THE BLOG

Proposals Allowing Adults to Define Their Own Legal Gender Do Not Go Far Enough

04/01/2016 14:48 GMT | Updated 04/01/2017 10:12 GMT

According to The Sunday Times, the Inquiry into Trans Equality is soon going to recommend that adults get the right to determine their own legal gender. This would be a similar process to that recently introduced in Ireland which requires trans people to simply fill in a form, swear an oath in front of a solicitor and send it off. Just a few days later their legal gender change is complete and they get confirmation in the post.

Full details of the recommendation aren't out yet, but if this urgently needed reform does happen in the UK it will be fantastic news for some trans people. However, there are serious concerns that it still does not go far enough and will leave many trans and non-binary people unable to access adequate gender recognition. Assuming the reports are accurate, this reform will only apply to adults. This means that thousands of trans and non-binary children and teenagers will be stuck, sometimes for over a decade, with no access to appropriate recognition.

In addition, it appears that the report will stop short of recommending full recognition for non-binary people. Reliable figures have shown that as much as 0.4% of the population (around 250,000 people in the UK) do not identify as either a man or a woman, and in the run up to the 2015 General Election over 20% of candidates signed the Non-Binary Pledge in support of them. Without access to proper recognition, non-binary people are left in legal limbo and will be unable to fully assert their rights. When the Ministry of Justice recently rejected calls for non-binary gender recognition as they believe there is "no specific detriment" to the lack of recognition, non-binary people spoke out about how harmful and invalidating this was.

The current Gender Recognition Act, which came into force in 2005, allows trans people to apply for a Gender Recognition Certificate (GRC) which changes their legal gender. While it was considered ground breaking at the time, it left a lot of people behind and has some very strict and often unfair requirements. Amongst its key failings are the need for multiple medical reports confirming a diagnosis of gender dysphoria, a requirement to prove that you have been "living as" a man or a woman for at least two years (nobody is entirely sure what this means), and the need to be at least 18 years old. It also forces some people to end their current marriage or civil partnership before they can obtain gender recognition. The Act provides absolutely no recognition for non-binary people (those who identify as neither men nor women).

These requirements have since been interpreted and expanded on by the Gender Recognition Panel, whose job it is to assess these applications. They now require that people who haven't had surgical interventions must have their doctors explain the reasons for this, even though surgery is not a requirement of recognition. They also have their own idea of what it means to live as a man or a woman, for instance they have told some trans women that conceiving a child means there is a "doubt" as to whether they have really lived as a woman. In other cases the Panel's requirements have just been completely unrealistic for the average person to fulfil, such as one applicant who was told to prove that same-sex marriage was legal in Canada. The level of evidence that the Panel require is so high that 40% of applicants are asked for further information.

Most things do not depend on legal gender as even without recognition it is unlawful to discriminate against trans and non-binary people, refuse to update their records or refuse them access to most single-sex spaces such as toilets. However, some important things do still depend on legal gender. Current prison policy in some parts of the UK still initially places trans people according to their legal gender, which has led to urgent calls for reform after two trans women committed suicide in male prisons last year. Marriage vows outside of Scotland are also gendered, and with trans men being referred to as 'wife' in their marriage vows and trans women referred to as 'husband' unless they have gender recognition. Also birth and adoption certificates can only be altered after gender recognition has been obtained, meaning that those without recognition must out themselves and reveal their birth name to anyone such as an employer who needs to see it. For these reasons and more, swift easy access to legal gender recognition is vital.

Part of the reason the inquiry may not have gone far enough is a side-effect of how the inquiry worked. Over 230 organisations and individuals took advantage of the opportunity to make written submissions to the inquiry, which is a huge body of evidence. However, the evidence is far more limited than it could have been. The range of topics was huge, from schools to prisons, healthcare to legal rights, media representation to sport and many more. Despite the huge range of topics all needing urgent attention a 3,000 word limit on submissions meant it was impossible to cover everything. Organisations either had to focus their submission topics very narrowly, or else could very briefly discuss a larger number of topics but miss most of the detail. The result is that the Committee simply did not have the full picture.

As much as self-definition of legal gender is a very welcome step, it absolutely must be done right as otherwise it will likely be another fifteen years to get it fixed. If the government does decide to drastically revamp the Gender Recognition Act, and I sincerely hope that they do, it is imperative that they do it in full, open consultation with trans and non-binary people and not just assume that the inquiry has given them all of the evidence they need. Gender recognition must be for everyone, we simply cannot allow non-binary people and young people to be left behind.