Gender recognition and the rights of transgender people

This briefing paper has been superseded by two new Commons Library briefing papers, Gender recognition reform: consultation and outcome (Number 09079, 10 December 2020) and Provisions to support transgender children in schools (Number 9078, 10 December 2020). The two new briefing papers include developments since this briefing paper was published.

Introduction

The Gender Recognition Act 2004 (GRA) enables transgender adults to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC). Successful applicants, who are granted a full GRC, are, from the date of issue, considered in law to be of their acquired gender. Separate law protects people against discrimination on the basis of “gender reassignment”.

At the time it was enacted, the GRA was regarded as world-leading. Although most applicants for legal recognition must provide evidence of a medical diagnosis of gender dysphoria, there is no requirement for them to have undergone gender reassignment surgery or hormone treatment. However, some people now consider the GRA outdated. There have been calls, including by the House of Commons Women and Equalities Committee, for a system of legal recognition based on self‑identification of gender.

The UK Government and the Scottish Government have conducted separate consultations on reforming the process for achieving legal gender recognition in England and Wales and Scotland respectively.

This briefing paper considers the current law relating to legal gender recognition; the medical diagnosis of gender dysphoria; the current protections from discrimination; gender recognition and minors; the consultations on reform of the GRA; and the self-identification debate.

A note on terms used in this briefing paper

In this briefing paper:

• The term “transsexual person(s)” (which is now a predominantly historical term) is used in the context of references to the Equality Act 2010 and reflects the vocabulary used in that Act. Otherwise the term used is “transgender person(s)/people”;
• The term “acquired gender” reflects the term used in the GRA. The House of Commons Women and Equalities Committee found that many people now prefer the term “affirmed gender”.

Gender dysphoria

Gender dysphoria is a term used to describe a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity. Treatment for gender dysphoria aims to help people live the way they want to, in their preferred gender identity or as non-binary.

Gender dysphoria or gender identity services are specialised services that are directly commissioned by NHS England. There are three components of the gender dysphoria pathway, each of which works to a separate service specification:

• a therapeutic service for children and young people up to 18 years of age, and their families; including a linked paediatric endocrinology service for hormone therapy;
• Gender Dysphoria Clinics from 17-years of age, offering assessment, diagnosis, overall care coordination, hormone treatments, voice and communication therapies and talking therapies; and
• certain surgical interventions of the chest and genitals for adults.

Protection from discrimination

The Equality Act 2010 prohibits discrimination, for example in employment or the provision of public services, on the basis of protected characteristics, one of which is gender reassignment. However, this Act allows providers to offer single-sex services that exclude transgender people if it is proportionate to do so and it achieves a legitimate aim.

Equality Act 2010

The Equality Act 2010 prohibits discrimination, for example in employment or the provision of public services, on the basis of protected characteristics, one of which is gender reassignment. However, this Act allows providers to offer single-sex services that exclude transgender people if it is “a proportionate means of achieving a legitimate aim”.

Protections and provisions for transgender pupils in schools

In England, Wales and Scotland, the Equality Act 2010 prohibits discrimination against transgender children in all schools. The UK Department for Education (DfE) guidance on the Act says protections apply to those who are undergoing, have undergone, or are proposing to undergo, a gender reassignment process. In Northern Ireland, guidance issued by the Education Authority says the European Convention on Human Rights may offer some protections for transgender pupils.

In 2014, the Equality and Human Rights Commission (EHRC) published guidance on the Equality Act 2010 and how it applies to schools in England and Scotland. The UK Government and the EHRC have committed to publishing updates of their respective guidance.

Education is a devolved issue. Across the UK, schools are subject to safeguarding duties to protect pupil wellbeing and are required to have anti-bullying policies. Decisions on uniform, provisions for shared sanitary and changing facilities and mixed sport are primarily made by schools themselves, within their respective statutory framework.

Several local authorities have published guidance for schools, but this has sometimes proved controversial. For example, in May 2020 Oxfordshire County Council said it had taken the decision to withdraw its Trans Inclusion Toolkit and that they would instead adopt expected Equality and Human Rights Commission guidance. At the same time, the council said it was withdrawing from the judicial review of the Toolkit which was expected to be heard in Autumn 2020.

In England, in 2014, the DfE’s advice on The Equality Act 2010 and schools noted that “a partnership of bodies in Cornwall have produced a useful guidance document for schools and families.”

In 2017, the NASUWT Teachers’ Union published guides for England, Wales, Scotland and Northern Ireland.

