Written evidence submitted by LGBT+ Labour (GRA1419)
27th November 2020
Submission to the Women and Equalities Select Committee Inquiry on reform of the Gender Recognition Act 2004.
Summary
This is the LGBT+ Labour submission to the Women and Equalities Select Committee Inquiry on reform of the Gender Recognition Act 2004. LGBT+ Labour is an affiliated socialist society of the Labour Party, and we have submitted this response in order to represent and advocate for our trans members.
Overall, we find that the changes proposed by the Minister for Women & Equalities to legal gender recognition to be insufficient. The process will still be costly, invasive, unnecessarily long and undignified. We suggest the adoption of the reforms suggested by the Committee, such as the removal of requirements around lived experience, a medical diagnosis and spousal consent would greatly improve the process. However, we also argue that more progress needs to be made outside of an amendment to the GRA. These include improved services for trans survivors of sexual/domestic violence, trans workers and tenants, as well as clarification and reassurance for trans people on the protections they have under the Equality Act.
We believe this inquiry takes place in the context of government failure. Three years passed between the government announcement that it was exploring reforms to the GRA (in the direction of a self-declaration model), and its eventual decision not to reform the Act. Over these three years, scare stories and misinformation around GRA reform (especially regarding its relationship to the Equality Act) have gone unchallenged by the government. This has given a space for toxic debate and abuse to thrive wherein trans people (including trans members of LGBT+ Labour), their families and allies have been subject to vile transphobic abuse.
We note that those opposed to GRA reform are a vocal minority. The result of the government’s consultation on reform showed that over 70% supported reform and self- declaration. Despite this overwhelming support the government decided against pursuing reform, meaning that the toxic environment that has prevailed since the government consultation was announced will continue indefinitely.
We hope the Committee will conclude that the government decision not to pursue reform was unwise, and that this inquiry will hold the government to account for their failure to support trans people in this area. Written evidence submitted by LGBT+ Labour (GRA1419)
Part One
Will the Government’s proposed changes meet its aim of making the process “kinder and more straight forward”?
Yes, but the reforms are nevertheless insufficient. Making the process less expensive will reduce barriers for some trans people, and the process being more internet-based will streamline it for some trans people. However, the process may still be difficult for those who lack consistent digital access (especially if multiple documents are being scanned and sent).
The reforms are insufficient because the cost of obtaining a GRC is just one barrier, and the lack of commitment to reducing other barriers will maintain those barriers. These include the requirement to document two years spent in the “acquired gender”, the requirement to obtain a diagnosis for gender dysphoria and the requirement to stay in the “acquired gender” for the rest of one’s life. The latter requirement in relation to utilising statutory declaration is especially harmful to non-binary people. All of these requirements are unjust and unnecessary, and present barriers to trans people claiming their right to legal gender recognition.
Should a fee for obtaining a Gender Recognition Certificate be removed or retained? Are there other financial burdens on applicants that could be removed or retained?
Yes. The fee to obtain a GRC should be abolished or lowered as much as possible. The original fee of £140 is very expensive and is a barrier to many trans people who wish to obtain a GRC but for whom it is out of reach financially (or else it becomes a much lower priority). Administrative processes often do incur a certain cost which can be passed onto those requesting certain documents from government agencies. However, the fee for a GRC is de facto even more expensive because the process internally is more costly. The cost of convening a panel (made up of legal and medical officers) inflates the cost to the government. Moving towards a system of self-declaration would make the process for government cheaper per application because of the reduced labour costs, much of which is currently passed onto the applicant.
This is especially important because the other costs of obtaining the documents necessary to succeed in one’s application for a GRC are quite high cumulatively. While the cost of a GRC is £140, it becomes much higher in total when gathering the necessary evidence is taken into account as well. This typically includes passports, driving licences, medical reports and solicitor’s fees. A further way to remove these barriers would be to exempt trans people from the costs of renewing official documents so they match their “acquired gender”.
Trans people should not need to pay to have legal recognition of their identity. If there is to be any charge it should be no higher than the charges the government schedules for data protection applications or fixed at £10 and waived for those with low income. This opinion Written evidence submitted by LGBT+ Labour (GRA1419)
was reflected in the government’s GRA reform consultation, with 58.5% of respondents were in favour of removing the £140 fee
Should the requirement for a diagnosis of gender dysphoria be removed?
