The Gender Recognition Act is flawed & needs revising
London, UK – 16 January 2018
Peter Tatchell Foundation writes: Some feminists are critical of proposals to reform the UK’s Gender Recognition Act. They are mistaken and their fears misplaced. This article by GIRES UK explains why. As advocates of universal human rights, we support both women’s rights and trans rights; believing they are compatible and reconcilable. Our thanks to Terry Reed of GIRES UK for this commentary.
Terry Reed of the Gender Identity Research & Education Society writes:
In 2016 the Women and Equalities Select Committee heard evidence from trans, non-binary and non-gender people who are directly affected by the shortcomings of the Gender Recognition Act 2004 (GRA).
In its day the GRA, and the access it provided to a new birth certificate, was considered ground-breaking, but the world has moved on. Now, several countries have written more appropriate legislation which recognises the human rights and personal autonomy of individuals whose gender identities are not stereotypically associated with their sex, as assigned at birth, on the basis of genital appearance alone. It is opportune that the NHS, in line with the World Health Organisation, now recognises that gender incongruence is not psychopathological1; accordingly, it will be moved out of its present location under Mental and Behavioural Disorders in the International Classification of Diseases, into a non-psychopathological section.
The proposals put forward by Justine Greening MP who was, until recently, the Minister for Women and Equalities, would allow applicants who wished to achieve legal recognition of a gender status on their birth-certificate that accorded with their gender identity, to do so by a simple process. They would be able to self-declare without the need for a ‘diagnosis’ of gender dysphoria.
In general, there is much greater acceptance of trans people, including in religious institutions. The recent Church of England publication which supported gender diversity in schools, is very welcome. Three Catholic countries: Argentina, Malta and Ireland were among the first to adopt self-declaration for trans people seeking legal recognition. Nevertheless, some commentators, in the UK do object strongly on religious grounds.
In addition, women who fear that their rights will be undermined, have mounted considerable opposition to the proposed liberalisation of the gender recognition process, but only in relation to those assigned male at birth.
Sometimes, such opposition is based on the false premise that the current gender recognition process provides certain protections, such as preventing men behaving badly in women’s spaces which, in fact, it does not; this opposition rests, therefore, on a misguided belief that the proposed amendments will remove those supposed protections, thus creating a dangerous environment for women and undermining their rights.
Opponents fail to recognise the distinction between sex and gender identity, which leads to a fundamental misunderstanding of what it means to be trans. Consequently, even highly intelligent commentators have published opinions that are not based on fact.
A prominent journalist who writes for The Times, maintains: “Such a birth certificate will thus be a lie. For whether or not the person should be recognised as having changed sex now, he or she was born a girl or a boy. This Conservative government – conservative! – will thus be putting legalised lying onto the statute book”. 2
The journalist makes the common error of conflating sex appearance (male:female) with gender identity (boy:girl).3 The assumption that if you see the genital sex, you will know the gender identity, is usually right, but they are not the same thing, and congruence of these different factors is not universal.4 Where there is incongruence, the new birth certificate is a correction, not a lie. This correction has been possible, and has been achieved by several thousand people in the UK over the last 12 years. The argument that this constitutes ‘legalised lying’ is wrong and is, in any event, not relevant to the current proposal to change the administration of the GRC process.
The World Professional Association for Transgender Health (WPATH) asserts that medical evidence should not be necessary for trans people to gain legal gender recognition. WPATH says “no particular medical, surgical, or mental health treatment or diagnosis is an adequate marker for anyone’s gender identity, so these should not be requirements for legal gender change.”5 Indeed, 17 countries, including the UK, have already adopted the approach that medical treatment is not a prerequisite.6
It is alleged by those hostile to the government’s proposed changes that, with the advent of self-determination, rape crisis centres and refuges would become unsafe for women; and men dressed as women, intent on sexual assault would enter women’s lavatories, with the apparent protection of a GRC.
There are serious flaws in the argument that the more readily-accessible GRC would give rise to such behaviours.
