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ABOUT ME

I am 34 years old. I live in Powys, Wales. I am nonbinary - specifically, I feel like I have no gender at all. My pronouns are singular they (they/them/their/theirs/themself, plural verbs). I learned what nonbinary was when I was 24, and immediately came out and began my transition. I have been attending the NHS gender identity clinic (GIC) in London since April 2012, about 8.5 years. Throughout that time I have presented as openly nonbinary, and have had surgeries and hormone treatments from the NHS to aid in an androgynous presentation. I have all the records and paperwork that I would need to receive a gender recognition certificate (GRC), if one were available to nonbinary people. I am openly nonbinary with everyone I see and interact with on a regular basis (social workers, support workers, landlords, friends and family, etc).

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SUMMARY

The Government’s proposed reforms are positive but only a fraction of the changes needed to ensure trans people have equal rights and sufficient trans-specific medical care.

In particular, three additional gender clinics in the NHS are horrifically insufficient, especially for children and adolescents facing the body-horror and permanence of the wrong puberty, resulting in preventable major surgeries. Requirements for obtaining a gender recognition certificate remain excessive, demoralising and unnecessary. The financial cost currently involved is much greater than the £140 fee, making a fee reduction seem like lip service.

The gender recognition process remains needlessly and discriminatorially medicalised, unacceptably has higher standards for gender recognition than the NHS has for medical transition, and allows for stalling and abuse by spouses because UK marriage laws are needlessly gendered. It also does not account for Gillick competence in the case of legal gender recognition for children.

There is a complete lack of provision for nonbinary people, which is unacceptable, especially now that the courts have found that nonbinary people are protected under the transition characteristic of the Equality Act 2010. This means that nonbinary people are unable to marry or parent children while being authentic in their genders, and are unable to receive a correct pension.

These barriers presented to trans people mean that still only a minority of trans people will access gender recognition certificates, which results in unnecessary and preventable problems for trans people, but also for the systems that have to accommodate them in accordance with the Equality Act 2010.

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RESPONSES TO PROMPTS

The Government’s response to the GRA consultation:

Will the Government’s proposed changes meet its aim of making the process “kinder and more straight forward”?

Yes, but only marginally.

Three new GICs: Each month the NHS makes several months’ worth of referrals to GICs. Nowhere in the UK is it possible to access a GIC within the 18-week NHS-set timeline; the average wait is 18 months, which is horrific for transgender adults, and devastating and traumatic for transgender adolescents who are forced to go through the body-horror of the wrong puberty while waiting for two appointments to be prescribed puberty blockers. [1] It follows that in order to bring this waiting list down to lawful amount of time we need to increase the number of NHS GICs not by 40% but by 400%.

Fee reduction to “nominal amount”: I have still seen no reason to delay making this process a demedicalised case of submitting a form declaring a change of legal gender, much like changing one’s name by deed poll. We are not charged to update our details with HMRC, so we need not be charged for updating our details at a General Register Office.

Placing the procedure online: This is something that should have been done decades ago, but better late than never. It is also an attempt to repair the Titanic with superglue as it sinks. The system is difficult to access for all trans people, but not because of the method of application. The problem is that we are required to apply to the gender recognition panel at all.

Should a fee for obtaining a Gender Recognition Certificate be removed or retained? 

It should be removed. It is arbitrary, and other administrative changes of a similar nature and risk level do not have fees associated.

Are there other financial burdens on applicants that could be removed or retained?

The requirement to provide medical evidence for change of gender is unnecessary and costs money. For example, living in rural West Wales means that for the 8 years I’ve been attending the London GIC I have been paying for accommodation in London, because it is not physically possible to travel to London by public transport and back in one day when attending a GIC appointment. Each trip costs me at least £80 or so out of pocket, because I have to find accommodation close to the GIC for me and a PA (I am disabled and receive direct payments). I am entitled to have my travel costs refunded by the NHS but others are not, so attending GIC appointments will cost them money even if they don’t have to stay overnight.

