Whimsical, queer exploration of all things gender.

Released on the 14th January, this 98 page report has already been usefully digested and impressively considered by a range of groups within the trans community (including Action for Trans Health, the Non-Binary Inclusion Project, and Beyond the Binary). I’ll be going through it section by section, aiming to break down the content for those who haven’t read it, and provide some points of consideration for those who have. The report can be found here.

The report comes from the Women and Equalities Committee, chaired by Mrs. Maria Miller. The committee contains 6 Conservative MPs, 4 Labour MPs, and 1 MP from the Scottish National Party. The bolded subtitles are parallel with the sections of the report itself.

Over 250 written evidence submissions were received, and five oral evidence sessions were held. Each submission was however limited to 3000 words, which rather caps those expert trans organisations and individuals who may have a lot of useful information to say on a range of sub-topics.

1. Introduction

Here the report provides a breakdown of terminology – what is a trans woman, what is a trans man, what is cis, etc. etc. They do take a simplified approach to non-binary, simply saying it is “located at a (fixed or variable) point along a continuum between male and female; or “non gendered”, i.e. involving identification as neither male nor female” (p. 5). They also specify here that it wasn’t possible to undertake an ‘in-depth’ consideration of non-binary needs in the report, but highlight a need for this, likewise for intersex people, whom they recognise as having potentially overlapping but distinctive needs.

They mention that “before commencing the inquiry, we consulted informally with representatives of two key stakeholder organisations, Press for Change and Stonewall”. PfC is a long standing champion of transgender legal rights, and Stephen Whittle (who founded the organisation) acted as Specialist Advisor – quite appropriately as he is both trans himself and a professor of law! The fact that Stonewall only began considering trans issues less than three months ago makes me wonder if there weren’t more experienced groups that might’ve assisted, and whether Stonewall somewhat rode on the coattails of its recognisability due to its sexuality based work.

2. Cross-Government Strategy

In this small section, the Government Equalities Office (GEO) is introduced. They published ‘Advancing Transgender Equality: A plan for action’ in 2011, which was criticized as largely unimplemented. They highlight that within 6 months the government must agree a new strategy which it can deliver, with full cross-departmental support, and must make a clear commitment to abide by the Yogyakarta principles, and Resolution 2048 of the Parliamentary Assembly of the Council of Europe. Given that these pieces of legislature were created in 2007 and April 2015 respectively, I am disappointed but unsurprised that these have not been explicitly incorporated sooner.

3. Gender Recognition Act 2004

Topics considered under this section include:

  • Applying for Gender Recognition Certificates (GRCs)
  • Spousal consent for gender recognition
  • The age limit of 18+ for gender recognition
  • data protection and excessive requests for GRCs

It’s good to see the committee recognising here that despite the step forward it was at the time (albeit obviously imperfect), there are aspects that are particularly dated and lacking, and in need of updating. It is highlighted that the requirement to provide documentation of a diagnosis of Gender Dysphoria (then Gender Identity Disorder) is necessary for a Gender Recognition Certificate to be awarded, is pathologising and problematic. The arbitrary and uncritical requirement of two years living ‘in role’ (whatever that actually means) before surgical gender affirmation will be provided was also highlighted as a failing. The committee concludes that “in place of the present, medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers” (p. 14). This is a welcome change, but desperately needs more specific functionality to be formulated and disclosed. As gender is assigned at birth on the basis of genital appearance, it is ludicrously unfair for those individuals for whom this cursory assessments turns out to be inaccurate to have to pay £140 for a certificate to have this revised. Whilst it is pointed out that the fee can be waived, an effective replacement system would benefit from being transparent, costless to applicants, and respectful of the self-determination of gender. Zac at Transistence points out that the report makes some factual errors about the requirements for a GRC, which may make it a more difficult process than they imply.