First, having a GRC is neither a defence nor mitigation where illegal behaviour such as sexual assault, has occurred. The GRC would give no comfort to the offender because the offence would be equally illegal with or without a GRC. In fact, its misuse would be an aggravating factor when sentencing.
Secondly, those who have transitioned to live as women already have the right to enter women’s toilets, without a GRC and without having undergone surgery. They do, and have done so for years. Cisgender (non-trans) women, in the main, either haven’t noticed, or they welcome this mark of a grown-up, inclusive culture.
It is a possibility that a man who does not identify as a woman, but who dons women’s clothes and enters women’s spaces, will do so with nefarious intent, but it seems a rarely adopted subterfuge and one that has not so far, been associated with trans self-determination in the countries where that is in place. However, those that have already committed such offences in women’s spaces, whether in male or female role, have been able to do so without the benefit of a GRC or its equivalent. Not being in possession of a GRC has not hindered them; having a GRC will not help them if their behaviours are illegal.
Of course, rape crisis centres and refuges have an obligation to ensure that those accepted into them are not perpetrators. Caution must not be thrown to the winds, but these protections already exist in these facilities. Prisons also, will continue to do risk assessments that take account of previous and instant offences against women when deciding whether or not a person assigned male at birth will be accommodated in the female estate.
Fears are also expressed about the recent introduction of unisex spaces and the consequent potential for the loss of women-only spaces. The associated risks, whether real or imagined, are not amplified by the possession of a GRC. So, having, or not having, a GRC whether in a single-sex, or a unisex environment, is irrelevant, and simplifying the application process for obtaining one is therefore also irrelevant.
There are still battles to be fought by women, in terms of accessing male domains, breaking through ‘glass ceilings’, and gaining equality in the workplace. But trans people, or those who imitate them improperly, are not the cause of sex inequality. There is no evidence that the GRC, however it is accessed, will undermine women’s rights, or worsen their unequal status. Again, no such outcomes have been recorded in the countries where self-declaration is in place.
The GRC, currently, fails to deliver on a number of fronts: it is narrowly defined in binary terms, excluding non-binary, non-gender and intersex people. However, ‘Statistics New Zealand’ provides an encouraging lead by including ‘gender diverse’ in its information collection. prerequisite.7
In addition, the present process of obtaining a GRC is costly, cumbersome and overly intrusive. It is not enough, for instance, to provide the Gender Recognition Panel with information that you have had hormone therapy; the Panel insists on the provision of a list of medications and dosages, even though a GRC can be obtained with no medical treatment whatever.
‘Patricia’ has lived as a woman for 20 years, but owing to other health problems has only recently been able to have surgery. Prior to surgery she made her application to the Gender Recognition Panel. The date for surgery was booked and evidence of this was provided in her application to the Panel. Since medical treatment is in any event unnecessary – Patricia merely referred to this as ‘gender reassignment surgery’. Her application was rejected and she was informed that she must give details about the surgery.
There is no rationale for this unwarranted, irrelevant, and embarrassing demand. Such personal descriptions, even if the person were able to explain accurately, which she may not be, are surplus to requirements. There is also the question of cost. Although people on low incomes are relieved of the Panel’s £140 fee, they still have to bear the costs of copying paperwork, obtaining reports from doctors and so on. Such expenses, in a population that is notoriously stricken by unemployment, can be too big a burden.
The journalist cited above wrote that [self-declaration] will lead to “oppression, socially engineered dysfunction and the loss of individual freedom”. Her assumption appears to be that these evils will befall cisgender women, but the reality is that these detriments are already experienced by the broad spectrum of gender diverse people who, all too often, find their natural gender expressions are restrained by oppressive binary social mores.
So where is the evidence that society as we know it is headed for chaotic decline? There is none. Objections being raised now can have nothing to do with adverse behaviours arising from the current GRC process, because there have been none. The fear is that the administrative changes to the GRC will trigger such behaviours. Yet the evidence that we have, is that the dire outcomes predicted have not materialised in the growing number of countries where self-determination is in place. For trans people, life will become a little easier; for everyone else it will be status quo – business as usual.
