The proposed reform to the Gender Recognition Act 2004 has been the catalyst for a lot of the push back against trans rights in the UK in the last few years. Here I explain what it is, what it isn’t, and why there has been such a reaction.
In 2018 the UK government released a proposal to reform the Gender Recognition Act 2004 (GRA) and had a public consultation about the proposed changes. Despite significant negative media attention, over 70% of the responses to the consultation, including from the vast majority of women’s groups, were in support of the reform. A further recent YouGov poll showed that the majority of the British public (especially women) support the reforms, but recently The Times leaked that the government was considering dropping the reform anyway due to “concerns”. But what is the GRA? And what are these “concerns”?
What the GRA does do
The GRA allows you to get a Gender Recognition Certificate (GRC). A GRC allows you to update the sex on your birth certificate to match the one you have transitioned to. As well as just updating your documents so that they correctly reflect who you are, a GRC has a few other uses.
One of the main reasons that trans people get a GRC is to get married. The system across the country varies, but in some places your marriage notice must contain the gender on your birth certificate, or include a “formerly known as”, and in some places you must be married as a “husband” or “wife” based on your birth certificate. Both of these things can be upsetting, embarrassing, or even outing for some trans people (outing is where you are forced to tell someone you are trans against your will which can sometimes be dangerous). Disgracefully in much of the world gay marriages are still not recognised, and if you wanted to marry someone not from the UK in their home country there could be many legal hurdles in place. Furthermore in the UK gay marriages and straight marriages are still not legally equal and religious institutions can still refuse to officiate them. Getting a GRC after getting married can require you to keep a paper trail of evidence to show that the person who got married is really you, adding more legal hurdles to do the same things as everyone else.
Another place where a GRC can matter is in death. Being misgendered after death might not seem like it matters, after all they aren’t there to hear it, but their families and loved ones are. It can be distressing to hear your loved ones referred to incorrectly at their funeral. There are also extra legal hurdles and confusion that can arise from not having matching and correct documentation when it comes to dealing with the legal side of a loved one’s death.
A GRC can also be useful for a number of other reasons including adoption, student funding, visas, certificates of accreditation, registration with Professional and Regulatory Statutory Bodies, pension providers, HMRC and Disclosure and Barring Service.
Finally, the reason that many trans people get a GRC is simply to be recognised by the state. State recognition of people’s lives and identities can be very meaningful to people, as seen with the falling suicide rate amongst gay people after equal marriage was introduced. While state recognition is often the gateway to equality for any marginalised group, it can also be freeing to be recognised for who you really are. This ties into the main legal reason for the existence of the GRA: to afford trans people the right given by Article 8 of the European Convention on Human Rights; a right to privacy. This week the European Court of Human Rights unanimously ruled that it was a violation of Article 8 for countries to not provide legal gender recognition to trans people. This is something cis people (cis means “not trans”) can often miss the importance of. Imagine you had some surgery on an intimate place years ago and everyone around you felt like they had the right to share that information, and that that information was printed on all of your public documents; medical history is private information. As discussed above, outing trans people can be more than just humiliating, it can also be dangerous.
What the GRA doesn’t do
You do not need a GRC to change your sex on your passport, or driving licence or any other form of legal ID. You can use your passport or driving licence to update your details in almost any other context, for example: at your bank.
You do not need a GRC to be able to use sex segregated spaces such as toilets or changing rooms. Every single trans woman in the country uses women’s spaces every single day without issue, today. Most recently this was codified into law with the Equality Act 2010 (EA2010), however before then it was protected by The Sex Discrimination Regulations 1999. It has never been illegal for trans women to use women’s spaces, nor has it ever hinged on having a GRC. In fact, it is required for you to use women’s spaces for 2 years before even being able to apply for a GRC. Note: you do not need to have had surgery or hormones to be able to obtain a GRC today.
A GRC doesn’t affect what sport category you can participate in. You do not need a GRC to participate in women’s sports, and the EA2010 outlines that it is allowed for the sporting organiser to exclude trans women based on their own criteria if the goal is to make the event more fair for everyone — regardless of whether they have a GRC or not. The International Olympic Committee guidelines are used by many organisations and they do not require a GRC or equivalent.
