The UK government has released a little more information on its plans for reform of the Gender Recognition Act 2004 with a set of “Frequently Asked Questions” which it sends to people who write in. It says:

Changes to the Gender Recognition Act are intended to make the process of applying for a gender recognition certificate less bureaucratic.

More details to be released before the end of July.

Public arguments that the gender recognition process is “too bureaucratic”, “dehumanising”, “demeaning” and “long” have widely been made, but with little evidence.

Examination of the public data from Gender Recognition Panel (GRP), and the minutes of the Gender Recognition Panel User Group (where doctors and trans rights organisations meet with the administrators and panel members to discuss how the GRP process works) reveal quite a different picture:

• 75% of applications for a Gender Recognition Certificate receive a decision within 20 weeks, and many with 6–11 weeks. There is no backlog of applications.
• Over 90% of applications are successful and receive a GRC (some are withdrawn and some refused, some go on to reapply successfully)
• The panel are supportive of applicants — if they find that there is information missing (such as someone failing to fill in the form correctly, or failing to send marriage or divorce documentation) they do not turn them down. Instead they issue ’directions’ to give people a chance to supply the additional documentation. 
• Overall the process costs between £100 and £560, including medical reports (by comparison the administrative cost of applying to become a British citizen is £1300 )
•  In User Group meetings trans advocacy organisations and clinicians spoke freely with panel members and administrators over several years and did not describe the process as bureaucratic demeaning, intrusive or distressing.

Under the current system applicants are required to submit a signed statutory declaration, a copy of their birth certificate, documentary evidence they have lived in their acquired gender for at least 2 years (such as passport, driving licence, payslips or benefit documents – 5 or 6 documents spanning the 2 years are suggested), two medical reports (for example one from a GP and one from a specialist) and copies of documentation related to marriage or divorce.

Judge Paula Gray, President of the GR Panel says :

“We rarely refuse applications, and when we do it’s generally due to a
consistent lack of co-operation, the applicant having been given a number of opportunities to provide the necessary documentary evidence. I probably deal with about 200 cases a year-although some are previously adjourned applications and over some 14 years I think I have refused three”.

This analysis suggests that calls for ‘self ID’ (removal of the diagnosis and documentary evidence requirements) have not been motivated by a clear assessment of process as administratively difficult, but by a desire to allow people who do not meet the diagnostic criteria and who are less likely to have the intention of undergoing genital surgery to change their legal sex on demand.

The GRA 2004 was intended to support the tiny minority of people who undergo medical treatment and transition physiologically. However as Dr James Barrrett of the Charing Cross Gender Identity Clinic notes that ‘dual role transvestism’ (cross dressing for significant periods) is much more common than transsexualism and “can represent a stable way of life for many men”. These men continue to view their genitals as valuable, “but may decide to live in the female role full time.” Lesbian dating sites are now full of such males, previously straight men who now self identify as women and as lesbians and seek access to female only spaces and lesbian dating pools.

It has been estimated by the UK government that there are somewhere between 200,000 and 500,000 people who fit an expanded definition of being trans based on self declared gender identity rather than medical diagnosis and surgical treatment. That is 50- 100 times more people than are currently served by the gender recognition process.

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A case might be made that this different group of people should be able to change their legal sex on the basis of self-declaration, but it is not motivated by a particularly bureaucratic problem with the current system for the people it was originally intended to serve.

A halfway house solution: make the process less bureaucratic?

The government’s suggestion to make the process less bureaucratic (presumably by removing some but not all of the requirements that separate the current system from self ID) seems unlikely to please anyone.

Those concerned about the removal of ‘gatekeeping’ will worry that it will allow more people from the much larger group who are ‘transgender’ rather than transsexual to legally change their sex. Whereas those who want this outcome (and believe it is a human right) will continue to push for self ID.

Nevertheless, bureaucratic inertia is not in itself a good reason to continue doing things as they are. What elements of the current process might the government be thinking of reforming (and why)?

MBM Policy Analysis have previously suggested Section 3 (3) of the Gender Recognition Act might be a candidate. This is the part of the process which requires applicants to provide evidence of medical treatment (over and above a diagnosis of gender dysphoria) . This is anomalous since there is no requirement for medical treatment to get a GRC (even though at the time the GRA was passed it was considered that “gender reassignment is a change in the person’s physical characteristics” (see the 2000 report of the Interdepartmental Working Group on Transsexual People (WG))

Another option might be to reform and remove the documentary evidence (bills, driving licenses and such like) requirement. Instead what could be used is something originally proposed by trans activist groups for the GRA (included as an in the WG report). They suggested a two stage process where people first register their intent to live as a member of the sex and then two years later confirm it by making a final statutory declaration and providing a further doctors letter.