Gender recognition reform Consultation on reform of the GRA

In July 2018, the UK Government published a consultation on reform of the GRA. This consultation, which ended on 22 October 2018, concerned the legal gender recognition system in England and Wales only.

The Government stated that the focus of the consultation was the process for achieving legal recognition and the removal of the requirement for a medical diagnosis was one option on which views were sought. The Government also said that it does not intend to make any amendments to the existing exceptions in the Equality Act 2010 associated with the ‘gender reassignment’ protected characteristic. Recognising that concerns had been raised about the potential implications of reform of the GRA, the Government confirmed that, “It will still be possible to exclude individuals with the protected characteristic of gender reassignment from single or separate sex services where doing so is a proportionate means of meeting a legitimate aim”.

The consultation received more than 100,000 responses. The Government has not yet published its response but has said that it will do so this summer.

Self-identification

There are strongly held views for and against self-identification for gender recognition.

The current process for legal gender recognition has been criticised by some people for its medicalised approach. Some transgender people have argued that the requirement for a diagnostic psychiatric report perpetuates the assumption, which they consider to be outdated and false, that being transgender is a mental health disorder. Many transgender people also consider the process to be overly intrusive, humiliating and administratively burdensome. The fee and associated costs are seen as expensive and there is no right of appeal against the decision unless on a point of law.

Those against self-identification are concerned, for example, about creating a system which might be abused, and about the potentially negative impact for safe single-sex spaces.

Some concerns have also been raised that there has been intimidation of those organising and attending meetings to consider the Government’s proposals, and that debate has been stifled.

The position in Scotland

The GRA extends across the UK. However, gender recognition is a devolved matter meaning that legislation in this area is within the competence of the Scottish Parliament.

The Scottish Government’s consultation, Review of the Gender Recognition Act 2004, ran from 9 November 2017 to 1 March 2018. This sought views on whether and how the GRA should be amended in relation to the law in Scotland. It set out the Scottish Government’s initial view that, subject to views expressed during the consultation, Scotland should adopt a self-declaration system for legal gender recognition.

In June 2019, Equalities Secretary, Shirley-Anne Somerville, announced that a draft Gender Recognition (Scotland) Bill, to reform the current process for obtaining a GRC, would be published by the end of the year. She said that a Bill would be formally introduced to Parliament only when there had been a full consultation on the precise details contained in the draft Bill.

The draft Gender Recognition Reform (Scotland) Bill: consultation was published on 17 December 2019 and ran until 17 March 2020. It proposes (among other things):

• removing the need for applicants for a GRC to provide medical evidence, but they would still need to provide a statutory declaration that they intend to live permanently in their acquired gender;
• requiring applicants to live in their acquired gender for at least six months – three months before applying for a GRC and three months after applying – before a GRC could be granted;
• retaining the position that a false statutory declaration is a criminal offence and introducing a new offence of false application - each with a potential punishment of up to two years’ imprisonment; and
• reducing the minimum age of application from 18 to 16.

The Equalities Secretary said that women’s rights and protections would not change.

Statement on changes in this briefing

In December 2019, the Commons Library published the research briefing, The gender recognition process, which focussed on the legal process for gender recognition. This briefing was updated in January 2020, mainly to include information about a consultation on the draft Gender Recognition Reform (Scotland) Bill, which was published on 19 December 2019. On 16 July 2020, the Commons Library published a separate briefing entitled, Gender recognition and the rights of transgender people. This included updated information from the previous briefing and that briefing was withdrawn. Gender recognition and the rights of transgender people covered more subjects, including information on provisions to support transgender children in schools (in section 5).

We received correspondence shortly after publication, which commented on the status of some of the guidance referred to in the summary and in section 5 (the schools section). We investigated and confirmed that a judicial review had been initiated against Oxfordshire County Council which was not covered in the briefing. We took the view that further work was needed to consider properly whether to make any changes to the briefing.

Rather than withdraw the entire briefing for review, we republished the briefing without the section on schools, so that it could be reviewed, updated and peer-reviewed without limiting access to the rest of the briefing. When we received questions about why this information was removed, we updated the landing page to clarify that this section was temporarily removed while we checked it was up to date.

On 22 July we republished the paper, reinstating the section on schools. It now includes reference to a legal challenge to Oxfordshire County Council’s Trans Inclusion Toolkit and the council’s withdrawal of the Toolkit. We also removed references to guidance for schools in Wrexham, which had been recommended by the Welsh Government, as this guidance is no longer available. In addition, we amended the section on the Equality Act to clarify the legal basis of the provision of single-sex services and added a reference to a Women and Equalities Committee report. Some stylistic edits have also been made.

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