The presence of a GRC does not determine which sex category you are placed in for crime statistics. The UK (and Scottish) police have used “Self ID” for recording crimes since 2011 following the EA2010. You can see below women’s crime rates didn’t go up, or even noticeably change at all, in 2010/2011 or in the years following, despite the general trend of women’s crime rates increasing.
Having a GRC doesn’t determine which prison you are sent to. A GRC is often used as part of the evidence to suggest where a prisoner is best placed, but a GRC is neither required to be put in a men’s/women’s prison, nor does having one guarantee you are placed there. As there are so few trans prisoners a case by case system is often how trans prisoners are placed. There are however many trans prisoners at risk because they are placed in inappropriate prisons for them — even with a GRC — and this continues to lead to deaths.
A simple test for what a GRC does affect is to think of all the times in your life you have had to show someone your birth certificate in order to do something or go somewhere. For most people that is almost never, but sometimes it is very important.
Currently in order to get a GRC you must first have be medically diagnosed as being trans. The current NHS system for trans people is a disaster; thousands of people are having to wait years to even get their first appointment — still a stage many months or even years away from an appointment that would result in a diagnosis. (I, myself, had to wait 33 months for my first appointment and a further year for a diagnosis, by which time I had already been living and passing as a woman for years). As Stonewall notes “Currently, trans people are forced to endure a highly medicalised, bureaucratic and demeaning process to acquire gender recognition”. Why should someone have to wait years to get a diagnosis before they can get married or anything else mentioned above, when they can change their passport years before that?
A GRC currently costs £140 just to apply, and the process is also applied inconsistently enough to be a deterrent. A GRC application can be denied arbitrarily with no appeal, sometimes even evidence of Genital Reassignment Surgery (GRS) isn’t enough evidence for the panel to grant you one.
If you are married you must get permission from your spouse in order to get a GRC. Sometimes this means a trans person can be trapped in a situation where their spouse is refusing a divorce and refusing to agree to the GRC, locking the trans person out entirely unless they initiate a long legal process. Obtaining a GRC already gives your spouse the option to annul the marriage.
Currently only over 18s can get a GRC, this can add legal difficulty for older teens in foster care or similar situations.
Currently the UK only recognises male or female as legal options for sex/gender in many places. Many intersex and non-binary people would benefit from a system that would give them the option of an X, rather than having to pick one of two boxes they don’t fit into. Many countries including Canada, Germany and New Zealand already offer this.
Due to the difficulty, cost and time involved in getting a GRC, most trans people just live without one and thus have to deal with the extra legal hurdles and risks this entails. The current process to get a GRC is more difficult and expensive than getting an updated passport — the single most important ID document you own — as well as all other forms of ID. There isn’t much point to a legal process designed to help people if it’s out of reach to most of the people it is trying to help.
The concern you will see most often cited is about how the GRA reform would allow any man to be able to just claim they are a woman and then use women’s spaces. The reply to this concern is pretty straightforward: the GRA simply doesn’t affect which spaces are permitted to use, as can be seen clearly from the overview above. Women’s spaces in the UK are already “self ID”: every trans woman in the country uses women’s spaces every single day today — without issue — and if questioned they could often present a legal ID that was already updated with their sex on it regardless of GRC status. Today and for the last decade men have not been pretending to be trans women to enter women’s spaces. It is also worth noting that a reformed GRA would still require a legal declaration, making lying to obtain a GRC a crime.
Two other very similar concerns are about women’s sports and measuring crime statistics. But for both the reply is the same: neither of those things are actually affected by the GRA, as discussed previously. That doesn’t mean that concerns about women’s sports and crime statistics in general aren’t valid — working to make sport fair for everyone, and measuring crimes against women are both very important goals. But they are just clearly not applicable in a debate about the GRA.
