Maria Miller: The law, the NHS and public services are all letting trans people down

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Maria Miller, the chair of Parliament’s Women and Equalities Committee, has called for radical reform as she launched a landmark report on trans issues.

Click here to read about the substance of the landmark report.

Your report is over 100 pages long and covers a huge number of issues. Did you expect when you launched the inquiry that this would be as complex an area as it is?

I think that the issues affecting trans people are far more complex than I had ever envisaged when we started the inquiry 6 months ago.

Certainly the added complexities of issues affecting non-binary people and non-gendered people, really make this an enormous area of inquiry.

Do you wish that something like this would have happened while you were an equalities minister? When you came to office, there was no blue print on trans issues, the Trans Action Plan hadn’t really been completed.

When you are a minister I think you have to prioritise the things you are going to do – and obviously the main priority when I was minister was to make sure that we secure the equal marriage bill.

This is one of many things that I’m sure could have taken up more time, but I think now the time is right.

When we opted to begin this report, we didn’t know trans issues were going to become a big Hollywood issue.

Tragically, the same week our report is being published, we’ve seen the death of David Bowie – who did so much to challenge people’s ideas and preconceptions about gender.

It feels to me that it’s the right time for this report – and the right time get the action it calls for.

One of the key things that the report recommends is a shift towards a gender ‘self-declaration’ system, stripping out some of the medical and bureaucratic requirements to get your gender recognised.

Would you like to see this modelled on the system in the Republic of Ireland, where declaring your gender is now as simple as renewing your passport?

I think the current system in antiquated and well past its sell-by date. To have to go before this quasi-judicial system, which then medically evaluates whether or not you should be allowed to reconsider your gender… it’s just a process that is not for today.

We, the committee, were very taken by the Irish model. We haven’t directly said that that model should be replicated in the UK – there are many reasons why that might not be entirely possible.

But certainly, self declaration to me feels the right way forward, with something as personal as the way you want to express your gender.

This is something that should be in the hands of the individual, not in the hands of the state.

Do you think the government would accept these changes?

I think the government will want to look at our recommendations and consider them in full.

They will see that what we are recommending is not only right in terms of people’s human rights to express themselves, it is workable, because it is happening in other countries.

What I hope is that the government looks at how we can make sure that whatever is put in place isn’t outdated as quickly as the current law has been outdated.

The key learnings here is that law seems to go out of date very quickly, and future proofing the law is very important.

The report also recommends the minimum age for gender recognition be lowered from 18 to 16. At 16, you can’t vote or make other important decisions in your life – where does gender fit into that?

We looked very carefully at the way young people who are struggling with their gender identity are supported, and I think the whole committee came to the conclusion that those young people are in a very dark place, and are going through very profound changes.

It’s little wonder that the evidence we saw suggested that around half of trans people attempt suicide, so whatever happens we have to try and improve this situation.

That is what this report is trying to do.

We have to be very cautious about what we put forward, because we felt very strongly that changes around treatment protocols need to be driven by the medics.

But one thing that we felt confident in putting forward was that we felt that, young people should be able to get access to treatment [such as puberty blockers] in a timely manner.

We also recommend giving young people the opportunity to make that change in gender at the age of 16, 17, rather than waiting until 18.

The evidence suggested that where people have come to a settled conclusion to where their gender lays. Delaying this to 18 could be quite damaging – particularly when youngsters are going off to college and university.

The report states: says you are “very cautious” about legal gender recognition for children under 16.

How likely do you think it will be that we might eventually follow the lead of countries such as Sweden and Norway, where it is available below 16 with parental consent?

There’s some very interesting evidence from those countries, and also from the Netherlands, around supporting young people who are struggling with gender identity.

We were cautious about recommending any particular changes for individuals under the age of 16 – other than ensuring that support is there in timely manner.

Evidence showed that a lack of medical intervention early on can be damaging and even lead young people to self harming and even consider suicide, so timely intervention seems to be important.

I would urge the government to look at that more – and particularly look at the case studies coming out of other countries on an ongoing basis.

Things are moving very fast in this area and we need to make sure that as a country we stay in the forefront of ensuring that we give the right support to trans people at the right time.

One of the most striking things in the report is direct criticism of the NHS.

It says the NHS is failing trans people – do you think that’s deliberate or its through a lack of knowledge and understanding?

There are many areas which needs reform – but particularly around the NHS, there was profound evidence showing that there needs to be reform, right from primary care level all the way through.

A great many of the problems that were identified were the result of a lack of training, and a lack of of understanding and perhaps also a lack of empathy.

I have to say, there were some very disturbing examples of where a specialist prescription of an intervention was not carried through at a primary level.

One of the things that the committee feels strongly about, is the General Medical Council takes misconduct in this area very seriously.

Why do you think there are these barriers in healthcare? Do you think that some doctors disagree with people changing their gender, or is it about the cost of the treatment?

