Gender Recognition Act and The Road to Self-declaration

History

When the Gender Recognition Act passed in 2004, it was thought to be a state-of-the-art piece of legislation. Transgroups worked tirelessly to ensure that the government implemented the Act, which would allow transgender people to change their legal gender marker and be recognised in law as belonging to their new gender.

I transitioned from male to female years before the Act and was fast-tracked through the process to obtain my Gender Recognition Certificate (GRC). On obtaining my GRC, I applied for a new birth certificate which reflected my new gender marker as female; for me it was a great experience.

The requirements to obtain a GRC are as follows:

  • Over 18 years of age.
  • Proof that a person has lived in their new gender role for 2 years.
  • Two medical reports (one from a gender specialist).
  • Payment of the fee.
  • Proof of intention to continue to live in new gender role.
  • If married, that you have permission from your partner.

As time moved forward, cracks in the gender recognition process began to show. In January 2016, following consultation with trans individuals and support groups, the Women & Equalities Committee, chaired by Maria Miller MP, reported to the government with a number of proposed changes to improve the gender recognition process (along with 34 other recommendations to improve the lives of trans people).

  • Particular issues with the process highlighted to the committee were:
  • Only binary options available (eg male/female). Non-binary gender identities are not recognised by the Act (eg Identities not exclusively male or female or having no gender at all).
  • Trans people under 18 years of age cannot apply.
  • It is costly.
  • The process is medicalised (viewed as unacceptable by many of us).
  • The system is bureaucratic often having an effect on an applicant’s health.
  • Applicants never meet the intrusive reviewing panel.
  • The ’Spousal Veto’ is considered too draconian (eg where your wife/husband can delay the process by objecting to it).

Section 22, which allows trans people an actionable right against their employers in criminal law if they ‘out’ them, has clearly failed, as no cases have been brought.

Two years living in new gender role is considered too long.

It is also interesting to note that comparatively few GRCs have been issued (in my estimate only 6000 since 2004, where the number of trans people in the UK is estimated at 1%), the system clearly is not serving the trans community.

The government response (Nicky Morgan, then Minister for Women and Equalities) to the report in July 2016 was lukewarm at best, but a commitment to review the gender recognition process was given.

Present

Nearly a year later, not a great deal had happened, then in July, the government announced plans to review the gender recognition rules and to report on their plans in the autumn. This announcement (by Justine Greening, Minister for Women and Equalities) was made alongside another to launch a nationwide survey of LGBT people living in the UK.

The Solution

The most obvious option to streamline the gender recognition process (and one I support) is ’self-declaration’ (where you declare your gender identity on a simple form which can be witnessed), the process used in Ireland and several other EU countries.

So what could self-declaration look like in the UK?

  • Less expensive.
  • Not administratively complicated (in Ireland the form is two pages).
  • Not intrusive or demeaning.
  • No decision panel.
  • No medical intervention.
  • Recognises all gender identities including non-binary (which may allow them to record their gender as ‘x’).

Prophets of doom!

Of course there has been criticism of such a process, in particular Helen Lewis, deputy editor of The New Statesmen, who expressed concerns regarding men with beards declaring themselves as women and entering ladies toilets to expose themselves. In regard to this ’argument’ I would say this:

  • This has not been the case in countries where self-declaration has been implemented; there is absolutely no evidence at all.
  • Women’s loos have cubicles, so it’s not actually possible.
  • A bearded man who self-declares himself as a woman to expose himself in a ladies loo, would inherently mess their whole personal administrative life up (e.g birth certificate, passport, bank accounts, drivers licence), it just won’t happen.
  • If the bearded man is that determined, he probably is already doing it.
  • Why does Helen hate men with beards so much?
  • Another critic is Conservative MP, David Davies (No, not the Brexit Minister, another one!), who also criticised the government plan, clearly sharing the same views as Helen Lewis but also expressing the view that ’men with male genitalia, no matter what gender they feel they are, should use male facilities’.

Davies sadly fails to understand:

  • That assigned sex at birth and gender identity are completely different.
  • That many trans people don’t have surgery when transitioning to their new gender role.

Fifty years ago, during the legalisation of homosexuality, gay men were often compared to paedophiles which simply was not true. Today trans people are being called perverts in loos.

What the prophets of doom don’t realise is that we have been accessing many of these ’protected’ spaces for years (as UK law allows us to) and, you guessed it, without incident. History will record these prophets of doom as foolish, I hope I live long enough to remind them of their scare-mongering.

Conclusion

Self-declaration will help many of us record our gender marker officially, in a non-pervasive way that allows us to retain our dignity; it will allow us to integrate seamlessly into the UK society to which we belong.

So, I hear you cry, what about the coming storm of trans people in gender spaces, following the implementation of the self-declaration process in the UK?

Well the storm passed and no one noticed.

Rachel Reese is director of Global Butterflies, an agency that helps companies become trans-inclusive. She is also a member of the Law Society’s LGBT Lawyers Division Committee and Ambassador for Aspiring Solicitors.

This article was initially published in the Law Society Gazette on 16th August 2017.