Reforming the Gender Recognition Act 2014

Reforming the Gender Recognition Act 2014

Briefing Paper

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Summary

The Gender Recognition Act 2004 enables trans people to change the sex on their birth certificate. The 2015 - 2016 Women and Equalities Committee Transgender Equality Inquiry, to which many other unions, organisations and individuals gave evidence, recommended, amongst other matters:

‘Within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centered on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.’

The BDA strongly supports the Inquiry’s recommendations on reforming the Gender Recognition Act and welcomed an announcement last summer that the Westminster government would consult on reform along these lines. The consultation is yet to commence, though a similar consultation by the Scottish government closed on the 1st March 2018.

Since this announcement, there has been a degree of debate in the media which reveals confusion about what the 2004 Act covers and what the proposed reforms would mean.

Why reform is needed

Apart from birth certificates, the name, title and gender marker on all UK identity documents can already be changed on a self-declaration basis when a trans person starts living permanently in their gender identity. This is true for trans people of all ages, trans people under the age of 16 can do this with parental consent.

These documents include:

  • Passports
  • Driving licences
  • Medical records
  • Bank accounts
  • Employment records
  • Education records and qualification certificates
  • Voter registration cards
  • Disclosure and barring service certificate.

By contrast, the process for changing the legal gender on a transgender person’s birth certificate is a humiliating and expensive red-tape nightmare. It requires people to submit intrusive psychiatric evidence to a faceless tribunal panel years after they transitioned, with no right of appeal if their application is rejected.

The current process for legal gender recognition

The current process for legal gender recognition has many flaws, it is:

  • Expensive for individual applicants and inefficient for the public purse:
    • Applicants must pay a fee of £140 to apply, as well as £80 each for two medical reports. Costs can be even higher if the applicant transitioned abroad as they often need to pay to be reassessed by UK medics and to translate evidence.
    • It requires wages for judicial tribunal members.
  • Outdated compared to international human rights best practice. There is more information on this below.
  • Stigmatising of trans people: it requires a diagnostic psychiatric report, reinforcing the outdated assumption that being trans is a mental illness.
  • Intrusive and humiliating: it requires trans people to provide extensive medical evidence about their bodies, despite the 2004 Act making no requirement to undergo hormonal or surgical treatments.
  • Too complicated for many trans people to navigate, especially if they have poor literacy, are disabled or have lost old paperwork (for example, while homeless or fleeing domestic violence).
  • Needlessly slow: people cannot apply until two years after they transitioned.
  • Exclusionary to many trans people who have transitioned, including under 18s and non-binary people. There is more about this below.

For these reasons, most trans people do not even apply for gender recognition. This leaves them in a risky legal limbo, with the gender recorded on their birth certificate not matching their other identity documents and contradicting how they live. This can cause harmful errors and difficulties including:

  • Problems entering a marriage or civil partnership correctly.
  • Mistakes calculating their pension entitlement and start date.
  • Accidental invalidation of insurance policies, especially car, travel or life insurance.
  • Less protection of their human right to privacy about their gender reassignment history.
  • Increased risk of harassment and discrimination from employers and service providers.

What change is needed to the Gender Recognition Act?

  1. Replace the psychiatric diagnosis requirement with a self-declaration procedure, as already used for identity documents such as passports and driving licences.
  2. Reduce the age at which people can get legal recognition of the gender they live as.
  3. Provide legal recognition for non-binary people who do not identify as men or women.

Self-declaration process

A ‘self-declaration’ procedure to update a trans person’s legal gender:

  • Would be administrative in nature, not involving a court or tribunal decision.
  • Would require a trans person to make a statutory declaration that they are living permanently in their gender identity.
  • Would not require a psychiatric report or any other medical evidence.
  • Would not require a trans person to prove they have already lived a long time in their gender identity.
  • Would include safeguards so that deliberately making a false statutory declaration is a serious crime punishable by imprisonment.

Trans people can already change their name, title and gender marker on all UK identity documents except their birth certificate. Self-declaration procedures for changing gender on these UK ID documents have been working smoothly for over 40 years, with no evidence of misuseIt is now time to bring the process for birth certificates into line with all other ID by reforming the Gender Recognition Act.

