The government proposes to take away legal rights from trans people. This is new. Previously, they have denied our legal rights, or proposed additional rights only to refuse them, or threatened to block rights. Now, the Minister “for” women and equalities, Kemi Badenoch, proposes to take rights away. But, will this happen? Probably not. If it did, would it affect any trans people? No.
The Scottish GRR Bill proposes to recognise the gender of people who have changed gender in their country of origin automatically, but now anyone who comes to the UK after a gender change has to apply for another GRC, under GRA s1(1)(b).
Immigrants can get a British GRC if they already have GR abroad. They need evidence of that GR, probably some sort of official document, and a statutory declaration of whether they are married or in a civil partnership. They need to be from a country or territory approved in a list. That list is in The Gender Recognition (Approved Countries and Territories) Order 2011. It includes most of the US, Australia, Canada, and EU, and some other Council of Europe countries. It includes South Africa, South Korea and Uruguay.
Kemi Badenoch proposes to remove those countries if their GR system is not “equivalently rigorous” to the English system. She writes, “It should not be possible for a person who would not satisfy the criteria to obtain UK legal gender recognition to use the overseas recognition route to obtain a UK Gender Recognition Certificate. This would damage the integrity and credibility of the process of the Gender Recognition Act.”
This does not affect Scottish GRCs under the new system. They will still be UK GRCs. But someone from Uruguay or Malta, say, with GR at home, would need a diagnosis by a specialist psychiatrist. That makes no sense, and doctors object. This is ridiculous. The English system has no credibility.
From the UN report on gender identity, these countries use self-declaration: Argentina, Belgium, Brazil, Colombia, Denmark, Iceland, Ireland, Malta, Norway, Portugal, Switzerland, and Uruguay.
So, what if someone trans from that list comes to the UK after the UK no longer recognises their GR?
Well, they will still have their original passport, which will give their correct gender. If their driver’s licence is recognised, you don’t need a GRC to get a British licence showing your correct gender (it’s coded in the driver number). If they get “Indefinite leave to remain” in the UK, then they still use their original passport. If they get British citizenship, gender on the passport does not require a GRC.
If they get married, their gender on the marriage certificate will matter to them, but might not require a GRC. Would a registrar insist on writing that a trans woman bride’s previous status was “bachelor” rather than “spinster”?
If they married abroad, that should be recognised whether their gender is recognised or not. Britain recognises gay marriages. England recognises a foreign marriage if it was valid according to local law when it was carried out, and if any previous marriages of the parties were dissolved in a way English law recognises.
Certainly it won’t affect what toilets they use, or even if they can use a women’s refuge.
The GRP gives statistics of the number of GRCs granted, but not whether they are granted to British people or to immigrants. There were 256 in July to September 2022.
Possibly, nobody will be affected by the new regulation. The government, unable to govern the country or avoid recession, resorts to mindless posturing. If they wanted to take action about sexual violence they could fund refuges or prosecute rape. There is no potential incident of sexual violence now, which would be prevented by the regulation. It is done solely for Badenoch to pretend to be protecting cis women by reducing trans rights, and demonise trans people.
They are removing trans people’s rights. They have not done this before. It is the first time LGBT+ legal rights have gone backwards in the UK since Section 28 of the Local Government Act 1988.
But, the regulation cannot be introduced without a vote approving it in Parliament. This is the procedure. First, it would go to the Joint Committee on Statutory Instruments. They must ensure it is legal. They should recognise that it breaches human rights and international human rights treaties, and block it.
If it got past that committee, it would be referred to a Delegated Legislation Committee, where any MP can speak. In rare cases, SIs go to the House of Commons for a debate.
If passed, the regulation could be challenged by seeking judicial review. The challenger would have to be a native of one of the countries removed. They might not need to have had their gender changed, or even to be trans. They could show that a potential right had been removed, and argue this was wrong.
It makes me terribly sad. Kemi Badenoch does this not to prevent sexual violence but to attack trans people and foment culture war. The civil service time spent looking at other countries’ GR procedure could be used to imitate them, but instead is used to condemn.
The Scottish Daily Express linked their report to the GRR Bill. The Times claimed that this would allow Westminster to cease to recognise Scottish GRCs, but there is no such power in the Gender Recognition Act. The Guardian did a hostile article, calling it a “trans travel ban”. Well, it is quite unpleasant if New Zealand recognises your transition but your paperwork reverts when you come to the UK. You would still be socially transitioned but there would be this state hostility to your transition.
Added: There were 190 GRCs granted on the “Overseas Track” in 13 years. Badenoch’s ploy is a steamroller to crack an imaginary nut. But the government picks up its campaign against trans people, particularly trans women.