Debbie Hayton: Why do we need more consultation on the Gender Recognition Act?

Debbie Hayton reports on the endless moves in Parliament to amend the Gender Recognition Act and asks whether MPs are focussed on the wrong target.

The House of Commons Women and Equality Committee first consulted on Gender Recognition Act (GRA) reform in 2015. But the febrile debate that followed has generated far more heat than light. In my view – as a transgender person – it has also created more problems for us than it has resolved.

When I transitioned in 2012, my legal rights were already secure. Gender Reassignment had been established as a protected characteristic within the Equality Act 2010, while the Criminal Justice Act 2003 had just been amended to recognise Transgender Identity as an aggravating factor in hate crime. In both the civil and criminal law, trans rights were broadly equivalent to lesbian and gay rights.

Furthermore, we could also change the sex markers in our passports, driving licences and other ID. In the UK at least, that right goes back decades. The passport office was satisfied with a letter from my GP explaining that “I had changed my gender, and the change was expected to be permanent.” At the time hormones and gender surgery were still in the future: it was purely a social change.

So where does the GRA fit into this? It doesn’t! Like many other transitioners I have never applied for a Gender Recognition Certificate (GRC). Not because it is expensive, demeaning, or bureaucratic, rather it is irrelevant. The only document it would affect is my birth certificate – not itself a form of ID – and I perceive no need to change the past to live in the present.

So why all these GRA consultations? Following that first exercise in 2015, the Government consulted in 2018, while the Women and Equalities Committee are now conducting a third.

Our birth certificates define our legal sex. While my passport might describe me as female, without a GRC my birth certificate defines me as male. To redefine my legal sex the original GRA demanded – quite rightly in my view – that there must be checks and balances, and something rather more substantial than a letter from my GP. I would also need a medical report, including a diagnosis of gender dysphoria, from a specialist.

More pertinently, why do we need the GRA at all? It was enacted in 2004 following a European Court of Human Rights judgement two years earlier. Christine Goodwin – a male-to-female transsexual – had argued successfully that the UK was in breach of Articles 8 and 12 of the European Convention of Human Rights: respectively, the right to a private family life and the right to marry. With a male birth certificate, Goodwin was vulnerable to being outed by official paperwork and, before equal marriage, could not marry in “target gender”. The GRA allowed “transsexual people” to apply for a GRC and hence change the sex marker on their birth certificate as well. As a legal fiction it enabled transsexuals to marry and live “in stealth.”

But that had massive implications. Our birth certificates define our legal sex. While my passport might describe me as female, without a GRC my birth certificate defines me as male. To redefine my legal sex the original GRA demanded – quite rightly in my view – that there must be checks and balances, and something rather more substantial than a letter from my GP. I would also need a medical report, including a diagnosis of gender dysphoria, from a specialist.

Legal sex matters to women, when they need to defend single-sex spaces or their right to organise and associate as a sex. It matters in the safeguarding of children, who are being told that they can choose their sex. It also matters to gay and lesbian people; if straight men can reinvent themselves as lesbian women, lesbian groups risk being over-run.

Nevertheless, after their first consultation the Women and Equalities Committee recommended “gender self-declaration”, i.e. removal of the checks and balances. But then, following a successful campaign by women’s groups including Woman’s Place UK and Fair Play for Women, the Government disagreed.

Legal sex matters to women, when they need to defend single-sex spaces or their right to organise and associate as a sex. It matters in the safeguarding of children, who are being told that they can choose their sex. It also matters to gay and lesbian people; if straight men can reinvent themselves as lesbian women, lesbian groups risk being over-run.

In response to the Government Consultation, Liz Truss – Minister for Women and Equalities – said, “It is the Government’s view that the balance struck in this legislation 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.”

Truss did promise that the paperwork would be simplified by moving the process online like other government services and that the fee would be reduced from £140 to “a nominal amount.” But some LGBT campaigners were devastated. Stonewall UK said “It’s a shocking failure in leadership that after three years and a robust public consultation, the UK Government has put forward only minimal administrative changes to improve the process for legal gender recognition of trans people in England and Wales.”

Liz Truss, Minister for Women and Equalities 

And that, we thought, was it. But the Women and Equalities Committee is now consulting again. We can only speculate on the urgent lobbying that may or may not have taken place, but committee chair Caroline Noakes has her own views. She told Pink News that the Government proposals, “felt pretty much like a standstill. And if you stand still, and everybody else makes progress around you, then effectively you’re going backwards, aren’t you?”

Written evidence was collected before Christmas; they are now interviewing witnesses. If their previous timetable back in 2015-2016 is anything to go by, we should expect them to report later this year. No doubt they will upset some people, and possibly satisfy nobody. Meanwhile, the Government’s views are clear and, with a significant majority in the Commons, I would be surprised if they feel the need to change them.

Meanwhile, despite all the political energy expended on GRA reform, the services that transgender people desperately need – mental health support and specialist gender services – remain chronically underfunded. Tragically, wedges have been driven between trans people and women, and trans people and LGB people. We are three different groups, but we are stronger when we find common purpose in the face of sexism, homophobia and transphobia.

This latest consultation will run its course but please let it be the last.

Debbie Hayton is a transgender teacher and journalist.