Legal recognition for non-binary people

Non-binary people are those whose gender identity is neither female nor male. The BDA is aware of the need to acknowledge non-binary gender identities. This is being raised by increasing numbers of our members. Non-binary people are slowly gaining the confidence to speak about how the failure to recognise their identities impacts on their work, their well-being and their lives. 

UK-wide research conducted by Scottish Trans Non-binary people’s experiences in the UK (2015) gave clear evidence of this.

The trade union UNISON conducted a smaller scale survey of UNISON non-binary members in the autumn of 2017, which very much reinforced the findings of the Scottish Trans survey.

Non-binary people should be able to fully participate in all aspects of society in line with their gender identity. The option of legal recognition is an important part of this.

Myths versus facts

Some concerns have been raised about problems that may arise if the Gender Recognition Act is reformed in line with international best practice. There has also been an unfortunate suggestion of a conflict between trans equality rights and women’s equality rights.

Discussions in Scotland are further advanced than in the rest of the UK, as the consultation on reform has already concluded there. Scotland’s seven national women’s equality organisations - Close the Gap, Engender, Equate Scotland, Rape Crisis Scotland, Scottish Women’s Aid, Women 50:50 and Zero Tolerance - all support reform to a self-declaration process inclusive of young people and non-binary people. In a joint statement they have said:

We do not regard trans equality and women’s equality to be in competition or contradiction with each other. We support the Equal Recognition campaign and welcome the reform of the Gender Recognition Act. Rape Crisis and Women’s Aid in Scotland provide trans inclusive services on the basis of self-identification.”

For more information, read the full statement.

Many concerns that have been raised are based on misunderstandings about what reform would mean. To clarify:

  • Gender Recognition Act reform does not affect hate crime law. Whether or not a trans person has received legal gender recognition is irrelevant to prosecution of a hate crime. Polite disagreement about gender is not a hate crime but harassment and threatening behaviour can be aggravated by anti-trans hate.
  • Gender Recognition Act reform does not affect Equality Act 2010 gender reassignment protections and exemptions. The Equality Act 2010 already protects trans people against gender reassignment discrimination from the moment they first propose to start any aspect of social or medical transition away from their birth gender. The existing Equality Act 2010 single sex services and genuine occupational requirement exemptions allow a trans person to be treated differently if that is a proportionate means of achieving a legitimate aim.
  • Gender Recognition Act reform does not affect the Equality Act 2010 sex discrimination coverage. The Equality Act 2010 protected characteristic of sex already covers not only discrimination based upon an individual’s actual biological sex characteristics but also discrimination based upon perception and wider aspects of sex and gender. Trans women who have not undergone any hormonal or surgical treatments can already become legally female.
  • Gender Recognition Act reform does not affect sports competitions. Where necessary to ensure safe and fair competition in gender-affected sports, sports governing bodies can set their own restrictions on participation by trans people regardless of legal gender recognition status.
  • Gender Recognition Act reform does not affect any NHS clinical decision-making about minimum ages and other criteria for approving a trans person to receive hormone blockers, cross-sex hormones or any surgeries.
  • Gender Recognition Act reform does not affect NHS funding of gender identity services. De-medicalising the process for gender recognition is irrelevant to NHS evidence-based decisions about trans healthcare.
  • Gender Recognition Act reform does not affect ability to receive NHS cancer screening. Trans people change gender on medical records before their birth certificates. Methods already exist to enable screening to continue.
  • Gender Recognition Act reform does not affect access to single-sex services and facilities. It is the Equality Act 2010, not the Gender Recognition Act 2004, which provides trans people with legal protection from discrimination and addresses access to single-sex services. The Equality Act 2010 protected characteristic of gender reassignment applies from the moment a person proposes to undergo any part of a process of transition. No medical diagnosis is needed.
    • Trans people, regardless of the stage of their transition, have always been lawfully able to use whichever toilet they wish in the UK without showing any ID. Cubicles mean it is not proportionate to restrict trans access.
    • The Equality Act 2010 provides an exemption for single-sex services allowing them to treat a trans person differently from other service users providing this is a proportionate response to achieve a legitimate aim. Gender Recognition Act reform will not change this exemption.
    • Violence against women services already have robust risk-management and safeguarding policies in place, for example to be able to identify and prevent any lesbian female perpetrator of violence from being able to access a service where her abused female partner is staying.
    • Such services regularly reject non-trans women who are unsafe to include within group work and / or shared refuge accommodation due to antisocial behaviour, criminal history, drug addiction or severe mental illness.
    • Possession of a gender recognition certificate does not circumvent in any way these risk management procedures and exclusion would still be possible.
    • A number of services allow trans women to use their services on a self-declaration basis. No problems have been reported.
  • Gender Recognition Act reform would not permit anyone to ‘flip-flop’ legal genders across different situations or days. The self-declaration process is a statutory declaration of the intention to live permanently in their gender identity.

