Proposals to guide the Government’s response to the consultation on the Gender Recognition Act 2004 from the Officers of the All-Party Parliamentary Group on Global LGBT+ Rights.
Introduction
The UK has a strong record of global leadership in advancing equality of LGBT+ people both at home and abroad. The UK is currently co-chair of the intergovernmental Equal Rights Coalition, consisting of 42 nations collectively committed to protecting and advancing the equal rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people globally. It is the stated policy of the Government that everyone should be able to live their lives as they choose. We agree with this fundamental principle of an enabling State that supports freedom as the basis of personal human dignity. We have made great strides over half a century towards a society free from discrimination and prejudice where nobody is held back from contributing to society because of who they are.
The 2004 Gender Recognition Act (GRA) enshrined in law the rights of transgender people to change their birth certificate. In 2011 the Government issued the Transgender Action Plan and, following the 2015 Women and Equalities Select Committee’s inquiry into trans equality, it recommended trans people should be able to assert their identity, meeting the aspiration of self- identification, which Argentina, our co-chair of the Equal Rights Coalition, delivered in 2012.
In 2018 the Government launched a LGBT Action Plan which was seen as world leading in its comprehensive nature. It also launched a consultation on the 2004 GRA whose processes around obtaining a Gender Recognition Certificate, having been ground-breaking in their day, were now seen as onerous and medically invasive of trans people. They represented an offence against the wider duty of equality and dignity for trans people and stood in sharp contrast of a growing body of nations updating their laws to reflect a better understanding of their status. There is evidence of successful implementation, not least in Argentina.
The Government has committed to responding to this consultation by the summer recess. The absence of a response to date has allowed an increasingly polarised and toxic debate to take place, both in mainstream and social media. This has led to trans people fearing that their ability to undertake mundane, everyday but essential tasks such as shopping or visiting public facilities may be curtailed; whilst generating an inchoate anxiety that a trans cultural movement is changing society’s view of gender. An anxiety that has been reinforced by a narrowly, but strongly held view, that trans people demanding acceptance is an in-principle contradiction of sex and gender being in the reality the same.
What does trans mean?
“Trans is a general term for people whose gender is different from the gender assigned to them at birth. For example, a trans man is someone that transitioned from woman to man. Trans people do not feel comfortable living as the gender that they were born with. They take serious, life-changing steps to change their gender permanently.” 2018 Government Equalities Office Factsheet, Trans People in the UK. There are an estimated 200,000 to 500,000 trans people in the UK.
The Government’s LGBT Survey, remarkable for the high level of participation in a survey of this kind, showed the ongoing inequality faced by LGBT+ people in the UK:
Trans respondents had particularly low scores on life satisfaction (around 5.4 out of 10).
Only 37 per cent of trans women, 34 per cent of trans men and 38 per cent of non- binary people felt comfortable being LGBT+ in the UK.
Trans people generally avoided expressing their gender identity in all contexts, but particularly when out in public (e.g. 68 per cent avoided it on the street).
Nine per cent of trans men been offered so-called “conversion therapy” and four per cent had undergone it. • The survey outlines many areas of inequalities including in healthcare, education, employment and domestic violence. Research by Cambridge University and Stonewall (2017) further showed that:
Half (51%) of trans pupils are being bullied at school for being trans, and 57% of trans pupils worry about being bullied.
Nearly one in ten (nine per cent) of trans pupils receive death threats at school, and 13% experience physical bullying. In line with medical and scientific understanding, we know that trans people are part of the natural diversity of society, deserving of understanding, acceptance and ultimately celebration - as we are starting to do around sexuality.
We recognise that trans people face intensely personal decisions around medical intervention, and these should not be necessary to realise specific rights - indeed, many trans people may not be medically suitable for certain interventions. The medical services required should be as available as any other medical service. The requirement to respond to the consultation is an opportunity to reassure people who have anxieties around the transition process, a concept not widely or easily grasped by the majority of the population. These can be calmed on the basis of the evidence of the reality of the gender transition process. It is also a key opportunity to combine that reassurance with a restatement of the central principle that trans people are entitled to live their lives as they wish just as much as anyone else.
Furthermore, it is necessary to act now in order to confirm UK’s claim to be a global leader on LGBT+ issues. Failure to take this opportunity will be seen as a surrender of global leadership as well as allowing the current toxic debate to continue with no end in sight. It would leave a trans community living in fear, knowing they cannot look to this Government and Parliament for protection of their ability to live in safety and dignity.
On 6th July the Government’s statement of hard sanctions action to support Britain’s aspirations to protect and defend human rights was universally welcomed across the political spectrum. Failure to develop the same type of concrete proposals to deliver equality for trans people would undermine the Government’s claim to global leadership on trans issues. This abdication of leadership when the UK has just elected the ‘gayest’ parliament in the world would be a betrayal of trans people in the UK and also a betrayal of all trans people who would expect the UK to be a global leader on all LGBT+ rights.
