Gender Recognition report

The report of the Women and Equalities Committee on Gender Recognition (GR) Reform strongly condemns the government. They say the refusal of ministers to properly engage with their enquiry is “inexcusable” (Recommendations, para 6). The Government Equalities Office (GEO) delay in responding to the GRR consultation “exacerbated tensions” between trans people on one side, and trans-excluders and anti-trans campaigners on the other, but also “caused real distress” to many trans people (Recommendations, para 4).

However Liz Truss (para 64) has indicated she will ignore the report, saying “The Government made its position abundantly clear” and the Committee should scrutinise other matters. That is, she told them to FO.

The good news is that the Committee wants to make getting a GR certificate easier. The bad news is that their other recommendations tend to make it easier to exclude trans women from women’s services. The government has said they won’t act to make our lives easier.

If you are interested, you should read at least the recommendations and the summary of the report, but here is a brief introduction:

Recommendations

The committee recommended work towards nonbinary recognition, making it easier for spouses to get a GRC, and abolishing the requirements for a period in the acquired gender before making the statutory declaration and for a diagnosis of gender dysphoria.

In more detail, it recommended:

1. The fee, which Liz Truss proposed to reduce from £145 to £5, should be abolished altogether.

2. While Liz Truss promised to reduce the fee and make the process digital on 22 September 2021, no visible progress has been made. The government should set out its process to digitise the system within six months, provide regular updates on its progress, ensure that applications may be made on phones and on paper for those with no access to the right technology.

5. The government should produce an action plan for reform the Gender Recognition Act (GRA) within 12 weeks on all the areas the consultation showed majority support. especially abolishing the spousal veto, the requirement to live for two years in the acquired gender, and the need for a diagnosis of gender dysphoria.

9-10. There should be no requirement for a diagnosis of gender dysphoria. A statutory declaration shows intent to live in the acquired gender, and when there is no real intention, the person could be prosecuted for a fraudulent declaration. Male prisoners should not necessarily be transferred to a women’s prison if they made a declaration.

11. Because there is no clear definition of what “living like a man or a woman” is, and to avoid entrenching gender stereotypes, the requirement to live in the acquired gender for two years should be abolished. However, that view makes it impossible to prosecute under 9-10 above.

12. Because some people might wish to reverse their decision to transition, the requirement to promise to live in the acquired gender “until death” should be removed.

17. The Government should review whether the Registrar General for England and Wales could take over the functions of the Gender Recognition Panel.

14. An applicant should be entitled to a full Gender Recognition Certificate (GRC) without their spouse being entitled to block it. The Registrar or Panel should inform the spouse of the application, and give them the opportunity to seek annulment of the marriage. If the spouse does not respond, the Registrar or panel should annul the marriage. The transitioning person should also have the opportunity to annul the marriage, once the spouse is informed. Either spouse should be able to apply for financial orders or other court orders available at the end of a marriage.

16. There are delays to referrals of young people to the Gender Identity Development Service (GIDS). Young people should have access to services allowing them to explore their feelings about transitioning in detail.

18. No prosecutions have been made under the offence of revealing a trans person’s trans status. It should be further weakened, so that only cases where disclosure was deliberate and knowing are criminal.

19. The GEO and Equality and Human Rights Commission (EHRC) should give guidance on when trans women can be excluded from women’s services, and on best practice on trans and nonbinary inclusive services, especially related to domestic violence and sexual abuse.

20. The GEO should make recommendations to strengthen protections for trans people and those who are gender nonconforming (that is nonbinary, but also anyone who subverts stereotypes even if they do not consider themselves nonbinary) at work.

21. The EHRC, GEO, and the Sports Council Equality Group (SCEG) should work together to provide clarity on trans women in women’s sports. The integrity of women’s sports should be maintained, and there should be trans inclusive spaces in sports.

22. The GEO should work to update statutory language to show the distinction between birth sex, legal sex, and gender. The government should update all documents which conflate sex and gender.

23. The GEO should work with trans rights groups and researchers to minimise the distress of trans people around data collection on sex and gender.

24-7. Because of long waiting times to get to Gender Identity Clinics (GICs) for adults, more gender specialist clinicians should be trained, and there should be more GICs. Trans people say ordinary psychiatrists, or even GPs, should be able to confirm someone is trans and give hormones. The committee apparently did not consider that.

