‘I gave birth as both genders’; ‘Non-binary: does the UK recognise a third gender?’; ‘Meet the Man Standing to be a Labour Party Women’s Officer’; and ‘Debate over Inclusion of Trans Women in Women-only Spaces Intensifies’. This is just a selection of headlines over the past few months representing some of the debate in the UK media about transgender rights.
Indeed, barely a week goes by without a trans news story in the spotlight—from the prurient (the obsession with Caitlyn Jenner’s post-transition appearance) to the political (the decision in 2015 by the newly formed Women & Equalities Select Committee to focus their first inquiry on transgender equality; or the current government consultation on whether the UK’s Gender Recognition Act 2004 (GRA 2004) should be amended to allow trans people to self-declare their affirmed gender without the need for a psychiatric evaluation and diagnosis of gender dysphoria); and from tragedy (the recent murder of trans woman, Naomi Hersi, in a London hotel room; and the suicides in prison of transgender inmates, Vikki Thompson, Joanne Latham and Jenny Swift) to controversy (Jenni Murray’s article in The Sunday Times last year in which she questioned whether trans women were ‘real’ women, recognising that, in so-writing, she was ‘diving headfirst into deep and dangerous waters’; and the recent decision by the Labour Party that its women-only shortlists are open to trans women irrespective of whether they hold gender recognition certificates (GRCs).
All these events serve to remind us that trans equality is neither an abstract concept nor a fanciful fad but is rooted in real and everyday experiences which demand to be taken seriously.
Legal framework for gender recognition
Whilst it is relatively easy to change both name and gender details in a driving licence and passport, it is only possible to change a birth certificate to show the opposite sex to that recorded at birth by acquiring a GRC, which requires an application to be made to the Gender Recognition Panel (providing specified information) under ss 1 to 3 of the GRA 2004. Crucially, a GRC is the vehicle by which a change of gender is legally recognised, such that – by s 9 – one’s gender becomes ‘for all purposes’ the acquired gender.
The GRA 2004 came about as a result of a case taken to the European Court of Human Rights (Goodwin v United Kingdom App No. 28957/95). This concluded that the lack of legal recognition in the UK for a trans person’s affirmed gender violated the right to respect for private life under Article 8 of the European Convention on Human Rights, notwithstanding the difficulties posed or the important repercussions, not only in the field of birth registration, but also in the areas of access to records, family law, inheritance, criminal justice, employment, social security and insurance.
Whilst s 9(1) of the GRA 2004 ensures that, for a person who has been granted a GRC, their gender becomes ‘for all purposes’ the acquired gender, s 9(2) provides that this does not affect things done, or events occurring, before the GRC was issued. This retrospective caveat has caused some difficulty and confusion for trans people with GRCs seeking to assert their rights in different contexts, such as family law rights (as in JK v Registrar General for England and Wales  EWHC 990 (Admin), which concluded that a trans woman could not change her child’s birth certificate so that she was no longer shown as the ‘father’ which revealed her trans status) and privacy rights (as in C v Secretary of State for Work and Pensions  UKSC 72 , which held that the Department for Work and Pensions was not obliged to change its IT systems so as to mask information which revealed a benefit claimant’s trans status, even though this constituted a severe interference with her right to respect for her private life).
Since the GRA 2004 was brought into force in April 2005, over 5,400 applications for GRCs have been considered by the Gender Recognition Panel, with 90% having been granted. On those numbers, less than 0.01% of the UK adult population is trans. But the number of people with GRCs is by no means representative of the total number of people in the UK who would identify themselves as trans. The Office for National Statistics does not yet collect gender identity data in any of its social surveys, although it has been actively reviewing this, in particular in relation to the forthcoming 2021 Census. NHS England is reviewing its gender dysphoria services on the assumption that somewhere between 1 and 3% of the adult population will experience symptoms of gender dysphoria at some point during their lives, such as to require a referral to the NHS: that is over 1 million people, based on the current adult population in England.
Equality Act 2010 – defining ‘transsexual’
The number of people in the UK who would identify as trans is very much larger than the number of those who have acquired a GRC. There will be many reasons for this, not least that legal gender recognition can only be conferred on adults; and the process has an intensely medical focus, requiring two reports from registered medical practitioners, detailing the applicant’s diagnosis of gender dysphoria and gender reassignment treatment. Moreover, for those who identify as non-binary – that is, identifying as either having a gender which is in-between or beyond the two categories ‘man’ and ‘woman’, as fluctuating between ‘man and ‘woman’, or as having no gender, either permanently or some of the time – the current mechanism for legal gender recognition continues to be based on the male/female binary and is likely to be irrelevant.