We recommend the Government takes the following steps in its response to the consultation on reform of the Gender Recognition Act 2004.
Improving the process for gender recognition in the UK & reforming the Gender Recognition Act 2004
For several decades, trans people in the UK have been able to use a straightforward administrative process to update all their official documents, except their birth certificate, once they are living permanently in their gender. Two years after that, they can then apply for a Gender Recognition Certificate to update their birth certificate as the final document to align with how they are living permanently in society. Currently, the Gender Recognition Act 2004 requires submission of two medical reports in order to update a UK birth certificate. Argentina was the first country, in 2012, to demedicalise the process of updating a trans person’s birth certificate to a statutory declaration process without any medical reports. In 2015, Ireland successfully implemented a non-medicalised statutory declaration process of updating birth certificates for trans adults. There are now several countries with simple statutory declaration gender recognition processes for updating birth certificates that are working smoothly without any unintended consequences or negative impact on women.
We recommend the UK simplifies the Gender Recognition Act 2004 to remove the medical report requirements. This would bring it more into line with long-existing processes for updating other UK official documents. Trans people would still need to evidence that they have been living permanently in their gender for a period of time (currently a two year requirement) for example through employment or other official documents and state they intend to live in the acquired gender identity for the rest of their lives. This declaration should be supported by a letter from a person of good standing probably, not necessarily, the trans person’s general practitioner. A false statutory declaration should continue to carry an appropriate criminal sanction of up to two years imprisonment. We recommend that an application fee should not apply as the state should be supporting trans people to live their lives freely, equal to others who do not have to make such a declaration.
The imposition of a fee offends the principle of equality with de minimis public expenditure implications. This will further simplify its administration. This new model would not be the full immediate self-declaration process requested by some trans people and enabled in other jurisdictions. As such, there should be a review after five years of how the reformed process is operating, including evidence from other countries. This review should determine whether continued supported evidence of trans people living in their gender with the intention to do so is required at all moving to full self-declaration, but also review if the validation process in practice needs to be strengthened on the basis of the evidence accrued in the UK and around the world. Whilst this measure will require legislative change it will exceed the current depressed expectations of the trans community. It also offers a route to their fundamental aspiration of self-identification following the proposed review. We regard it as a key part of a package of measures that will allow the UK to continue to claim a position of global leadership on LGBT+ issues.
Reassurance around malicious exploitation of the rights of trans people for the rights of others
The Government made clear when the consultation on the Gender Recognition Act 2004 was launched, that there will be no change to the provision of women-only spaces and services. The Equality Act 2010 provides effective statutory safeguards for all women, including trans women, as well as a range of other protected groups. It ensures trans people can access services that match their gender, except in restricted circumstances – allowing services to make sensitive case-by-case decisions. We consider this to be proportionate and fair, if insufficiently understood and on occasion misrepresented by lobby groups from all sides. The Statutory Code of Practice that accompanies the Act makes it clear that service providers have the freedom to make proportionate decisions, which can include lawfully excluding some trans people, and which take account of the needs of all service users, and this should not be changed. By highlighting this Statutory Code of Practice, the Government can ensure the Equality Act 2010 is properly followed to ensure the safety of all people in vulnerable situations. The proliferation of unofficial guidance and resources created by lobby groups both for and against trans inclusion has, for example, caused significant confusion for schools and local authorities.
In an attempt to save money and to be more inclusive of non-binary trans people, some contractors for new school buildings switched all toilets to gender neutral instead of retaining some single-sex toilets. There was not adequate consultation or equality impact assessment done to ensure dignity, privacy and safety of all pupils regardless of gender. This misinterpretation of the code of practice does not make a case for its alteration, but its appropriate implementation and understanding. So, in the example given, while having some gender neutral toilets can be beneficial, there must also continue to be girls’ and boys’ toilets available. Current protocols and provisions do not need to be changed, but should be properly implemented to ensure the safety of all people in vulnerable situations, including women, children and trans people. Indeed, the central anxiety of the trans community is that revision of the Equality Act or its codes would worsen their position. As they do not need to be changed, it is essential they are not changed and that that intention is made explicit in the Government’s consultation response.
Improving access to and quality of healthcare for trans people, including adolescents and children
The waiting lists for Gender Identity Clinics (which support adults) and Gender Identity Development Services (which support under-18s) are now between two and four years long. This leaves many trans people in distress without the expert guidance and support they need. The Covid-19 pandemic has only exacerbated this, and reducing these waiting times is a central priority for the mental health and safety of trans people. To address this, we recommend the Government commit to reduce waiting times for first appointments towards 18 weeks, in line with NHS Constitution guarantees for all types of out- patient specialist clinics, as soon as reasonably practical.
