Investigation into GRA Reform: Call for Evidence


The Women and Equalities Committee have produced a list of questions to answer by way of evidence for their investigation into the proposed reforms to the Gender Recognition Act 2004. You can answer the questions here via GenderGP by 20th November. My answers are below.

Will the Government’s proposed changes meet its aim of making the process “kinder and more straight forward”?

The proposed changes fall far short of the stated aim. The gender recognition process is still predicated on the dehumanising presumption that other people know who we are better than we do, and the reasoning given for this is based on the bigoted assertion that trans people are a threat that needs to be mitigated. Neither claim stands up to scrutiny, and it is unconscionably offensive to be told that we must find compromise with a hate movement dedicated to denying our autonomy.

Should a fee for obtaining a Gender Recognition Certificate be removed or retained? Are there other financial burdens on applicants that could be removed or retained?

I recognise that there is an administrative cost incurred in processing Gender Recognition Certificates, and the proposal to reduce the fee is welcomed. While we do not have any details on by how much the fee will be reduced, to my mind it would be fair if applying for a GRC cost about the same as applying for a passport (whereas currently it costs nearly twice as much).

Should the requirement for a diagnosis of gender dysphoria be removed?

Yes. Not all trans people experience gender dysphoria, and many more are conditioned by prevailing cultural norms to hide evidence of experiencing it. Therefore it is an extremely unreliable indicator of whether or not someone is trans.

More importantly, being trans is an aspect of one’s identity, not a pathology. I cannot stress enough the hypocrisy of opponents of reform, who scaremonger about how people are going to be told they’re trans while at the same time requiring that we have someone else tell us we’re trans. The positions that “nobody should be told they are trans” and “trans people are only valid if someone else tells them they are trans” are simply incompatible.

Should there be changes to the requirement for individuals to have lived in their acquired gender for at least two years?

The timescale is an issue and should be reduced or even eliminated, but it is not the main issue. For all that transphobes make a song and dance about “opposing gender stereotypes”, they still support legislation that requires trans people to be subject to somebody else’s idea of what “living in an acquired gender” means. In practice, such ideas are themselves often outdated and stereotypical.

While trans people’s ideas for GRA reform are precisely about removing stereotyped requirements from the gender recognition process, transphobes misrepresent that and try to argue that keeping those stereotyped requirements is somehow key to fighting stereotypes.

As a trans woman who dresses not dissimilarly to my mum, I have been asked if I ever “dress as a woman”, because the expectations of womanhood from trans women are out of line with the expectations of womanhood from cis women.

What is your view of the statutory declaration and should any changes have been made to it?

The statutory declaration is key to the gender recognition process, but it should be changed.

First of all, none of the references to marriage in the declaration should be relevant, particularly since the spousal consent provision in the GRA should be reformed, and in light of the Marriage (Same Sex Couples) Act 2013.

Secondly, the references to when the signatory transitioned and for how long they have lived in their acquired gender should be irrelevant, but at best fail to take into account that transition is a process that occurs over time.

Of course, any changes to the GRA that involve lowering the age limit or recognising non-binary people should also be reflected in the declaration.

Does the spousal consent provision in the Act need reforming? If so, how? If it needs reforming or removal, is anything else needed to protect any rights of the spouse or civil partner?

The spousal consent provision is an artefact of the GRA 2004 predating the legalisation of same-sex marriages in 2013-14. Before same-sex marriage was legalised, legal gender transition meant that the marriage could not continue, which of course required the spouse’s consent, but now that same-sex marriage is legal, this is no longer an issue.

While aspects of the GRA have been revised to allow the continuation of a marriage where one party receives a GRC, the spousal consent provision has not been adequately updated to reflect this. The spouse’s consent should only be required to continue the marriage, and this requirement should not prevent or delay the issuing of a full GRC.

Allowing a spouse to effectively veto acts of autonomy is tantamount to treating trans people as property, which has no place within the institution of marriage in the 21st century (even if it did in previous centuries), and it is incredibly disheartening to see self-proclaimed “feminists” argue in favour of that.

Should the age limit at which people can apply for a Gender Recognition Certificate (GRC) be lowered?

Yes. On aggregate, young people need their birth certificates for more numerous reasons than older people do (e.g. applying for their first driving licence/passport, etc.), and while it is not a requirement that the birth certificate matches the name and gender on those documents, it is certainly easier if it does. Therefore it is important that that birth certificate reflects the correct name and gender, which can only be achieved with a GRC.

What impact will these proposed changes have on those people applying for a Gender Recognition Certificate, and on trans people more generally?

These proposed changes will have very little impact on applicants or trans people more generally, because fundamentally they retain the problems in the original Act – that trans people’s identity is subject to someone else’s authority. The message is that we can only be ourselves at the sufferance and whims of other people.

What else should the Government have included in its proposals, if anything?

Whether before or after these proposals, the evidentiary standard that trans people are who they say they are is unreasonably high. Given that it is in fact a crime to lie on the statutory declaration, one might reasonably ask why that in itself is not deterrent enough for any hypothetical abuse of the gender recognition process. That’s insofar as the potential for abuse even exists, which has been grossly exaggerated by transphobes lying in public discourse about what gender recognition under the Act even means.

