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On 4 April 2005, the Gender Recognition Act (GRA) – which allows people who have been diagnosed with gender dysphoria to change their legal gender – came into force in the UK, having received royal assent in July the previous year. It was heralded as a “groundbreaking” and progressive move for transgender rights.
However, since it was introduced, fewer than 5,000 people have used the process to legally change their gender. Noting the low uptake – especially given the fact that there were more trans respondents than this to its National LGBT Survey last year – the government has launched a consultation on how to best reform the GRA to make it a better service for those who want to use it to change their legal gender and obtain a Gender Recognition Certificate (GRC). The consultation opened on July 3 and closes on October 19.
The Gender Recognition Act is inadequate
Common complaints levelled against the GRA process are that it is expensive, bureaucratic, time consuming and intrusive. The medical evidence that trans people are obliged to provide also puts a strain on the already stretched NHS. The panel who decide if the applicants’ legal gender can be changed never actually meet them.
Other problems include that trans people under the age of 18 are excluded from the process, a person’s spouse currently has the right to “veto” their change in legal gender, and non binary identities are not recognised. As Rape Crisis Scotland and Scottish Women’s Aid, among other Scottish feminist organisations, succinctly put it in a statement: “The complexity, restrictions and expense of the current gender recognition process particularly discriminates against trans people who are disabled, migrant, minority ethnic, unemployed, homeless, experiencing domestic abuse, young or non binary.”
Getting a GRC means that trans people can change the gender on their birth certificate. While this may sound like a technical issue, Laura Russell, head of policy at Stonewall, explains: “Being able to get a Gender Recognition Certificate matters. It’s important trans people are able to be recognised in the eyes of the law. Not only does it help to protect people’s privacy, it means a lot to a trans person to know that the state believes who they are.”
Why reform would be life-changing
Reform of the GRA includes the possibility of legally recognising non binary people for the first time. In the UK government’s National LGBT Survey last year, 13 per cent of respondents were trans. More than half of these – 6.9 per cent – were non binary. While the current narrative around trans rights has tended to focus on trans women, and bathrooms, many non binary people feel our voices are not being heard and our rights not considered.
Reform would mean that non binary people could have their gender accurately reflected on ID documents, and would be offered the same protections under employment and discrimination legislation as those people, cis and trans, whose gender is binary. At the moment, the only options for gender in the UK are man or woman – on passports, marriage applications, pension papers, driving licenses, and so on. A person who is non binary is continuously reminded that, legally, their gender does not exist – and is forced to choose something that they are not.
Russell adds: “There is no need for it to be this way. That is why we are calling for the government's reform of the Gender Recognition Act to include legal recognition of non binary identities. This move would be life-changing for many trans people in Britain and a crucial step toward ensuring that the UK's gender recognition laws are in line with international best practice.
The UK has fallen behind other countries
In this respect, the UK has fallen behind other European countries, like Malta, Norway and Denmark, when it comes to gender recognition. Further afield, Nepal, Bangladesh and Pakistan all have legal recognition of, and protections for, non binary people – countries that, in our Western-centric view of human rights, we may have imagined as being more traditionalist and less accepting. But that is not the case. Non binary and transgender identities were historically commonplace and celebrated in many countries around the world, before the arrival of the colonialist British enforced a rigid gender binary and criminalised homosexuality.
“Colonialism has definitely had an impact on global understands of gender, enforcing Western concepts onto other cultures,” Lee-Anne Lawrance, deputy chair for the LGBTIQA+ Greens, told me. “Recognition of non-binary people will mean that people in our culture will have to reconceptualise their ideas of gender.”
But they acknowledge that this shift in thinking, which will be accompanied by increasing visibility of non binary people and their experiences, can be hard for those directly affected by the changes.
“The larger visibility of non-binary people was definitely a key factor in my own realisations about my gender. It has enabled me to find myself and some comfort that I am not alone. The visibility has also meant that I've been able to find a community of people who understand me and support me, as well as a community that comes together to enact change.
“Of course, this visibility has brought with it a swell of anti-trans and anti-non-binary activism. I have definitely faced a lot of that in my political work. It is hard trying to get on with life when so many people are acting to specifically target you and your rights. Some of the personal impact is that I've seen lies and misinformation spread about me on social media, and people speculating about my private life, and so have my friends. However, I think this kind of explosivity is what happens before rights are won, and I am hopeful for the future.”
Breaking down the gender binary is positive for non binary individuals, as it allows us the freedom to live authentically. It is also positive from a feminist viewpoint, which has long fought against gender stereotyping. Sadly, not all people who consider themselves feminists would agree.
Dr Katharine Jenkins, assistant professor of philosophy at the University of Nottingham, says, “I think some of the hostility towards the idea of gender identity and towards legal recognition for trans people (including non binary people) comes from the idea that this shift necessarily means that we have to completely stop talking about the effects of sexism and about bodily differences connected to reproduction.”
“This simply isn’t true – recognising gender identity and supporting trans rights doesn’t mean that we have to stop talking about those other things. But I do think that we need to think more about how we do this, and probably come up with some new language, so that we can talk about the effects of sexism and about bodily difference, where these things are relevant, whilst respecting people’s gender identities.”
Legally recognising non binary people, Jenkins says, “would enable systematic, legally obligatory reviews of services to make sure that they offer equal provision for non binary people. This would be really important in terms of things like access to healthcare and provision of appropriate facilities, so I think it would make a very concrete difference to people’s lives, although I think it would still require a lot of sustained pressure and probably some legal cases.”
Of course, reform of the GRA is just that: reform of the current system. It is one potential way forward; my personal preference would be radical dismantlement of the current binary gender system and the building of a world where people are not categorised by gender.
But reform is what is on offer at present. This consultation could lead to the demedicalisation of the process of obtaining a Gender Recognition Certificate, open it up to non binary people and legally recognise that not all people fit into the binary boxes of men and women. And that really could be groundbreaking.