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6 reasons why the UK’s gender laws are failing transgender people

Michelle O'Toole October 15, 2015

As Parliament’s Women and Equalities Committee hears evidence surrounding the Gender Recognition Act, Michelle O’Toole recaps the ways current legislation is failing trans people.

The Gender Recognition Act is almost useless, damaging and not at all inclusive.

And for two and a half hours, trans people of various genders, a person with no gender and a PhD law student explained to the Women and Equalities Committee (headed by Maria Miller MP) why the current Gender Recognition Act doesn’t work, and only adds to the already ridiculous problems that trans people live with.

1. Getting legal gender recognition is harder than doing your taxes.

Currently, in the UK, to have your gender legally recognised you have to pick between being male or female (you are out of luck if you are genderqueer) and provide “evidence” which includes your birth certificate, a medical report (from a suitable healthcare professional) and proof that you have lived in your “acquired gender” (pay slips, utility bills, passport are what is listed on the government site) for at least two years (up to six years if you are married or in a civil partnership).

The vagueness of the requirements (how do you prove you have lived as anything for two years?) does not help matters, nor does the financial cost.

“In terms of expense there is a £140 fee…” Ashley Reed, a student who started the petition on the issue, informed the committee: “…which can be subsidised or paid for but it is a system that puts a lot of people off from applying.”

“You send in a big wad of documents” explained James Morton, manager of the Scottish Transgender Alliance, “…and then they pick those apart and they send you back a ‘legalese’ document complaining that various parts aren’t in order and people get incredibly stressed out about it.

“And therefore a lot of people hear of others experiences and they go: “Well I am not going through that, I will just take my chances with my ending up a bit of a mish mash of different genders and different things

“What should be a process to protect your privacy and to uphold and validate your identity actually ends up being worse.”

And it doesn’t stop there, because…

2. The whole process can be unbelievably humiliating.

“It’s humiliating to have your gender assessed by someone else”, Miss Reed states bluntly.

“You are the only person who can come to that kind of realisation, not a panel”

And according to James Morton, she isn’t wrong.

“We have also had to support a number of trans people who’ve been really traumatised and humiliated by the process where they’ve actually undergone various medical treatments that the act says you should be able to access your gender recognition without even necessarily having, and yet the panel has insisted on really intrusive levels of detail about the surgeries they have undergone or their intentions for future surgery.”

He then went on to explain one particularly horrible case of a young person who went through the process.

“We had for example a young person who was in their early twenties and not yet had any sexual relationships being kind of forced to decide and say categorically whether they want genital surgery and being questioned over the fact that initially they wanted breast augmentation but then grew breasts through hormone treatments and the panel being incredibly pedantic about any perceived inconsistencies in medical reports which just means people get incredibly upset and really invalidated.”

And after all of this, you can still face being rejected. But why do we have this whole process when…

3. Plenty of countries have adopted self declaration without self destructing.

Self declaration is the model most popular with trans activists, because the choice over how their gendered is registered legally comes down to them. Ireland recently adopted this model and, when compared to our system, is incredibly simple.

Here is the Irish form. That form is the entire process you have to go through to change your legal gender in Ireland (although it should be said, there is no option for a third gender or no gender). The UK does not have an equivalent, as they rely on three different routes to apply through (all of which require different supporting documents, some of which must date back years) and only represent the first of many steps towards gender recognition.

When asked by the panel how other countries deal with gender recognition, Peter Dunne (a law student studying gender recognition laws for his PhD) explained that “It is very difficult talking about international human rights in this area when gender identity wasn’t discussed at the UN until 2006.”

“However there are a number of jurisdictions, particularly important in Europe and western Europe which are moving towards a model of self declaration, and that really is now the gold standard”.

“…We saw that in 2012 in Argentina but it’s rapidly happening now in Europe. Ireland has adopted self declaration, Denmark has adopted self declaration, Sweeden and Norway will do that from 2016, Belgium have committed to self declaration, Malta have adopted self declaration,”

“…And if you want to be a forward thinking, human rights conscious juristiction, well there is only one way the law can actually go”.

So that is great news for those countries, however, as the law stands today…

4. If you have gender recognition via self declaration in your home country it probably doesn’t count in the UK.

If you have gender recognition in your home country, you may come to the UK believing that it will automatically apply in the UK.

Nope.

James Morton (manager of the Scottish Transgender Alliance) walked through the various scenarios he has seen played out.

“You are not automatically recognised” he explained, “You can go via the overseas route which requires just as much as our route, or you have to go through the NHS with everyone else and add to the burden, even if you already have completed the medical treatments.”

So, if you hop on a plane from Ireland (where you declared your gender via the single form required) and land in the UK, you may well find yourself in a legal existential nightmare where your legal gender changes somewhere over the Irish sea, and unless you have a big wad of documents from various doctors and other professionals, you will have to join the back of the NHS queue. Speaking of which…

5. The NHS waiting times for gender services are insane.

Sue Pascoe (speaking on behalf of herself) told the committee she would have had to wait two and a half years for her first assessment appointment at Leeds gender Identity Clinic.

This is a widespread problem facing the NHS as the rise in people seeking gender related health care has increased dramatically as social attitudes have become more accepting of trans identities. Forcing new residents to the UK who have already finished their medical treatments to join the already monstrously long queue to become legally recognised in the UK is several different kinds of ridiculous.

Sue had to resort to seeking treatment in India, and paying out of her own pocket for what should be standard medical treatments. Not every trans person can afford this, nor has the time to wait years just to be assessed for treatments that could take several more years wait.

Miss Pascoe went on to outline the consequences of such long waiting lists, “I know so many transgender people who at one point in their lives, who have attempted suicide. The figures are shocking, between 30% and 70% dependent on other issues that you’ve faced.”

Can it get any worse? Yes. Of course it can.

6. If you are non binary, have no gender or somewhere else on the spectrum there is NO option to get legally recognised.

The current law as it stands makes no mention or allowance for people who do not fit under male or female. Genderqueer, non binary and non-gender identities are very much left out in the cold and this can cause significant problems in peoples lives.

Christie Elan-Cane, who has no gender, told the inquiry about difficulties getting married without being forced to identity as ‘male’ or ‘female.

The campaigner said: “Neither of us would want to get married under those terms.”

In the UK, the government does not issue any kind of third gender or non-gender documents or legal recognition, meaning that even if a person managed to satisfy the extensive gender recognition panel requirements (which is almost impossible for non-binary and genderqueer people because many don’t actually need to use the medical pathway that, currently, is mandatory) they could only get recognised as a man or a woman.

This is the standard declaration every trans person must complete as part of their application to the government to be considered the person they are.

Gender declaration

Where are Christie Elan-Pane and others supposed to tick?

Other subjects were addressed in the hearing including the spousal veto, transphobic hate crime and the problems facing trans people seeking non-gender related health care.

However it was obvious that the inquiry could have gone on for a full twelve hours instead of the two and a half, and even then they still wouldn’t have covered the whole topic of transgender equality. But one thing is for certain, as a piece of legislation the Gender Recognition act does not work as it currently exists.

You can watch the inquiry on parliament.tv

More: Ashley Reed, Christie Elan-Cane, gender fluid, gender recognition act, genderqueer, James Morton, Karen Harvey, Maria Miller, non-binary, Peter Dunne, spousal veto, Sue Pascoe, trans inquiry, Transgender, Women and Equalities Comittee

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