Non-binary gender recognition: law and policy

The Government defines a non-binary person as “someone who identifies as in some way outside of the man-woman gender binary” (PDF). For consistency, this briefing paper uses the term “non-binary” in the same way.

At present, the Government has no reliable estimate of the size of the non‑binary population in the UK. In 2018, it referred to evidence suggesting the number of non‑binary people was “increasing” (PDF).

Current law No legal recognition

Non-binary genders are not recognised in UK law. The Gender Recognition Act 2004 (GRA) enables a person to change the sex recorded on their birth certificate, either from male to female or vice versa. It makes no provision for the recognition of any other gender.

Legal protection

In general terms, legal protection from discrimination is based upon having – or being perceived as having – a “protected characteristic”, as defined in the Equality Act 2010. In 2020, the Birmingham Employment Tribunal held that people who are gender fluid, non-binary or transitioning can have the protected characteristic of gender reassignment (PDF).

Hate crime

Section 66 of the Sentencing Act 2020 provides that where a crime has been motivated by hostility based on transgender identity (among other things), the court must treat this as an aggravating factor when sentencing the offender.

The Law Commission has recently conducted a detailed review of existing hate crime laws, including section 66. In December 2021, it recommended the term “transgender” be replaced with “transgender or gender diverse”, as this would “more clearly include people who experience criminal hostility on the basis of non-conformity with gender roles and expectations”.

Government’s LGBT Action Plan

In July 2018, the Government Equalities Office published an LGBT Action Plan (PDF). The Government said it would issue a call for evidence on the issues faced by non‑binary people. At the time of publication of this briefing paper, this had not been published.

Government position: no change to current law

The Government considers non-binary recognition to be a complex issue (PDF) with many potential knock-on implications for the law and public service provision.

The Government’s 2018 consultation on reform of the GRA (PDF) did not include proposals to extend the GRA to provide legal recognition to a third, or non‑binary, gender. However, it did ask for respondents’ initial views on non‑binary recognition as it relates to the GRA specifically. The Government referred to this as a supplement to its proposed call for evidence exercise.

The Government set out its position (PDF):

The Government wants individuals who identify as non-binary to be able to live discrimination-free lives in accordance with who they believe their true selves to be. We are working to determine what action it may be necessary for Government to take in order to achieve this. However, we are also mindful of the practical consequences for other areas of law and public-service provision referring to the gender binary, if non-binary genders were to be recognised in the GRA.

The Government has since said it does not intend to change the criteria in the GRA for legal recognition.

Petition

Parliament will consider for debate a petition on the UK Government and Parliament petitions website which calls for non-binary to be a legally recognised gender identity. The petition closed on 26 October 2021 with 140,782 signatures.

Women and Equalities Committee inquiry

On 28 October 2020, the House of Commons Women and Equalities Committee launched an inquiry, Reform of the Gender Recognition Act. The Committee said it would consider whether legal reforms are needed to better support the rights of gender-fluid and non-binary people.

In its report published in December 2021, Reform of the Gender Recognition Act (PDF), the Committee said it had received a large volume of written evidence calling for the legal recognition of non-binary people through the GRA. The Committee called on the Government to clarify the reasons preventing the legal recognition of non-binary people and on the Equality and Human Rights Commission (EHRC) to undertake research in this area.

In response to the Committee’s report, the EHRC agreed with the need for research but said the Commission could not commit to doing this alone.

The Government published its response to the Committee’s report on 24 March 2022, and reiterated its position that no changes to the GRA are needed.

The position in Scotland

The GRA extends across the UK. However, gender recognition is a devolved matter, meaning legislation in this area may be made by the Scottish Parliament.

The Scottish Government’s consultation, Review of the Gender Recognition Act 2004 (PDF), ran from 9 November 2017 to 1 March 2018. It sought views on (among other things) whether Scotland should take action to recognise non‑binary people and, if so, on a range of options.

In June 2019, Shirley-Anne Somerville, who was then Cabinet Secretary for Social Security and Older People said she did not intend, at that time, to extend legal gender recognition to non‑binary people. However, she recognised the need to address issues that non-binary people face and said a working group would be established “to consider possible changes to procedures and practice and what we can learn from best practice internationally as well as from within Scotland and the rest of the UK”.

The Scottish Government website has information about its Non-Binary Working Group.

In its Programme for Government 2021-22 published in September 2021, the Scottish Government said, following receipt of the recommendations of the Working Group on Non‑Binary Equality, it would “develop an action plan by spring 2023 to improve non‑binary equality and wellbeing”.