28. Trans people’s access to general health care should be improved, with training for GPs, and access to support services for trans people.

29. As the GEO appears to have abandoned the LGBT action plan, the Government should commit to its implementation, and reinstate its LGBT Advisory Panel.

30. The EHRC should undertake research so that nonbinary recognition can be brought forward before the next election.

8. The Speaker of the House, the Leader of the House, and the Chair of the Liaison Committee should respond to their concerns and ensure Ministers are suitably accountable to parliamentary committees.

If all you wanted to know was how the Committee decided the law should be changed, you can stop reading now, but I will go on to summarise the report, chapter by chapter. It is in two parts- Reform of the GRA, and wider issues affecting trans people.

Introduction

In 2015, the Committee recommended GR reform. In 2018, the National LGBT Survey showed dissatisfaction with the process, and in July 2018 Theresa May launched the consultation on reform. In September 2020 Liz Truss responded to the consultation. The Committee launched its enquiry to see if the proposals went far enough, and to understand why the Government did not want to change the Act, even though the consultation showed public support. They say the debate is toxic (para 5), and wish to encourage a healthy discussion.

They use the same terminology the Government did in its consultation document. There is a glossary in Appendix A. It says Gender refers to socially constructed characteristics, Gender Identity is a person’s sense of their own gender, and Sex is assigned at birth based on physical characteristics, either male or female. So, as they use the word, sex is partly socially constructed, and intersex people have an assigned sex. Otherwise, the glossary explains terminology in terms of current law.

The Committee wanted to know why the government had not acted on the will of the people shown in the consultation. They received over 2000 pieces of written evidence, the largest ever response. 1000 were confidential. Ministers failed to co-operate.

The consultation showed, para 14, that some trans people thought a GRC meant validation, safety and security, but some thought it meaningless because they could already get a passport in their true gender.

Chapter 1: The Government’s consultation and response to GRR

In this chapter, they consider the history of the government’s actions and proposals, and some of the evidence they received about that.

1. Reducing the fee.

On 4 May 2021, the fee for applying for a GRC was reduced from £140 to £5. In the consultation, 58.5% had said the fee should be removed. The committee finds the fee should be removed. Applicants have other financial burdens, including the legal costs of a statutory declaration and the medical evidence.

Anti-trans campaigner Nicola Williams of “Fair Play for Women”, said the fee was not important. She was concerned that more people would be eligible to apply than could now. The committee recommend that the Government explain why it fixed a fee of £5, rather than recommending no fee at all.

2. Placing the process online.

The minister said “the digitalisation work is progressing steadily”. Evidence showed that scanning all the evidence could be more time-consuming than posting it, and applicants could not use libraries because of the private nature of the documents.

3. New clinics.

Liz Truss, responding to the consultation, announced three pilot Gender Identity Clinics (GICs) but these were pilot clinics already announced by the NHS. Over two years, each would take in 500 patients out of an existing waiting list of 13,500 (para 43). The NHS plans two further pilot clinics to bring the total to five (para 45). The Committee found that Liz Truss’s announcement of the pilots merely distracted from the lack of change to the GR process (para 46).

4. The delay in responding to the consultation.

Justine Greening announced the consultation in July 2017 and it ran between July and October 2018, but the Government did not respond until October 2020. Evidence showed that during the delay misinformation about the Equality Act and Gender Recognition Act increased prejudice, and “allowed anti-trans mobilisation” (para 48).

The Government Consultation Principles document of 2018 (para 51) says the Government should publish responses within 12 weeks of a consultation or explain why this is not possible. The Committee found (para 52) the delay was unacceptable. It exacerbated tensions and caused distress to trans people.

5. The government’s failure to address key areas.

The respondents to the consultation recommended several reforms the Government failed to accept, without giving reasons. Liz Truss proceeded to gaslight trans people, claiming she would make the GR process “kinder and more straightforward”, but did not.

There was majority support (para 53) for reforming the spousal veto (84%), the waiting period (78.6%), and the need for a diagnosis (64.1%). The committee recommended, para 59, that the Government should bring an action plan within twelve weeks on these reforms.

However, having ignored the result of the consultation, the Government will probably ignore the report of the Committee, as it ignored the report in 2016.