The next section on spousal consent has been reviewed as one of the more disappointing aspects of the report (among the reviewers cited at the start of this article). As it stands, an individual in a marriage who wishes to undertake a legal change of how their gender is recognised requires the agreement of their spouse on the basis that marriage “takes the form of a contract between two people of different sexes or two people of the same sex”. Action for Trans Health quite astutely makes the point that the basis of consent required for the status of the marriage to change from ‘opposite to same’ sex (or vice versa) is a clumsy, inefficient, and ultimately unnecessary (unless one is still attempting to preserve the ‘separate but equal’ feel to marriage based on the genders of the couple). No discussion is present over the idea of marriage contracts being de-gendered specifically (although it’s a good thing that on page 63 it is suggested that the government “should be moving towards “non-gendering” official records as a general principle and only recording gender where it is a relevant piece of information” – though the question remains, what criteria would be used to define gender as relevant?). For the government to fail to recognise the need to modify any system that allows one individual the power to prevent the legal recognition of another person’s gender (even for a time) is deeply concerning. No action was advised, despite advisory recognition that an abusive spouse may take advantage of this policy. Also, Scotland’s solution to this avoids delay or restriction on the trans spouse:

Under the Marriage and Civil Partnership Act (Scotland) 2014, which came into force on 16th December 2014, a married trans person whose spouse does not consent to the granting of a full GRC is able to apply to a Sheriff Court for a full GRC, on the basis of an interim GRC, without divorce or annulment having taken place. The process of obtaining a full GRC is thus expedited. The spouse of a trans person is entitled to be notified of the issuing of a GRC and can initiate divorce proceedings on that basis. (p. 16)

If Scotland can do it, why can’t England? It is one of the most insufficient responses that the committee concludes that any abuse of the legislation would be “deplorable and inexcusable” (p.17) yet they simply “more ensure it is informed about the extent and ways of addressing the problem”. The implication is that the ‘right’ to not be married to your partner for one single second as a legally recognised trans person is equal to the right to have one’s gender recognised. Thus the argument that marriage is a legal contract and that the non-trans spouse has equal say is rooted in transphobia.

A point many may regard as a victory, the report recommends that “provision should be made to allow 16 and 17 year olds, with appropriate support, to apply for gender recognition, on the basis of self-declaration” (p.19).

That not a single person has been prosecuted under the bit of legislation (section 22) to protect trans people from being outed illustrates how it has failed to protect anyone from or hold anyone accountable for this particular manifestation of transphobia. The report indicates the Ministry of Justice must investigate why, and work with courts to deal with this. The report recognises that there are “very few” situations where asking for proof of legal gender is appropriate, and yet the fact that this occurs raises cause for concern at how an individual’s trans status may be responded to by an organisation. As it is not unlawful to ask a person to produce a GRC under the GRA, it seems sensible to me that a clause be inserted that this is with the proviso that the request is justified and substantiated, and that absolutely no negative consequences occur if the request is refused on the basis of not being necessary.

4. Equality Act 2010

  • ‘Gender reassignment’ as a protected characteristic
  • Exemptions – separate sex and single sex services
  • Separate gender sport

This section paid some important attention to language, recognising how scrutiny of the terms ‘gender reassignment’ and ‘transsexual’ can be problematic for many, not least because of the increasing number of trans people for whom these terms are not reflective for. Lack of clarity can prevent the act from being fully effective, as it is illustrated that many erroneously believe that a GRC is necessary for protection when it is not. However, with regards to whether non-binary people are protected, it was stated that:

When the Equality Bill was going through Parliament the then Solicitor General had clearly indicated that it was only the provision in respect of discrimination by perception which would protect those members of “the wider transgender community”who did not come under the protected characteristic of gender reassignment. That is, they would only be protected if they were discriminated against because they were perceived to be proposing to undergo, to be undergoing, or to have undergone gender reassignment. The difficulty with this provision is that there are likely to be cases where an individual from the wider trans community, is discriminated against because of who they are and not because they are perceived to be transsexual.

That the report wishes to amend the act to protect on the basis of ‘gender identity’ is a positive step, but as with all aspects of this report, actual results will speak louder than good intentions.

The next point considered by the report was ‘separate sex and single sex services’, referring particularly to women’s shelters (such as rape crisis, or domestic abuse shelters), and prisons. A group called ‘Women Analysing Policy on Women’ reported a position ringing of uncritical TERF based arguments, saying there is a ‘clash’ when women who would feel unsafe accessing a service that is open to trans women should have the right to access services that exclude trans women – which is permissible as an exemption under the Equality Act. It is obviously terrible if any woman feels unsafe because of others using a service for those who have experienced violence. However clunky the comparison however, the debate would not be being had if it was a question of white women feeling unsafe around a service allowing black women access. That there is zero examples of pre, post, or non-operative transgender women committing a sexual crime in a womens’ shelter, the argument rests upon an implicit delegitimisation of trans women, as ‘really’ men. Such legislation not only endangers and discriminates against vulnerable trans women (who are statistically more likely to be at risk of sexual violence, or engagement in underground economies which may lead to imprisonment), but also polices a trans woman’s ‘authenticity’ on the basis of how well she ‘passes’ – a trans woman who is not read as such may be able to access exclusionary services anyway, whilst others would not. Worryingly, the Minister for Women and Equalities thought that such exclusionary practices were being used “proportionately, appropriately, and fairly”, despite this including facilities as broad and vital as public changing rooms, bathing facilities, and toilets (p. 30). That they only recommend amendment of the Equality Act such that “the occupational requirements provision and/or the single-sex/separate services provision shall not apply in relation to discrimination against a person whose acquired gender has been recognised under the Gender Recognition Act 2004” (p.32) – that is, awarded a GRC – is insufficient, and lacking in critical consideration.

