Gender Recognition Reform – A Real Possibility?

One of the things anticipated for this Parliament is that Brexit, and its associated legislation, will dominate everything. That’s not to say that legislation for other things cannot happen – there is still space allocated for Private Members Bills, for example. But the scope for other Government-sponsored legislation is small.

The other complication for Government to consider is that it wants other legislation it sponsors to attract as much cross-party support as possible. Government would not want to be repeatedly defeated in votes in the House of Commons. So Government may be looking for relatively small bills which don’t detract from the Brexit legislative programme and can attract cross-party support.

Interestingly, we seem to have moved to a point where reform of the Gender Recognition Act could be one such piece of legislation – small enough to fit into the gaps, and a topic which now clearly has cross-party support. Reform has been a stable of the Lib Dem and Green manifestos for a while. The SNP is looking at reform for Scotland. Jeremy Corbyn has indicated that Labour would now support reform. And, finally, at a reception at Number 10 earlier this week, Theresa May said Government is now looking at reforming the Act.

For those readers who don’t know much about this Act, it was brought in after a Government defeat in the European Court of Human Rights – where it was ruled that a trans woman had the right to be married to a man. Basically the 2004 Act provides a route for trans people to change their birth certificate – this being deemed to be an individual’s primary identity document – to match the gender they live in.

At the time it was ground-breaking. The Act didn’t require an individual to have had genital surgery, recognising that people may have medical reasons for not undergoing that option. It introduced a Gender Recognition Panel, which would assess and then either approve or decline applications. It required people to be single at the point that a Gender Recognition Certificate (the document which allows a birth certificate to be reissued) was issued. It also required at least one medical diagnosis as well as proof of living in the required gender for at least 2 years. Applicants also had to be at least 18 years old.

The passage of the Marriage (Same Sex Couples) Act in 2013 allowed trans people who were married to gain gender recognition as long as their spouse provided consent. However, by that time, concerns were being expressed about how the Panel was operating, with stories about clarification of evidence being requested perhaps more than was reasonable. I heard stories of one individual being requested for evidence of a phallectomy (removal of penis) and orchidectomy (removal of testes) despite having vaginoplasty (creation of a vagina). I also knew another individual who had been questioned about the seriousness of their application as one of their children was only three years old. Personally, I have major problems with the existence of an agency which determines something about you, but you will never meet and have no right of appeal.

Around the same time, the Irish government were introducing the concept, subsequently also introduced in Malta and Argentina, that an individual only need to self-declare their gender. No panel was required, nor medical evidence. France recently amended its gender recognition procedure so that non-medical evidence could be considered as equal to medical evidence. The UK Act is beginning to look seriously regressive.

And yet voices continue to be raised supposedly concerned about the notion of self-declaration. What would happen, say these voices, if a prisoner self-declared simply in order to be able to move prison estate with the intent of committing sexual offences in that new estate? These examples almost inevitably focus on the idea of men declaring themselves to be legally women in order to place women in danger. The complete lack of evidence that such behaviour has happened anywhere that self-declaration is in effect does not deter the detractors. Additionally, woman-on-woman violence is not unknown in the prison estate, and the prison service already has procedures in place to deal with it.

At the time of writing, it is not clear what shape any Government review of gender recognition would take, or even when. I have made it clear in meetings with parliamentarians and civil servants that the basis of decision-making needs to change. At the moment the emphasis seems to be on the trans applicant to prove themselves. I would rather see a system where the trans applicant is believed, even if self-declaration is not on the table. This means an end to nit-picking by the Gender Recognition Panel if evidence that clearly demonstrates living in the required gender is provided.

The prison service instructions, introduced in early 2016, start from the same basis – that an individual should be placed into the gendered-estate they wish unless there is serious counter-evidence indicating that the individual is not genuine or would provide a severe risk to other inmates.

As the main financial advantage to being legally female (the earlier provision of a state pension) is eliminated, it highlights that trans people undertake gender recognition for a number of reasons – I suspect the most common one, after pension eligibility, is being able to marry. However gender recognition has a very low take-up rate (around 5,000 in 12 years), which could indicate that people are put off the somewhat costly process (although the application fees are waived for people on low incomes, the costs of getting the various pieces of evidence are not) or that people see little value in it.

The other key issues for any review of the legislation are what to do for those who are under 18, and also crucially where does this leave non-binary people (those who identify as neither exclusively male nor exclusively female)? UK law is written assuming two genders – you are either male or female. How should non-binary people fit into this binary gendered framework? As an example, for those where age does matter in terms of accessing a state pension, should non-binary people be treated as men, as women, or as somewhere in between for pension purposes? The passage of the same sex marriage Act required assessment of hundreds, if not thousands, of other laws. Non-binary recognition looks as though this task would be significantly increased.

At the start I laid out that there may be legislative slots for small bills with cross-party support. Inclusion of non-binary recognition may make the scope of gender recognition reform too big for this Brexit parliament, and it is far from clear what level of cross-party support there is for that aspect of reform.

The issues for those under 18 will grow in importance. In 2004, the prevailing view was that a trans person transitioned in middle age, once the stresses had grown too great. This meant that issues like privacy dominated the thinking behind the Act. Now it is clear that the number of children and teenagers transitioning, let alone those who are defining themselves as non-binary, is increasing significantly. This challenges the thinking that trans people should declare their birth gender in certain situations. If you transitioned when you were 6, or even younger, in what way is this relevant?

I understand that one of the options the Scottish Government is considering is extending gender recognition to 16 and 17 year-olds, something which might be challenged given the age of legal competence in Scotland is 12. Norway recently introduced a gender recognition law which has no age restrictions at all.

While noises coming out of Government immediately before Parliament’s summer recess are encouraging, it remains to be seen exactly what scope and what timescales are being considered.

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