The British Government v Trans People

A Northern Irish court case has revealed Liz Truss and Boris Johnson’s labours to inflame a culture war against trans people, after the previous Conservative government had decided to treat us reasonably. The anonymous JR111, let’s call her Jennifer, applied for judicial review because the government blocked her from getting a gender recognition certificate. For example, the government has a list of specialist psychiatrists qualified to diagnose “gender identity disorder and transsexualism” for a GRC, but none of them practise medicine in Northern Ireland.

Mr Justice Scoffield begins with a quote from the GRA consultation. “The Government’s view is clear: being trans is not a mental illness. It is simply a fact of everyday life and human diversity”- so say we all- and later compares the stigmatising of trans as a mental illness to that of gay people. He asks, why should a trans person prove they have gender dysphoria before our gender is recognised? Does it breach our human rights under the Human Rights Act and European Convention on Human Rights? Jennifer’s evidence said (I agree) that trans is a normal function of human variation, not a mental disorder.

Jennifer began transition in 1994, changed her name by deed poll in 1999, was referred to a gender clinic in Belfast in 1996, but has not yet had GRS. She started her legal action because no-one could give the medical report required for a GRC, she objected to requiring a diagnosis of a “disorder”, implying that she is mentally ill, and the need for a medical report at all. On 13 May the judge published his judgment.

Scoffield J tells the history, from the Gender Recognition Act 2005. It says “Gender dysphoria means the disorder variously referred to as gender dysphoria, gender identity disorder and transsexualism”.

The Gender Recognition Panel requires more than a statement a diagnosis was made. The doctor should state the process of diagnosis and the evidence considered. They should not simply say “gender reassignment surgery” but specify precisely what surgery was carried out. This is intrusive. The panel does not simply accept the diagnosis, but must satisfy itself that the diagnosis is soundly based and that the treatment is consistent with it.

In 2016 the Women and Equalities Committee reported. They said requiring a diagnosis invades our dignity and personal autonomy, and recommended self-declaration.

The International Classification of Diseases does not classify gender dysphoria, a mental illness, but gender incongruence, classified under “conditions related to sexual health” and defined: “Gender incongruence is characterised by a marked and persistent incongruence between an individual’s experienced gender and the assigned sex. Gender variant behaviour and preferences alone are not a basis for assigning the diagnoses in this group.”

You only need a doctor if you want hormones and/or surgery. You might not choose surgery for any reason, and should not have to be sterilised to have your gender recognised. That is why the ICD specifically avoids a diagnosis of “being trans”- gender preferences are not a basis for a medical diagnosis. You can be true trans, and not ill. A diagnosis of “gender incongruence”, a “sexual health” problem, is only appropriate if you need medical treatment with hormones and surgery.

We are not ill. ICD 11 confirms we are not ill. Why should we need a psychiatrist’s medical report stating we are not ill in a particular way? Being trans should be sufficient for gender recognition, without any need for treatment. Even DSM V says that the health problem the psychiatrist treats is dysphoria, distress, rather than gender identity itself.

The Government Equalities Office (GEO) civil servants appear to have meant well. The Government has a duty, the Public Sector Equality Duty, under the Equality Act, to promote the equality of protected groups. Liz Truss gave a big speech saying she despised the PSED, but the GEO sought to fulfil it.

In July 2018 the previous Tory government published a consultation on how to make gender recognition “easier for trans people”. As Scoffield says, the government at the time was persuaded the GRA should be updated. The GEO published a PSED assessment before the consultation and an analysis of responses to the consultation. The GEO made a further PSED assessment after the consultation, which is not published, but is extracted in Scoffield J’s judgment. Oliver Entwistle, deputy director of LGBT policy and operations in the GEO, gave evidence.

On 15 June 2019, after Theresa May had resigned as Prime Minister but before ABdP Johnson had replaced her, the minister, Penny Mordaunt, wrote that “viewing transgender identity as a mental illness is analogous to describing homosexuality as a mental illness”. In the consultation, 64% of respondents said there should be no requirement for a diagnosis, and 80% said there should be no report of all treatment received.

The GEO wrote to the Minister saying, “We would also strongly recommend that you agree to remove the medical aspects of the process; the need for diagnosis of gender dysphoria and the second medical report.” As they said, trans people “hate” these requirements.

Then Johnson became PM on 24 July 2019, and appointed Amber Rudd as minister for women and equalities until 10 September, when Truss took over. Oliver Entwistle gave evidence that Johnson’s government wanted a medical assessment for a GRC because it was a safeguard against people unadvisedly changing our gender. The government did nothing on gender recognition.

On 3 March 2020 the GEO wrote to Truss, giving options for reform, and recommending a reform Bill “given your previous steers on this issue”. Truss had consulted with Johnson’s office, and suggested there might be “vexatious” applications for a GRC. They suggested the diagnosis could be gender incongruence.

A diagnosis of “gender incongruence” has the advantage of not being a psychiatric diagnosis, but the disadvantage of only being relevant if someone wants hormones and surgery. Now, one might get a GRC without either. The effect would be to produce a new requirement of sterilisation, contrary to our human rights. That is the problem with updating the medical diagnosis. Truss’s alternative is to keep the outdated mental illness diagnosis which is stigmatising, insulting. and untrue.