Finally for this section was the consideration of separate-gender sport. The report recognises that exclusion of trans people from sport in their acquired gender should be a much rarer than than it is. Sports have to demonstrate that they are ‘gender affected’, and that a trans person would have some kind of unfair advantage, or for there to be a ‘safety risk’ to competitors. They recommend that the government works with Sport England to produce some guidance to avoid exclusions, as they recognise the unlikeliness of an exclusion being justified.

5. NHS Services

Obviously there’s a lot to be said here. and it is divided by:

  • GPs attitudes
  • Education and training of doctors
  • Professional regulation of doctors
  • GICs (adults)
  • Treatment protocols
  • Capacity and quality of services
  • The Tavistock Clinic (children and adolescents)

There are some recognitions that are important here, most clearly at the start of this section the clear admission that “the NHS is letting down trans people, with too much evidence of an approach that can be said to be discriminatory” (p. 35). There is further explicit recognition that “GPs in particular too often lack an understanding of: trans identities; the diagnosis of gender dysphoria; referral pathways into Gender Identity Services; and their own role in prescribing hormone treatment. And it is asserted that in some cases this leads to appropriate care not being provided” (p. 42). Whilst the report asks the General Medical Council to “provide clear reassurance” that they take transphobia seriously as a form of professional misconduct, there isn’t any more specific discussion of the importance of implementing a holistic and integrated consideration of gender identity into medical training.

It is positive the the problematic association between transgender identity and mental health services is recognised. I particularly support the notion of Gender Identity Services being established as a specialty in its own right, as it is a profoundly intersectional discipline that cannot be readily reduced to or conflated with only endocrinology, or surgery, or gynecology, etc.

Disappointing however is the seeming misunderstanding of the informed consent model illustrated by point 212 (p. 47). They suggest that the model is unconvincing because it would allow anyone to access whatever service (hormones, surgeries) they want on demand with no further scrutiny. It is accepted that there is a significant difference between accessing different gender affirming treatments – the ramifications of hormones are fundamentally different to phalloplasty or vaginoplasty. Not only do these have different ramifications for the individual, but also restrictive NHS budgets (that very much could be expanded were it not for ideological Conservative decisions… though that’s not a discussion for here) mean that the clinical urgency for an individual needs justifying in terms of need. A difficult topic, when it comes to finite resources I can at least understand the wish to prioritise say, those experiencing dysphoria over those who do not, or not as badly, but creating that hierarchy of need is never going to be without ethical issues. However, I do think this committee has been too quick in dismissing the merits that an informed consent model would offer, at least in the provision of hormones. That many trans people seek access to hormones only, with either no need/desire or at least no firm commitment on surgical intervention would allow those who are on the enormous NHS waiting lists to rapidly have their needs met. That there is a double standard regarding when cis individuals access hormones for a wide range of medical reasons is evidence to suggest that the refusal to allow trans people to take responsibility for their choice to take hormones or not, is at the very least, cis-centric. Were informed consent utilised for hormones, I posit that the waiting lists for GICs would decrease dramatically, allowing greater speed, attention, and resources to be provided to those individuals negotiating surgical gender affirmation.

I am somewhat perplexed by the claim that “The requirement to undergo “Real Life Experience” prior to genital (reassignment/reconstructive) surgery must not entail conforming to externally imposed and arbitrary (binary) preconceptions about gender identity and presentation. It must be clear that this requirement is not about qualifying for surgery, but rather preparing the patient to cope with the profound consequences of surgery” (p. 47). Does it require two years to do that? Are there other examples where surgeries are delayed for that long on the basis of preparation? What is the period meant to be an experience of, if not to satisfy to clinicians that the trans person has shown they’re super-serious enough? How does living in a gender role relate to practical preparations on genital surgery (given that major genital surgery in cis people doesn’t involve this). Obviously it’s good that they’re saying this isn’t for the imposition of external, socially constructed binary values, but I fail to see how as it is currently enforced, it is actually justified – and indeed, it has been long criticised as arbitrary, cis-centric gatekeeping.