6. The Government Equalities Office.

The Committee has a duty to scrutinise the GEO, but Ministers failed to meet the Committee. This is a breach of the Ministerial Code (para 63). However, Boris Johnson is happy for the Ministerial Code to be breached, as in the case of Priti Patel’s bullying. In response (para 64) Liz Truss said the Committee should spend its time on other things than GR reform, as the Government’s position will not change. The Committee found this “inexcusable” (para 73).

7. The Equality and Human Rights Commission.

The EHRC failed to give evidence to the Committee, saying it was working on other things. On 9 December 2020 the Committee invited the EHRC to give oral evidence, which the chair, Baroness Falkner, said they had little to say on the matter. Their duty was merely to enforce the law, not suggest what it should be.

However that does not fit the functions of the EHRC (para 69) in the Equality Act 2006. It should be a “catalyst for change” helping improve the law, influence public policy and inform debates. It should also monitor the effectiveness of law protecting people’s rights. The Committee found, para 73, that the EHRC had failed to fulfil these functions.

It is also the EHRC’s job to stand up for protected groups, and trans people felt they did not (70-71).

Chapter 2: The Gender Recognition Act 2004

94.5% of trans consultation responders had not applied for a GRC, because the process is dehumanising, expensive and bureaucratic. By June 2020 5,677 GRCs had been granted, and the GEO estimates there are 200,000-500,000 trans people in the UK. Despite this, Truss called the GR system “fit for purpose”. That’s another FO.

1. The diagnosis of gender dysphoria

David Brady, the Government’s LGBT medical adviser, finds the diagnosis unworkable. GD is not a mental illness, but some believe a diagnosis is a stigma. Other countries, including Scotland, are dropping this requirement. Theresa May said in 2017 that GR should be “demedicalised, because being trans is not an illness”. 64.1% of consultation respondents supported demedicalising. The European Commission in June 2020 (para 86) said the UK “imposed intrusive medical requirements”.

2. Self-declaration.

Baroness Falkner of the EHRC said they recommend that there should be no need for a diagnosis (para 92). The Department of Health and Social Care had no opinion (para 93). Theresa May submitted evidence that the process should be streamlined and demedicalised (para 95). The committee recommended, para 96, that there should be no need for a diagnosis, because the need to make a statutory declaration was sufficient protection.

3. Living in the acquired gender.

78.6% of consultation respondents said there should be no requirement for this before getting a GRC. Two years is arbitrary. Cat Burton from GIRES said her application filled a box in which five reams of paper came, and it was still refused. Even the anti-trans campaigners said that the requirement perpetuated gender stereotypes (para 102), apart from one who said that GR was to help those with “severe gender dysphoria”, who should still demonstrate their commitment to transition before GR. The committee based their recommendation (para 104) on those gender stereotypes.

4. The Statutory declaration.

It is a criminal offence knowingly to make a false statutory declaration. 83.5% of consultation responders said it should be retained, but should not have the promise to transition until death. Barrister and author Robin White called this the “sign in blood clause”. The committee recommended that clause be removed (para 110).

5. Spousal consent.

A trans person can get a full GRC and remain married, with the spouse’s consent. 84% of consultation responders would change the spousal veto rule. After the Marriage (Same Sex Couples) Act 2013 it is outdated. The Committee made detailed recommendations for reform- see above, recommendation 14.

6. Age limit

Mermaids argued that, since young people can have passports, they should be able to correct that gender marker. Without gender recognition they might be outed and harassed. However an anti-trans group claimed the brain does not fully develop until people are 25. I hope she would not forbid gay relationships before age 25. The consultation did not offer the option to recommend the age limit should be changed. The Cass review on GIDS may have something to say. However the committee agrees 18 is a reasonable minimum age limit.

7. The Gender Recognition Panel.

Applicants have to give a great deal of personal information to anonymous strangers. The Law Society said the panel should be more transparent. People do not know why applications are turned down. Parliament should not trespass on matters properly for the courts, the committee said (para 129) but they asked some questions of Paula Gray, the President of the Panel. She said that reasons were given. So the Committee recommended a review of which side was right (para 135).

8. Privacy and disclosure of information.

An anti-trans campaigner said the criminal offence around revealing that someone had a GRC prevented some single-sex services from excluding trans people. However, in its previous report the committee heard evidence that confidential information on trans status was abused.