Yes. The requirement for a diagnosis of gender dysphoria places many barriers in the way of trans people exercising their right to legal gender recognition.
A requirement for a diagnosis in and of itself is demeaning for trans people, as it defines us exercising our freedom in relation to gender identity and expression as pathological. While there have been steps internationally to depathologise this process, the ICD-10 diagnosis of “transsexualism” (still influential in gender identity clinics today) is still defined as a “disorder”. More steps have been made to depathologise this process, including the proposed ICD-11 shift to “gender incongruence”, which is not classified as a mental disorder. Given the medical understanding of transition-related healthcare is shifting away from an inherent understanding of transness as a diagnosable condition, it is unfair to trans people to maintain this diagnosis as a requirement in obtaining legal gender recognition. This is especially the case for those who don’t require any support from a GIC in order to live their lives in comfort.
There are further barriers caused by a requirement for diagnosis. One is that even if a diagnosis for gender dysphoria/incongruence is desired and sought in order to access transition-related healthcare, the waiting lists for gender identity clinics are currently so long that they are a barrier in and of themselves. The long waiting times for Gender Identity Clinic (GIC) appointments to obtain a diagnosis adds months or years to the minimum two years requirement unless a patient can afford a private appointment. It was reported by the BBC earlier this year that there were 13,000 people waiting for their first GIC appointment, with waiting times longer than 18 months in most places and often above 30 months.
Diagnosis is also a barrier for those who struggle to obtain a diagnosis or simply do not wish to. A medical report to obtain a GRC is not issued at the first appointment as at least one further appointment is required adding at least three months and usually six months. Furthermore, there are those who have accessed HRT through internet pharmacies rather than a GIC, there are many trans people who are read as their “acquired gender” without recourse to transition-related healthcare, and there are those for whom disablism presents barriers to accessing a diagnosis. In the case of the former, many GICs will not see patients if they know they have already been taking hormones unsupervised. Thus, there are many patients who are taking hormone treatment but will not be able to obtain a GIC medical report to that effect.
The populations above are significant in numbers. They are often living their everyday lives unobtrusively and would benefit from legal gender recognition being demedicalised. This opinion was reflected in the government’s GRA reform consultation, with 80.3% of respondents in favour of dropping the requirements for medical report to obtain a GRC. Written evidence submitted by LGBT+ Labour (GRA1419)
Should there be changes to the requirement for individuals to have lived in their acquired gender for at least two years?
Yes, the requirement should be abolished. First, the principle in and of itself is nonsensical. What proves that one is living as a man or a woman or a non-binary person? It either forces applicants to provide administrative evidence that doesn’t prove anything other than a name and title change in most cases or proves that one adheres to gender stereotypes. Neither these requirements establish anything meaningful about one’s life as a trans person or about one’s life in the “acquired gender”.
Second, obtaining the necessary evidence can be expensive (as highlighted above), arduous in the amount of time it can take to gather the evidence, and relies on a paper record that many trans people struggle to pull together. This is especially the case for those who can’t change their names due to an unsafe home situation, those who have experienced homelessness and those who due to disability struggle to maintain the necessary records. Regardless, any time frame that can be suggested is ultimately arbitrary. This includes the existing requirement as well as the proposed time frame in Scotland.
Finally, this requirement puts at risk trans people who are transitioning in a domestic environment where not all other residents or neighbours are aware of a trans person’s transition. A change of title or name on utility bills can cause problems to those live-in households or flats where they do not want others to know this private detail. In some cases, it might expose the person to risk of harassment or assault. We’ve seen one case in Nottingham, of a person who was subjected to verbal abuse because a neighbour identified they were transgender from a letter they had seen. This compounds the problem of privacy, a right which paradoxically is not available to those who most need it due to the requirement that one puts themselves at risk before gaining the privacy protections of a GRC.
Moving to a system of self-declaration means that trans people won’t be put into a yearlong process of waiting when they’re usually just living their lives already. This opinion was reflected in the government’s GRA reform consultation, with 78.6% of respondents being in favour of removing the requirement to provide evidence of lived experience.
What is your view of the statutory declaration and should any changes have been made to it?
