updated on 11 December 2018
QuestionHow can the Gender Recognition Act 2004 be updated to better protect and enable transgender equality?
A pioneering piece of legislation when it was first implemented, the Gender Recognition Act 2004 (GRA) allows individuals to apply to change their legal gender, either from male to female or female to male. If an application is successful, a Gender Recognition Certificate (GRC) is granted which allows a revised birth certificate to be issued. At the time, the UK was one of the first countries to implement a formal process permitting this, albeit following a critical decision of the European Court of Justice that a failure to do so would be a breach of the European Convention on Human Rights.
Currently, the GRA provides for a quasi-judicial process where an application is made with supporting evidence to a panel of judges, together with a fee of £140. The application must include:
a statutory declaration that the person intends to live in their acquired gender as a male/female until death;
an application fee of £140;
two medical reports;
(i) confirming gender dysphoria, usually provided by a psychiatrist; and
(ii) disclosure of any gender reassignment treatment, such as hormones or surgery;
evidence of living full time in the acquired gender for at least two years (eg, changed name and gender marker on passport or other documentation); and
if married, a statutory declaration of consent from the applicant’s spouse. This has only been a requirement since the Marriage (Same Sex Couples) Act 2013. Previously, a married person seeking a GRC would have to either divorce or annul their marriage. An interim GRC could be issued which the spouse can rely on as grounds for divorce. Currently, this still applies to existing civil partnerships, although it has been announced that civil partnerships will be made available to heterosexual couples, following a recent Supreme Court case.
Despite being ground-breaking at the time, substantial progress in the area of trans rights in the UK and other jurisdictions has left the GRA looking dated. It has come under significant criticism in recent years, most notably in the Women and Equalities Commission's report into transgender equality.
Criticisms include the administrative and financial burden on people who have transitioned, both in terms of the application itself and the evidence required. There is usually a charge for the reports required as the NHS service is under significant strain, with waiting lists as long as four years for starting medical transition. The amount of information required, most of which is extremely personal, has been criticised as unduly invasive and humiliating.
Additionally, the requirement for spousal consent is also contentious. This is due to marriage being, in essence, a contract to which a fundamental change to the terms requires the consent of both parties. Some argue that the change of legal gender is not in fact a fundamental change, as an applicant will likely have been living as their acquired gender for a number of years, especially as marriage is no longer exclusive to heterosexual couples. There is also substantial concern about the misuse of spousal consent by abusive spouses trying to make the process of divorce more difficult when, for example, determining child custody. This was flagged in the Women's and Equalities Report as being of major concern to many trans people. It is often used as a bargaining chip in divorces to further control/humiliate the spouse.
The government is also concerned about the low uptake since the GRA came into effect in 2005. Approximately 4,910 people have successfully been granted a GRC. Although estimates of the trans population in the UK are not particularly accurate, the Equalities and Human Rights Commission estimates there to be 600,000 trans and non-binary people in the UK, making the 4,910 individuals to be granted a GRC a very small percentage of the overall trans community.
The low uptake can also cause administrative headaches, as it is possible to change the gender marker on most other documents, such as passports and driving licenses, without the need for a GRC. The inconsistency of documents may also lead to individual's trans status being inadvertently disclosed, which can be distressing or even dangerous for the individual concerned. The government's recent LGBT survey found that only 7% of trans people who were aware of GRCs did not want one.
Also, the only genders that can be recognised are binary male or female. This binary choice is not inclusive of non-binary people who identify as neither male nor female. In the above-named survey, there were more non-binary respondents than either trans men or women.
The scope of the reform is yet to be determined; but the aim is to increase the uptake in successful applications. It is likely that this will be achieved by making the process less burdensome in terms of the information required and related costs.
One of the proposals that has been put forward is “self-ID”, which is more of an administrative notification process. Only a statutory declaration of the person's intent to live in their acquired gender until death would be required, which would also de-medicalise the process. Such a system has been introduced in the Republic of Ireland, Malta, Norway, Denmark and Belgium. There have been concerns raised about men using such a process to gain access to women-only spaces in order to commit assault; it is important to note however that there have been no reported cases of this in the above jurisdictions where a self-identification process has been introduced.
There are also proposals to include a third gender option for non-binary people, such as ‘X’. It is likely that this will need further consultation, as the creation of another gender category will inevitably impact a wide variety of state services and systems that are only set up for binary gender identities.
The protection and exceptions available under the Equality Act 2010 will not be affected by the proposed changes to the GRA, or any consequent increase in uptake. The protected characteristic of ‘gender reassignment’ applies to trans people and a GRC is not required for protection to apply. As a significant period of living as the acquired gender is required to obtain a GRC, this would provide a significant gap in protection at a time individuals are vulnerable due to being more "visibly trans" at an early stage of transition. Trans people who do not "pass" are far more likely to be subject to violence, especially trans women. This is much more likely early in transition with little experience of living in the role of the acquired gender and without physical changes (especially to voice). NHS waiting lists are very long and therefore people are generally presenting as their acquired gender for several years without being able to access this treatment and are at high risk throughout this time.
Much of the public debate has focused on the perceived risk that making a GRC easier to obtain would cause harm to women by permitting men to enter women-only spaces, claiming to be women. This also implies that people assigned male at birth are not really women. There have been no reported cases of such abuse occurring and there are already provisions in the Equality Act that allow discrimination against trans people in limited circumstances, where this is a proportionate means of achieving a legitimate aim. An example given is excluding a trans woman from a support group for female victims of domestic violence, where this would cause distress for the cis women using the service. It has been reported by the trans community that these provisions are used to routinely exclude trans women from single gender services, where it is not a proportionate means of achieving a legitimate aim.
As the scope of the protected characteristic has been clarified, this is a good opportunity for companies to review their equality and diversity policies to ensure that they are compliant and that staff have up-to-date training on their implementation.
Increased uptake of GRCs is far more likely to have an immediate impact in terms of data protection, which has been subject to significant scrutiny in recent months due to the GDPR coming into force. A person having a GRC is classed as sensitive personal information and would therefore be protected under general data protection requirements. The GRA also provides for additional protection under section 22.
Section 22 provides for a strict liability criminal offence for disclosing the existence of a GRC and accordingly, disclosing an individual's trans status. If found guilty of a breach, a fine of up to £5,000 can be applied, although there have been no successful prosecutions to date. Partly, this is because the individual has to pursue a complaint and therefore further expose themselves in order to do so. There has been pressure to reform this, so that it is more actively investigated rather than putting the onus on the wronged individual, but it is unclear as to whether this will proceed.
There are exceptions where a disclosure is permitted. These include:
with the consent of the individual;
if the information does not identify the individual;
for the purposes of preventing or investigating crime; or
in accordance with a court or tribunal order.
This framing as a criminal offence recognises that such a disclosure can be distressing and – in some cases – highly dangerous for the individual concerned. Therefore, employers should consider who has access to this information about an employee and then ensure that they are aware of their GDPR and GRA obligations. Additionally, disclosure in the course of litigation, in particular in divorce proceedings, should be approached with extreme caution. It should be considered whether this information is in fact relevant to the case, or whether this is being used in an oppressive manner to humiliate or otherwise harm the individual concerned.
The consultation does show that matters are moving in a more progressive direction, although the extent of this remains to be seen. The trans community still faces a significant amount of prejudice, as the content and tone of some of the debates about this consultation demonstrate. There are a number of issues also raised by the Women and Equalities report on transgender equality, including access to care on the NHS, both specialised in relation to transition and general day-to-day care.
Emrys Moore is a first-year trainee solicitor at RPC.