What are the implications of scrapping the proposed Gender Recognition Act reforms?

Back in 2017 at the Pink News awards former Prime Minister Theresa May announced her commitment to improving trans rights. She outlined plans to push forward legislation meaning trans people would no longer need medical checks to change their gender officially.

Further to this, the MP for Maidenhead added that being trans was not an “illness” and “should not be treated as such”. Following this, the National LGBT survey, found that only 12% of trans identifying individuals had a gender recognition certificate.

In response, the UK government held a consultation on the effectiveness of the Gender Recognition Act 2014 (GRA) and proposed potential reforms. Yet, despite having ended back in October 2018, two years later, the consultation paper is reportedly only now “basically ready”.

However, according to The Sunday Times, the leaked consultation paper reportedly scraps plans permitting individuals to self-identify. In its place are plans to safeguard “female-only” spaces.

A number of LGBTQA+ groups and human rights organisations have expressed their opposition to the new proposed plans. They outline that the plans seriously undermine equality rights. It has also been said that the changes will cause the UK to “plummet” in LGBT equality rankings.

What does the current legislation say?

When the GRA legislation passed back in 2004, it was a particularly progressive piece of legislation, and the first in the world to permit gender change without surgery. However, sixteen years on, many now argue the legislation is out of date and in serious need of reform.

Under the current GRA legislation, individuals in the UK can apply to obtain legal recognition of their preferred gender through a gender recognition certificate. In order for an application to be successful, four criteria need to be met. The applicant must:

• Be aged 18 or over
• Be diagnosed with gender dysphoria
• Have lived in their acquired gender for at least two years
• Intend to live in their acquired gender for the rest of their life

Applicants are also required to provide two medical reports completed using the T452 forms, as well as evidence of them living in their acquired gender and their birth certificate. Applicants may also be required to pay £140 for the court fee.

Gender self-identifying plans

For years there have been calls for the UK to join the likes of Ireland, Norway, Malta and Argentina, by allowing people to self-declare their gender.

Only around 5,000 out of an estimated 200,000-500,000 trans people have applied for the gender recognition certificate since it was created. Explanations for this, see the process condemned as “bureaucratic” and “intrusive”.

However, when former PM Theresa May announced that her government was planning on “streamlining and demedicalising the process of changing gender,” hope was reignited that positive and progressive change would ensue.

While no official details were released on what the reforms would contain, it was believed that reforms would simplify the process for gender recognition, removing the requirement for medical approval. Meanwhile, the consultation asked respondents how the government could create a “better service” for trans and non-binary individuals. It also asked whether the requirement for a diagnosis of gender dysphoria should be omitted, along with the requirement for individuals to give proof of them living in their acquired gender.

Responding to this, Stonewall, a prominent LGBTQA+ charity which campaigns for equal rights, made a number of reform suggestions which included:

• Removing the requirement for a medical diagnosis or presentation of evidence for trans people to get their gender identity legally recognised
• The recognition of non-binary identities
• Permitting all trans people, including 16-17-year-olds, the right to self-determination, through a simpler administrative process

The reforms appeared to have cross party support. Speaking to Cosmopolitan about the potential for progressive change, Laura Russell, Director of Campaigns, Policy and Research at Stonewall, said: “The reforms have loads of cross-party support. It’s Labour party policy and it’s Liberal Democrat Party policy. Theresa May, when she was Prime Minister, said that being trans should no longer be treated as a mental illness, and stated her commitment to [the reforms]. When she was [Minister] for Women and Equalities, Penny Mourdant was incredibly committed to pushing forward”.

When the consultation closed on 22 October 2018, it had received 100,000 responses. According to The Sunday Times, around 70% of respondents supported allowing men and women to self-identify. However, the newspaper reported that officials believed the results had been “skewed” by an “avalanche” of trans rights activist groups.

Further to this, it quoted a source close to the government as saying: “In terms of changing what is on your birth certificate, you will still need to have proper medical approval. And you’re not going to be able to march in and find a hippie quack doctor who is willing to say you’re a woman. That’s not going to happen”.

New plans contravene Equality Act 2010

Ignoring the thousands of respondents who supported reforms to the Gender Recognition Act, the government has made a U-turn on May’s promises, and pursued a different route entirely.

Leaked plans suggest that the government will instead be introducing legislation to “safeguard” female-only spaces, preventing transgender women with “male genitalia” from entering “women’s spaces”. However, it has been argued that these proposed plans do not account for the thousands of trans people who either decide against gender reassignment surgery, or the 13,500 transgender and non-binary adults on waiting lists for NHS gender identity clinics.

Others have stated that this legislation is intrinsically discriminatory, through implying that trans individuals are predatory. It also contravenes the Equality Act 2010, through limiting the access of those legally recognised as women, by barring them from female-only spaces.

The leaked documents additionally propose national guidelines to minimise the number of “gender neutral bathrooms” and crackdown on the number of doctors approving gender recognition certificates.

A number of groups and organisations have responded to the leaked documents with disappointment. Chiara Capraro, Amnesty International’s Women’s Rights Programme Director, responded to the news by saying the reports were “extremely worrying”.

She added: “More than two years ago, the Government rightly set out a plan to reform the out-of-date Gender Recognition Act – a U-turn on this would send a chilling message that the UK is a hostile place for trans people.Perpetuating wrong stereotypes of trans women as a danger to other women is dehumanising and wrong, and risks further inciting hate crimes against trans people”.

Christine Jardine, the Liberal Democrat’s Equalities Spokesperson also responded to plans by saying: “It is time the Government stopped preventing trans people from living freely, and ensured that their rights and dignity were respected”.

Nancy Kelley, Chief Executive at Stonewall called the reports “disappointing,” adding: “This is another blow to our community during a difficult time. Trans people face a huge amount of abuse in their daily lives, just for being themselves. Across issues like access to healthcare, fair treatment in the justice system and the ability to have their voices and stories heard in public life, trans people experience profound inequalities. We will carry on, working with trans led and trans-inclusive organisations, to fight for trans people to be able to live their lives with dignity and respect, and for acceptance without exception for us all”.

Moreover, according to Rainbow Europe, over the last six years, the UK has dropped from 1st to 9th in the European LGBT rights rating. Amnesty International now warns that the proposed legislation will see it further plummet in the rankings. Commenting on this Chiara Capraro said: “The UK is already slipping further and further down the European rankings for LGBT equality – falling from 3rd to 9th place over the past three years. The proposed move would no doubt see the UK plummet even further. The UK has always prided itself on being a champion of LGBT equality – if it’s serious about this, it will update the Gender Recognition Act to ensure trans people can enjoy their rights, free from discrimination”.

A Government Equalities Office spokesperson said: “We will publish our response to our consultation on the Gender Recognition Act this summer”. However, as the Conservative government moves forward with its new plans, it feels as though it is taking a concerning and divisive step backwards.