GRA Reform – Frequently Just Asked Questions


The information here applies to the Gender Recognition Act in Great Britain. I’ve tried to point out where the situation differs between Scotland, and England and Wales. Unfortunately I don’t really know much about the situation in Northern Ireland so I can’t guarantee that all of this information is applicable there.

Why do people need a Gender Recognition Certificate (GRC)?

A Gender Recognition Certificate is necessary for updating one’s birth certificate to the correct name and gender marker. This is mainly necessary for marriage, death and pension provision (that last, at least, for people born before 1957).

Names are one issue where Scotland diverges from England and Wales: In Scotland, legal names are kept by the National Records of Scotland, and you may change the name on your birth certificate (forename once, surname up to three times) without a GRC. In England and Wales, your “legal” name is just whatever name you use, but you cannot change the name on your birth certificate without a GRC.

A GRC is not necessary for updating the gender marker on passports, driving licences and other documents, which already pretty much work on a self-ID basis. However, even though you can request a different gender marker on those documents, they do often require you to provide a birth certificate, along with evidence of a name change (e.g. a deed poll). Although they do not require evidence of a gender change, the gender (and name) mismatch between the birth certificate and the requested document does require a trans person without a GRC to out themselves.

In some circumstances a Gender Recognition Certificate may also be necessary to update foreign documents. For example, I myself am a dual citizen of the United Kingdom and Canada. The Canadian federal government’s position on gender recognition is, “let someone else decide” — for people who live in Canada, that means provincial government, but since I live in the UK, I don’t have a province, so if I want to update my Certificate of Citizenship, the Canadian government demands a UK GRC.

But bottom line, the main reason to need a GRC is so that trans people’s privacy and dignity can be protected when they have to supply their birth certificate.

Why do trans people want Gender Recognition Act (GRA) reform?

The 2004 Gender Recognition Act was written with much heel-dragging and reluctance. It was brought into force not out of an abundance of respect for trans people, but out of compliance with a judgement in the European Court of Human Rights, where the government lost the case of Goodwin & I v United Kingdom in 2002. The Court found that a trans person’s inability to change the gender marker on their birth certificate was a breach of Articles 8 and 12 of the European Convention on Human Rights. The Gender Recognition Act was enacted to comply with this ruling.

The main problem with the current GRA process is that it requires trans people to capitulate to someone else’s idea of what being their “acquired gender” means. The current process involves a range of people (including a panel of people you will never meet) passing judgement on whether you are “womaning” or “manning” correctly.

This obviously rubs against the grain of a lot of feminist thought about gender, which holds that such a prescriptive approach to what it means to be a particular gender is harmful. Contrary to common transphobic rhetoric that trans people “just want to reinforce gender stereotypes”, a major purpose of GRA reform is precisely to remove reliance on those stereotypes from the process.

Another contentious part of the GRA is the “spousal veto”, whereby a married person can only receive a GRC with their spouse’s consent. This doesn’t apply to Scotland, where the spousal veto has already been effectively abolished — the spouse can no longer withhold consent to gender recognition, but instead can withhold consent to re-registering the marriage and has a non-contestable right to divorce — but is still present in England and Wales. Since Scotland demonstrates that a spouse is perfectly capable of deciding whether or not they want to remain married to someone who has legally changed gender without curtailing the trans person’s autonomy, the only real purpose the spousal veto serves is as a lever for abuse, and there’s no reason for it in England and Wales either. (That’s not to mention that part of the rationale for abolishing it in Scotland was also that the main material effects of transitioning on a marriage have little to do with whether or not that transition is legally recognised).

We also support reforming the GRA so that it accommodates non-binary people, as well as minor changes such as reducing the amount of time involved, and reducing the fees. Additionally, there are arguments that since younger people need to use their birth certificate more often, the age requirement should be lowered.

What’s to stop a man abusing Self-ID to pretend to be a woman?