However neither of these bureaucratic reform options really get to the heart of the matter: why should someone be able to change their legally recorded sex? And in particular, if people who remain physically unchanged in terms of their sexed body (apart from perhaps cosmetic changes such as facial hair, breast enhancement or facial surgery) are able to change their legal sex, what does this mean for the rights of others, particularly in relation to bodily privacy and single sex spaces?

Back to the drawing board: what is gender recognition for?

Originally the Gender Recognition Act 2004 (GRA) was passed following a ruling of the European Court of Human Rights (ECHR) (Goodwin v UK [2002]). The ECHR found that it was a breach of a post-operative transsexual’s Article 8 rights (concerning privacy) to have to show a birth certificate revealing information about sex when applying for insurance, mortgages and pensions and thus facing potentially intrusive questions. Also their right to marry was breached by not being able to legally change sex (presuming they were initially homosexual).

The UK government ‘gold plated’ the ECHR requirement on privacy (largely because they weren’t yet ready to tackle equal marriage). The demands for self ID (and steps which loosen the bureaucratic requirements taking it towards self ID) go even further beyond what was required by the Goodwin case.

In their submission to the Interdepartmental Working Group, in advance of the GRA being developed, Press for Change, GIRES, LIBERTY and other trans activist groups make the case for “Why we are unhappy about our birth certificates” :

• Privacy, about a medical condition when it has no bearing on the matter in hand; such as in employment and vocational training situations, or a visa application for a short holiday.
• Control over when, how and to whom we tell our medical history, when it is relevant such as in making a life insurance claim, or claiming a state pension.

As the Working Group report showing sex on a birth certificate ” can lead to embarrassment when [transsexuals] are required to produce a birth certificate, for example before taking up employment.”

Nothing was said about the embarrassment (and humiliation and fear) that a woman or girl might feel being forced to share a changing room, toilet, dormitory, hospital ward or prison showers with someone they can clearly perceive to be male. Nothing was said about the embarrassment a woman might feel having a pelvic exam from a “female” nurse who is quite clearly male, or being searched by a police officer who they know to be male but who they must treat as female. Because none of these things were explicitly put on the table.

Press for Change, GIRES, LIBERTY and co argued:

We want to be able to go out to the theatre, we need to travel on trains and buses, we go to school and college, we shop in the supermarket, we serve our communities and we vote in our democratic society.

Of course. We all want that. The question is whether changing people’s sex on official documents is required to enable that, and whether male people should be allowed into single sex services for women.

A proposal for simplicity and privacy

The expansion of the ‘trans umbrella’ and the push for self identification has tested the GRA 2004 to destruction. In considering how to remove red tape the government must first consider the purpose of the GRA.

People should be free to express their gender identity any way they chose. But I (and many transgender activists also) would argue that the government should not be in the business of assessing the authenticity of anyone’s self defined feeling of gender identity.

Trans people should not have to be subject to intrusive questions about their sex, when it doesn’t matter. But nor should others have to deny material reality.

The occasional problem of having to declare your sex whenever you show your birth certificate could be solved simply by allowing anyone to obtain a short form copy of their birth certificate, for a minimal fee, with the sex field removed or left blank.

Sex would remain recorded at birth and kept in the register and individuals could also have a long-form or short-form birth certificate showing their sex. Combined with guidance on the Data Protection Act this would meet the data privacy need as established in the Goodwin case, since people would only be required to declare their sex where it matters (for example for their health or in order to access single sex services).

This would meet the demands for a low cost, accessible and demedicalised process which advocates of ‘self ID’ have called for. It would also accommodate people who identify as non-binary. This would make the issuing of GRCs redundant and so this system should be ended.

This approach of allowing “prefer not to say” on documents and records should be considered for all official purposes. Anybody may call themselves Ms, Mr or Mx, wear what they like, change their name and adopt masculine or feminine styles and this can be reflected on ID, which may not need to carry their sex at all. However shared single sex services would remain reserved for those who are willing to accurately declare their sex and share with others of the same sex (with unisex provision wherever possible for those for whom sex based rules are problematic).

People who have already established their lives on the basis of a changed birth certificate should not be forced to change it back, but a measure for simple legal detransition should be established for those who have already transitioned with a GRC and wish to return to having their sex recorded
accurately.

The Equality Act should continue to protect people against discrimination on the basis of sex (including perceived sex), and “gender reassignment” (i.e. trans identification).

Everyone should be able to go to the theatre, travel on trains and buses, go to school and college, and shop in the supermarket.

And everybody should be able to have bodily privacy when changing, washing and undertaking intimate personal care, and privacy about their sensitive medical information when they need it.

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