Especially given that it is very hard to see how someone could use a GRC for nefarious purposes, the government should remove the unnecessary requirement that trans people prove they are the gender they say they are, which in turn means that the requirement for diagnoses and gender recognition panels are also unnecessary.

While regret affects a very small number of gender transitioners, I concede that for that small number, there should be a procedure for reversing a GRC. Even if someone affirms in good faith that they intend to live in their acquired gender for the rest of their life, avoidance of regret is what psychologists call “affective forecasting” – the prediction of how something will feel in the future – which studies have shown most people are actually very bad at. Rather than preventing people from making a regrettable choice, the law should recognise that it is in most cases infeasible to predict regret, and should, instead, offer recourse in the case that regret occurs.

Does the Scottish Government’s proposed Bill offer a more suitable alternative to reforming the Gender Recognition Act 2004?

The Scottish Government’s proposed bill itself falls short in several ways, notably still making trans people subject to someone else’s idea of what “living in the acquired gender” means and lacking recognition for non-binary people.

Why is the number of people applying for GRCs so low compared to the number of people identifying as transgender?

The main reason is that the current process of obtaining a GRC is intrusive, prurient, humiliating, and stressful. A secondary reason is the cost.

While there are a few practical reasons to require a GRC, there is also a largely symbolic reason – we want to know that our government recognises us. In many ways, at present, the value of this symbolic reason is outweighed by the financial and especially mental cost.

Are there challenges in the way the Gender Recognition Act 2004 and the Equality Act 2010 interact? For example, in terms of the different language and terminology used across both pieces of legislation.

The full text of the Equality Act mentions “gender recognition” precisely seven times. Six of those times refer to marriage, and the other is an administrative notice that certain legislation on sport was repealed from the Gender Recognition Act and added to the Equality Act. Where it refers to marriage, it states only that it is not discrimination to refuse to officiate the wedding of someone who holds a GRC.

The fact is that, because the Equality Act defines trans people independently of the Gender Recognition Act, the Equality Act does not rely on the Gender Recognition Act in any way, shape or form, and therefore reform to the Gender Recognition Act cannot affect the Equality Act. This is a red herring, invented by transphobes: the GRA and the Equality Act serve different purposes, but through the characteristically reductive lens of bigotry, an assumption has been made that since both involve trans people, they must be related. They are not.

No provision in the Equality Act is, or should be, affected by whether or not anybody in question has a GRC, since the government’s administrative recognition of a trans person is immaterial to their legal protection as a trans person, and likewise nothing about obtaining a GRC circumvents the existing exceptions to those protections.

Are the provisions in the Equality Act for the provision of single-sex and separate-sex spaces and facilities in some circumstances clear and useable for service providers and service users? If not, is reform or further guidance needed?

Further guidance is needed. Provision of single-sex spaces is an issue for which statute law is too cumbersome to account for every eventuality, so the Equality Act quite rightly defers to common law, providing only the requirements that exclusion of transgender people must be “a proportionate means of achieving a legitimate aim”. While I agree with this in principle, it creates a problem in that common law is very difficult to understand, so guidance should clearly compile the relevant case decisions that set precedent.

Does the Equality Act adequately protect trans people? If not, what reforms, if any, are needed

The letter of the Equality Act adequately protects trans women, but there is an issue with practical access to those protections. Surveys have shown, for instance, that one third of employers admit they would be less likely to hire a transgender candidate, despite that being illegal.

However, for other trans people (trans men and some non-binary people), the Equality Act provisions on pregnancy and maternity make specific reference to “a woman”, which excludes other people who may become pregnant, and this needs to be addressed, simply by changing the word ‘woman’ to ‘person’.

What issues do trans people have in accessing support services, including health and social care services, domestic violence and sexual violence services?

Largely support services themselves are welcoming to trans people, but there is a sense that they do so voluntarily, and under constant attack from transphobes.

I would go so far as to suggest that this is an area where it is the services themselves, more so than trans service-users, who need protection from transphobes.

The main issue with access to services is the NHS gender identity clinics themselves, where waiting lists for an initial appointment run to years long, and realistically adding three more clinics as proposed is not going to make a meaningful difference to this failure.

Are legal reforms needed to better support the rights of gender-fluid and non-binary people? If so, how?

These are two separate issues. In both cases, yes, legal reforms for better support are required. For non-binary people, recognition under the GRA (and on other documentation) would be an important step, as would looking at revising the Equality Act’s definition of sex as “being a man or a woman”. I confess I don’t really know whether these reforms would be enough for gender-fluid people.

Do you have any other comments or suggestions?

The Equality Act 2010 and the Gender Recognition Act 2004 do not go far enough. For years, in the debate over GRA reform, we have been told to pretend that incendiary claims about trans people – which would be unambiguously bigoted if made about another marginalised group – are “reasonable concerns”. As a result of this, we have seen hate crimes against trans people quite tangibly skyrocket, to say nothing of the less measurable impact of the daily stress of existing while trans created by a hostile media. The harm done to trans people in this time, often by dedicated hate groups, has been incalculable.

Therefore, I suggest that the amendments to the Public Order Act 1986 introduced by the Racial and Religious Hatred Act 2006 should urgently be extended to similarly protect trans people.