The committee’s recommendation, para 141, that disclosure should only be criminal if deliberate, does not answer the anti-trans campaigner’s objection.

Chapter 3: The Equality Act 2010 and its interaction with the Gender Recognition Act

1. Single-sex and separate-sex services excluding trans women

After we get a GRC, we are still subject to exclusion from single sex services if it is a “proportionate means of achieving a legitimate aim” (PMOALA) because our claim of discrimination would be on the ground of our gender reassignment. The comparator would be someone who had not had gender reassignment. So, if cis women are allowed in, but trans women are not, the claim is discrimination based on gender reassignment, and the comparator is the cis woman who is allowed in. At para 153, the EHRC confirmed their view that the right to exclude a trans woman is unaffected by a GRC.

However anti-trans campaigners still raised fears that GR reform would affect the right to exclude. They also said service providers needed guidance, and were not confident enough that they could prove a PMOALA if they excluded and someone made a claim.

The EHRC code of practice gives no actual examples when someone might be excluded. By statute, the Code has precedence over any guidance issued. So the EHRC’s promise to produce “guidance” on when a women’s service might exclude a trans woman (para 156) would not make things any easier for excluders. The committee’s recommendation, para 158, fails to recognise the difference between a code and guidance. However, trans women are not always in a position to sue anyone who denies us access to women’s services. Any such guidance would weaken the protection we have. We can only wait for the guidance promised for January, under the management of anti-trans campaigner Akua Reindorf. The evidence, and the committee’s position, appears confused.

2. An occupational requirement that the employee is cis.

Evidence indicated, para 162, that trans women were not treated as women because of how we look or act- that is, based on gender stereotypes which the anti-trans campaigners claim to oppose. The committee recommended (para 164) that the GEO review how employers use the occupational requirement, and makes recommendations to strengthen protections for trans and gender nonconforming people at work. They should set targets for improvement.

3. Sports.

The Equality Act s195, para 165, allows trans women to be excluded from women’s sports if this is necessary to secure fairness or safety. But Sport England (para 166) said many sports bodies will lack the resources or expertise to interpret the legislation. They should be empowered to make informed decisions “without concern”, that is, without the risk of court action. But without the risk of court action, prejudiced people will exclude trans women.

In September 2021, the Sports Council Equality Group (para 167) published guidance for trans inclusion, saying sports needed more practical advice. Anti-trans campaigners welcomed this. Mermaids said it ignored the lived experience of trans people.

The current EHRC guidance says trans people should not be excluded unless it is “strictly necessary to uphold fair or safe competition”.

The committee recommends, para 170, that the EHRC, the GEO and the Sports Council Equality Group work together on guidance on when to exclude, and with trans rights groups on how to facilitate trans inclusive spaces in sports.

Me, I will continue cycling alone. I can’t be stopped from walking or jogging, either.

4. The terms sex and gender.

Under the GRA s9, my sex as well as my gender are female, and in the legislation the words seem synonymous. In 2018, the EHRC issued a statement on sex and gender reassignment saying that gender is socially constructed roles, and sex is biological, and this causes confusion.

I say the words do not cause confusion. Some people want to exclude trans women from women’s services, and some people want us included. The two sides use any argument, about what the law is, what the law should be, or what words mean, to achieve their aims. The Equality Act 2010 broadly allowed trans women to use women’s services, and the EHRC code of practice confirmed that, and the hate campaign only really got going in 2017 with the consultation. I resent any rollback of my rights to use women’s services.

The Committee claims the problem is the conflation of the terms. They recommend, para 178, that the GEO work to update the language in both acts, to distinguish natal sex, legal sex, and gender.

I resent the claim that my sex is or ever has been male. It calls me a liar and a fantasist. It makes it easier for people to justify to themselves excluding me. I do not cause harm in women’s services.

5. Data collection.

Mostly, if trans women are recorded as women, the effect on figures will be less than a rounding error, or a problem with the sample. I would resent any government form requiring me to state my sex is male. Grotesque claims are made about crime statistics.

But the anti-trans campaigners told the committee that data on sex, as a biological thing claiming trans women are male, is essential.

