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Is the Gender Recognition Law ready for change?

Two solicitors, Craig Longhurst and Alex Watson from the leading law firm Fieldfisher write about the government’s plans to revisit the relevance of the Gender Recognition Act 2004 and some of the issues facing the transgender community today.

vjohns1580 / Pixabay

When it brought the Gender Recognition Act 2004 (GRA) into force on 4 April 2005, the UK became the first country in the world to allow a person to legally alter their gender without having had any surgical treatment.

However, since coming into force, only 4,910 have been issued the Gender Recognition Certificate – which is required for a trans person’s new legal gender to be recognised. Given these figures and the concerning suicide and self-harm rates amongst the trans community, the issues are now being revisited by Government.

The Government’s Equality Office is currently consulting on the legal gender recognition process and its effectiveness. The consultation (which commenced on 3 July 2018 and will close on 19 October 2018) is focussing on the possibility of removing an applicant’s need for a medical diagnosis of gender dysphoria before being able to apply for gender recognition.

In acknowledgement of the complicated and contested nature of some terminology used in discussing matters, the consultation states that:

“Throughout this consultation we have tried to use terminology that is generally accepted. No offence or omission is intended.”

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That also applies to this article and shall adopt the same definition of ‘Transgender/ Trans’ as adopted in the consultation:

“Transgender / Trans: Umbrella terms used to describe individuals who have a gender identity that is different to the sex recorded at birth. Non-binary people may or may not consider themselves to be trans. This consultation document primarily uses ‘trans’.”

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The Law

As it stands, for a person to legally change their gender, the applicant must be over 18 years old and must usually* meet the following “assessment based” requirements of the GRA:

  1. A medical diagnosis of gender dysphoria and a report from a medical professional detailing any medical treatment;
  2. Proof of having lived for at least two years in their acquired gender through, for example, bank statements, payslips and a passport (which can be changed without legally changing gender);
  3. A statutory declaration that they intend to live in the acquired gender until death;
  4. If married, the consent of their spouse;
  5. Payment of a fee of £140 (or proof of low income for reduction/removal of the fee); and
  6. Submission of this documentation to a Gender Recognition Panel, which the applicant does not meet in person.

* N.B. there is a slightly different process for married/ civil partnered trans people who have socially and medically transitioned for at least 6 years prior to 10 December 2014 and for overseas trans people, which is outside the scope of this note.

If a person is adjudged by the Gender Recognition Panel to have met the requirements, they will be issued with a Gender Recognition Certificate – which alters their birth certificate and (subject to a number of limitations) changes their birth gender to their newly-recognised gender. That person then assumes the legal rights of that gender, including: age of retirement, pension and marital rights.

However, if a person is adjudged by the Gender Recognition Panel to have not met the requirements, his/ her birth gender shall continue to be that person’s legal gender and he/ she shall not have the right to appeal the decision, unless on a point of law. It is hard to see how it can be considered fair that an independent panel is able make such fundamental decisions regarding a person’s life without having actually met them and for an applicant to have no recourse if the application is unsuccessful.

The view from the trans community

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The results of a recent LGBT Government Survey revealed that many trans people want legal recognition but feel that the current process is too bureaucratic, expensive and intrusive. Further, the Government feels that most trans people feel that the “assessment based” requirements detailed above are overly intrusive, humiliating and administratively burdensome and are denying people access to the legal recognition they are entitled to. More specifically arguments have been raised that:

  1. the requirement of the provision of a diagnostic psychiatric report perpetuates the false assumption that being trans is a mental illness – which both the Government and the World Health Organisation recognises is not the case (the latter has declassified ‘Gender Incongruence’ [i.e. dysphoria] as a ‘Mental and Behavioural Disorder’ in its International classification of Diseases);
  2. the trans person has to collect a range of personal documentation, including information about their medical history, finances and identity which they send to people who they do not meet who then make a decision about their gender identity; and
  3. The fee of £140 and associated costs are expensive and there is no right of appeal against the decision unless on a point of law.

The Consultation

Given the above, the Government’s consultation is focussing on many aspects of the GRA, including:

  1. The requirement for the trans person to provide two medical reports, one evidencing a diagnosis of gender dysphoria and the other outlining details of any treatment received;
  2. The requirement for the trans person to provide a range of documentation that proves they have lived in their acquired gender for at least two years;
    The requirement for the trans person to submit a statutory declaration of their intention to live in their acquired gender until death;
  3. The requirement for married applicants to obtain the consent of their spouse or end their marriage;
  4. The cost to the trans person of using the GRA process; and
  5. How the Act protects the privacy of individuals who have applied for a GRC.

Comment

Whilst we continue to await the results of the consultation, it is positive to see focus being placed revisiting legislation adopted 13 years ago with limited relevance to present day society’s approach to LGBT+ issues and it appears likely that legislative changes will make it easier for trans people to exercise rights to exist in the gender that they identify with.

The consultation on the Reform of the Gender Recognition Act 2004 is open until 11pm on 19 October 2018 and can be located at https://www.gov.uk/government/consultations/reform-of-the-gender-recognition-act-2004

Craig Longhurst and Alex Watson are from the leading law firm Fieldfisher


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