Reforming the Gender Recognition Act 2004

The debate surrounding gender recognition has picked up traction since the turn of the millennium. In this vein, the government has recently announced its intention to update the Gender Recognition Act 2004 (‘the 2004 Act’). It is a highly intimate and personal subject for many individuals. At the time of writing, the UK is not the only country where transgender issues have been under scrutiny - the US has recently seen outcry over prospective changes to gender recognition as a result of a leaked policy memo. The policy memo explains that gender would be defined solely on the genitalia people are born with. In the UK, there is an on-going debate over whether amendments to the 2004 Act ought to be permitted. This article explores the debate thus far.

The 2004 Act allowed transgender people to apply for legal recognition of the gender they identify with. There was no requirement for applicants to be in the process of either gender reassignment surgery or other relevant medical treatment, such as hormone therapy. This process has been subject to criticism. For those who have applied for legal recognition of another gender, there have been arguments to the effect that the requirements on applicants are still intrusive and distressing. This is due to the need for a diagnosis of ‘gender dysphoria’, a condition where a person's biological sex and identity do not match. This has to be diagnosed by two doctors. Further, an applicant must have been living as their chosen gender for two years.

The consultation to the reform process ended in mid-October 2018. Essentially, the reform aims to make it easier for individuals to obtain this legal recognition and removes the medical element of the process. This would essentially allow one to self-declare their gender. Various interesting interviews with people backing the de-medicalisation of the process, most notably Drew-Ashlyn Cunningham, a vlogger, can be found here. Cunningham argues that essentially, it is for an individual to decide which category they best fit into. Other arguments include that the 2004 Act is outdated and therefore needs to be reformed. The current procedure requires a panel to judge whether someone ought to be given a new birth certificate with their chosen gender. It can be argued this is not an acceptable way of addressing such an application, as essentially this dispassionate process means that one’s legal gender is determined by a panel of strangers. The administrative burden of the current process also results in a hefty cost for obtaining legal recognition.

An anonymous opinion, published by the Guardian, states that such reforms would be life-changing, as they would end what is described as 'a demeaning process'. There have been cases of people avoiding the process because of how dehumanising it actually is. Another opinion piece, also found in the Guardian, sees a rallying call to the feminist movement to support the proposed amendments.

However, the debate on this topic has become somewhat toxic. Trans rights activists and some feminist campaigners have consequently taken opposing sides. Transgender people say they want equal rights, but some groups believe giving easier access to a gender recognition certificate will lessen women's rights. An interesting debate between two individuals within these groups, facilitated by the BBC, can be found here. The crux of the argument in opposition to the reforms is that safe-spaces, such as: toilets, prisons and refuges could be threatened by giving transgender people the opportunity to self-determine their gender. It is important to acknowledge that in October 2018 a transgender female prisoner in a women's jail was ordered to serve nine-and-a-half years for sexually assaulting two inmates. Some campaigners argue that situations like this legitimise concerns that further instances will arise if there is easier access to gender recognition certificates. However, one can easily rebut this argument by pointing out that one incident cannot be capable of tarnishing an entire segment of the general population with the same brush.

The Guardian editorial board explains in a recent post that, in its mind, there are no 'right and wrong' sides to this debate. Instead, there is a collision of fundamental rights and protections, as well as important questions surrounding personal identity. This is a complex interaction between conflicting rights and, therefore, these rights need to be managed. As a result, it is necessary to acknowledge that neither trans rights campaigners nor feminists are a 'homogeneous bloc' – this inevitably means that there can be and are more than two points of view. The Equality and Human Rights Commission (EHRC) has also participated in the discussion. It appears that the EHRC has adopted a similar stance in that the the 'issues at stake are complex and personal'. This stresses the need for society to engage with the debate in a constructive and respectful way.

As seen in the preceding paragraphs, this topic is sensitive in nature and can involve highly-charged emotions. The debate has seen a barrage of misinformation and fear-mongering being generated in the public sphere. Recently this problem has evolved into a more extreme iteration. For example, academics conducting research regarding transgender issues are being subjected to harassment and have also been effectively censored. The academic community has responded to this by urging the government to protect such research from being attacked on an ideological basis. They also maintain that it is not transphobic to investigate and analyse the proposed governmental reforms to the 2004 Act as well as the interaction of those reforms with the Equality Act 2010 from a range of critical academic perspectives.

There has been intense debate over the implications of the reforms to the 2004 Act. The Guardian has helpfully condensed and merged six opinion pieces from various legal professionals on this matter. One argument concerns the 2004 Act's silence on the rights of transgender minors. This is a subject that has recently been in the limelight as a result of the TV show titled 'Butterfly', which tells the story of an 11 year old boy who wishes to transition to female. The lack of clarity on transgender minors is problematic for a number of reasons. Prior to becoming legally recognised as adults, these minors begin a process of social and medical transition to their preferred gender. The problem here is that there is tension in practice - the NHS and public bodies recognise and facilitate an individual's preference to transition, yet the law is slow to recognise it, if at all.

Another argument considers the alleged attack on safe spaces, refuting this and stating that these concerns are entirely unfounded. The reason for this is apparent: gender recognition only provides a limited legal recognition of a person’s acquired gender, primarily for medical privacy, marriage and pension access. It should be noted that over 12 years, just two transgender people been prosecuted for sexual assault. This is lower than the 20 offenders that would be statistically expected in any random group of 5,000 men. There are also concerns surrounding the impact on single-sex services. The Equality Act does, however, provide single-sex services with the ability to exclude trans people if that is a ‘legitimate and proportionate response’ to the service needs. This is a fair balance and it is likely that this will not change in the event of the 2004 Act being modernised.

It is important to note that there are also wider consequences to this reform. Employment lawyers have warned the government that HR employees, who are assisting transgender people with obtaining employment, may inadvertently commit a criminal offence under the 2004 Act. Section 22 of the 2004 Act creates a criminal offence for a person who has obtained 'protected information' in an official capacity to disclose that information to any other person. The definition of 'protected information' includes: a person's application for legal recognition of their acquired gender or if they have legal recognition, their gender history. A breach of section 22 does not require the disclosure to be malicious or intended to harm the trans person. As a result, there have been calls to reform section 22 to include some form of mental element (also known in the legal sphere as the 'mens rea'). This would include the malicious disclosure of protected information. However, as this is a recent suggestion, the government have not made any positive steps towards such an amendment. If this were to happen, it would be some time before it would be brought into practice, unless the amendment was fast-tracked through the system.

Regardless of one's personal views on the matter, this is a much-needed debate. This need is further compounded by the fact that statistics indicate that up to 500,000 transgender people live in the UK at the moment, which equates to 1 in 132. The statistics alone illustrate that a significant proportion of society (albeit a minority) have an interest in this matter. Further, these figures do not reflect the actual number of parties interested in this matter. The support-networks of these individuals, including their families and friends, means that realistically this figure is significantly higher. Whilst the debate rages on, the government will take its time to review the responses to its consultation before proceeding on amending the 2004 Act. Whether the amendments are reflective of the concerns above remains to be seen.

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