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London Trans+ Pride 2021
London Trans+ Pride 2021Photography Santiago Franco Schicke

What went wrong with the Gender Recognition Act?

As plans to scrap the medical requirements for legal gender recognition are abandoned, Cleo Madeleine from Gendered Intelligence looks at how the culture war has escalated – and how the human lives at its heart have been forgotten

In 2017 Theresa May promised to reform the Gender Recognition Act. The then Prime Minister’s record on LGBT rights is spotty to say the least, but perhaps she imagined it would be a popular move in the same vein as equal marriage, delivered by David Cameron’s establishment in 2013. Delivering a speech at a Pink News awards ceremony, she announced plans to scrap the medical requirements for legal gender recognition – being trans, she said, is not an illness. In 2018 a 16-week consultation was launched to tackle the “bureaucratic and invasive process”. The news was welcomed throughout the queer community, and the UK government’s commitment to LGBT rights was, ostensibly, renewed. But now, five years later, not only has no progress been made, but the UK is slipping further down the ILGA rankings – the international rankings for LGBT rights – with each passing year. What went wrong?

The GRA was signed into law in 2004, part of a series of sweeping legislative changes at the turn of the millennium that included age of consent equality and the Civil Partnership Act. It didn’t emerge from an altruistic turn on the part of the New Labour government, rather, it was set in motion with the victory of Christine Goodwin v United Kingdom at the European Court of Human Rights. It was one of the first laws in the world to set out the process by which a transgender person could change their legal gender to mark their gender identity. It was unwieldy and complicated, but in a world where trans visibility was limited to crass jokes on sitcoms it felt like a real step forwards. But as the Act changed, a problem became apparent: nobody was using it. Even now, almost 20 years later, barely one per cent of trans people actually hold a Gender Recognition Certificate.

The issue was the process. The applicant must provide a diagnosis of gender dysphoria, signed medical reports from two doctors, two years’ evidence of ‘living in the acquired gender’, and a fee of £140 (since reduced to £5). Even getting a diagnosis can entail months, even years of appointments, let alone two signed medical reports. Many GPs are uncomfortable to so much as touch the subject of transgender healthcare, in part because the GRA ties medical transition so closely to legal recognition. Besides, you might rightly ask, what does living in the acquired gender even mean? And even if you figure out how to perform masculinity or femininity in the appropriate way, who has two years of proof to hand?

It was, just as Theresa May said, “bureaucratic and invasive”. So in 2018, a consultation was opened to reform it. But despite a majority positive response, the government said nothing for two years – and then when they did respond, they made almost no changes. The fee would be reduced to £5 (although nothing would be done about the hidden costs of medical records and legal fees) and the process would be digitised (although the community were quick to point out that digitising two years of nebulous gender proof was as much of a task, if not more, as sending in hard copies).

“The fact of the matter is that there is no compromise on GRA reform, not really. Trans people don’t stand to gain any special privilege or particular access. What we want is there in the name of the Act: recognition. To be seen for who we are”

But if so many trans people have been getting on with their lives without GRCs, why did it matter so much anyway? It’s because the parts of your life that legal gender does affect aren’t the day-to-day pragmatics, like passports and doctor’s notes. It’s the parts that tell the law – and by extension, society – who you are. Without a Gender Recognition Certificate, you cannot change the marker on your birth certificate, nor can you have it recorded correctly on your marriage certificate or your death certificate. Most people take for granted that they can be themselves at the most important points of their lives: how you enter the world, the lifelong commitments you make while you’re in it, and how you leave at the end. But for trans people these defining moments are locked behind a wall of labyrinthine admin and inscrutable demands.

It’s hard not to see the abandonment of reform as an intentional move on the part of the government as part of the ongoing ‘culture war’ around trans people in the UK. Recent announcements have confirmed that long-promised conversion therapy legislation will not include gender identity. Practices that are classified as torture, and that will shortly be illegal to use against (some) LGB people, will be permitted by law. Increasingly we see Downing Street itself pivoting against trans people, with the Prime Minister making sweeping and off-hand remarks about ‘biological sex’ during PMQs. In the media things are worse: In 2021 one major UK newspaper published a negative article about trans people almost every single day. Hate crimes have spiked in the past five years. The further we get from Theresa May’s promises the worse the situation seems to become.

The fact of the matter is that trans people are an extremely effective political football. Our increased visibility and hard-won rights make us vulnerable to backlash, just as the Conservative governments of the 1980s cracked down hard on the successes and visibility of gay rights movements, ultimately culminating in the cultural gag order of Section 28. And the Tories really do need to keep eyes on the pitch, with the economy crumbling and the highest levels of the government limping from one scandal to the next. In times of difficulty, marginalised people are always the first to be blamed, and over the past five years trans people have increasingly been the ones in the firing line. Of course, there are major trans issues on which government attention would be welcome. The system of gender-affirming care is hopelessly mired in escalating wait times and administrative failures, with the recent Cass Review interim report recommending a total overhaul of the service. But the harsh focus on trans people as political antagonists distracts from tangible, socially beneficial changes like healthcare and instead emphasises us as a threat.