Under the Equality Act 2010 (EqA 2010), protection against discrimination because of ‘gender reassignment’ is conferred in the workplace (and vocational training), in education, the provision of goods and services and in relation to public functions. A person with the protected characteristic of ‘gender reassignment’ appears to be defined broadly in s 7 of the EqA 2010 as a person ‘proposing to undergo, undergoing or who has undergone a process – or part of a process – for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’. A person with the protected characteristic of ‘gender reassignment’ under the EqA 2010 is termed ‘transsexual’, but this language is increasingly seen as outdated by the trans community, with many preferring the term ‘trans’.
A number of trans people (referring in a broad and inclusive way to all those whose gender identity or expression falls outside gender stereotypical norms, and including intersex, non-binary, a-gender and/or gender-fluid trans people) may not fall within the current definition of the protected characteristic. Such individuals may well not seek gender reassignment either because they are content to retain their birth sex and/or would not wish to reassign their gender to the opposite sex. If such a person is discriminated against because they are perceived to be ‘transsexual’ (as defined), then such discrimination would be protected under the EqA 2010 (in the case of direct discrimination and harassment). However, particularly in the world of work, we often know quite a lot about our co-workers. In such circumstances – and where a person is discriminated against because they are intersex, or they are gender fluid etc (and not because they are perceived to be undergoing a process of gender reassignment) – they may not fall within the protection of the EqA. This lacuna led Maria Miller MP to propose an amended definition (in the Gender Identity (Protected Characteristic) Bill 2016/17) to ensure that the whole spectrum of trans identities would be afforded protection under the EqA. The Bill was expected to have its second reading debate in May 2017 but the Bill fell due to the General Election and, for the time being, no further action is expected.
Exceptions from discrimination
One of the most controversial areas is the issue of whether a trans person can be excluded from certain activities and services. This question has arisen, in particular, in the context of women’s services (such as domestic and sexual violence services) but also in connection with single-sex schools, swimming pools, competitive sports and even the Girl Guides as well as the Labour Party’s Women-only shortlists.
The debate has focused on the question of whether trans rights (especially for those who are male to female trans) would erode hard-fought women’s rights. Some have argued that amendments to the GRA 2004 (so as to confer legal gender recognition on the basis of an administrative and de-medicalised process) would permit predatory and dangerous men access to ‘safe’ female spaces. Many in the trans community and those seeking to advance trans inclusion have sought to question whether these fears are realistic. Regrettably, the debate has often descended into toxic hostility with misunderstanding on both sides.
Properly analysed, it is questionable whether dangerous men would abuse an amended (easier) gender recognition process in order to change their legal sex (to female) for the sole purpose of accessing women’s spaces. Under the current regime, people are not in general required to produce a copy of their birth certificate to access single-sex facilities or services. Should a man wish to use deception to access such services or places with dangerous motives, he will seek to do so without needing to acquire a GRC. More importantly, there are existing protections in the criminal law to prevent such activity.
The more nuanced debate concerns the question of whether women’s services or spaces should be required to be trans inclusive. In Scotland, Scottish Trans Alliance and the women’s services sector have worked collaboratively to agree a joint position, set out in their paper Stronger Together. This encourages service-providers to be trans inclusive unless, after an evidence-based risk assessment, this would be to the detriment of other service-users, in which case it might be appropriate to exclude a trans person although the service should be provided to that individual in an alternative way, where practicable.
The public debate has mainly failed to acknowledge that statutory exemptions already exist in the EqA 2010 which might permit what would otherwise constitute unlawful discrimination, whereby a trans person can be excluded from competitive ‘gender-affected’ sports where that is necessary to secure fair competition or public safety (s 195); from employment (under Sch 9 of the EqA 2010) and from facilities or services provided only to one sex or the other (Sch 3 of the EqA 2010) where this would be a proportionate means of achieving a legitimate aim. There is no proposal to amend these existing statutory exemptions which would, therefore, continue to apply (where evidenced) irrespective of any amendments to the GRA 2004 to de-medicalise the gender recognition process.
When the GRA 2004 was drafted, it was the first legislation in the world not to require individuals to have undergone surgical sterilisation prior to legal recognition of their acquired gender. At the time, it was considered to be world-leading. In the past decade, a significant shift has occurred at the interface between gender identity advocacy and human rights law, leading to ‘self-determination’ being viewed as the most appropriate mechanism for recognising preferred gender. Legislative reforms in Ireland, Malta, Argentina, Denmark and Portugal have adopted that model. It seemed that the UK might well follow suit. But, with the misinformed debate in relation to women’s services gaining traction, the real danger is that the momentum for embedding and advancing trans rights will be lost.
Contributor Claire McCann is an employment and equality barrister at Cloisters, with a particular interest in transgender rights.