International best practice

International best practice has been identified by the Council of Europe, World Professional Association of Transgender Health, International Commission of Jurists and other bodies. Best practice is already in place in the following places.

Self-declaration

  • Countries with simple self-declaration administrative process for gender recognition:
    • Since 2012 – Argentina
    • Since 2014 – Denmark
    • Since 2015 – Ireland, Malta, Norway, Colombia
  • Governments, single-sex service providers and the criminal justice sectors in these countries have not reported any negative impacts in implementation.

Age

  • In Argentina, Australian Capital Territory, British Columbia (Canada) and Malta there is no lower age limit for parental application for legal gender recognition for a child.
  • In Norway, parental application is accepted for children with a minimum age of six.
  • Legislation in these countries refers to the UN Convention on the Rights of the Child, and taking the child’s best interests and views into account. If the consent of parents or guardians is unobtainable, courts can rule that children should have their gender legally recognised if that would be in their best interest.
  • Allowing legal gender recognition for young people does not affect the criteria for access to gender reassignment medical treatments such as cross-sex hormones (16+) and genital surgeries (18+).

Non-binary recognition

  • Malta, Argentina, New South Wales (Australia) and Oregon and California (USA) all provide for non-binary people to have their gender fully legally recognised.
  • Denmark, Australia, New Zealand, Bangladesh, India, Pakistan, Nepal and Ontario (Canada) all allow non-binary people to be recognised on some legal documents, such as passports, driver’s licences or voter registration cards.

What can be done

There has never been a more important time for non-trans people to show that they want to be good allies to trans people. 

We welcome calls for the Gender Recognition Act 2004 to be updated, in line with international human rights best practice. This would base the legal process of gender recognition on the declaration of the individual concerned, rather than a person’s gender being ‘judged’ by a panel of medical and legal ‘experts’, as it is now. This would bring the process for updating birth certificates in line with the current process for updating all other UK ID.

We are concerned at attempts to oppose reform which spread doubt and confusion. Suggestions that trans rights and women’s rights are opposed to each other and that trans equality puts women’s safety at risk is not supported by evidence. However unintended, these attempts contribute to the discrimination and harassment of trans people. They also contrast sharply with inclusive and progressive voices within women’s movements who welcome the proposed reforms.

What MPs and Peers can do

The controversy and misunderstandings in the debate on reforming the Gender Recognition Act have led to trans people feeling very much under attack. MPs and Peers can have a key role in being clear about their support for trans people and trans equality. They can reassure colleagues, constituents and others about proposed reforms and offer information in place of myths and unfounded fears.

How to be a good ally to Trans people at work

We all need people on our side, celebrating with us when things go well and supporting us when times are hard. Trans people and trans rights are becoming increasingly visible but many people still face real isolation. The BDA and trade unionism are all about solidarity, with no one left to face trouble alone. We are stronger together.

Every non-trans person can be an ally for trans equality, but not everyone feels confident doing this. It’s not complicated, so here are some tips on how to be a good trans ally.

It really comes down to three things:

  • Listen to trans people
  • Challenge transphobia and anti-trans comments
  • Be respectful and encourage others to be

Here are some quotes from trans people:

Not special, different or vulnerable, just me

‘For me good trans allies have proven to be people who never question my gender identity, they treat me according to how I identify. Not special, different or vulnerable, just as me, a woman. They publicly support my right to be the person I am and that solidarity gives me strength.’

It can be very lonely

‘It can be very lonely being a trans person, be that in work, at home or in wider society. To have trans allies is so important, especially right now as we face hurtful negativity in the press and other media. Whenever I am down or struggling to cope, receiving support from those outside our community is a tremendous help.’

