This briefing paper deals with the UK Government’s consultation on reforming the Gender Recognition Act 2004 (GRA) and, more briefly, with consultations conducted by the Scottish Government. These consultations asked whether the process for transgender people to gain legal recognition in their acquired gender should be reformed.
The paper also includes some information about medical treatment for gender dysphoria. Although this area did not form part of the UK Government’s consultation, the Government said in its consultation response that research had shown improving healthcare support was a priority for transgender people.
Overview
The GRA describes “acquired gender” as the gender in which an applicant is living and seeking legal recognition. The Government has explained (PDF) that it is different from the sex (male or female) recorded at birth and is instead, the gender the individual identifies with. The GRA enables transgender people to achieve legal recognition in their acquired gender and change their recorded sex on their birth certificate from male to female or vice versa.
At present, there is no process in any part of the UK by which transgender people may achieve legal recognition of their acquired gender based on self‑declaration only.
Following consultation, the UK Government has decided not to introduce a non-assessment/self-identification process for legal gender recognition in England and Wales.
After consulting separately, the Scottish Government intends to bring forward legislation in 2021-22 to change the process for achieving legal gender recognition in Scotland. Under the process proposed in the draft Gender Recognition Reform (Scotland) Bill, applicants would no longer be required to provide medical evidence of their diagnosis of gender dysphoria but would still have to make a statutory declaration.
Gender recognition
The GRA allows transgender adults to apply to the Gender Recognition Panel for a Gender Recognition Certificate (GRC). In most cases, applicants must provide medical evidence of a diagnosis of gender dysphoria and details of any treatment received; evidence of living in their acquired gender for at least two years; and a statutory declaration that they will continue to do so permanently. There is no requirement for applicants to have undergone gender reassignment surgery or hormone treatment.
The Government has explained (PDF) that applicants who are granted a full GRC are, from the date of issue, considered in law “to have the gender they identify with (man or woman only) rather than the gender that accords with the sex that was recorded at birth.”
UK Government 2018 consultation on reform of the GRA
In July 2018, the UK Government published a consultation on reform of the GRA in England and Wales. The consultation closed on 22 October 2018. It focused on the process for achieving legal recognition of someone’s gender. One option on which views were sought was the removal of the requirement for a medical diagnosis.
In the consultation paper, the Government said it wanted to make it easier for transgender people to achieve legal recognition. It said many transgender people feel the current process is: “overly intrusive, humiliating and administratively burdensome,” and they argue “by requiring a diagnostic psychiatric report, the process perpetuates the outdated and false assumption that being trans is a mental illness.”
The Government also said concerns had been raised about the potential implications of reform on the exceptions in the Equality Act 2010 associated with gender reassignment discrimination. The Government confirmed, where it is a proportionate means of meeting a legitimate aim, it would still be possible to exclude transgender people from single-sex services.
There were over 100,000 responses to the consultation.
Government response to the consultation 2020
On 22 September 2020, Elizabeth Truss, Minister for Women and Equalities, made a written ministerial statement and the Government Equalities Office published an Analysis Report of Consultation Responses by researchers at Nottingham Trent University.
The Government does not intend to change the criteria in the GRA for legal gender recognition, meaning a system based on self-declaration is not being introduced. Elizabeth Truss said: “it is the Government’s view that the balance struck in [the GRA] is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex.”
The Minister acknowledged the need to improve the process and experience transgender people have when applying for a GRC, to make it: “kinder and more straightforward.” She said the Government’s proposed changes would address the main concerns transgender people had expressed. The GRC application process is to be moved online and the fee has been reduced from £140 to £5.
Elizabeth Truss said the Government would improve access to healthcare for transgender people, who had reported that waiting lists at NHS gender clinics are too long.
Parliamentary debate on response
On 24 September 2020, the Government’s response was debated in the House of Commons.
Crispin Blunt (Conservative) spoke of the “crushing disappointment of trans people,” and Marsha De Cordova, then-Shadow Secretary of State for Women and Equalities, expressed disappointment that the Government had “let trans people down.”
Elizabeth Truss reiterated the Government’s view that “the settlement we have reached balances and upholds the rights of transgender people and of women” and “protects access to single-sex spaces”.
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 published its report on 21 December 2021.
Among other things, the Committee recommended a diagnosis of gender dysphoria should no longer be a requirement for obtaining a GRC, moving the process closer to a system of self-declaration. The Committee further recommended “robust guidance” should be developed on how a system of self-declaration would work in practice. The Committee considered appropriate safeguards were essential “to ensuring that the rights of natal women and the use of the single-sex and separate-sex exceptions in the Equality Act 2010 are protected”.
The Committee urged the Government Equalities Office and the Equality and Human Rights Commission to publish better guidance on the single-sex and separate-sex exceptions.
Westminster Hall petition debate
An online petition, which closed in January 2021, called for the GRA to be reformed to allow transgender people to self‑identify their gender without a medical diagnosis, to streamline the administrative process, and to allow non-binary identities to be legally recognised. The petition attracted over 100,000 signatures.
The House of Commons will debate this petition on 21 February 2022.
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, ran from 9 November 2017 to 1 March 2018. It 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.
The Scottish Government subsequently consulted on a draft Gender Recognition Reform (Scotland) Bill. This ran from 17 December 2019 to 17 March 2020. It proposed:
- removing the current requirement for people to apply to the UK Gender Recognition Panel. Instead, people seeking legal gender recognition would apply to the Registrar General for Scotland;
- removing the current requirement for applicants to provide medical evidence of their diagnosis of gender dysphoria;
- retaining the requirement that applicants must make a solemn statutory declaration they have been living in their acquired gender – but for a minimum of three months rather than the current two years – and intend to do so permanently;
- introducing a minimum three-month period of reflection between applying for a Gender Recognition Certificate and confirming the application. This means the applicant must have lived in their acquired gender for a minimum of six months before a certificate is 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;
- reducing the minimum age of application from 18 to 16.
The Scottish Government paused its work on reform of the GRA during the pandemic. However, its Programme for Government 2021-22 (published September 2021) says legislation to reform the gender recognition process in Scotland will be brought forward “within the next year.”
The Bill has not been introduced at the time of this publication.