The GEO said another alternative was a medical report “demonstrating that a person wants to permanently change their gender”. That would either be a diagnosis that the person was proper trans, rather than suffering from some sort of delusion that they were trans, or ask a doctor to assess the truthfulness of the trans person, whether their belief was reasonable, and their stickability, which are not medical questions.

The GEO said the government could at least remove the demand that the doctors who could provide the report were gender specialists. The government has not, however.

Truss suggested the need for a diagnosis of gender dysphoria could be removed. On 29 May 2020, the GEO again wrote to her saying Dr Michael Brady, the National Adviser on LGBT Health, said this would be impractical.

Well of course it is. You can’t just ask for a doctor’s letter. You have to describe what the doctor is supposed to assess- ideally, something medical. A doctor’s letter saying “They tell me they’re trans and I have no reason to doubt it” is a waste of everyone’s time. Dr Brady has felt the need to clarify that he thinks the need for a diagnosis should be removed. But if there has to be one, some guidance is necessary for the doctors.

If people wanted hormones and surgery, said Dr Brady, the NHS would have to continue to give a diagnosis. Truss insisted that the GRC process should have one too.

On 22 June 2020 the GEO drafted yet another response to the GRA consultation suggesting the gender dysphoria diagnosis should be replaced by one of gender incongruence, by a gender specialist (a psychiatrist, not a “sexual health” specialist) “to ensure applicants receive appropriate support and to deter unmeritorious applications”.

There was a further PSED assessment, which said the diagnosis should be changed to gender incongruence “to dissuade frivolous applications”.

The final government position was set out by the GEO on 2 July 2020, agreeing to keep the current legislation (with its reference to “transsexualism” and “gender identity disorder”), even though the Department for Health and Social Care had expressed concern about the nature of the diagnosis. Truss and Johnson simply decided not to amend the legislation, so there was no chance to change the diagnosis required.

On 22 September 2020 Truss published a statement saying the Act should not be changed, as it provided “proper checks and balances in the system”.

Jennifer’s lawyers sought more documents. The government said there was no documentation relating to discussions with Johnson, which merely shows no note was taken of anything he or his office said. The defence provided a note of meetings with Dr Brady, saying he felt that the process of applying for gender recognition was stigmatising. He did not want to assess psychological readiness for gender recognition, which happens two years after going full time anyway. He said if there has to be a diagnosis it should be of gender dysphoria. Any change to that should be “clinician led”.

The initial disclosure of evidence had a lot of redactions. The judge considered an unredacted copy to see if any more should be shown to Jennifer, and decided to release parts. They showed that the government was aware of the concerns about waiting lists, quoting a waiting time of 2½ years. Trans people say it is longer. On 22 September Truss announced three new gender clinics.

The judge considered the human rights position. He decided that the government has a right to insist on a diagnosis, but the claimant had a right that that diagnosis not refer to a “disorder”. However, “disorder” is in the Gender Recognition Act. The court is yet to decide on a remedy, and may order under the Human Rights Act how the GRA should be interpreted. Or, it may order that the GRA is incompatible with human rights, which does not change the GRA, or impose any obligation to amend it.

We go to doctors when there is something wrong. The need for a diagnosis itself means that there is some “disorder”. The issue is that our gender is not a disorder. The only diagnosis in ICD 11 is gender incongruence, which implies a need for hormones and surgery, which would impose a new requirement of sterilisation before we could get a GRC.

The question of whether Jennifer’s human rights were infringed by the fact that there are no gender specialists authorised to report for gender recognition in Northern Ireland is still to be decided.

The Government’s position was a total mess, and the judicial review has not improved matters. Truss needs to demonstrate that applications described variously as unmeritorious, vexatious, frivolous or unadvised are a real problem. Such applications could be deterred by a six month requirement to live in the acquired gender before a GRC. The old diagnoses, gender dysphoria, transsexualism or gender identity disorder are outdated. They are diagnoses of transness, as stigmatising as a diagnosis of homosexuality. They are not a medical issue, and David Brady is right to call for them to be removed from the gender recognition scheme.

In September, I asked my MP to write to the Minister objecting to a diagnosis when we are not ill, and have just got the reply. Kemi Badenoch, the junior minister, did not use the word “diagnosis” but wrote that “the current provisions within the Act provide the appropriate checks”. The letter was dated before the judgment.

The judgment is here. Trans barrister Robin Moira White comments here.

2 thoughts on “The British Government v Trans People

  1. “…Liz Truss and Boris Johnson’s labours to inflame a culture war against trans people…” Yes, there seems little doubt about this, and British media presentation of transphobic and ignorant beliefs about trans people is all too prevalent too, as you point out in previous posts. I am so sorry, Clare, that the whole rotten establishment in the UK should be so corrupt and malign. It’s part of a much wider British malaise which is going to take a lot of strife to fix. Sue x

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    • The trouble is, they want a diagnosis by a doctor before we can get gender recognition. The civil servants, the Theresa May government, the Scottish government and this judge recognise that does not work, and is irrational, unnecessary and insulting; The ICD recognises it is not a disease; yet they insist.

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