Having legal gender recognition reinforced by statutory declaration is a good way to ensure the public’s confidence in a self-declaration based system. It is clear that if someone (for whatever reason) is attempting to obtain a GRC for an illegitimate purpose, such an action would be against the law. Written evidence submitted by LGBT+ Labour (GRA1419)
One area where we have concern is that legitimate actions around legal gender recognition could potentially become criminalised. For example, in the context of the highly contested debate over GRA reform, we could see vexatious complaints to police on someone not performing manhood, womanhood etc. “correctly”. Assurances should be made that gender non-conformity among holders of a GRC would not be grounds for legal action. Similarly, in the absence of non-binary legal recognition some non-binary people may want to obtain a GRC even if they don’t fully identify with the “assigned gender”. This should not be penalised. Finally, those who detransition for whatever reason and wish to reverse a change in legal gender should be able to do so without fearing legal action.
Any reform to the GRA which features the use of statutory declaration should take these scenarios into account. One way to reassure trans people’s concerns around this issue would be to reduce a potential penalty to the equivalent used in the Republic of Ireland, which is a proportionate fine, or three months imprisonment under their Statutory Declaration Act 1938. This is because the current penalty for a false statutory declaration is far too draconian. If found guilty under section 5 of the Perjury Act 1911 one can be sentenced to two years imprisonment with an unlimited fine. The most appropriate way to avoid this scenario however is for the Crown Prosecution Service to provide clear and sensible guidance when it comes to this area of law.
Does the spousal consent provision in the Act need reforming? If so, how? If it needs reforming or removal, is anything else needed to protect any rights of the spouse or civil partner?
In the context of “no fault” divorce being introduced in England and Wales, the spousal consent provision should be reformed as so to remove the so-called “spousal veto”. One’s decision to transition is a personal decision which should not be controlled by one’s spouse. Much progress has been made over the years in reforming marriage law so that spouses cannot use it to unreasonably exercise abusive forms of control and violence. The spousal veto remaining for trans people maintains that ugly history.
There are many choices that one person in a marriage or civil partnership can make, even if they make the other person in that union unhappy. However, it is not seen to be the responsibility of the law in most cases to be able to prohibit a spouse from taking such action. Indeed, most aspects of transition can be accomplished without the legal consent of one’s spouse, that is the nature of living in a free society. Therefore, we see no need for the spousal veto to remain. It makes obtaining a full GRC a uniquely gatekept aspect of transition.
In most cases (given the current nature of applying for a GRC) it is in the later stages of transition, so more significant life changes will have already happened. It is therefore nonsensical to make trans people’s exercise of the right to legal gender recognition dependent on a spouse. Moreover, in practice there are fears that the law is used coercively. Some transgender people have reported that it has been used by spouses to coerce them in abusive Written evidence submitted by LGBT+ Labour (GRA1419)
marriages and/or to settle a divorce on unfavourable terms of child-access and financial settlements.
Those who responded to the 2018 consultation seemed to agree, with 84.9% of respondents to the consultation were in favour of removing the spousal consent clause.
Should the age limit at which people can apply for a Gender Recognition Certificate (GRC) be lowered?
Yes. There is increasing recognition of young people’s right to autonomy and capacity to make important decisions about their own lives. At the age of 16, young people can vote in elections to the Welsh Assembly and the Scottish Parliament, they can consent (in most cases) to sexual activity, they can undertake paid employment, they can (in many cases) consent to transition-related healthcare. Waiting until a young adult is 18 before they can apply for a GRC robs them of their identity and dignity.
Legal gender recognition is not as significant as many of these scenarios. It is ultimately an administrative action, with no impact on one’s healthcare (so long as the process is also demedicalised). Not only does lowering the age limit fall in line with the greater understanding we have of young people’s ability to make decisions about their own lives, it can be very helpful in changing the many documents that young people receive around that age, such as certification of qualifications.
What impact will these proposed changes have on those people applying for a Gender Recognition Certificate, and on trans people more generally?
The proposed changes announced by the government will have almost no impact for those applying for GRCs and on transgender people more generally for the reasons given above. The application will still be complex and expensive and will undermine the dignity of trans people.