Moreover, the Council of Europe, in 2015, issued this press release under the heading Historic Trans Resolution Adopted at Council of Europe:
“Yesterday (Wednesday 22nd April) the Parliamentary Assembly of the Council of Europe (PACE) adopted a comprehensive resolution on trans human rights. This resolution addresses issues including access to healthcare, depathologisation and anti-discrimination legislation. In relation to legal gender recognition, the Assembly calls upon Member States to develop quick, transparent and accessible procedures, based on self-determination.”
Those that already have include:
(2015) The application form for the Gender Recognition Certificate was launched by the Department of Social Protection. Trans people over the age of 18 can now apply to have their gender identity legally recognised by completing a simple form, which includes a Statutory Declaration. Once they’ve received their Gender Recognition Certificate they will be able to obtain a new birth certificate; 276 have done so. There have been no reversals and no frauds.
Others are (the list is not exhaustive):
The Gender Law, passed in 2012, made Argentina the only country [at that time] that allowed people to change their gender status without facing preconditions such as hormone therapy, surgery or psychiatric diagnosis that label them as having an abnormality. Argentina has put in place some of the most liberal rules on changing gender in the world, allowing people to alter their gender on official documents without first having to receive a psychiatric diagnosis or surgery. The new law states that all persons have the right to the free development and recognition of their gender identity, and it creates an official administrative procedure whereby any adult, or any minor with the support of their guardians, may apply to change their sex listed in the civil registry. Neither judicial approval nor proof of specific psychological or medical treatments is required. In 2015, the World Health Organisation cited Argentina as an exemplary country for providing transgender rights.
(2014) Denmark became the first European state to adopt the ‘self-declaration model’ of legal gender recognition in June 2014. It did so by enacting the L182 Act on the Central Person Register 2014 (the CPR law), which grants Danish residents the opportunity to make a statutory declaration of their legal gender identity. This enables people to bypass gatekeeping medical and legal authorities; allowing them to amend their gendered social security number without first undergoing surgical removal of uterus and ovaries, or testicles and penis.
(2014) The Legislative Assembly of Mexico City unanimously approved a gender identity law making it easier for transgender people to change their legal gender. Under the new law, they simply have to notify the Civil Registry that they wish to change the gender information on their birth certificates. Sex reassignment surgery, psychological therapies or any other type of diagnosis are no longer required.
(2015) Malta introduced a quick, transparent and accessible gender recognition procedure, based on self-determination. The procedure before a notary requires a simple self-declaration and prohibits requests for medical information.
(2015) Norway, under the Ministry of Health’s legal revisions, trans people aged 16 and older can have their gender recognised without any compulsory requirements. Six year olds and upwards may also be able to determine their gender, as long as they have the consent of both parents. Where one parent opposes reassignment, the authorities may accept the child’s decision, if it is regarded as “in the child’s best interest”.
(2017) California recently deleted a requirement in state law that an applicant undergoes treatment and submit a sworn statement from their physician before changing their gender status. Instead, applicants must only submit an affidavit affirming that the change would conform to their gender identity.
(2017) The legal gender recognition process is largely based on self-determination, and is open to minors.
In short, there are no cogent reasons for not simplifying the access to the GRC. It is also clear that acknowledging gender diverse identities in information gathering is possible, following the New Zealand example; and extending access to gender recognition to children and young people is also possible, as in Norway.
Some people will gain from a move to self-declaration of gender identity in the UK; nobody suffers.
We made a good start in the UK with the introduction of the GRA in 2004, but we have now been left behind. It’s time to catch up.
- Reed T and Diamond M (2016) Transgender people: health at the margins of society. Biological correlations in the development of gender dysphoria.
- Miller V (2014) American Journal of Physiology – Heart and Circulatory Physiology 306:6
- Miller V Ibid.
- WPATH (2015) Statement on Legal Recognition of Gender Identity.
- Gender diverse classification will be used in NZ: http://bit.ly/2B2eHJp
- For more information about the Gender Identity Research and Education Society: https://www.gires.org.uk