The general consensus in the trans community is that Self-ID should take the form of a statutory declaration. Lying in a statutory declaration is penalised under the Criminal Law (Consolidation) (Scotland) Act 1995 s.44(2) (or, in England and Wales, under the Perjury Act 1911 s.5) by up to two years imprisonment and/or an unlimited fine. So the short answer to this question is “the law”.

Transphobes love to posture about “reasonable concerns”, but I’m not sure what’s “reasonable” about “let’s pretend there isn’t a law against it so we can say there should be a law against it”.

What about access to single-sex spaces?

The GRA doesn’t affect single-sex spaces, though it does rather take the long way to get there.

The Equality Act defines sex under section 11 in the simplest possible terms: being a man or a woman (which, incidentally, is a problem if the GRA is to recognise nonbinary people). As simple as that definition is, when a law defines a term, you don’t get to claim that actually it meant a different definition, as transphobes do when they insist it must mean biological sex.

Anyway, the Equality Act 2010 permits certain allowed exceptions to discrimination (specifically indirect discrimination) known as “objective justificationif it is a proportionate means of achieving a legitimate aim.

One of these “objective justifications” could be banning men to create a single-sex space — since banning men is indirect discrimination, single-sex spaces are only made possible by creating exceptions to that. This, in itself, is uncontroversial.

Although trans women with GRCs are legally female, and so cannot be excluded on the basis of sex, Schedule 3 s.28 of the Equality Act makes it clear that trans people can be excluded on the basis of gender reassignment under those same criteria — as long as it’s a proportionate means of achieving a legitimate aim.

So the GRA is only really relevant insofar as transphobes weirdly insist on applying the wrong section of the Equality Act. There is a legal process for banning trans women; there is just no legal process for calling them men while doing so. When you’re effectively screaming, “we can exclude trans women but not for the reasons we want” then your protestations that it’s about “safeguarding” rather than bigotry ring a little hollow.

Now, in practice the blanket-banning of trans women often doesn’t meet the criteria for an objective justification. While there is a legitimate aim, the “proportionate means” test often fails because there may well be other methods of achieving that aim that do not rely on discrimination. That’s really outside the scope of this discussion because nothing about the GRA or its reform is going to change that one way or the other, but I would say that the argument for not using those other methods only makes sense if the discrimination is the point, and we’re back to the bigotry.

What about trans women’s participation in women’s sport?

The relevant section to sport of the 2004 Gender Recognition Act was section 19, which has already been repealed, and replaced by section 195(2) of the 2010 Equality Act.

Both sections say basically the same thing — that transgender people can be excluded from the sport of their acquired gender at the discretion of organising bodies, if it’s in the interests of fairness of competition or safety of competitors, so the only thing the repeal really did was to change which law covers it.

The truth is that the law allows sport organisations to exclude trans people, and by and large those organisations have come back and said, “nah, you’re alright”. At a professional level they have their own regulations in place (controversial as they may be) and are broadly satisfied that those regulations are sufficient to meet those interests without resorting to outright exclusion of trans people.

Since “safety of competitors” is an angle described by the law, I’m sure someone will inevitably bring up Fallon Fox. Transphobes love to use the fact that her opponent was injured as “evidence” of the danger of trans competitors. But the baseline is that around 20% to 30% of competitive MMA bouts result in injury, so you have to work a wee bit harder than a single incident to demonstrate that that the danger is “because trans”.

That aside, the upshot for today’s discussion is that since sport participation, since 2010, falls under the domain of the Equality Act, and not the Gender Recognition Act, it cannot be affected by GRA reform.

Won’t GRA reform let male sex offenders identify as women to get access to women’s prisons?

Trans or not, and regardless of gender, it is standard procedure for convicted sex offenders to be risk-assessed at the start of their sentence, and annually after that, to inform decisions about appropriate facilities for detention.

Since this isn’t even a trans issue, but holds true for cis offenders too, it’s hard to even imagine at what point the GRA could make a difference.

