GenderBen!

The Gender Recognition Act Consultation – What You Need To Know

A lot has happened this week in relation to LGBT activism. On Tuesday 3rd July, the Government Equalities Office (GEO) released the results of the LGBT survey conducted last year. That same day, the government also launched its LGBT Action Plan to try and address many of the inequalities that the survey results revealed. This includes a commitment to provide £4.5 million in funds by March 2020, and an intention for more after that date. A big part of the action plan includes a consultation on the Gender Recognition Act 2004 (GRA), which was the first piece of UK legislation to allow trans people to legally change their gender, by gaining a Gender Recognition Certificate (GRC). In this post I’m going to focus on the GRA, try and explain what the current Act means, and go through the consultation which is available to complete here until 11pm on 19th October 2018.

What do you currently need to do to access a change of gender in the UK?

The current requirements to access a GRC depend upon the application route taken, of which there are currently three – the ‘standard’ route, the ‘alternative’ route, and the ‘overseas’ route. For the standard route you need:

• To be 18+ years old;
• To have, or have had, gender dysphoria (the wording of the act doesn’t specify diagnosis, but the government guidance website does);
• To have lived in the ‘acquired’ gender for at least two years;
• To make a statutory declaration to live in the ‘acquired’ gender for the rest of your life.

It’s also important to note that the 2004 act is entirely binary – saying that a person of ‘either’ gender, living or changing to ‘the other’ gender, etc. Non-binary legal recognition is currently not possible in the UK.

The alternative route is very similar, and is mainly there for people in (protected – i.e. legally recognised) marriages and civil partnerships. You still need to be 18+, make a statutory declaration to live in your gender until death, and have or have had gender dysphoria (or had surgery to change your sexual characteristics – this is one difference between the routes, as this isn’t an alternative stated in the standard route). However, you must also have lived as your gender for at least six years prior to 10th December 2014 in England, or 16th December 2014 in Scotland. The overseas route is if your gender has been legally recognised by an ‘approved country or territory’ (though this document hasn’t updated changes in the legislation of other countries since 2011).

The alternative route is easily the most complicated aspect of the GRA because of its interaction with marriage law, which has change since the GRA’s introduction. People who are married can (now) stay married when getting a GRC, but both the person and their spouse must both fill in a statutory declaration saying they intend to stay married. If the spouse refuses to do this, it creates a seriously problematic situation because their is no ‘timer’ on their refusal. An ‘interim’ certificate can be granted (which can be used as grounds to end the marriage) if this statutory declaration is not completed. This has been termed the spousal veto, which I touched upon back when writing about The Marriage (Same Sex Couples) Act 2013. This is also one of the areas where devolution impacts the GRA – an interim certificate can only become a full certificate in England and Wales once the marriage is ended. If the marriage was registered in Scotland, the interim GRC can be used to apply to the sheriff court for a full certificate without ending the marriage first. Because same-sex civil partnerships still don’t exist under UK law (though this might change, after a Supreme Court victory on this issue on 27th June 2018), civilly partnered couples have to convert their civil partnership to a marriage before applying to the Gender Recognition Panel.

So yes. If you fulfil the criteria for one of the routes, you have to download the appropriate form, and post this with ‘supporting documents’ and a £140 fee to the Gender Recognition Panel. The supporting documents currently needed are:

• An original or certified copy of your birth certificate;
• Copies of deed polls/other official documents of name change;
• Proof of living in one’s ‘acquired gender’ for the necessary amount of time (2 years for standard, 6 years for alternative) – original copies of your passport, driving licence, payslips, utility bills, etc.;
• ‘Any medical reports’. This has to include either ‘a report made by a registered medical practitioner practising in the field of gender dysphoria’ (who are listed here) or ‘a report made by a registered psychologist practising in that field’. In both cases, a second report is also needed by a registered medical practitioner (who can be anyone, gender specialist or not). This is expected to be either your GP, or surgeon.

There is no interview with the Gender Recognition Panel.

Some of the problems that have been pointed out with this system are (non-exhaustive list!):

• No possibility of legal recognition for people under 18, non-binary people, or intersex people;
• pathologises gender identity by requiring extensive medical documentation;
• The possibility for a spouse to block access;
• The offensive notion that other people can adjudicate on whether a person’s gender is deemed ‘real’ or not, in the eyes of the law;
• The cost;
• The stress and labour of the accompanying bureaucracy.

What is the current consultation?

The consultation is 25 pages long. You have to provide contact details, including an address. This will hopefully discourage individuals who you would otherwise provide insincere or abusive answers.

It is important that responses to the consultation do not conflate or confuse the Act’s provision with the remit of The Equality Act 2010.

Following the contact information questions, the consultation asks for:

• Experiences of Trans Respondents;
• Whether you think there should be a requirement for a diagnosis of gender dysphoria, a report detailing treatment received, evidence of living in the acquired gender for a period of time, respectively;
• Whether you agree with the current provisions for spousal consent for married persons;
• Whether the fee should be removed, and what other financial costs trans people face when applying and their impact;
• Whether privacy and disclosure of information provisions in section 22 of the GRA are adequate;
• If there’s anything you want to say about how the current process affects people with one or more protected characteristic under The Equality Act 2010;
• Whether you think changing the GRA will affect the participation of trans people in sport;
• Whether you think the operations of:
  • the single-sex and separate-sex service exceptions
  • the occupational requirement exception
  • the communal accommodation exception
  • the armed forces exception
  • the marriage exception
  • the insurance exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the GRA;
• Whether you think the act needs to accommodate non-binary people;
• Any further comments.

All questions have open text fields for full answers, to accompany mostly yes/no tick boxes.