Irish Centre for Human Rights Blog

The long-awaited review of the United Kingdom’s Gender Recognition Act 2004 seems likely to be published later this summer. The Gender Recognition Act 2004 was passed in the wake of the landmark European Court of Human Rights case of Goodwin and I v UK in 2002. Goodwin established that legal gender recognition – the ability to change one’s legal gender marker on their birth certificate and identity documents – is a human right protected by Article 8 of the European Convention on Human Rights.

The GRA 2004 allows persons over eighteen years of age to change their legal marker following screening by a Gender Recognition Panel, on the conditions that they: experience gender dysphoria; have lived in the “acquired gender” (the preferred legal terminology) for two years; and intend to live in the acquired gender for the rest of their lives. The application must include reports from two doctors, or a doctor and a psychologist. If the applicant is married, their spouse must consent to their change of legal gender.

On April 22rd, the UK’s Minister for Women and Equalities, Liz Truss MP, stated her plans for the reform of the Act. In particular, she highlighted three principles which she “will be putting in place.”

“First of all, the protection of single-sex spaces, which is extremely important.

Secondly making sure that transgender adults are free to live their lives as they wish without fear of persecution, whilst maintaining the proper checks and balances in the system.

Finally, which is not a direct issue concerning the Gender Recognition Act, but is relevant, making sure that the under 18s are protected from decisions that they could make, that are irreversible in the future. I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions.”

These statements have caused alarm among trans and other LGBT activists, who have identified them as attempts to roll back, rather than progress, the rights which transgender people hold in the United Kingdom. However, it has also been pointed out that at least two of these three principles have, in effect, little to do with the Gender Recognition Act 2004 itself: single-sex spaces are covered under the Equality Act 2010, and access to healthcare is a completely separate issue to the civil processes which form the basis of the GRA 2004. In this post, I will attempt to contextualise the Minister’s statement by examining the current status of transgender rights in the United Kingdom, and looking to the future to identify the potential direction of developments in the law, paying particular attention to the Minister’s three principles.

Self-identification of gender, meaning the ability to declare one’s own gender and have that gender legally recognised, is a routine part of gender recognition law in many countries, including Ireland. Ireland’s Gender Recognition Act 2015 allows a person over the age of 18 years to self-declare their gender without the need for medical or psychological verification. This system has experienced no major problems in Ireland; indeed, Ireland’s law has been internationally lauded in this regard. Self-declaration of gender has also been upheld by international human rights jurisprudence, and the European Court of Human Rights held in 2017, in the case of AP, Garcon, and Nicot v France, that sterilisation or other irreversible surgical procedures cannot be preconditions for legal gender recognition.

In this context, therefore, it is difficult to imagine what Minister Truss means by “proper checks and balances in the system.” At present, there exists in certain circles of anti-trans lobbying in the UK a moral panic over the thought of self-declaration, and it would appear that the Minister’s statement is a concession to that. The anti-trans lobby contend that self-declaration would allow men to adopt the identity of a woman and use that identity and the permissions of access to women’s spaces it brings, as a means to nefarious ends. However, there is no evidence of this happening in jurisdictions such as Ireland, which has now operated a self-declaration model for five years. Furthermore, after AP v France, the United Kingdom could not require that surgical interventions are required as a part of the gender recognition system.

Rather, it seems that the Minister is indicating that she will not be relaxing the level of bureaucratic and psycho-medical conditions which are required in the UK before a gender recognition certificate is awarded. This is a disappointing measure at a time when the trend in international human rights law is toward easier, less invasive manners of regulating gender recognition.

One of the main points of contention around GRA reform and self-declaration has been the maintenance of single-sex spaces, particularly those for women. A common argument has been that cisgender women – women who do not have a transgender history – will not want to, or feel safe in, sharing spaces with transgender women. This argument, taken in good faith, is countered by reminding those concerned that single-sex spaces are governed by the Equality Act 2010, Schedule 3, Section 7.

Potential examples given for these legitimate aims are rape crisis centres or domestic violence shelters, wherein the comfort of the majority of users predominates. It is important to note that this provision does not allow for wholesale discrimination, however: its use must be proportionate and legitimate. Trans women, are, therefore, rightly allowed in the majority of women’s spaces, and cannot be removed for illegitimate or spurious reasons.

However, the argument around trans women in single-sex spaces is often not made in good faith. It is frequently a transphobic dog-whistle: an indication that trans women are considered not-women, or not fully women, or that their history somehow negates their current identification. This discriminatory attitude often centres on the physical characteristics of the women in question. This is another example of the pathologisation of transgender existence – the notion that there is a medical/physical aspect to gender identity and that one’s legitimacy depends on one’s engagement with medical services. As has been previously stated, it is prohibited under European human rights law to require irreversible surgical or sterilisation procedures as part of the legal gender recognition process. Current UK law does not require surgery as a precondition, and it is barred by the European Convention on Human Rights from enstating that as a condition in any future reform. Possession of a Gender Recognition Certificate legally qualifies one as the gender stated on the certificate. Therefore, it is legally and really possible to be a transgender woman with a range of physical characteristics – much as it is legally and really possible to be a cisgender woman with a range of physical characteristics – and to have that not impact the spaces one is allowed to exist within.

The last of Truss’ principles is at once the most confusing and the most troubling. At present, minors do not have the right to legal gender recognition in the United Kingdom. However, legal gender recognition is a reversible process, so Truss is not referring to future reforms of the GRA in this regard. She must, therefore, be speaking to healthcare decisions, which are not covered by the GRA (as she recognises). This is very concerning. As it stands, minors in the United Kingdom are not able to access irreversible gender-related healthcare such as surgical procedures. They are allowed to access hormonal treatments like puberty blockers, which prevent them having to go through the painful process of a pubertal growth which does not match their gender identity.

Access to healthcare for minors in the UK is governed by “Gillick competence.” Arising from the case of Gillick v West Norfolk and Wisbech Area Health Authority, this doctrine relates to the ability of children under sixteen years of age to consent to their own medical treatment, with or without their parents’ consent. The child is considered able to make their own medical decisions “when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” Gillick is settled and binding law in England and Wales, and is followed in the rest of the UK. The Minister’s statement is therefore troubling, as she does not seem to take Gillick competence into account when considering what trans children should be allowed to decide concerning their own healthcare. It is also troubling to hear policy decisions being indicated on false pretences – there are no “irreversible decisions” being made that need to be stopped, and to say that there are, raises unnecessary moral panic on the topic.

The Minister has indicated that the Gender Recognition Act review will be published at some time in the summer months. Taking into account the statements which have been reviewed in this post, it is difficult to see any major reforms being made. To create a human rights-compliant framework, the legislature would need to remove any medicalised requirements from access to legal gender recognition, institute a system of self-declaration, remove the requirement for spousal consent, and address the issue of legal gender recognition for those under eighteen years. However, it seems unlikely that this Government has the political will to make such changes, and the United Kingdom will continue to be outpaced by the majority of European countries with regard to transgender rights.