The services provided by Gender Identity Development Services (GIDS) have been the subject of much discussion in recent years. GIDS help to support young people and their families, and mainly involves counselling and psychosocial support, and in some cases can include the prescribing of puberty suppressants (with parental consent) and, from around 16, cross-sex hormones. As part of growing up children express themselves and use imagination; indeed they should be encouraged to do so. The Tavistock and Portman care pathway recognises that for some presenting with apparent gender dysphoria, it may not be permanent. Reassurance around the space children need to work through their identity before being put on a pathway that leads to medical intervention is required both to sustain support for the service and to ensure the appropriate service provision for the child. We believe there is an increasingly urgent need for consideration of the ethics, evidence and referral process regarding treatment of children with gender dysphoria and that clinical practice should continue to be determined by medical and other appropriate academic experts guided by the evidence. There is now important work in progress to ensure these services are provided safely. We welcome the full review of its service specification and policies that NHS England is currently undertaking. This includes an independent review into the use of puberty suppressants and cross-sex hormones, which will be informed by the views of an expert working group, and a thorough review of the latest clinical evidence being undertaken by the National Institute for Clinical Excellence. The National Institute for Clinical Excellence are now creating new guidance that will help identify when to refer children and young people to specialist services. These will help ensure that the service is delivered safely and effectively, and in a way that is fully informed by high-quality evidence.
As with all medical services, to ensure that GIDS at the NHS Tavistock and the Portman Foundation Trust, and indeed any other future service provider in the country, is delivered effectively, there must be continued high quality oversight from the Care and Quality Commission. It is also vital that GIDS is given sufficient resources to implement the necessary processes required in properly implementing the care pathway and the Government should make this commitment in its response to the consultation. This will ensure high quality of care for those who desperately need their services, and deliver the reassurance that this service is operating in a manner consistent with the long-term interests of the patient and in the case of children, parental engagement and consent as appropriate.
While there is an increasing body of research into the experiences of children and young people who are trans or are questioning their gender, and how they can best be supported, we support the research being undertaken in this area by academic health institutions and the Government should commit to enabling this to continue.
Protecting and supporting children and young people and promoting a positive understanding of diversity
All children and young people have the right to be themselves and to enable others to be themselves free from harmful stereotypes and bullying. All young people are entitled to fulfil their potential and to find acceptance and inclusion within their schools and wider communities no matter who they are. Most trans adults report knowing that they were trans in childhood, sometimes in early childhood, and experienced distress and lost opportunities due to lack of medical treatment and social acceptance. The UK Government has recognised the importance of providing leadership in supporting schools to use age-appropriate LGBT+ learning resources, and in helping schools to address the needs of trans pupils within their safeguarding processes. The materials in this area need to reflect the values that Government and Parliament wish to represent those of Britain. We support comprehensive, age-appropriate RSE (Relationship and Sex Education) which recognises the diversity in our society and fosters understanding of difference, including around LGBT+ identities. It must also include attention to the concepts of respect, consent and safety, including the need to deliver safeguarding and address the risk of harm.
The Government should announce in the consultation response that these materials will be centrally provided by the Department for Education in collaboration with the Government Equalities Office as required, so Ministers can be accountable for their contents and ensure consistency between materials offered by different local authorities. Clear guidelines and training should also be given to schools and teachers around their delivery in practice. Schools should not be faced with the further challenge of having to negotiate how and if this is to be done with local lobbies. This is already a concern of the mainstream LGBT+ lobby following the demonstrations outside Parkfield Community School and Anderton Park Primary School in Birmingham. This will ensure that what is taught and how it is taught will reflect the national consensus on the values the state is using education to inculcate about Global Britain around human relationships. This will also assist uniformity of provision across all parts of England. Parents should retain the right to opt their children out of this part of the national curriculum in state maintained schools or in the final analysis to home school or independently educate their children.
Banning so-called “Conversion Therapy”
We recommend the consultation response is used to reaffirm the Government’s intention to outlaw so-called “conversion therapy”. This commitment is overdue. If HMG is not yet ready to publish draft legislation, we recommend the Government makes clear its intention to deliver on this undertaking for conversion therapy in respect of both sexuality and gender. The essential link to this consultation response is the fear that the proposed ban would only apply around conversation therapy for sexuality. We find that that discrimination would be unacceptable and it would make the delivery of a politically straightforward legislative commitment, that is very widely supported, unnecessarily and unreasonably contentious. However under any conversion therapy ban, to allow for proper support to be given to trans people by GIDS, private or NHS, if they are regulated by the CQC, they should be exempt from litigation from wherever it comes. These services need to be protected from litigation in this area where unregulated or religious organisations who inappropriately challenge the basis of a trans person’s identity do not. Trans people need this protection as much as other LGBT+ people.
This is not an official publication of the House of Commons or the House of Lords. It has not been approved by either House or its committees. All-Party Parliamentary Groups are informal groups of Members of both Houses with a common interest in particular issues. The views expressed in this report are those of the Officers of the Group.
