithstanding section 2(2)) remain valid until it expires, or until the requirement in subsection (2) is satisfied, whichever is the earlier, and section 2(3) shall not apply in relation to any cardholder who is a person falling within subsection (1)

I’d appreciate people’s views on this as I may have the chance to provide input to appropriate people. Unfortunately this clause, which is rather more reasonable than the last one, has been proposed prior to the report stage which I believe means amendments will be discussed in the full House of Commons (Next Wednesday, so time is of the essence) rather than in committee. This means that it will be subject to partisan politics, with the proviso that coalition politics may mean we have a greater chance of getting this approved than would otherwise be the case.

I’ll start with the (brief) negatives, so that I can end on the positive note the I feel is appropriate here. “Transgender” perhaps needs defining in clause 1a, although that’s more of a lawyer question I suspect so I won’t go into it.

Clause 1c is more problematic – this could mean providing proof that you’re living in both genders, but if you’re transitioning or transgendered and “living in both genders” then it’s quite possible the last thing you want to do is go to an employer and have to ask for a letter confirming you’re still turning up at work in your birth-assigned gender. It would probably be better if it was removed.

Clause 4 I can’t support at all, period. We’re back into the public perception of “only Trans people will have ID cards” territory, and as I’ve discussed before, that’s just a mess. Besides, it’s already been confirmed that only one person has dual ID cards and it’s basically just an attempt to delay the abolition of ID cards overall. It’s of no benefit to the trans community overall that I can see.

Back to the positives and I think it’s best if I describe how I think I could see this working in practice. Someone wants to transition, or is thinking of it, or is just transgendered and they write to the IPS and/or DVLA requesting a new passport and/or driving licence. (Perhaps with a letter from the doctor or a sworn affidavit or similar – it might be that the powers that be feel that something is required to stop frivolous requests but it shouldn’t be arduous) At the moment, you will have to give back your old documents and will not be able to use them any more. If this passes, I imagine you would be able to keep (And renew) you old documents as well as your new ones until such time as you apply for and receive a GRC at which point you have to hand back or destroy the old ID.

The only drawback I can think of is people might demand to see your old/”real” (Ugh) ID. For that reason, dual ID needs to be optional. Luckily, as phrased there is nothing in the bill to mean having two IDs is mandatory. I would encourage any government departments that implement this to ensure that there is a clear and obvious process for handing back your old ID and perhaps make answering the “Do you want to keep your old ID” question an explicit step in obtaining a second/new ID. I would even go so far as to having had your old ID revoked be a requirement for the GRC. (I.e. you have to confirm you’ve handed back your old ID before you can get a GRC, rather than the GRC triggering the revocation of it)

There’s a possible problem with the police being able to link together records from the DVLA so that area requires more study and it might mean this is limited to just passports. That would be an area for the civil service to worry about if the amendment and bill pass however.

Additional: I’ve just realised this is actually a significant improvement on the current ID card system. As it stands, only one ID card is travel-enabled. This would clearly not be the case if you had two passports – you could travel on both. (Although there are possible issues with Visas for some countries)

12 comments

  1. Thanks for bringing this to my attention – very interesting reading.

    A few thoughts in no particuar order:

    The phrase “of comparable standing” is key to the interpretation of which documents can be issued in duplicate. My reading of this is that only existing document types can be issued in duplicate to transgendered people. The section would not allow a new type of document to be invented for the sole use of transgendered people as this document would not be of “comparable standing” to a passport. YMMV and I agree this could be made more explicit.

    The language in subsection (4) is sloppy. I think they meant to refer to “any duplicate passport or identity document of comparable standing” but have instead used a lazy short-hand. It should be tidied up to read “any document of the form prescribed by the Secretary of State under subsection (3), and issued to a person falling within subsection (1), shall…”

    The identity documents themselves should neither display nor contain information about the existence of a duplicate document. That information should only be held in the issuing authority’s databases. This needs to be made explicit.

    Documents issued in duplicate must be indistinguishable by inspection from documents of the same type not issued in duplicate. It should be impossible to tell that a duplicate exists, either by looking at one of the duplicates alone, by comparing it with someone else’s document, or by accessing machine-readable data stores on the document.

    I also perceive a couple of difficult areas:

    Introducing duplicate identity documents introduces a risk to the holders that they will be treated poorly if they present as one gender and with documents issued in the other. While nobody would do this on purpose (unless in protest or in jest, I guess) the scope for making a mistake is obvious. Systems that rely on identity documents need to make provision for this situation. Examples where it might occur include at border crossings (especially airports, doubly especially where the tickets were booked in advance) and when trying to access financial services (thanks to the FSA money-laundering regulations).

    What happens if a person crosses a border while carrying both documents? This could be revealed by a search of either the person or their luggage. The Government will no-doubt inform other countries that it’s issueing duplicates and ask them to take this into account however it can guarantee the behaviour of neither individuals nor foreign powers.

    1. I agree with you on the indistinguishability of a second identity document. Would that fall under the “form of document” and more properly be covered by a subsequent Statutory Instrument however?

      I’m not following your point on subsection 4?

      Introducing duplicate identity documents introduces a risk to the holders that they will be treated poorly if they present as one gender and with documents issued in the other.

      This already happens if you have, say, female ID and go out presenting male. If asked for ID, you’re guaranteed to have trouble. If you’ve got the choice, you at least stand less chance of running into problems particularly if you’re expecting to be carded at the bar because you look young.

      What happens if a person crosses a border while carrying both documents? This could be revealed by a search of either the person or their luggage.

