After 13 years of the Gender Recognition Act (2004), the UK government are proposing review and reform. Discussed in the 2017 Labour Party Manifesto, the issue is now being talked about by the ruling Conservatives, who have pledged a consultation on the legislation to be included in a Gender Recognition Bill. This consultation will look at the suggested changes to the Act, many of which are geared at depathologisation of Trans identities and improving access to legal recognition.
What is the Gender Recognition Act (GRA)?
The Gender Recognition Act was introduced in 2004 and is the means through which Transgender Individuals may obtain legal recognition of their gender. Through a Gender Recognition Certificate (GRC), set out through the act, a Trans person is issued a new birth certificate aligned with their gender, and is treated according to this in areas such as pensions, marriage and inheritance.
What does the Act, as is, mean for Trans People and their transitions?
In its current form, the GRA enables people to seek legal recognition as the binary gender other than that assigned at birth, providing that they have been living as their ‘acquired’ gender for at least 2 years. As mentioned above, this means that those with Gender Recognition Certificates will be treated as their gender in, to give some examples: marriage and divorce; pensions and widow(er)s allowance; and inheritance and peerages. Of course, since the legalisation of same-sex marriage in 2013, some of what is set out in the act pertaining to this is no longer of great legal relevance – similarly so in other areas. However, gender recognition reaches beyond gender-specific legislation, with a GRC and the GRA also providing grounds for protection from discrimination and confidentiality regarding a person’s gender history.
Nonetheless, the process of obtaining legal recognition is, for many, arduous and fraught with barriers and blockades.
An individual seeking a Gender Recognition Certificate is required to have “lived as their acquired gender” for a minimum of 2 years. Evidence of having lived as such may include documents showing a change of name (e.g. Deed Poll); documents and testimony of the use of this name (e.g. Passports, Wages Slips etc.); and similar showing that the individual has lived in their “Gender Role”. This is reviewed by a Gender Recognition Panel, made up of legal professionals and doctors who decide whether to issue a Certificate. The applicant must be diagnosed as experiencing, or as having experienced, Gender Dysphoria. This must be attested in a report by a practitioner.
These requirements are much maligned, said to pathologise Trans identity and serve as arbitrary barriers in accessing recognition. Further to this, the Act makes no provision for those outside of the Gender Binary, thus making itself inaccessible to this group; as well as to those who, for a number of potential reasons such as homelessness or fear of Transphobia, are unable to provide the necessary documentation.
What are the proposed changes/aspects that are under review?
The issues talked about above form the base of the discussion around changes to the Act, with calls for Trans individuals to be able to self-certify their gender identity and a proposal to recognise non-binary identity with an “X”, in addition to the standard “M” and “F” markers.
Self-certification would mean that a Trans person, without a Gender Dysphoria diagnosis or medical report, could obtain recognition of their identity by stating their gender. This is already the process in countries like Argentina and Denmark, and serves to both demedicalise Transgender Identity and streamline the bureaucracy and procedure.
By allowing people to self-certify, the requirement for a diagnosis of dysphoria and medical reports, as well for the applicant to provide hefty amounts of evidence and perform for a, oft-termed intrusive, interview panel, is negated. These changes are being proposed and discussed by multiple groups, from government officials to campaign groups and charities such as Stonewall.
What do these mean for other Trans People and their transitions?
Should the proposals be passed into law, Trans people will be able to obtain legal recognition in the form of a GRC without medical testimony; and Non-Binary individuals will be permitted to access legal recognition. Needless to say, this will be a leap forwards in terms of broadening access to the Certificate, making it available to people of a wider range of identities as well as those who, for the aforementioned reasons, would struggle to access the GRC in its current form. Further, the streamlining of the process – with fewer clinical and bureaucratic elements and requirements – will significantly speed up to process; not least by allowing for recognition before the arbitrary 2 year period for which people are currently required to “live as their acquired gender”.
In all, the simplification and, from what can be currently understood, humanisation, of the procedure will make for a quicker and less painful experience, something that is easily conceivable as to be of benefit to the wellbeing of people accessing the Certificate.
The amendments would also have the potential to achieve social changes, with self-certification the recognition of Non-Binary identities lending much needed societal validation to the expertise of Trans individuals with regard to their own identity and demedicalising the process of Gender Recognition. Depathologisation of Trans identities in the domain of legislation may also have an impact on social attitudes, taking the popular view of Transition out of a clinical framework and into a more relatable psychosocial one.
Is there anything that is missing from the current discussions around review of the Act? What necessary changes are not on the table?
Although, as can be seen above, the proposed areas of reform cover a number of elements significant to Trans people and their status, there are some topics notable for their absence from the discussion.
For example, with Trans people still being sent to prisons according to their birth-assigned gender – a dangerous reality, especially for Transwomen – it could be said that the Act as is, and as discussed without sufficient focus on this issue, falls short on subjects like gender-specific facilities. Another area in which the GRA could be criticised is that of age, with legal recognition only being available to those over 18, something that raises a number of concerns and questions around the status of Transgender children and adolescents. It could also be said that, in requiring applicants to attest that they intend to “live as acquired gender” “until death”, the GRA provides extremely limited scope for flexibility of identity, a barrier in itself. This not only fuels the stigma often directed towards Trans people, told that they are “just a phase” or made to feel that if they do not fit into a standard view that they are not sufficiently Trans; an attitude that thrives when legislation backs the view that gender identity should be finite and inflexible.
Linguistically speaking, the wording throughout the Act is also in need to review, with outdated terms such as “Transexuals” and phrases like “when a man changes gender” prolific. Though seemingly a trivial issue, this is important in ensuring a culture of respect, a shared vocabulary regarding Trans identity and individuals between legislators and the public levelling the ground.
Is the Gender Recognition Act important for Trans people?
Conclusively, the Gender Recognition Act, as a means of Trans people obtaining legal recognition of their gender, is vitally important to their safety, status and social mobility.
Without this, not only is our well-being in jeopardy, but potentially, our lives.
– By Frankie Turner.
To find out more, you can find the Gender Recognition Act, 2004 here: https://www.legislation.gov.uk/ukpga/2004/7/contents
Parliamentary Inquiry 2016: https://publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/39006.htm
Articles pertaining to proposed changes: https://www.theguardian.com/society/2017/oct/18/theresa-may-plans-to-let-people-change-gender-without-medical-checks
Gender Recognition overseas: http://edition.cnn.com/2017/02/23/health/transgender-laws-around-the-world/index.html