The GRA consultation is over, what’s going to happen next?
The British public’s deadline for participating in the government’s Gender Recognition Act consultation was Monday, October 22nd. So, what happens now?
A consultation on the 2004 Gender Recognition Act (GRA) was announced in July of this year and has since sparked many discussions, and outrage, about trans rights. Whether for or against, these discussions have often ignored the actual reason for the consultation: how the current process of gaining legal recognition for one’s affirmed gender, via a gender recognition certificate (GRC), can be improved.
What was the consultation about?
The 2004 GRA allowed trans people to apply for a GRC, which serves as legal confirmation of their affirmed gender and allows them to obtain a birth certificate with the correct gender on it. This year’s consultation sought to find ways to make obtaining a new birth certificate a “less intrusive and bureaucratic” process for transgender people. The responses will hopefully prompt the government to promote equal rights for non-binary and intersex people, who are not currently legally recognised beneath the GRA, without changing the protections of single-sex services that transgender people receive under the Equality Act.
Recent headlines, like this one from The Economist,1 have often focused on the ‘issue’ of trans people’s access to gender-segregated spaces, like public toilets, domestic violence centres, changing rooms, and sports teams; even though these topics aren’t what’s up for discussion. University of Bristol lecturer in law Peter Dunne told Pink News that people often get the GRA 2004 and the Equality Act 2010 confused.2
The Equality Act 2010 already grants self-identifying trans people access to these spaces, affording transgender people the freedom of expression, a right protected by the Human Rights act 1998. Self-identification is an inner knowledge of which gender you are, rather than your gender being based on your biological sex.3 Anyone who self-identifies as another gender does not need legal proof for access, and this point of the GRA isn’t about to change.
The actual question is how the process of obtaining a gender recognition certificate can be made easier. Trans people,4 experts,5 and human rights charities6 alike agree that the GRA’s current process is archaic: it’s long-winded, distressing, and difficult. Only 4910 people have successfully applied for the certificate7 — though according to the GRA’s consultation document, many more have completed government surveys identifying as trans.
The GRA’s current process violates several human rights, including freedom of expression, freedom of privacy, and freedom from cruel or degrading treatment
Another discussion point raised is that many trans people identify as non-binary, which isn’t an option under the GRA. Under current laws, non-binary people cannot legally change their gender to reflect who they are, even if they wanted to.
The mental health criteria for obtaining a GRC places too heavy a focus on a diagnosis of gender dysphoria compared to other countries, even though since 2002, before the GRA was even in force in the UK, the Lord Chancellor’s office published a document8 stating that being transgender ”is not a mental illness.” In 2018, the World Health Organisation announced that gender dysphoria was not considered a mental illness either.9
As it stands, the eligibility process for a gender recognition certificate is as follows10:
- You must have lived in your acquired gender for at least two years – known as the ‘period of reflection’
- Have two separate doctors diagnose you with gender dysphoria (i.e. a mental illness)
- Subsequent evidence must be presented to a Gender Recognition panel, who decide whether to grant your change of gender or not
- Your gender options are only binary – a choice between male or female. There is no choice for the large proportion of trans people who identify as non-binary (or third gender)
- If you are married, your spouse must consent to your application for a gender change. They are also given a small window of time to annul the marriage, if they choose
According to Amnesty International,11 the GRA’s current process violates several human rights, including freedom of expression (the period of reflection prevents you from expressing your true gender), freedom of privacy (a Gender Recognition panel decides whether you may change gender), and freedom from cruel or degrading treatment (the treatment of gender dysphoria as a mental illness is just one of many examples). Amnesty also stress the spousal veto as a potential danger: an applicant’s spouse can prohibit a GRC application, or annul the marriage, and may use this as a method of abuse or coercion.
But there’s also been transphobia
Discussing changes to the GRA hasn’t come without conflict. Sceptics fear that changes to trans laws may pose a threat to society’s safety and confusion arising from acknowledging more than two genders.
Though many countries have introduced non-binary as a third gender without issue, some conservative critics in the UK refuse to acknowledge the existence of non-binary as a gender identity. Their reasoning isn’t based in fact, yet articles like this one12 insist, without any evidence, that gender can only be male or female.
Will the UK follow other countries’ examples, leaning toward self-identity as a key indicator of legal gender?
Views like these endanger non-binary people. Hardly a mere case of preserving feelings, this fear of expressing themselves has deterred 69% of non-binary people13 from sharing their non-binary status with police in Scotland. Even if it relates to their protection from hate crimes, which in turn makes these instances harder to report.
Another ‘concern’ is the safety of women-only spaces. Certain ‘feminist’ groups like WomansPlaceUK feel that self-identifying trans women pose a threat to these spaces, risking the welfare of women and children. However, even if a trans person is denied a gender recognition certificate, the outcome of this consultation won’t affect their access to these spaces.