In point 230 (p. 50) the report discusses how lack of specialist clinicians is a major, underdiscussed barrier to the introduction of more services. Whilst I think that a revision of hormone access ease would go a long way, this point could have been related to an explicit making-visible of gendered medicine within medical training, but wasn’t. Again, it’s great that the committee recognise how appalling it is that waiting lists for GICs are so long when the legal obligation under the NHS constitution is for treatment provision within 18 weeks, at this stage they’re simply reiterating that things are bad – when a lot of people want to see something done. So – good, but I’ll celebrate when we get some change, thank you.

It’s been a long time coming, but it’s pleasing to see the committee recommend a reduction in time required for young service users to wait before puberty blockers can be accessed – due to their reversibility (primarily), and the sensitivity of time as a factor. Such a vague (albeit welcome) conclusion could benefit greatly from some practical recommendation of how the time scale might practically change – well within the capability of discussion given the high involvement of the GICs and NHS in the discussions underpinning this report.

6. Tackling Everyday Transphobia

Here the committee makes points about:

  • Hate crime
  • Recording names and gender identities
  • Prison services
  • Online services
  • Schools and post-school education
  • Social care

It is a breath of fresh air to see the report explicitly state that the Ministry of Justice must ensure it consults fully with the trans community (p. 57) – and indeed, this should be the case for every sub-topic of the report. Low conviction rates, practical issues of intersectionality (which box do you tick when a trans woman of colour is a victim?!), and a (shocking) lack of parity between trans hate crimes and other hate crimes were all specifically acknowledged.

The report highlights that the laws on names in the UK are commonly incorrectly assumed, in that there is no such thing as a ‘legal name’ (p. 59). It is very positive that the committee recognises the necessity of dropping the pathologising practice of requiring a doctor’s letter in order to change a name on a passport. Further, the fact that Australia allows for passports with the gender marker ‘X’ rather than M or F was received positively as evidence that the UK would be quite capable of following suit. The claim by Karen Bradley that “The gender identifiers are important in making sure that somebody can be identified” fails to recognise that 1. there’s a *picture* and 2. there’s a host of additional identifying information, and that the gender marker doesn’t actually tell you anything, in and of itself. I believe the report would’ve benefited from deconstructing this flimsy counter-point. Overall however, the recommendation to move to a de-gendering of official documents where unnecessary (that is, most of them) should be praised. It was a missed opportunity not to link this discussion to that of marriage licences.

The recognition of the report of the deaths of Vicky Thompson and Joanne Latham underlined the sobriety and importance of the topic of prisons. Whilst the report recognises the importance of protecting trans prisoners and that housing individuals in prisons which affirm their gender identities, a lack of statement calling upon the Ministry of Justice to guarantee the respect of gender among trans prisoners (GRC or not) does not in my view engage with this topic with enough dedication. Access for Trans Health illustrate how there is impetus for prison services to allow trans charities and researchers more transparent access in order to collect necessary data about trans prison experiences, and also highlights the conspicuous lack of discussion of immigration detention, or how non-binary prisoners are to be located (one of many important points relating to non-binary that could be made, given that the report specifically states that non-binary was not engaged with in depth).

The assertion that trans issues should be taught in schools under Personal, Social and Health Education (PSHE) is an overdue but welcome conclusion. As with many of the points in this report, that certain things should happen is a given, and the details of how they will be properly introduced so as to be effective is the real question. Inclusion of transgender issues as part of teacher training is another excellent point – although consistency across private schools, academies, and religious schools are all concerns that necessitate attention.

————————————————————————–

As I have highlighted throughout, there are some very positive points and some letdowns. My overall sense at this point is one of caution – because fundamentally, nothing has actually changed yet. Whilst I do not wish to play down the hard work of many passionate and informed people for their part in this report, it’s undeniable that this publication marks the beginning of the execution of the next generation of change, not the end. Also it’s important to note that transgender equality does not exist in a vacuum from other social issues, and thus factors such as wages, income support/tax credits, the junior doctor’s contract (by proxy), NHS and prison privitisation and a wide range of other government policies will have very serious impacts on many transgender people.

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