The changes proposed by the committee above in contrast, namely removing or lowering the fee, removing the requirement for a diagnosis of gender dysphoria, removing a “lived experience” requirement, removing the “spousal veto” and lowering the age at which one can apply for a gender recognition certificate each make great steps to make the process of accessing legal gender recognition more equitable. Non-trans people would correctly be outraged if in order to legally be recognised as their own gender they had to undergo the lengthy, bureaucratic and invasive process which trans people currently have to. These changes would likely result in an increase in the number of trans people applying for a GRC, which makes maintaining one’s privacy and accessing marriage in the correct role much easier. Written evidence submitted by LGBT+ Labour (GRA1419)
The main impact on transgender people more generally comes from the dropping of the original proposed reforms. The misinformation and toxic atmosphere generated during the consultation means respect for transgender people and their dignity is at an all-time low. This will take years to reverse. Substantial reform to the GRA would help close the chapter on the vicious arguments (often had in bad faith) in the public sphere over whether trans people deserve a right to privacy and legal gender recognition at all. That the government has chosen not to go ahead with these reforms simply prolongs this debate past the stage of exhaustion.
What else should the Government have included in its proposals, if anything?
Something that the government needs to make progress on following its response to the 2015 trans inquiry is increased provision for non-binary people in legal protections, gender recognition and society more broadly. We will go into more detail on this below, but one point is that for many noon-binary people, the categories of man, woman and non-binary are not mutually exclusive. A genderfluid person for example may identify as a man, a woman and as genderqueer. Any reform which aims to better include non-binary people must recognise that some non-binary people may wish to be recognised as non-binary and as men and/or women.
Another issue is that the government holds a record of who has obtained a GRC. This remains highly concerning given if the data is leaked it puts the privacy and dignity of thousands of trans people at risk. This information should not be kept centrally in a way which presents risks to trans people in the event of a data breach.
The Gender Recognition Act introduced a privacy protection for people with a GRC, which protected their original birth records from disclosure (section 22). However, the Act did not foresee that birth records would be available to be searched on the internet through ancestry sites. The Select Committee should look at the need to update privacy protections around birth gender. This opinion was reflected in the government’s GRA reform consultation, with 73.4% of respondents thinking that the privacy and disclosure protections for transgender people were inadequate.
Ancestry websites are now frequently used by transphobic stalkers to reveal a transgender person’s birth records, this is highly distressing. It should also be clarified that this is criminal harassment and the Protection Against Harassment Act 1997 updated to include this.
Does the Scottish Government’s proposed Bill offer a more suitable alternative to reforming the Gender Recognition Act 2004? Written evidence submitted by LGBT+ Labour (GRA1419)
Yes, but the proposed bill still includes elements of previous legislation that are not best practice, and even introduces a new measure which is misguided.
The positive elements of the Scottish Government’s proposed Bill are that the process is demedicalised, the process is streamlined and that the evidence that the applicant has lived in the “acquired gender” is reduced to three month’s worth of evidence. It is also promising that the Scottish Government sought specific opinions on whether the age at which one can apply for a GRC should be reduced to 16. These altogether would make the process much easier, quicker and more dignified for most trans people.
However, the proposed Bill still maintains procedures that put unnecessary barriers in the way of trans people accessing their legal right to gender recognition. Maintaining the requirement to provide evidence that one has lived in their “acquired gender” still faces all the issues that we raise above, even if that requirement is for evidence of three months as opposed to two years. To remind the committee, the evidence currently asked for is largely administrative in nature and doesn’t prove anything about one’s internal experiences, only that one has changed one’s name, title and appearance. If the requirement is going to be changed, it should simply be abolished completely.
Adding an apparent “cooling off” period is introducing an unnecessary barrier. It is highly unusual for the state to require a “cooling off” period (in this case of three months) in order to change one’s records. A deed poll can be virtually instantaneous for example. We are unsure as to what purpose introducing this requirement serves, apart from to mollify those who mistakenly believe that having a GRC has a significant impact on one’s access to single and separate sex services.
In the end, the overall length of the process being reduced from over two years to approximately six months would be a positive change, but the proposed Scottish government reforms still maintain barriers which we believe should be removed.
Part Two
Why is the number of people applying for GRCs so low compared to the number of people identifying as transgender?
The low number of trans people who apply for GRCs is reflective of both the overly high amount of time and money required to obtain one as well as the relatively limited role that having a GRC plays in the lives of most trans people.
We feel confident in saying that if the process was self-declaration based then more trans people would be applying for GRCs. This is because the process is currently expensive and arduous, and compared to the much more everyday acts of administrative transition such as changing one’s passport, driving license as well as names at various service providers (public, private and third sector) it often isn’t worth the measures that one must take. If the Written evidence submitted by LGBT+ Labour (GRA1419)
process was easier and cheaper, we would have more people accessing their right to legal gender recognition even though it wouldn’t necessarily be a top priority.