At the moment the wait of in some cases several years for a first appointment followed by 1.5 years waiting for the second appointment means patients being referred today will be waiting 4-5 years for their first hormone prescription or surgery referral, so a significant number of people who would like a GRC have to pay for private treatment to get the proof they need within a reasonable timeframe.

Should the requirement for a diagnosis of gender dysphoria be removed?

Yes. Legal gender need not be a medical issue. As when changing one’s name, legal gender need only be a case of signing a document with witnesses. The two reasons I’ve heard cited against demedicalising the gender recognition process are (1) fraud prevention and (2) protection of vulnerable women in single-sex spaces.

(1) We already have laws against fraud, and it is very easy and cheap to legally change one’s name in the UK. When you consider how “identifying” something like a gender is when compared to other identity metrics such as photographs, dates of birth, names, etc. (i.e. not very), it seems absurd that gender is so difficult to change. Existing fraud laws would allow for prosecution as easily if changing one’s legal gender were a matter of a statutory declaration only.

(2) We already have laws against abuse of women, women’s spaces are already protected even taking into account the Equality Act 2010, and in general the women responsible for protecting those women-only spaces currently accommodate and welcome trans women and have done for a long time. [2] Birth certificates are not required for accessing women-only spaces such as shelters, toilets and changing rooms. Other ID that might be required in a less free version of our current society, such as driver’s licences or passports, do not require a gender recognition certificate to have the gender marker changed, so demedicalising the gender recognition process has no effect on provision of necessary gender-exclusive services.

Anyone wishing to use an alternative gender presentation for fraudulent or abusive purposes does not have a more difficult time in the crimes that they are attempting to commit thanks to the Gender Recognition Act. The fact that currently only 1 in 10 transgender people have a GRC suggests that the system can currently accommodate people whose genders don’t match their birth certificates or tax records, so presumably making it much easier for people to make all of their IDs match will make no difference to fraud and abuse incidence, and may make it easier by removing discrepancies.

I would also argue that the current “gender dysphoria diagnosis —> correct ID” situation is back-to-front. Wanting ID that reflects a gender that is different from the one you were assigned at birth is evidence of gender dysphoria, and so applying for a birth certificate that shows a different gender to the one you were assigned at birth should be considered evidence of gender dysphoria for a diagnosis. It doesn’t need to go through a doctor; wanting to change the ID should be enough on its own.

Should there be changes to the requirement for individuals to have lived in their acquired gender for at least two years?

Yes. Being transgender isn’t something that comes on suddenly later in life. It is a neurodevelopmental issue, considered by some medical professionals to begin in the womb. Having to wait two more years to have that gender recognised in law seems arbitrary and unnecessary.

Most transgender people have known that their gender was different to the one they were assigned at birth for years before they begin their transition. I would say that making it very difficult to change one’s legal gender is, among other factors, something that contributes to this unfortunate tendency.

I understand that living in a new gender role for two years is considered proof of commitment to that gender role by the state. Proof of this nature is not required for other administrative matters such as change of name or title. Let’s imagine the same situation for something that might be considered harder to change because it is by its nature decided by biology: date of birth. If one’s date of birth had been entered incorrectly on a birth certificate and the individual or their parents noticed some years later, the birth certificate could be corrected with, at most, medical records showing that the baby was born on a different day. Likewise, to change a gender marker on a birth certificate should require, at most, medical records showing that the individual’s gender was assigned incorrectly at birth. This would be a copy of a letter from a doctor diagnosing gender dysphoria, which requires only 6 months of a specific type of discomfort. The legal system therefore is four times more strict about changing legal gender than the NHS is about referring for permanent gender-affirming surgery or prescribing hormones that cause permanent physical change. This is unnecessarily stringent. It could be considered discriminatory under the Equality Act 2010: trans people are less able to change incorrect records relating to their gender, in accordance with GDPR, because of the additional barriers.