Allies empower us

‘When trans people challenge transphobia they become a target. Every time an ally stands up for us it can empower us to stand up to the shaming and stigma – and to viscerally feel the solidarity that is the cornerstone value that our trade union, socialist and feminist movements grew out of.’

A part of every community

‘Transgender people are a part of every community not apart from society. We are not seeking additional rights. We want to live in a society of equals where each is treated with dignity and respect and recognised for the unique contribution they make. We are your children, your siblings, your parents, your grandparents, your work colleagues, your neighbours and hopefully, your friends. I don’t want to be merely “tolerated”; I expect my trans allies to speak out against every instance of transphobia, in all its guises, to help me and every transgender individual achieve the acceptance and respect we deserve!’

Tips for being a good trans ally

In general

  • Speak up for trans people and trans equality and against transphobia.
  • Speak up when there are trans people present. Don’t leave it just to trans people to defend trans equality.
  • Speak up when there are no trans people present. Transphobia is always wrong and shouldn’t be ignored.
  • Do this in meetings, on social media, with family and friends.
  • Don’t assume you know who is trans or who is affected by anti-trans discrimination. There may be people with a trans history in your branch or workplace who are now just living their lives. Other colleagues may have trans family members.
  • Transphobia is no laughing matter. It’s just as important to challenge it when it is presented in a jokey way.

In your trade union

  • Raise trans equality in your union branch.
  • Check your employer’s policies – do they have a trans equality policy? If not, propose that staff side negotiate a policy. If they do, can it be improved?
  • Don’t think you have to be an ‘expert’. But do inform yourself.

Talking with trans people

  • When you talk to a trans person, listen. Listen to how they talk about themselves and follow their lead.
  • Don’t worry too much about getting the right terminology – the most important thing is to show support.
  • It is important to make every effort to use people’s correct name and pronoun (she, he, they, etc.) when you are talking to them and when you are talking about them.
  • Misgendering someone or using their previous name (sometimes called ‘deadnaming’) is hurtful and may be unlawful harassment.
  • If you are speaking briefly with someone and are unsure how they wish to be addressed, it is best not to use gendered terms (such as ‘sir’ or ‘madam’).
  • Remember that while most people transition to live solely and permanently as women or men, not everyone has a binary gender. Some trans people identify as non-binary – as both female and male, as neither or as something entirely different.
  • If you do make a mistake, apologise and move on. Don’t make a big thing of it.
  • Never ‘out’ someone as trans unless they agree – never talk about someone’s gender identity or gender history unless they have given you permission to do so. They may have told you in confidence.
  • Remember, they may be out in some circles, such as in an LGBT group, or with close colleagues, but not others.
  • Be aware of the wide spectrum of issues that affect trans people.
  • If you want information, there’s plenty on the internet.
  • Don’t tell trans people that they’re ‘brave’ or that they made a ‘difficult decision’ instead, ask them if they need support and what support they need.
  • Recognise that trans people can be used to being excluded – make an effort to include them.

People are people

  • Try not to make assumptions. Although there aren’t many trans people (which is why allies are so important) they are all individual. There is no one way of being trans.
  • Don’t ask personal questions that are more intimate than you would ask someone who is not trans. It is certainly inappropriate to quiz people about their bodies.
  • Trans people have rights, but it is fine for you to have questions and try and understand the issues around gender identity. In fact, you have a responsibility to get yourself informed! There’s lots of information around for you to do that, without having to quiz trans people in an intrusive way.

And finally

  • Remember that being trans is just one part of trans people’s identity – talk to them about other stuff!

If you identify as LGBT and want to get more involved in the BDA’s work for equality or hear more about what we do then contact the BDA Trade Union in confidence.

References and further reading

(1) The BDA would like to thank UNISON for permission to quote extensively from their document.

(2) The BDA would like to thank UNISON for organising the Trade Union Briefing on Transgender Rights at the House of Commons on Tuesday 6th March 2018.

(3) Scottish Trans ‘Non-binary people’s experiences in the UK’ (2015)

(4) “Transgender Equality Contents” the Conclusions and Recommendations