The culture war narrative is so prevalent that it’s easy to forget the people at its heart. So often GRA reform is pitched as trans rights vs. women's rights, or trans rights vs. LGB rights. There’s a persistent idea that in order for us to have reasonable access to legal recognition, someone else has to lose out. But this has never been about balancing rights, or finding a compromise. Gender dysphoria is no longer considered as a psychological condition in the latest edition of the International Classification of Diseases. Surely even a conservative interest in balancing the needs of trans people with the rest of the population would respect international medical consensus. But no: The GRA continues to demand a diagnosis that, by the standards of the world’s leading healthcare authority, no longer exists. We might even imagine that the continued pathologisation of trans people is an intentional feature of the GRA. If our legal existence is tied to a psychological diagnosis, however outdated, then in order to be ourselves we must also say that there is something wrong with us. This is the hidden cost of the gender recognition process, says Dr Stephen Whittle, the humiliation of “applying for a core human right; recognition of one’s gender identity, even more so when a diagnostic statement of a non-existent mental illness is also required”. The fact of the matter is that there is no compromise on GRA reform, not really. Trans people don’t stand to gain any special privilege or particular access. What we want is there in the name of the Act: recognition. To be seen for who we are.

Take Freddie McConnell, whose campaign to be recognised as a father on the birth certificates of his children cast light on an issue affecting all trans people who consider becoming parents. Despite the fact that birth certificates are matter, as McConnell points out, of legal, not biological record, trans parents are recorded automatically as their registered gender at birth. All he wants is for his children to have accurate birth certificates, for them to be protected from the potential for confusion and prejudice because their father is, legally, listed as their mother. When I went through the medical transition process there was an extraordinary focus on fertility preservation. I was asked, over and over, Are you sure? Is it worth it? The idea persists that to compromise one’s ability to have children for the sake of transition is a terrible loss – and yet when we do want to start families (and, for what it’s worth, I do) we are denied parenthood. Our fertility is of paramount importance; what we do with it, not so much. McConnell is currently taking his case to the European Court of Human Rights after the UK Supreme Court refused to hear it.

Nor are our other halves spared these trials. Seeing us in the news, you would be forgiven for thinking that trans people spend all their time dying their hair, going to protests, and generally causing trouble. It might surprise you to learn that we do occasionally find time in our busy schedules to go on dates, find someone special, and, if we’re lucky, fall in love. But while equal marriage allows men to marry men and women to marry women, trans people without a GRC can only be married as their legal gender. A person can grow up as a man, fall in love as a man, and build a lasting relationship as a man, but if they cannot get a GRC they legally must be recorded as a woman. The happiest moment of your life, solemnised with a lie.

“Now, more than ever, it is crucial that we cut through the headlines and the dogwhistles... and recognise that this is not about politics, or debate, or freedom of speech. It is about the right of hundreds of thousands of human beings to live – and die – with dignity”

I can’t marry my partner of three years without misgendering myself. My partner themselves is non-binary, and has even fewer options. Non-binary is an umbrella term for trans people who are neither male nor female (or both!). Historically this population has been underrepresented and poorly understood despite the fact that they make up tens, if not hundreds of thousands of people. In recent years nations like Iceland and New Zealand have forged ahead with legal reforms to recognise non-binary identities, but the GRA makes no provision for non-binary people – and the UK has rejected all attempts at progress in this direction. “The emotional impact is massive,” says a non-binary healthcare worker who prefers to remain anonymous. “It stops me doing administrative tasks that other people just have sorted. I don’t want to get my ID, my passport in my right name because it will still be wrong.” Our lives feel like they're on hold, held hostage behind an expensive and intrusive process. Non-binary activist Christie Elan-Cane, who uses the neutral pronoun per, has been at the centre of an escalating campaign for legal recognition since per sued the Passport Office in 1995 for failing to provide proper documentation for non-binary people. Per, too, is taking per case to Strasbourg after the UK Courts washed their hands of it. With a parliamentary debate on non-binary legal recognition forthcoming this year, we can hope that at least the issue becomes harder for the government to ignore. Until then, however, our non-binary partners and siblings must each be faced with an impossible situation: marry who you want, but not as who you are. “Legitimate identity,” says Elan-Cane, “is a fundamental human right – but non-gendered people are treated as though we have no rights”.

For older people it can be even worse. Older trans people are particularly vulnerable to abuse and conversion practices. They may not be accepted by their families if they come out later in life. They may fear being abused, mocked, or improperly housed if they go into care. If they suffer dementia their wishes regarding how they should be addressed, how they present themselves, how they live may not be followed. Some older trans women even undergo superficial vaginoplasties before going into care to protect themselves from being outed or abused by those who ought to protect them. And, as a final insult, if we die without a Gender Recognition Certificate we will be misgendered on our death certificate. When the government invited responses to their proposed changes to the GRA, they did so in pursuit of a “kinder and more straightforward” process. Without serious reforms 99 per cent of an entire demographic, having been unable to live as themselves, will face that same exclusion in death. In what world could this be kindness?

It’s not all doom. If we look beyond the UK and US, progressive reforms on legal gender recognition are gaining momentum as a global phenomenon. Our neighbours in Scotland and Ireland are pressing ahead towards genuine, accessible changes, like lowering the minimum age requirement to 16 and removing the medical requirements. But in England and Wales, at least, the future for trans people is unlikely to get brighter so long as our government uses our rights to stoke the culture war. In fact, the Women and Equalities Select Committee’s own report on the response to the GRA consultation criticised the government for their silence on trans rights, and their encouragement of hate crime in failing to recognise these marginalised people. Now, more than ever, it is crucial that we cut through the headlines and the dogwhistles – what pro-reform Tory MP Elliot Colburn called ‘the Twitterisation of Parliament’ – and recognise that this is not about politics, or debate, or freedom of speech. It is about the right of hundreds of thousands of human beings to live – and die – with dignity.