If the gender recognition process was easy and cheap, and for some reason a person changed their gender marker on a whim and then wanted to change it back, it would be very easy for them to do so - but as you learned in the first Trans Inquiry some years ago, countries such as Ireland, where it is easy and cheap to change your legal gender, have not seen this happen. In general, we know that when it is easy and cheap to change your one’s legal gender, people tend to do it once and then never again.

What is your view of the statutory declaration and should any changes have been made to it?

I have no problem with the statutory declaration aspect of the gender recognition process. It seems acceptable that a change intended to be permanent should require the signing of a binding legal document, and that people who do so for fraudulent or otherwise harmful reasons be subject to criminal proceedings.

I am opposed to a spouse’s consent being required for married/civil-partnered people, as it gives another person unnecessary and potentially harmful control over their spouse’s transition.

Does the spousal consent provision in the Act need reforming? If so, how? If it needs reforming or removal, is anything else needed to protect any rights of the spouse or civil partner?

I understand that when one person in a marriage is changing their gender that changes the legal status of the marriage from a different-gender marriage to a same-gender marriage, or vice versa, and I agree that a spouse must consent to that change as an equal participant.

In order to resolve this issue, I would suggest making marriage law gender-neutral. There is no reason to have a same-gender marriage be any different than a different-gender marriage in law. It need not be “men can marry women, men can marry men, women can marry men, women can marry women” - it can simply be that an adult can marry another adult. That way, if one of the spouses changes their gender, the marriage is unchanged.

This would also prepare marriage law for legal recognition of nonbinary genders.

Should the age limit at which people can apply for a Gender Recognition Certificate (GRC) be lowered?

I am not aware of any reason why it would not be appropriate. In the UK, the NHS has a policy of assuming that children are capable of understanding and consenting (or not consenting) to medical treatment. It should be assumed that a child can also consent (or not) to having the gender marker on their birth certificate changed.

What impact will these proposed changes have on those people applying for a Gender Recognition Certificate, and on trans people more generally?

Moving the process online will allow people to apply electronically, which would likely have a positive impact on the environment due to being less CO2-intensive. It may also make the process faster, which would be positive.

Making the process cheaper will allow poorer people to apply for a GRC, which is positive.

The NHS providing 3 more GICs will allow some patients to travel a shorter distance to access care, which is positive.

However, I don’t think these changes will have a significant impact on the most serious issues affecting transgender people. I consider these to be: excessive waiting times for transition-related treatments, difficulty of access to change of legal gender, the demoralising and humiliating nature of the gender recognition process, and the complete lack of legal recognition of nonbinary genders in UK law.

What else should the Government have included in its proposals, if anything?

Legal recognition of nonbinary genders (including availability of gender recognition certificates and X gender markers on state-issued ID), legal gender recognition by statutory declaration, 400% increase in the number of gender identity clinics in the UK, and no cost for GRC application.

Does the Scottish Government’s proposed Bill offer a more suitable alternative to reforming the Gender Recognition Act 2004?

Yes.

Living in the “new” gender role is required for only 6 months, in line with diagnosis of gender dysphoria. A diagnosis of gender dysphoria is not required, as living in the “new” gender role would suggest that the person has gender dysphoria to the extent that they wish to live in the “new” role and the official diagnosis would be superfluous. A statutory declaration is required, which seems acceptable. All of this seems positive to me.

Requiring applicants to wait for three months to consider their application seems unnecessarily patronising and patriarchal, but the proposed Scottish Bill is still much more fit for purpose than the current and proposed England-and-Wales model.

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Wider issues concerning transgender equality and current legislation:

Why is the number of people applying for GRCs so low compared to the number of people identifying as transgender?

I am not sure. I imagine there are several complex and intersecting reasons.

I think cost is probably an issue. I think that the amount and type of evidence currently required by the gender recognition panel is not very easy to obtain, and the applicant is unable to sit before the panel in person with or without a legal representative, and so there is a high risk that applicants will not meet the panel’s obscure criteria or be able to persuade them or answer their concerns/questions in person. If the application fails the money is lost, and the (significant) effort involved in application is wasted. The latter is offputting for everyone who might consider applying, and the former is a bonus barrier for poorer people.

