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Gender Recognition Act reform was never meant to be about bathrooms or healthcare for trans people. So how did it get this toxic?

Vic Parsons July 23, 2020
Gender Recognition Act: The history of the Tories and UK gender laws

Three Conservative ministers for women and equalities have not published the results of the Gender Recognition Act consultation: Penny Mordaunt (left), Liz Truss (centre), and Amber Rudd (right). (Getty)

Déjà vu: The feeling when, for the second July in a row, the Conservative minister for women and equalities breaks her promise to the transgender community regarding the Gender Recognition Act.

This year, it was Liz Truss who promised she would announce the government’s plan for (hopefully) improving the Gender Recognition Act (GRA) before parliament goes into summer recess. Last year, it was Penny Mordaunt.

Amber Rudd, who held the equalities brief twice after the Tories held a huge public consultation on reforming the GRA in 2018, also didn’t publish the results of the consultation or announce plans for reform off the back of it.

Truss, though, does seem to have come closest to keeping her promise on announcing the results – the evidence for this includes the leak of her apparent proposals for the GRA to the Sunday Times on June 14 – although her public remarks about trans youth, trans women and trans rights suggest her plans for the GRA were furthest from what the government originally intended.

Now, Truss and Boris Johnson have committed to announcing the results “over the summer“. Parliament has now adjourned, and won’t return until September 7.

While, granted, there are around 40 different calendars in existence, it seems unlikely that the Conservatives have strayed from the meteorological calendar, which is most commonly used and in which September is categorically autumn.

So, it is likely that GRA reform has been kicked into the long grass, again, and parliament will return in September having conveniently forgotten its promises to the transgender community. Unless, of course, Truss decides to publish the consultation results and her plan for the GRA over August – while neither the House of Commons nor Lords is sitting, so her plans can’t be properly scrutinised.

Read our open letter to Boris Johnson here.

The Gender Recognition Act: From pioneering to out-of-date.

The 2004 law – used by transgender men and women to gain legal recognition of their gender – was considered pioneering when it was introduced.

It meant that trans men and women could get a new birth certificate with the correct gender marker on it, by jumping through a number of hoops including: being over 18, getting a diagnosis of gender dysphoria, living in their "acquired gender" for two years first and providing proof of this, getting the consent of their spouse if they had one, and paying £140.

A Gender Recognition Panel, who the applicant didn't meet, would then consider this "evidence" and decide whether to issue a Gender Recognition Certificate. Trans people use this to get their birth certificate reissued with the gender marker updated.

This is a long, costly and overly-bureaucratic process, which has put off many trans people from even applying for legal recognition – only around 5,000 trans people have had their gender legally recognised in the UK, out of an estimated population of over half a million people.

And the UK is now lagging behind – Ireland, Malta, Norway, Portugal, Argentina, Iceland and Belgium all have more straightforward or more comprehensive gender recognition laws. In most of these countries, a trans person can get legal gender recognition by "self-identification" – filling in a statutory declaration, without the need for medical evidence or the approval of strangers.

Ireland recently celebrated its five-year anniversary of introducing self-determination – a gender recognition law that removed all medical criteria from the legal recognition process for those over 18.

And in other countries, trans youth and non-binary transgender people can also access legal gender recognition.

Iceland, India, Nepal, Uruguay and Pakistan are among the countries that legally recognise a third or non-binary gender. Three major airlines recognise that non-binary people exist – Truss should take note.

It was because the GRA is out-of-date and not being used that then-prime minister Theresa May said, in 2017, that the government would look at modernising it.

Announcing that the government would run a public consultation on proposed updates, she said: "We have laid out plans to reform the Gender Recognition Act, streamlining and de-medicalising the process for changing gender because being trans is not an illness and it should not be treated as such."

When the GRA consultation opened to the public, in July 2017, it was very clear: "This consultation simply asks how best government might make the existing process under the Gender Recognition Act a better service for those trans and non-binary people who wish to use it."

What GRA reform was not.

While trans rights in other countries have moved on since 2004, in the UK they have stagnated. At the same time, hate crimes against trans people went up 40 per cent in the last year, a third of UK employers won't hire a trans person, and 16 per cent of transgender women have experienced domestic abuse in the last year (alongside 7.5 per cent of cisgender women).

The GRA is not to do with any of these issues. Legal gender recognition doesn't protect you from domestic violence or being beaten up in the street.

But the constant delays over GRA reform have meant that what was intended to be a straightforward improvement to an outdated piece of legislation has become a stand-in for a huge, and toxic, public debate about transgender people in the UK.

The GRA has nothing to do with public bathrooms. It has nothing to do with healthcare provision for trans people on the NHS. Yet the issue has been used as a proxy for inflammatory commentary around whether trans people really exist, whether trans people are a threat to cisgender women and children, and whether or not we should love and support trans kids.

GRA reform explicitly never included considering changes to the Equality Act, the 2010 law that makes it illegal to discriminate against someone on the basis of their age, sexuality, gender reassignment, sex, disability, race, pregnancy, marriage or faith.

But Kemi Badenoch, the junior equalities minister, recently hinted that this could be changed – in the context of a small number of cisgender women arguing that trans women shouldn't be allowed to continue using women's single-sex spaces, like public bathrooms and changing rooms, or playing women's sports.

Suggestions like these echo those of far-right governments in other countries: in the US, Idaho has passed an anti-trans law that means schools check the genitals of teenage girls before allowing them to play on girls' sports teams; in Hungary, prime minister Viktor Orbán has legally erased trans people, banning legal name or gender changes, using language and rhetoric that mirrors that used by anti-trans pressure groups in the UK.

Gender-critical or anti-trans feminism has flourished in the UK – much to the bemusement and horror of people from other countries. Trans people in the US think that everyone in Britain hates trans people. Meanwhile, a record number of trans and non-binary candidates ran in the last general election.

Every time the Conservatives delay their GRA announcement, it becomes harder to make. What was intended as a straightforward administrative update has been stoked into a political and cultural battle by transphobic white feminists and the media.

It seems unlikely that any announcement the Tories make now can deliver on their promise to the trans community without igniting the fury of anti-trans pressure groups.

If not a rollback of trans rights, then what?

Liz Truss told Labour's Nadia Whittome yesterday that the Conservatives "would not be rolling back trans rights".

This has been welcomed by LGBT+ organisations as a positive commitment from the Tories, and one that Labour will be able to hold them to account over (Labour having, very belatedly, apparently decided it will stick up for trans folk).

But as trans activist Nim Ralph told non-binary writer Jamie Windust: "Most trans people ultimately don’t really care about the GRA specifically – we don’t plan to change our birth certificates.

"But it’s being used so maliciously as a way to open a wider cultural debate around our rights and right to exist, that strategically it’s become a battle we need to fight."

The campaign to reform the GRA has swallowed up the trans community's energy for three years. Urgent, pressing issues, like violence against trans women, have been sidelined by this fight.

Updates to the GRA that trans campaigners did want – like legal recognition for non-binary people and 16- and 17-year olds – now seem farfetched, in the context of current messaging about not rolling back trans rights.

But it is not farfetched to demand that the equalities minister end this déjà vu and announce the results of the public consultation before next July rolls around – whether she likes them or not.

The government must publish the GRA consultation results in September and enact changes to the law that will mean more trans people in the UK can access legal gender recognition, if they want to.

And then we can all move on. I hear that the third time is (sorry) a charm, Liz.

More: Amber Rudd, Boris Johnson, gender recognition act, GRA Reform, Jamie Windust, liz truss, Nadia Whittome, nim ralph, non-binary, penny mordaunt

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