Many of the trans people who gave evidence were uncomfortable about the way their healthcare was being dealt with across the board – sometimes when it’s to do with their [gender treatment], but also when it was broader.

The doctors that gave evidence to us were incredible in the work that they were doing to support trans people. We need to make sure the NHS is working for trans people in the way people in this country would expect it to.

Fundamentally, evidence suggests that there is no continuous professional development there to inform medics of the way to support trans people. There  is a lack of understanding of the pathways to support and refer trans people.

The NHS may be just one example of public services failing to support trans people, but it’s a very big example.

The NHS should be there for everyone, and our report would demonstrate that it just isn’t.

On a fundamental level, isn’t part of the problem lack of budgets and availability and specialists? There’s a massive backlog for gender services because there’s not enough doctors and surgeons doing the work. What concrete steps would you want the government to take on this?

[Editorial note: The report alleges that “the waiting times that many patients experience” for gender services “are in clear breach of the legal obligation under the NHS Constitution to provide treatment within 18 weeks”.]

The most important thing is that NHS England faces this issue quickly. and undertakes a rapid review of the services that are in place.

There was some clear evidence that waiting times were unacceptable, particularly if surgery was required – but that is a very small number of cases.

What the report is talking about is a much broader problem than the way in which the NHS are supporting trans people.

We had some incredible evidence from some organisations like the Tavistock Clinic who are doing ground-breaking work in this area – but the overall NHS mother ship needs to get a grip of this and realise that it is letting people down.

You also make a recommendation about allowing people to identify as ‘Gender X’ on passports, and not male or female. How did you come to that?

Some trans people, as we know, identify as non-binary.

We haven’t addressed all the issues that affect non-binary or non-gender in the report, but [Gender X passports] is one area we felt as a committee we should make a recommendation.

As a society, we need to move towards a much more non-gendered approach.

We now draft legislation in a non-gendered way and that’s proved to be acceptable.

But there are many areas of government which could do with further work. Passports are one – the recommendation is to acknowledge that somebody might be non-gendered, but we also have to ask whether we need to have any reference to gender at all.

Given that they way we all present ourselves individually, putting ‘male’ or ‘female’ on a passport is not really something that would be evaluated at border control.

I’m hoping the government will look at removing gender from it entirely – but maybe as an interim measure we should have a third way of recognising people.

Australia is one of the countries that already does allow this.

Yes, there’s countries like Australia.

We’ve been told that there would be difficulties as not all countries would accept it… well, I think part of our job should be trying to make sure that other countries accept it!

Maybe that’s a small step to prompt countries with less good records on equality issues to think about these things more carefully.

Do you think there is a wider case for expanding the actual system of gender recognition, to fully recognise people who don’t identify as male or female?

We didn’t take extensive evidence on non-gender or non-binary issues, and I wouldn’t like it to appear like the report is saying more than it is.

We decided to take a stance on passports – perhaps this would indicate to the government that there is further work to do on non-gender and non-binary issues.

The report recommends changes to hate crime laws and the Equality Act – but notes that this isn’t enough without “cultural change” among those who enforce the law.

Can you elaborate on what you feel these changes need to be?

Societal attitudes are changing on gender quite rapidly – and we need to make sure that services and laws keep pace with that.

When it comes to the police and those who enforce hate crime laws, we need to ensure they are well-trained.

The expert legal counsel we’ve had on the Equality Act would suggest that actually there are ways in which we could tighten up some of the definitions, to ensure trans people are protected whether or not they are transitioning.

This would mean changing the protected characteristic to ‘gender identity’ rather than ‘gender assignment’

Tightening up the Equality Act is very important – and making sure that the police and judiciary have the right training to understand the particular problems that trans people face.

The third element is to make sure that hate crime laws treat all hate crimes the same – and don’t treat some as more important than others.

The report discusses the ‘Spousal Veto’, which was one of the contentious issues when you were Culture Secretary.

You’re not recommending changes, but the report says the government should ensure that it is “informed by the extent of the way that some partners could misuse this”.

This was one of the consistent criticisms of the equal marriage legislation by trans campaigners. Do you think they will be disappointed that the committee is not recommending changes?

The committee were really concerned that people felt the Spousal Veto could be used as a way of ‘punishing’ those that they were married to.

We looked incredibly carefully and sought expert legal counsel on finding a solution. It’s a very complex legal situation, and I didn’t want to put in a recommendation that wasn’t legally correct.

We also spoke to Scottish groups about the way the situation works in Scotland [where the Spousal Veto does not exist].

The legal advice we were given is that the law as it stands was sound, and that shifting to a position more akin to Scotland wasn’t possible, as the way marriage law works in England means variation requires the consent of two individuals.

But the government needs to keep a very careful eye on how this works in practice. They need to establish whether the fears around the way the system works are valid.

I was delighted that the minister [Caroline Dinenage] said that she would look further at this – and it may be that we should wait to see the government response on this.

