The Gender Recognition Act 2004 – reform for transgender rights?

NGA_Stock_150In July 2017, the Government announced that it was considering a review of UK legislation on changing legal gender in line with plans to promote the equality of LGBT people in the UK. A consultation ran across England and Wales between July and October 2017 and asked participants about their experiences of accessing public services in the UK (including healthcare and education) and any other discrimination they may have faced. The Government is expected to publish the review this autumn.

The Scottish Government have launched a separate consultation specific to reforming the Gender Recognition Act 2004. Their consultation is running between November 2017 and March 2018 and asks participants for their views on reforming the legal gender recognition process in Scotland and their thoughts on new proposals, including legal recognition of non-binary people (people who do not wish to identify as either female or male).

Both consultations are long overdue and follow a long campaign by various transgender groups and charities.

The current legal process

The Gender Recognition Act 2004 enables transgender applicants over the age of 18 to apply for a Gender Recognition Certificate so that their true gender can be recognised in law. As it currently stands, the Act requires the trans person to demonstrate to a Gender Recognition Panel that they have satisfied the eligibility criteria, proving that they:

  • have ‘gender dysphoria’;
  • have been living in their acquired gender for a period of two years (with documents such as a passport or utility bills to prove this); and
  • intend to live in their acquired gender for the rest of their life.

To prove gender dysphoria, reports must be submitted from two registered medical practitioners, and at least one of the practitioners must practice in the field of gender dysphoria (alternatively, a registered psychologist practising in this field can also submit a report).

The Gender Recognition Panel (made up of individuals in the legal and medical professions) will then review the application and assess whether the requirements have been met. If satisfied, a Gender Recognition Certificate will be issued and sent to the applicant and forwarded to the General Register Office which will issue a new birth certificate in the acquired gender.

The process typically takes around four months (although this can be longer if further evidence is required) in addition to the two year period in which the applicant must be living in their ‘acquired’ gender.

If the applicant is married, then their spouse must also agree to their partner changing legal gender (or, more precisely, they must consent to remaining married to their spouse after they change gender). If they do not, then a full certificate can only be issued after a decree absolute (a final order concluding divorce proceedings) has been issued.

What is wrong with the Gender Recognition Act?

The Gender Recognition Act 2004 is now nearly 14 years old, and there is a clear consensus that the existing law is out of date with current thinking. Various LGBT groups have raised the following issues that may form part of the review:

Firstly, the Act implies that transgender is an illness that must be diagnosed by a doctor. The Government has acknowledged that this is inappropriate, and so the proposals may well include removing the burden of a formal medical diagnosis.

Secondly, the government has been urged to consider a newer, more streamlined process, in response to calls from charities like Stonewall for a more efficient administrative process.

And finally, it has been suggested that the Government may well propose that the long-controversial spousal veto should be removed, so that trans people are free to change gender without their partner’s consent.

Our thoughts

Like Stonewall, we hope that any reform will ease the experience of transgender people in the UK, replacing a cumbersome formal process with a more straightforward administrative process. The law should put more trust in the hands of trans and non-binary people to reach their own decisions about how their legal gender should match how they wish to identify.

We also support the calls for an end to the spousal veto – if a cis person (a person who is not transgender) does not wish to remain married to a trans person, he or she can go through a divorce process like anyone else, and there is no need for them to block their partner changing gender in the meantime.

As a law firm which also works with families with trans children, we will also be watching with interest what the UK Government recommends in respect of the age requirement for changing legal gender. Scotland seems to be one step ahead with this and has proposed to reduce the age to apply for gender recognition from 18 to 16 years old. More and more young people are transitioning to their acquired gender, and not being able to acquire protected legal status can affect their rights in education and elsewhere.

You can find out more about changing legal gender, starting a family and other family law issues for trans people on our online Knowledge Centre, and you can access this here: https://www.nataliegambleassociates.co.uk/knowledge-centre.

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