We feel it is important to emphasise that just because it isn’t the top personal priority for many trans people, it doesn’t mean that the process should be kept as difficult to access as it already is. For most transgender people, the process is too long, complex, and humiliating to be worth applying for a GRC. One’s public transition process is usually emotionally painful and exhausting with family, old friends, and work colleagues often failing to accept a new identity. Two years after transition most transgender people have carved out a new life with friends and colleagues who accept them. To go through the process of proving oneself once again to a Gender Recognition Panel has an emotional cost which has to be weighed against what further rights a certificate will grant.
Second, while for many a GRC would be most useful at the start of transition to legally validate your identity and provide privacy protections around your birth gender, most aspects of everyday transition don’t require a GRC and having one plays a limited role in one’s everyday life given other aspects of administrative transition are much more immediate (as highlighted above). Indeed, even if we moved to a system of self-definition there would likely be many trans people who wouldn’t apply for one immediately. This speaks to both the successes that have been made for trans people in the UK, especially government policy around driver's licenses, passports etc. as well as the protections trans people have under the Equality Act 2010. That many wish to reverse these gains by making it easier to discriminate against trans people in accessing single/separate sex spaces deeply concerns us. In addition, there are many non-binary people who simply aren’t offered an appropriate option when it comes to legal gender recognition.
Overall, the low number of successful GRC applications is reflective of the failure of the 2004 Act to ensure equitable access to exercising one’s right to legal gender recognition. We would expect many more people (including those who are currently eligible to apply for a GRC but have not done so) to apply if the law was liberalised.
Are there challenges in the way the Gender Recognition Act 2004 and the Equality Act 2010 interact? For example, in terms of the different language and terminology used across both pieces of legislation.
Yes, but most of these are language-based and many are rooted in misunderstandings of the relationship between the Equality Act 2010 and the Gender Recognition Act 2004.
The first is that by the time the Equality Act was passed in 2010, the conversation and language had moved on significantly from when the 2004 GRA was passed. The tension between the concepts of sex, legal sex and gender reassignment often lead some people to believe for example that trans women remain “male” for the purpose of the Equality Act even if they obtain a GRC which changes their legal sex. It is often believed that such a difference Written evidence submitted by LGBT+ Labour (GRA1419)
in language is intended to maintain a trans women’s fundamental “maleness”, when in fact we believe the seeming contradiction comes from changing understandings of the legal terminology.
Such a contradiction is clarified if we take the example of a trans woman alleging that the firm that employs her has discriminated against her for being a woman (rather than for being trans). In this case, the relevant protected characteristic that applies would not be gender reassignment, but sex, specifically being discriminated against on the basis of being a woman/female. While there are some who would argue that a trans woman is still male (whether by birth or biologically), it is clear that in this circumstance she is female. She would not be claiming “discrimination by perception” as a trans woman is a woman, not someone who is mistakenly assumed to be a woman.
These easily resolved contradictions in the language can be simply explained with examples such as these, and the Equality and Human Right Commission should take further action to clarify some of these issues. Future reform of the GRA and Equality Act should update the language so that it is that is which is most commonly used by trans people to describe their experiences. Examples of out-of-date language include the use of the terms (i) gender dysphoria is used instead of gender incongruence, (ii) transsexual is used instead of transgender.
As regards to the relationship between the GRA 2004 and Equality Act 2010, as most recently argued by the Scottish government, there isn’t a firm link in almost all cases. One does not require a GRC in order to have protection against being discriminated against on the basis of being a woman if one is a trans woman. Furthermore, the exemptions which permit discrimination against trans people in the provision of some single and separate sex services in very limited circumstances apply regardless of whether one holds a GRC. This means that any objection to GRA reform rooted in concerns around the Equality Act 2010 are not objections to GRA reform per se, but instead relate to how the Equality Act should be interpreted. That this has become a widely held misconception is saddening and has caused unnecessary distress for many trans people.
