Transgender law reform — background and possibilities

Submitted by Matthew on 25 October, 2017 - 10:08 Author: Rosalind Robson

In January 2016, the House of Commons Women’s and Equalities Committee produced a report on Transgender Equality which highlighted the outdatedness of the 2004 Gender Recognition Act (GRA). In July 2017, the government announced a consultation on specific proposals on the GRA; this will be launched this autumn.

The GRA made it possible for people over 18 to be legally recognised as members of the sex appropriate to their gender identity as long as they could show that they suffered from gender dysphoria (distress caused by the mismatching of gender identity to sex and gender assigned at birth). A Gender Recognition Certificate provides legal recognition, allowing people to acquire a new birth certificate with the switched sex/gender indicated.

People seeking a Gender Recognition Certificate have to present evidence to a Gender Recognition Panel, to supply (paid for) references from two expert medical practitioners, and to fork out an application fee of £140 (waived for those eligible for means tested benefits). They also need to have transitioned two years before a certificate is issued. But there is no requirement for sex reassignment surgery to have taken place. The legislation also gives spouses an effective veto over the certificate.

Changes to the Gender Recognition Act are likely to remove the need for a medical diagnosis of gender dysphoria. Therefore transgender people will be able to change the gender on their birth certificates by self-declaration. In fact transgender people are already able to change their gender on forms of identification other than birth certificates. The sex/gender marked in UK passports can be changed on the basis of a letter from a GP confirming that the change of gender is likely to be permanent. The evidence for that comes solely from the patient. Passport changes can be used to change other forms of identification. The fact that birth certificates are treated differently from other forms of identification is an anomaly. Nonetheless the possession of corrected birth certificates are important for ensuring certain things such as confidentiality (birth certificates are public records).

We list here, for information, a range of arguments and counter-arguments against possible changes to the GRA. If the law removes the need for all external validation (even that of a GP), the reliability or stability of feelings around gender will be difficult to verify. By contrast, a gender reassignment is something that can be clearly recognised by society. On the other hand without self-declaration non-binary and gender fluid people, for whom gender identity is not stable, will be completely excluded. Indeed it is already best practice for many organisations (e.g. in higher education) to include non-binary or other options as well as male and female. Mx is now recognised as a gender neutral title in many situations.

On the other hand, without some form of external validation, which could include non-binary identities, the laws and rights for trans people may not be applied consistently. The government seems likely to keep some form of external validation. For some trans activists this violates the principle of bodily autonomy. Some people are also concerned that new laws will not allow for de-transitioning. Existing equality legislation may be changed so that the “gender reassignment” characteristic (something which is unlawful to use as a basis for discrimination) will be changed to “gender identity”.

Some feminists assert this protection will contradict the protected characteristic of “sex” or stop the exemption allowed by the law for the provision of single-sex services where appropriate. The particular concern is that transgender women and non-binary people, armed with “gender identity” rights, may become increasingly employed in, as well as gain access to, women-only services involving sensitive areas, such as domestic and sexual violence. This will, it is argued, undermine the quality, appropriateness and potential safety of these services for non-trans women.

Yet the Trans Equality report specifically ruled out ending single-sex services. And trans organisations (Action for Trans Health) point out that vulnerable trans people are currently being excluded from these kinds of services. That is, they say, an argument for expanding resources for all services, expanding trans appropriate services and ending the exemption.

Some argue that reform of the Gender Recognition Act will make it too easy for vulnerable people, especially adolescents, to get approval for gender reassignment services. Others say it is much more likely that criteria for approval to receive NHS hormones and surgeries will remain unchanged, not least because these are scarce resources. Some argue that false statements on gender identity may be made. Others, that the fact that false statements constitute a criminal offence, punishable by imprisonment is ample protection against false claims.

Meanwhile concerns about gender neutral facilities may become increasingly eroded as more gender neutral public toilets which protect privacy and safety (e.g. fully enclosed cubicles) are being provided in UK public buildings such as schools and colleges. Given the change in the law has little cost implications, some have argued that the government is trying to get maximum credit while continuing to make cuts. Another criticism from the left is that these laws will keep intact sex discrimination where it currently exists e.g. dress codes in employment, having to declare Mr or Ms. The law, it is said, should be thoroughly degendered, including ending sex/gender designations on birth certificates.

Unfortunately a backlash on the law reform has started and some of it has come from within the labour movement. Paul Embrey, of the FBU (forgetting who has the power in society) has said, “There’s something Orwellian about allowing someone to insert a lie on their birth certificate and forcing society to accept the lie as truth.” The backlash has included those feminist activists who have long-been mistrustful and disparaging about trans identities. This anti-trans hostility will need to be fought in the coming months.

Solidarity has been debating some of the underlying theoretical issues about gender thrown up by the law reform and more will be written in due course.

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