One of the issues that came up during the Committee was trans prisoners being placed in the wrong prison, because they had not completed the legal gender recognition process.

Do you think that a simpler self-declaration system could actually stop that happening?

First and foremost, we need to make sure that prions have got a consistent way of dealing with and supporting trans prisoners whether or not they have completed the legal processes.

I do think simplifying the legal process will help – it’s tragic that three individuals now have taken their lives as a result of the problems they have experienced in our prison system.

I know the government takes this very seriously indeed, and that is why they will want to take rapid action on this.

Is there a danger that a self-declaration system of gender recognition could be open to abuse?

If there’s less hurdles, could people falsely declare themselves to be another gender, and use this (for example) to end up in a prison they shouldn’t?

Any new system that is put into place has to make sure that there are ways to catch abuses.

But all of the evidence we received, and all the people who gave us evidence, made it clear that it’s unlikely somebody would want to change their gender simply to manipulate a system such as the prison service.

Clearly there would need to be safeguards in place to ensure that people don’t abuse the system, because that would simply serve to generate more prejudice towards trans people.

The report calls for the end of an Equality Act exemption for single-sex services such as women’s refuges, where they are currently able to turn away trans women even if they have Gender Recognition Certificates.

Are there concerns from women’s groups on this? Is there a danger that when twinned with the self-declaration system of gender recognition, there is less scrutiny on the people who can access these services?

The committee took a very strong view that if someone has gone through a legal change in their gender, that should be recognised.

You can’t have some men and women who are more equal than others – you either accept it legally, or you don’t.

On our committee we have [Labour MP] Jess Phillips, who used to run a women’s refuge. She has a first hand experience of these issues, and her expertise was invaluable.

Our understanding is that everybody who goes into a women’s refuge will be risk assessed, regardless of whether or not they’re a trans woman.

Any idea that trans women would pose a particular issue or threat in a refuge situation is not really based on any evidence.

As much as things have progressed, one of the challenges is that there is still a strong anti-trans brigade, many of whom are coming from a so-called feminist perspective. What are your views on that?

There is a small minority of people who seek to make the lives of trans people intolerable. The law has to protect trans people more, and not give in to that.

Of course freedom of speech is a big issue – I would rather let Germaine Greer express her views than silence her, as much as I am appalled by them.

But there is a fine line to be trod between allowing freedom of speech and allowing people to incite hatred.

That isn’t a problem unique to trans people – it’s across the board. The legal system is getting better at identifying that fine line. For me I would rather allow people to express their out-of-date views so that others can judge them for themselves.

Do you think the comments made by Germaine Greer and so on are hate speech?

That’s for the law to decide. I do find it appalling that people would express those views, and the research would suggest they’re in the minority.

Some of us, who are also feminists, don’t believe those things. I think it’s about the type of feminism you’ve bought into.

As a whole, the report essentially says the committee’s view is that trans people have been failed by our country and government.

Could you expand on that and explain what you think the big problems are but also what you would hope the immediate response would be?

As a nation we have lead the way on many LBGT issues – with equal marriage being one of the most recent examples. But when it comes to trans people, it’s clear from the evidence we see that the law and public services let them down.

In many ways that they law and public services are lagging behind public opinion on this, as evidenced by the incredible response to the Tara Hudson case – more than 140,000 people signed a petition when she was put into a man’s prison rather than a woman’s prison.

Public opinion is there. People understand that gender is not as binary as it has been in the past, and they understand some people want to challenge the gender that they were assigned at birth.

Given the right support trans people can go on to live tremendously successful lives, but the concern of the committee is that when that support is not right, that positive life can become a tragic life very quickly indeed.

Most notably that’s because of the problems around the NHS and poor provisions within the NHS, but also more broadly in public services, whether that’s in prisons or education. I hope the government sees this as an opportunity to reassert itself as a world leader in LGBT rights.

There are clear and straightforward legislative and public service changes that can be made to transform the experiences of trans people very quickly indeed.

I hope the government takes this opportunity, and I’ve got every reason to believe they will based on the very positive attitude from [ministers] Nicky Morgan and Caroline Dinenage when they gave evidence to the committee.

We took evidence from six ministers, and all of them showed real sensitivity to getting this right. I’m very hopeful indeed the government will see this as a positive starting point on this issue.

Of course this is the first report from the Women and Equalities Committee, and also probably the first fully-fledged inquiry into LGBT issues. How does that feel, and do you think this should have happened before?

I think this report demonstrates why we needed to have a Women and Equalities Committee set up: to provide the scrutiny that is long overdue in this area.

I think government benefits from being able to have a group of people look at an issue and such detail and come up with examples.

It was right we chose this to be the first report… and this is only the beginning. Our next report is on the gender pay gap – and we’ve got another we’re already waiting to launch. There’s an enormous amount of work to be done! We’re going to be very busy indeed.