      Depending on one’s body, it’s possible that you’ll be “outed” by any reasonably thorough search anyway, so it’s a risk. This happens already in slightly different circumstances. For example, a journalist might carry two passports so that Arab and Israeli visas are not on the same document. Alternatively, someone might travel on an Irish passport because the country they’re in does not look too favourably on the United Kingdom. If the country you’re travelling to is really unfriendly, you make sure you don’t travel carrying the other document or you simply do not go there at all. There are less-liberal countries that I simply will not travel to, unless using either a diplomatic passport (Which I don’t have) or as a uniformed member of the Armed Forces, just because it’s too hazardous.

      1. On subsection (4) I was trying to see how you’d inferred your comments about returning to “the public perception of only trans people will have ID cards”, and I thought it might have come from the phrase “Any ID card issued to a person falling within subsection (1)”, which appears in subsection (4). My reading of the term “ID card” in this context is that it refers to a document as described in the preceding subsections and not to a separate “ID card” that might be invented for trans people. I was suggesting this language should be tightened up so that it’s possible to infer neither the need for nor the potential to create a separate ID card.

        My point on presenting one gender and with documents in another could have been much clearer – sorry! I was thinking about ways that systems could be designed to *accept* people presenting a gender different from the one shown in their documents if those documents are legitimate duplicates. On reflection I think this feature and making duplicate documents indistinguishable from ones that don’t have a duplicate are probably mutually exclusive!

        Lastly, you’re probably right that the Identity Documents Act 2010 stands little chance of reducing the risk of travel to less liberal countries, and I agree duplicate documents would probably solve more problems than they would cause for trans people overall. I just tend to think more about how systems might fail than how they might work ;o)

        1. Ah, I see what you mean – subsection 4 is Labour’s rear-guard “Please can we keep the existing ID cards for a bit as we need to justify having them in the first place” section, with an added dash of “Look, the coalition are trampling on minorities by getting rid of the cards!” However, keeping them for just trans people isn’t helpful to because the only way it could possibly be valid is if you are trans – so you have to out yourself in the process of showing it. There may also be a public perception of the reverse – that you’re trans (Or suspected of being trans) so should be carrying an ID card.

          Without that clause, the one trans ID card that was issued becomes invalid at the same time as all other cards. I’d like to see the clause removed totally as I don’t see it’s helpful.

          1. Ah. I think I was confused between NC1 subsection (4), as it appears quoted in your post above, and some other Clause or Section labelled 4. Your comments make much more sense in the light of that other section! (The way in which amendments to bills are published doesn’t make it easy to figure out what’s going on!)

            And yeah, I agree keeping ID cards just for trans people is a Really Bad Idea[tm], though if only one trans person has one and no more are being issued the problem seems fairly, erm, contained? (Not a reason to keep the clause, of course).

  2. Could you expand on the problem you perceive with the police being able to link together DVLA or similar records? It reads to me like you think it would be a problem if police were to be able to discover the existence of duplicate documents and infer from this that the person to whom they belong is transgendered.

    My opinion here is that they *should* be allowed to link together records in this way for the purpose of preventing or detecting crime, but that access to the records should be subject to the same safeguards that should govern any police access to databases of personal information, namely that it should be subject to obtaining a warrant or court order. I also think that unauthorised access should be a criminal offence.

    1. I’m thinking of the recently-published incident with Norfolk police and a transwoman. It would probably not have helped in this instance, but it occurs to me that if the police run a driving licence and find someone holds two licences, they may act less favourably towards them. I don’t know the abilities of the Police National Computer but situations such as an officer performing a search on an address to find out driving licence holders would need to be looked at.

      This of course would in no way stop them requesting full details from the DVLA in the process of investigating a crime, within the existing safeguards, should that be required. I’m struggling to think of any situation where this would be the case though – most offences are tracked via vehicle, not licence.

      1. Grim :-/

        People shouldn’t be thought of as holding two licenses – they are either licensed to drive or they are not. In this situation, having two physical cards is not the same as being licensed to drive twice, so the check should just verify that the license presented is valid. It would be even better if insurance documents were indexable by driver license-number rather than by name for the purposes of roadside checks: first validate the license, then look up the insurance documents by license number, and then check that the insurance cover is appropriate. That way the constable could check whether everything is in order without needing to see any personal details.

        This class of problem occurs when the primary function of a document is overloaded with secondary functions. In this case the drivers license is overloaded with functions to do with proving the holder’s name, address and age. The solution is to design systems that can verify each of these facts independently, however there doesn’t seem to be much appetite for that strategy within Whitehall, which remains determined to head in the opposite direction AFAICT.

  3. Zoe’s original analysis is correct. Please do note that this amendment is being offered up to a bill that will scrap the ID cards and National Identity Scheme, in order to suggest that the opposition is somehow more caring about trans people rather than to achieve any real effect.

    There are some problems in the bill as it currently exists, and in the consequences of its definition of “identity document”, but they affect everybody and anybody who might use an alternative name at any point and aren’t fixed by the trans-related amendments.

  4. Hiya!

    so why does an ID card (or passport, for that matter) need to show one’s gender anyway? I can’t think of any valid reason why it’d be necessary — neither my driving license nor ID card (both German) show my sex or gender, save for my first name being rather unambiguous. And I just wish the passport would be the same! Wouldn’t that make things a lot easier than issuing duplicates?

    1. Passport is part of international standards but as for the others – good question! I’m hoping to find some legislation or similar that will force a review of including gender markers by the DVLA.

      You’d still need duplicates, unless you wanted to pick a really androgynous name and have an androgynous photo but it would ease some of the troubles.

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