However, we are broadly happy with the current actually existing relationship between the Equality Act 2010 and GRA 2004. What more concerns us is that disagreements over what the legal definitions of the terminology mean have enflamed a culture war with the aim of increasing discrimination against trans people. In this context, the government’s consultation on GRA reform caused many problems. Given the above loose relationship between the GRA and Equality Act it was odd for the consultation to devote questions 12-19 on said relationship. Those aiming to weaken anti-discrimination protections for trans people were able to use the fact that these questions were included to spread fear stories and false misinformation about the impact of GRA reform on women’s safety. This misinformation fed into the toxic debate and was not countered by the government during the two years delay between the consultation and the publication of the consultation report. Written evidence submitted by LGBT+ Labour (GRA1419)
Are the provisions in the Equality Act for the provision of single-sex and separate-sex spaces and facilities in some circumstances clear and useable for service providers and service users? If not, is reform or further guidance needed?
The provisions are not clear and/or usable for neither service users nor providers, but not for reasons commonly raised. Rather, the current state of affairs has a chilling effect on trans people using said services and service providers having a usable trans inclusion policy.
Tackling the crux of the matter, the Equality Act 2010 permits discrimination against trans people if it is a proportionate means of achieving a legitimate aim. This is not a blanket ban on trans people from single/separate sex services, but it is treated as such by some groups who wish that trans people be banned from said services (especially banning trans women from accessing women’s-only services). We are clear in our position that such an interpretation is not legally rooted and never has been. In fact, trans people have used single/separate sex services since before the passage of the GRA, never mind the Equality Act. It is this very public opposition to trans inclusion in women’s spaces that has created many problems for both service users and service providers.
A key issue is that the legitimacy of trans inclusion/exclusion policies in single and separate sex services have never been tested in law, and as such there is no clear precedent. There are examples given within guidance, but many have taken these examples to be a clear establishment of a norm which enables trans women to be excluded from single-sex services at all times, a norm which we believe would be illegal.
Further to this, what aspects of a trans woman being trans would constitute a disruption to services so that excluding said woman would constitute a proportionate means of achieving a legitimate aim? Does another service user finding out that another service user is a trans woman without previously been aware fit this criteria? Can criteria be based on an assessment of “passing”? If a service made no other attempts to accommodate a trans woman, would an “exclusion-first” approach be legitimate? If another service user is distressed by a trans woman using a service, how would the service provider distinguish between genuine distress and outright bigotry?
All these unanswered questions and more present clear barriers to trans service users and providers of single/separate sex services. It is the case that many trans people avoid using single/separate services that they need because they fear illegal discrimination, which clearly wasn’t an intended or acceptable consequence of the law. It is also the case that service providers have no real way of determining what discrimination is permitted and which is illegal.
This contributes to a situation where most services of this kind do not have a clear trans inclusion policy, which further contributes to an environment where trans people are unsure as to whether they will be welcome in a particular service. This is made even worse when Written evidence submitted by LGBT+ Labour (GRA1419)
single/separate sex services which have a trans inclusion policy in service provision or recruitment that appears to include trans people in principle, they are often brigaded by those who demand that a blanket trans exclusion policy be instituted. This creates a chilling effect where service providers cannot be transparent with service users about the nature of their trans inclusion policy because simply having one generates harassment.
In conclusion, further work between government bodies and the LGBT+/women’s sectors is needed to bring about a collaborative approach to trans inclusion. This would change our current situation where there is uncertainty and fear on all sides.
Does the Equality Act adequately protect trans people? If not, what reforms, if any, are needed
The Equality Act 2010 doesn’t adequately protect trans people currently, both in design and operation.
A very material element of this is that many trans people who experience discrimination on the basis of being trans in housing and employment are insufficiently protected when tenants and workers more generally are poorly protected more generally. For example, the proliferation of zero-hours contracts results in a situation where a trans person on a zero hours contract can be refused further hours at the whim of an employer’s transphobic beliefs, and unless there is definitive evidence that there is transphobic discrimination it can be difficult to gain restitution in the law. This illustrates that trans people more generally are at risk because of poor protections in other parts of the law, and this must be taken into account when reviewing discrimination protections against trans people and other groups who share a protected characteristic.