I find the recommendation confused, para 181. The committee thinks data on natal sex is important, but also recognise the distress monitoring natal sex can cause trans people. The GEO should work closely with trans rights groups to develop clear guidelines with the aim of minimising such distress.

Well, I don’t care. I am not going to tick a box saying I am a man, or male, or my sex is male. Unless you believe in some sort of mind or soul separate from the human body but in some way influencing it, my transgender status is biological. I see no increased accuracy in statistics in calling me male, and will not co-operate.

The Report continues by examining wider issues affecting trans people- health care, nonbinary recognition, and the LGBT action plan. I will post on that later.

3 thoughts on “Gender Recognition report

  1. There’s several aspects of the UK law and recommended changes that puzzle me especially in light of recent changes in Aotearoa. I’m not sure I understand the need for a Gender Recognition Certificate. There has never been an equivalent here, nor will there be under the recent changes. Why should a GRC be needed?

    Before the recent changes, anyone could have their gender changed on passports or drivers licence simply by making a statutory declaration that they intend to live in the acquired gender, although what constitutes gender is not specified anywhere. Besides how does one live according to gender X? Recent changes allow for the gender marker on birth certificates to also be changed by statutory declaration instead of applying to the family court. There never has been, nor will there be any requirement to live in the acquired gender for a period of time before making the change official. I’m quite surprised that in the UK, it’s necessary to obtain the consent of one’s spouse and live in the acquired gender for two years. What’s the reasoning behind these requirements?

    The law changes specifically allow for multiple changes in gender identification over one’s lifetime, requiring that subsequent changes be allowed under the same terms and conditions as the first change. In fact as the law was drafted, the statutory declaration required that one intended to live in the acquired gender for the rest of one’s life, but that was one of the changes that occurred during the Select Committee stage.

    I haven’t seen any discussion in the UK around non-binary gender identification. Historically, gender classifications here have been either M, F, or X, but now on drivers licences that has been changed to a text field, so that one can use whatever gender one feels most appropriate. Passports are a problem, even with the X option as some jurisdiction recognise only M & F. Regulations covered under the recent law changes have yet to be drafted, but there will be multiple gender options. As well as M, F, & X, there will likely be alternate genders that have always been recognised in Māori and Polynesian cultures, and possibly other classifications might be added as well.

    Once thing that I’m curious about is that the recent changes here have been strongly supported by feminist groups, with just a few exceptions. This was also the case with the decriminalisation of prostitution in 2003, where it was women’s groups that lead the campaign. Men were more cautious, perhaps because those opposing decriminalisation perceived men as having “ulterior motives”? Would I be correct in assuming the feminist movement is the UK is more divided than in NZ when it comes to these matters regarding gender and sexuality?

    Like

    • On GRCs, registration of births deaths and marriages is done locally. In 2004 the government wanted to make gender change possible, but not easy, so they had a national body to oversee it, the Gender Recognition Panel, rather than local registrars. I am glad NZ is leading the way, as it did for women’s suffrage.

      There are attempts to get the hate campaign going in NZ, and also in Canada. But in Britain it is well under way fueled by facebook and twitter. Get people riled up, and they share the hate, like anti-vaxxers or QAnon. It parrots some feminist ideas, but is not feminist: anti-trans campaigners often do no actual feminist campaigning.

      The worry is the guidance on excluding trans women from women’s services. I fear what the EHRC will do next month. But then, Omicron is coming for us anyway.

      Liked by 1 person

      • When you consider our population is 5 million and the largest women’s group – National Council of Women New Zealand with 500,000 members is right behind gender equality, I don’t think the haters will make much headway. On their gender equality campaign website they state their beliefs as:
        * Gender is diverse and expansive
        * Genitals do not determine gender
        * Sex traits (including chromosomes and reproductive organs) do not determine gender
        * There are many combinations of sex traits
        * Men are not inherently superior to other genders
        * Trans women are women
        * Trans men are men
        * Non-binary people are visible, valid and respected
        * All genders are visible, valid and respected
        * All genders are equal

        That’s no ambiguity in their statement and I like that they specifically exclude genitals and chromosomes from defining gender and recognise that gender is diverse. Just by their sheer size (1 in 5 women are affiliated to NCWNZ) I really think the anti trans lobby is wasting their time here.

        Liked by 1 person

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