These views are not only irrelevant to the consultation but are also transphobic and exclusionary. According to Stonewall, trans women are more likely to be victims of domestic violence, yet there is a distinct lack of facilities to help them.
So, what can we actually expect to happen now?
The answers collected from the public will help inform the government’s replacement of the current system. Will the UK follow other countries’ examples, leaning toward self-identity as a key indicator of legal gender?
The current GRA urgently needs updating and lags behind many other countries’ trans laws. For example, Canada,15 Nepal, Pakistan, and very recently Uruguay16 recognise non-binary as a gender identity. Trans people can also legally self-identify in these countries, and although these changes are recent, there have been no reports of any incidents realising the fears articulated by those who oppose trans rights. The trans communities in these countries are afforded the same human rights as cis people,17 so their welfare is better protected.
Should we adopt a self-identification system similar to Ireland?18 The prime minister is considering this for the UK, where trans people will be legally allowed to change gender by self-identification, without medical or time prerequisites.19
Prominent trans activist and writer Christine Burns, MBE, is not hopeful that change is just around the corner. Having seen the drafting of the original GRA firsthand, she tweeted that she remains unconvinced the changes from this consultation will bring fast change — saying that they could possibly take months. With a possible no-deal Brexit looming in March, and the topic of trans rights being so controversial, Burns fears that the issue may be swept under the carpet and deemed: “too risky.”
For the longer term — and despite the facts and how well disposed any lawmakers might be — this whole question of reform is now indelibly stamped as ‘risky’. That was the intention of the blanket opposition. Government’s generally shy away from stuff labelled ‘risky’ if they can
— Christine Burns MBE (@christineburns) October 22, 2018
Last week, the Trump Administration leaked plans to renege on many trans laws in the US, no longer allowing self-identification to access gender-segregated spaces. Although the UK is not at that point, there are many groups in this country who believe it should be and discussing these wider issues are serving as a distraction from the GRA’s process, preventing progress for trans rights.
Everyone deserves support in their community, whether you’re cis or trans; female, male, or non-binary. This includes rights-based protections from domestic violence, abuse, violation of privacy, and danger. Unfortunately, the GRA’s long and difficult process means that trans people can’t receive the same support as cis people. Easing the process of gender recognition is a step toward improving the mental health rates of the trans community, and encouraging acceptance, understanding, and respect among society as a whole.
Featured image is of a 40-year-old person who identifies as gender queer and non-binary. The frame shows a side profile of their face as they stare thoughtfully ahead. They have short, brown-red hair and blue eyes
1. The Economist, Who decides your gender?, The Economist [website], 27 October 2018
2. Persio, Sofia Lotto, What is a TERF? Debate over transgender rights and Gender Recognition Act explained, Pink News [website], 25 July 2018
3. Human Rights Campaign, Sexual Orientation and Gender Identity Definitions, Human Rights Campaign [website]
4. Stonewall Scotland, Gender Recognition Act Reform Consultation Response, Stonewall Scotland [website]
5. Norman, Julian, et al., ‘Shifting sands’: six legal views on the transgender debate, The Guardian [website], 19 October 2018
6. Amnesty International, Have your say on the Gender Recognition Act, Amnesty International [website], 8 October 2018
7. LGBT Policy Team, presented to Parliament by the Minister for Women and Equalities, Reform of the Gender Recognition Act — Government Consultation, Government Equalities Office, London, July 2018
8. Department for Constitutional Affairs, Transsexual rights policy, Department for Constitutional Affairs [website, page available through web cache — the site is now managed by the Ministry of Justice]
9. World Health Organisation (WHO), HIV/AIDS: transgender people, World Health Organisation [website]
10. Stonewall, Gender Recognition Act information sheet, Stonewall [website]
11. Amnesty International, Have your say on the Gender Recognition Act, Amnesty International [website], 8 October 2018
12. Delingpole, James, Justine Greening’s idiotic gender policy shows it’s time to give up on Toryism, The Spectator [website], 29 July 2018
13. Valentine, Vic, Non-binary people’s experiences in the UK, Scottish Trans and Equality Network, November 2016
14. Stonewall and nfpSynergy, Stonewall and nfpSynergy report intro professional experiences, Stonewall [website]
15. Busby, Mattha, Canada introduces gender-neutral ‘X’ option on passports, The Guardian [website], 31 August 2017
16. Besanvalle, James, Trans people in Uruguay can now self-identify their gender, without surgery, Gay Star News [website], 19 October 2018
17. Payton, Laura, Senate approves transgender rights bill after delay, CTV news [website], 14 June 2017
18. Brooks, Libby, ‘A monumental change’: how Ireland transformed transgender rights, The Guardian [website], 15 January 2018
19. Mason, Rowena, Theresa May plans to let people change gender without medical checks, The Guardian [website], 18 October 2017