Second, the terminology around trans people used in the Equality Act by 2020 is very outdated. Many trans people do not identify as transsexual, despite it being a key term in the Equality Act. Even the term “gender reassignment” can be alien to many trans people, as many don’t change gendered presentation or don’t see their transition as a “reassignment”. Gender reassignment could be redefined to a new term such as “trans status” or “gender identity”, both of which are more encompassing.1
Third, it is necessary to make enforcement more accessible and less prone to judicial ignorance. The Equality Act application (services) is expensive and risky to enforce. Enforcement is through the courts, with costs awarded against a losing party. A better system
1 It is worth stating that everyone has an internal sense of gender (also known as gender identity). When a trans man is discriminated against on the basis of being trans, it isn’t his gender identity directly as a man that is being discriminated against, but his status as a trans person. Hence, it could be said trans people often aren’t discriminated against on the basis of their gender identity, but on the basis of them being trans. Regardless, this issue is easily clarified in explanatory notes is written clearly enough. Written evidence submitted by LGBT+ Labour (GRA1419)
would be enforcement through an equality tribunal, with specialist knowledge of equalities and a no costs principle.
Expertise in the arbiters of equality law is generally desirable goal. County court judges may not have expertise around what discrimination or harassment of a transgender person is, nor how transgender people are routinely indirectly discriminated against. Only those who could afford often costly legal representation could be confident their case of discrimination would be understood. An equality tribunal would have expertise to draw upon.
What issues do trans people have in accessing support services, including health and social care services, domestic violence and sexual violence services?
The barriers that trans people face in accessing support services are rooted in several factors. These include these services being underfunded generally, a lack of funding for necessary trans-specific services, and a lack of trans inclusion in services more generally.
Transition-related healthcare in England is at breaking point. With 13,000 trans people on GIC waiting lists, dehumanising diagnostic practices, widespread administrative inefficiencies, long waiting lists for surgeries and limited provision of many kinds of transition-related healthcare, the trans healthcare crisis is one of the biggest issues trans people have in accessing services. While the Minister for Women & Equalities has highlighted the opening of three new gender clinics, what wasn’t clarified is that these are often pilot programmes which will reach insufficient numbers to clear the backlog. Overall, the NHS should move to a system of informed consent that rather than treating the desire for transition-related healthcare as pathological and in need of gatekeeping, and treat the interaction as a path that the patient goes down, guided but not controlled by a trained clinician. Increased investment needs to be made in providing transition-related surgeries (including those currently not offered as standard such as facial feminisation surgery).
Health and social care more broadly is an issue for trans people, and each area has barriers that trans people have to confront. In primary care, many trans people report ignorance and hostility from GPs. Many mental health professionals treat being trans as pathological (or as a symptom of another pathological state) and don’t have cultural competency around trans experiences. This can extend as far as conversion therapy for trans people. Much mental health treatment is often delayed unnecessarily because treating trans people’s mental distress is assumed to require a clinician with specialist gender identity training, this is rarely the case. It is worth pointing out that the minority stress trans people experience and the abuse they receive might exacerbate mental health problems but are rarely the root.
Sexual and reproductive health are often hostile or difficult areas for trans people, and this hasn't been improved by the politicisation of this issue. For example, trans women face HIV/AIDS related risks similar to gay, bi and other men who have sex with men, but this issue is often framed as a “gay men’s health issue”. Many trans men and non-binary people Written evidence submitted by LGBT+ Labour (GRA1419)
have similar concerns around reproductive health to cisgender women, but any attempt to acknowledge this (for example, abortion and pregnancy as trans issues as well as (as opposed to exclusively) women’s issues has been met with a backlash that seeks to forcibly define trans men and some non-binary people as women against their will. Improved systems which accommodate the unique needs of trans people should be introduced across the healthcare sector.
In addition, there’s insufficient research into the impact of medical and/or social transition on trans people’s health outcomes, or intersections between HRT (for example) and other medicines. Possible risks are often touted as reasons to not transition, when in fact trans people just need the information to make an informed choice with their clinician.
Finally, social care for LGBT+ people in general (especially older people) is not necessarily culturally competent and prepared for trans people using those services. Many older trans people are concerned about being forced back into the closet, as is sadly the case for many older LGBT+ people. There needs to be a holistic approach to how trans people are supported in existing services across the health and social care sector. Barriers in accessing transition- related healthcare are not the only barriers in health and social care that trans people face.