One particular example you will see a lot is the case of Karen White, a trans woman and rapist, who was placed in a women’s prison, against the current regulations, and then sexually assaulted two other inmates. Karen White doesn’t have a GRC and her having one would not have affected this horrible case. As discussed above, prison placement is case by case for trans people (and also for dangerous cis women criminals such as violent rapists). As the law already rightly attempts to ensure: rapists should never be placed with their potential victims, regardless of who they are.
So why are these concerns a thing at all? When you see it laid out like this all in one place it can be hard to understand why anyone would raise these concerns with GRA reform. Why are all of the main fears about things that already happened over a decade ago, and continue to show themselves to not be an issue?
The answer is unfortunately usually ignorance and fear. The UK mainstream press has effectively waged war against trans people for over three years now, often with completely fabricated stories. Trans people are in the news and are finally moving into public consciousness, and many people either know nothing about trans people at all, or had never thought about them before. Suddenly presented with “trans people want to Self ID” they imagine all kinds of hypothetical scenarios of what that could mean. Often people are surprised when it is pointed out to them that trans women have used women’s spaces for their entire life — but where did they think they have been going to the toilet all this time? Often most people just haven’t thought about it. I have encountered and talked to literally hundreds of people who think that GRA reform is THE law that would let trans women use the toilet in public, and they just fear a huge change because of what might happen. But it’s already passed and we know what has happened.
Some people and groups are completely aware that the GRA doesn’t affect the things most people are concerned about, but they are using GRA reform and the concerns around it to raise a general opposition to trans rights and trans people. Whenever a minority group enters public consciousness there is also inevitably a backlash from those who fear change and those that hate. It is usually telling when someone says they have concerns but they can never tell you exactly what those concerns are, or who carries on pressing their “concerns” when they have already shown to be baseless.
In conclusion the GRA isn’t a major piece of legislation, most trans rights are secured in other places such as the EA2010, legislation around passports, and legislation around access to healthcare (which is in much more desperate need of reform).
As we approach the 5 year anniversary of Ireland writing its own version of GRA reform into law we can see that a total of zero of the “concerns” people had have materialised. This is also the case in the many other countries that have passed their own version of this law that the UK now lags behind; Argentina (2012), Denmark (2014), Colombia, Ireland, Malta, Norway (2015), Belgium (2017), Portugal, Chile, Brazil (2018).
One thing is true though; the GRA reform has become the center of a culture war that is much bigger than itself: one just about the acceptance and existence of trans people in general. If the reform passes then no one will notice apart from a few thousand trans people across the country that it directly affects. If the reform doesn’t pass then those trans people’s lives will continue to be pointlessly more difficult; most trans people today live their lives without a GRC because it is too difficult/expensive to obtain anyway, and just work around the unnecessary hurdles that brings with a low risk of serious consequences. But blocking the reform would mean a big win for people opposing trans rights in general — it would show they have the power to oppose even minor changes to improve trans people’s lives, even against the will of the public, and would almost certainly empower them to push against the rights trans people already have. Much of the “Gender Critical” movement are campaigning to ban trans women from the spaces they use today, to entirely repeal the GRA, to remove access to healthcare, or as one thought leader put it, to “morally mandate [trans people] out of existence”.
Many people do have genuine and innocent concerns about GRA reform when they first hear about it as there is so much misinformation around about it. It is easy to imagine what the phrase “Self ID” might mean when you are unaware that trans people have been around you your whole life, already doing everything you’re worried about without issue. Whilst there are many people and groups who are committed to keeping people in the dark over this in order to sell fear about trans people, most of the misinformation is being spread by people who just pass on what they hear, and who are committing the much more subtle form of transphobia that is assuming that trans people can’t be trusted to understand and explain their own issues, and so ignoring corrections. My hope is that now you have seen all the information laid out in one place you can take a more informed position on this issue.
The bottom line is that most of the opposition to the GRA reform is actually just opposition to the idea of trans people, whether through fear or malice. We’ve been here longer than you’ve been alive standing right next to you and we aren’t going anywhere, trans people just want to live the same normal life that everyone else does.
Shortly after publishing this article the UK’s Equality and Human Rights Commission noted “There is no reason why simplifying the process for obtaining a GRC should have an effect on these protected spaces and services, which are covered separately under the Equality Act 2010”.