I would speculate that it might also be because because living as a different gender than the one you were assigned at birth and getting medical treatment are easier and more medically urgent than changing one’s birth certificate, especially when compared to the frequency with which one has to show one’s birth certificate (and therefore “out” oneself, if one does not already have a GRC).

I think there is a tendency for people to think, “well, how often do I have to show my birth certificate or my tax records to people I have direct contact with? And how often are they going to be indiscreet and transphobic about it? Hardly ever, right?” But by the time they find out that transphobic people do exist and do make an issue about it, or by the time they have to show their birth certificate to someone they’d rather not come out to, it is too late and they are not able to apply for a GRC and get their records updated in time. Not having a GRC is therefore always a problem in the past, which removes urgency.

By comparison, gender dysphoria is a chronic and acute daily psychological discomfort, which is much harder to ignore.

Are there challenges in the way the Gender Recognition Act 2004 and the Equality Act 2010 interact? For example, in terms of the different language and terminology used across both pieces of legislation.

I understand that the Equality Act 2010 has now been tested in court by a nonbinary person in an employment tribunal and found to protect nonbinary people under the characteristic of gender transition “beyond any doubt”. The Gender Recognition Act doesn’t accommodate or provide for nonbinary people, and is therefore in breach of the Equality Act 2010. [3]

Are the provisions in the Equality Act for the provision of single-sex and separate-sex spaces and facilities in some circumstances clear and useable for service providers and service users? If not, is reform or further guidance needed?

I think the guidance for the Equality Act should explicitly state that nonbinary people are protected under the characteristic of gender transition. I do not feel that I am knowledgeable enough to comment on any other issues.

Does the Equality Act adequately protect trans people? If not, what reforms, if any, are needed

Now that the Equality Act 2010 has been shown in court to protect nonbinary people under the protected characteristic of gender transition I have no complaints.

What issues do trans people have in accessing support services, including health and social care services, domestic violence and sexual violence services?

A lot of trans people just don’t report hate crimes to the police because the police often don’t do anything about it. [4]

Because trans people face extra barriers in matters such as housing, employment, and primary and secondary medical care, they need additional support from e.g. Social Services. This means they have the barrier of having to ask for more than other people do, and for that request to be considered by individuals in the system who may also be transphobic, before being granted.

There was a women’s shelter in a city I used to live in, which said on a sign at the door “no men allowed!”, but then on their website it said “women only”. I emailed to ask for clarification, because I am nonbinary and it was unclear whether I would be allowed on the premises. They said that if I identified as a woman I was welcome to enter. As I don’t identify as a woman I didn’t enter. I would presumably also be barred from entering a shelter for abused men. The difficulty for nonbinary people is that there are no provisions for us whatsoever, whether provided or funded by the government/local authorities or otherwise.

Are legal reforms needed to better support the rights of gender-fluid and non-binary people? If so, how?

Yes. We need to be explicitly written into laws and guidance relating to the following:

- Marriage

- Passports

- Driving licenses

- Adoption

- Sexual violence (as victims and as perpetrators, in matters such as disclosure of transgender identity and medical history, definition of rape, etc.)

- Birth certificates (as parents, e.g. language relating to mother/father, birth parent)

- Pensions

- Hate crime

- Provision of public services and facilities (public toilets, changing rooms)

- Any law that has gender-specific statements or provisions

… and probably more.

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[1] https://www.pinknews.co.uk/2020/08/13/nhs-trans-patients-laurels-gender-identity-clinic-south-west-waiting-list-yeovil-pride/

[2] https://www.pinknews.co.uk/2018/08/03/domestic-violence-shelters-transgender-no-impact-on-services/

[3] https://www.jdsupra.com/legalnews/gender-is-a-spectrum-landmark-uk-ruling-61650/