The lack of provision for trans/LGBT+-specific services for survivors of domestic and sexual violence is an acute issue for the trans community. While some services are provided by charities such as the LGBT Foundation, Brighton & Hove LGBT Switchboard and Galop, these services do not meet the needs of trans people due to demand outstripping supply, as well as the fact that many of these services are not trans-only. Survey evidence suggests that trans people are at increased risk of experiencing sexual and/or domestic violence, and much of this is for reasons related to transphobia. There need to be specific services for trans people, but they largely don’t exist as nation-wide, in-person (especially residential) services. This compounds the problem that trans people have in accessing single and separate sex services, wherein trans people are posed as a fundamental problem for those services, but trans-only services don’t exist as a replacement. There needs to be direct government investment in services for trans/LGBT+ people who are survivors of domestic and/or sexual violence, either through stable grants to third sector organisations or specific provision of dedicated government services.
This links to wider problems in third sector services aiming to tackle sexual and domestic violence. First, most single/separate sex services supporting survivors of sexual and/or domestic violence, such as women’s refuges have always accepted transgender women. Most refuges have a risk assessment process for all their users, if they identify a problem with a user using their services, they can exclude them as a proportionate measure to protect others safety. As said above, a greater issue is the lack of transparency around these measures and aims.
Nevertheless, many trans people do not feel as though these services are equipped to support them, which results in them falling down a crack in services. Especially when services are Written evidence submitted by LGBT+ Labour (GRA1419)
men or women-only, trans people can become unsure as to what, if any service is right for them. We’ve discussed the nature of the single-sex exemptions above, but this also extends to whether existing services are equipped to recognise trans service users’ trauma as related but different to non-trans service users. In this, we draw links to the ways in which lesbian and bi women, BAME women and disabled women can all have needs relating to these services that may not be met without concerted effort to do so. The sector in this area needs to be supported to better support trans people, including funding for specific projects for trans people in existing services.
Are legal reforms needed to better support the rights of gender-fluid and non-binary people? If so, how?
The 2018 consultation on GRA reform reported that 64.7% supported recognising non-binary identities. In 2018, Ireland’s review of the impact of reforms to legal gender recognition (which had been in place since 2015), concluded that the law changes had not gone far enough and should: recognise non-binary and intersex identity. We should learn the lesson from them and change our law to recognise non-binary identity.
The Women and Equalities Select Committee on trans equality in 2015 stated that more needed to be done to protect non-binary people, but the government has kept postponing its public consultation on non-binary identity and needs. It has promised this undertaking since Elan-Cane brought an unsuccessful Judicial Review in 2018 to include a non-binary or non- gender marker on passports. In 2019 Oliver Entwistle, the Deputy Director of Operations and LGBT policy, informed the Court of Appeal in a witness statement dated 5 November 2019… [that] the call for evidence will be run by the National Institute for Social Research, and the contractor was ready to commence work immediately after the General Election which was due to take place on 12 December 2019. A year on this consultation still has not begun.
The consultation is important in identifying the needs of non-binary people and what legal reforms are necessary to meet them. However, a few reforms are obvious. The first is the increased availability of a non-binary gender marker, both in government-issued documents and in wider society. This is becoming more widespread internationally in a variety of ways, both in terms of government-issued identification and elsewhere. In Australia, legal recognition for changing a birth certificate to indeterminant (X) first arose from a court case of Alex MacFarlane in 2003, which the government accepted would allow a passport to be issued with an X gender marker. In 2010 case law developed to allow gender to be non- specific and recorded as X (Norrie May-Welby). Australian Government guidelines removed medical criteria for changing to X on passports in 2011 and birth/death certificates (2013). India’s Supreme court has recognised a third gender as neither male or female. In the US State of Oregon, the first circuit ruled that the State should allow recognition of non-binary gender. Written evidence submitted by LGBT+ Labour (GRA1419)
A recent employment tribunal case has ruled that the protected characteristic of gender reassignment applies to non-binary identity. However, this is not yet binding case law. Currently the Equality Act uses the outdated language of “gender reassignment” for the protected characteristic. This should be changed so that the law clarifies that this includes a non-binary or non-gender identity.
More broadly, there needs to be increased legal research and consultation into how non- binary people fit into the legal system. It would be more prudent that potential issues are clarified through comprehensive legislation, rather than inconsistencies being fought over in the courts.
In addition, many of the changes that non-binary people most need are material or based in systems outside of the government’s general purview, such as data collection practices. Non- binary people are part of the trans community, and all of the issues which effect non-binary people effect trans people more generally.
November 2020