Gender politics: A closer look at the Gender Recognition Act

LGBTQ+ rights are increasingly being debated within our governments and headlines across the world. However just as it appears we are taking strides towards a more inclusive society, a decision is made which proves the opposite.

In the US, the fight for LGBT rights over the last 20 years alone has been a rollercoaster. Beginning in 2003, when the Supreme Court legalised same-sex sexual activity in Lawrence v Texas, followed by a landmark decision in 2014 to, finally, legalise same-sex marriage in Obergefell v Hodges. To an onlooker, it would appear that LGBT rights were going from strength to strength.

However, despite the promising progress being made, in classic American style, an executive decision proved to diminish all the progress and took a giant step back for equality. In March 2018 President Donald Trump decided to ban all transgender people from the military. This decision provoked shock and outrage from many human rights and LGBT groups such as Stonewall and the ACLU. However, the limited and short-lived press coverage and general public reaction was deafening.

This brought to light another issue. Why is it that trans people are so often left out of the fight for LGBT rights across the world? After all, it was a black trans woman, Marsha P. Johnson, who started the Stonewall riots thereby paving the way for further progress for the LGBT community. Despite this, as the fight for LGBT rights takes strides towards positive change, too often the ‘T’ is being left behind.

Where does this leave the UK? What is the current state of our laws regarding trans rights and what is the government doing to protect trans people in our communities?

Currently, the short answer is, very little.

Whilst our executive has not yet made any blatant and extreme decisions to diminish LGBT rights, unlike the US, our present laws and systems in place to protect trans people are in desperate need of an update.

The law regarding trans equality, the Equality Act 2010, does not reflect an accurate description of what it means to be trans. Despite popular belief, many trans people do not wish to undertake painful; life changing gender reassignment surgery. However, the Equality Act 2010 requires, in order to be recognised as a trans person and receive protection under the law, that a trans person has undergone gender reassignment surgery. This alienates a large section of the trans community and leaves them without legal protection.

Additionally, the current law regarding gender identity, the Gender Recognition Act 2004 (GRA) was previously considered ground-breaking but is now completely outdated.

it is not a mental illness nor the definition of a trans person.

The current process under the GRA requires trans people to go through a long, intrusive process of interviews with psychiatrists in order to ‘prove’ their identity. They must also have a formal diagnosis of gender dysphoria. Gender dysphoria is a medical condition in which a person experiences discomfort or distress because they do not feel the sex assigned to them at birth matches their gender identity, it is not a mental illness nor the definition of a trans person. This means that a trans person must prove that they have a medical condition in order to have their gender identity recognised.  Moreover, they must have lived in their ‘acquired gender’ for at least two years.

If they satisfy all of these very specific requirements they have to collect a large amount of supporting evidence.  This evidence is to be presented to a gender recognition panel, comprised of medical professionals who do not know the applicant, who then decide the fate of the application.

This process is lengthy, emotionally challenging, and can often result in a failed application. In failing an application and forcing trans people to go through this process the law is effectively denying their existence.

In addition to this, the GRA also completely excludes trans people who are non-binary (those who do not identify as male or female). Thus non-binary people are left with absolutely no legal protection whatsoever under current law.

However, there is some hope for trans rights in the English legal system. In 2016 the government announced that it hoped to change the law regarding self-identity by allowing people to choose and change their gender without going through a formal legal process. This would be a giant leap forward for trans rights in English law. Yet, predictably, there has been a large amount of resistance from the public and MPs and the topic has created lengthy debates in and out of parliament.

For once, I would have to strongly agree with our Prime Minister.

Theresa May has said that the government will seek to “streamline and de-medicalise” the process of changing gender to reflect that “being trans is not an illness”. For once, I would have to strongly agree with our Prime Minister.

However, other politicians have not taken very kindly to the proposed changes with UKIP leader Henry Bolton stating that LGBT equality is going “too far”. Whilst David Davies, Conservative MP for Monmouth, remains firmly opposed to the changes, stating that gender reform plans should be treated with “extreme caution” and that they would change “the very definition of male and female”.

Fortunately, there is now a chance for the public to have their say. The government has released a consultation paper in which anyone can share their current thoughts on the GRA and how they think it needs to be amended. The consultation deadline is 19th October (2018); follow this link to share your thoughts.

Ultimately, the law needs to change and be updated to reflect modern thinking and to protect the trans community. But there is a bigger underlying issue at play. Until the politicians who are changing the law set aside their own personal prejudices and instead, prioritise and support the marginalised in society, we will never truly all be equal.

By Abigail Clements-Bewley

An additional note for those who are interested. In October the university and I are running a coffee and cake session where we will give more information on the current gender identity law. We will then help anyone who wishes to give their feedback on the law fill out the consultation form, as it can be tricky to navigate. I can confirm that there will be snacks and freebies. We are still trying to arrange a firm date and time but anyone who is interested can email me at ac879@exeter.ac.uk and I will update you on place/time when I know. Do not forget that your feedback really makes a difference.