by J Brown, Let a Woman Speak
Much of the current debate around transgenderism was sparked by the Government’s proposals to reform the Gender Recognition Act 2004 (GRA). Transgender advocates feel that the current legislation is outdated and needs reform to make legal transition to their preferred gender identity more streamlined. They wish to allow transgender people to self ID, removing the medical profession from the process. Many feminist campaigners wish to ensure that any changes to the legislation do not erode the rights of women and children. They are concerned that a system of self ID lacks safeguards and is open to abuse, putting women and children at risk.
The discussion around the GRA 2004 can be confusing. Here’s a simple breakdown of the law as it stands and an outline of proposed reforms:
The Gender Recognition Act 2004
The GRA 2004 allows anyone over the age of 18 to legally change their gender. A person wishing to change gender must apply to the Gender Recognition Panel (GRP). The GRP will grant a Gender Recognition Certificate (GRC) if the applicant satisfies the conditions specified in the Act:
Has, or has had, gender dysphoria;
Has lived in the acquired gender for at least two years immediately preceding the date of application;
Intends to continue to live in the acquired gender until death;
Has two supporting reports, one from a registered medical practitioner specialising in gender dysphoria and one from another registered medical practitioner who need not be a specialist in gender dysphoria.
(Applicants from outside the UK who already hold a legal recognition of acquired gender identity in their country need only supply the reports specified in (4) above.)
There is no requirement in the Act that the applicant has undergone any form of gender reassignment surgery.
When a GRC is granted, the applicant is for all purposes legally the acquired gender. A new birth certificate in the acquired gender is issued (although a confidential link to the original is retained).
The Government’s statistics show that around 4,500 applicants have successfully applied for a GRC since the GRC came into force.
Gender Recognition Act 2004 and the Equality Act 2010.
Gender reassignment and sex are both protected characteristics under the Equality Act 2010 (EA). The EA is designed to protect people from discrimination both in the workplace and beyond. Previously, these protections were contained in separate statutes, eg the Sex Discrimination Act 1975. The EA consolidates these early statutes, placing all anti-discrimination legislation under one Act.
It should be noted that whilst the GRA has medical supervision as a condition of the issue of a GRC, the EA does not require medical supervision for an individual to have protection from discrimination due to gender identity.
However, the EA does include exceptions to gender reassignment discrimination in the Explanatory Notes, Part 16, Schedule 3, Part 7, Paragraph 28. This exception to the general prohibition of gender reassignment discrimination is in relation to the provision of separate and single sex services. Such treatment by a provider must be objectively justified.
The note includes this example:
Male to female transsexuals being excluded from group counselling for female sexual assault survivors.
The exemptions in the EA relating to gender reassignment are open to misinterpretation. The Government has said that it has no intention of amending the EA, as some trans rights groups would like, though there were apparently meetings to discuss this possibility.
This has perhaps led some organisations to overlook the single sex exemptions.
For example, some have introduced unisex or gender neutral toilets for the benefit of transgender people whilst other users prefer, and are entitled to have, single sex provision.
In addition, some local authorities have erroneously listed “gender” (which is a social construct) rather than “sex” (a biological reality) as a protected characteristic in their policies. This blurs the provisions of the EA and adds to the confusion.
Proposals to update the Gender Recognition Act 2004
The Government announced its intention to consult on reform of the GRA 2004 in July 2017. The proposed amendments are likely to include those suggested by Stonewall:
Self-determination of gender, removing the current requirement of medical supervision in determining gender identity.
Lowering the age limit from 18 to include 16-17 year olds.
Recognition of non-binary identities.
So far, the Minister for Women and Equalities has consulted with trans rights activists and groups, LGBT organisations, women’s groups, single-sex providers and faith groups. Public consultation is yet to be launched, but there are suggestions that it may open in early July 2018.