Outside of sex offenders, section 3.7 of the Prison and Probation Service’s transgender policy (link to PDF) stipulates that while gender identity is a factor in deciding where to house transgender prisoners, it is not the only factor, and the service may choose to house prisoners in a facility that doesn’t match their gender identity. Section 1.1 of that same policy is pretty clear that this applies whether the prisoner holds a GRC or not, while section 4.37 mandates that all trans women (holding a GRC or not) undergo a risk-assessment, hence it has nothing to do with the GRA.

There is a wrinkle in that prisoners must initially be detained in the facility that corresponds to their legal sex (and a GRC can make a difference to that) but even that can be overridden by a pre-sentencing report if necessary.

Ironically, this is perhaps the strongest “reasonable concern”, and also the most sinister. It’s the strongest because the safeguards against it are a matter of policy, not law — there can and have been cases where policy was not followed, which are the cases transphobes latch onto to pretend that’s the norm. However, the prison service failing to follow its own policy is a matter for the prison service, not for trans people, and it is also something that will remain unaffected by GRA reform.

It is the most sinister because, in a grim echo of homophobic tactics in the 1980s, it is intended to associate trans people with sex offenders. It’s saying “what about trans people who are sex offenders,” but “what about” and ‘who’ are written in really tiny print and the rest is written is five-mile-high writing. It is nothing short of an attempt to extend the violent retributive justice reserved for sex offenders — “nonce-bashing” — to trans people.

They are trying to get us killed.

But they’re giving hormones and surgeries to kids!

The questionable veracity of that statement aside, and the fact that there is a campaign to reduce the required age to apply for a Gender Recognition Certificate notwithstanding, the GRA has precisely nothing to do with healthcare.

People who bring up healthcare when we’re discussing the largely bureaucratic business of the GRA are telling on themselves: it’s not the GRA or its reform that they specifically object to, but anything to do with trans people. That’s one of the major ways we know the “reasonable concerns” aren’t in fact all that reasonable, and are just a cover for bigotry.

But what about autistic people being tricked into thinking they’re trans?

As an autistic person myself, this one stings. It’s been used by a lot of transphobes, including confirmed monster JK Rowling, as a means of objectifying trans people — denying us our subjectivity — so that they can talk over us.

It relies on a perception of autism that seems to be shared by people who half-remember Rain Man. Its the conflation of autism as it exists in the real world with Nonspecific Hollywood Disorder that all-too-often presents people as incapable of making decisions for themselves because that’s dramatic — not to go on too much of a tangent but a lot of the things associated with autism shown onscreen are exaggerated both for the sake of interest and because a lot of it is difficult for an actor to express otherwise.

The relevant laws are, in Scotland, the Adults with Incapacity (Scotland) Act 2000 and, in England and Wales, the Mental Capacity Act 2005. Both laws define who doesn’t (and by extension, who does) have the capacity to make decisions. The criteria for incapacity (quoting from the English law, but the Scots law is much the same) are the inability:-

  1. to understand the information relevant to the decision,
  2. to retain that information,
  3. to use or weigh that information as part of the process of making the decision, or
  4. to communicate his decision (whether by talking, using sign language or other means).

While it is true that autism can prejudice these criteria, it’s also true that it rarely does (particularly as the law allows for communication other than speech).

In fact, English law specifically prohibits drawing a conclusion on a person’s capacity solely due to “a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.” It also stipulates that “[a] person must be assumed to have capacity unless it is established that he lacks capacity”.

As I say, this “autism argument” is part of a long series of behaviours directed at trans people (or, for that matter, autistic people) in the name of objectification: an attempt to deny our agency and autonomy so that they can talk over us without having to listen to us. Objectification is, of course, a key component of misogyny, but similarities between TERFs and the Patriarchy are nothing new.

Oh, and the idea that people are being “recruited” into being trans is some reheated Anita Bryant homophobia bullshit, so there’s that, too.