The gender recognition process

This Commons Library briefing paper considers the current process for legal gender recognition and the Government's consultation on reforming the Gender Recognition Act 2004

This briefing paper considers the process for trans people to gain legal recognition in their acquired gender. It does not deal with medical treatment or NHS services for trans people.

Gender Recognition Act 2004

The Gender Recognition Act 2004 (GRA) enables trans people to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC). Successful applicants, who are granted a full GRC, are, from the date of issue, considered in law to be of their acquired gender. It is not a requirement for an applicant to have undergone gender reassignment surgery or hormone treatment, although many applicants do so.

The minimum age limit for GRC applications is 18. In November 2018, the UK Government stated that it had no intention of changing this position.

Single-sex spaces

The Equality Act 2010 prohibits discrimination, for example in employment or the provision of public services, on the basis of protected characteristics, one of which is gender reassignment. However, this Act allows providers to offer single-sex services that exclude trans people, if it is proportionate to do so and it achieves a legitimate aim.

Consultation on reform of the GRA

In a report published in 2016, the House of Commons Women and Equalities Committee recommended reform of the GRA process in line with the principles of gender self‑identification.

In July 2018, the UK Government published a consultation on reforms to the GRA. This consultation, which ended on 22 October 2018, concerned the legal gender recognition system in England and Wales only, though the implications of change for the United Kingdom as a whole were also considered.  

The Government stated that the focus of the consultation was the process for achieving legal recognition, and that removal of the requirement for a medical diagnosis in order to achieve legal recognition was one option on which views were sought, but that no firm decision had been taken yet.

The Government has stated that it does not intend to make any amendments to the existing exceptions in the Equality Act 2010 associated with the ‘gender reassignment’ protected characteristic. Recognising that concerns had been raised about the potential implications of reform of the GRA, the Government has confirmed that, where it is a proportionate means of meeting a legitimate aim, it would still be possible to exclude trans people from single- and separate-sex services.

The ‘self-identification’ debate

There are strongly held views for and against self-identification for gender recognition.

The current process for legal gender recognition has been criticised by some people for its medicalised approach (it is necessary to submit medical evidence with most applications). Some trans people have argued that the requirement for a diagnostic psychiatric report perpetuates the assumption, which they consider to be outdated and false, that being trans is a mental illness. Many trans people also consider the process to be overly intrusive, humiliating and administratively burdensome. The fee and associated costs are seen as expensive and there is no right of appeal against the decision unless on a point of law.

Trans organisations are among those that argue that transphobia must be opposed.

Those against self-identification are concerned, for example, about creating a system which might be abused, and about the potentially negative impact on women, and particularly on vulnerable women, in safe single-sex spaces. They do not consider their views amount to transphobia.

Concerns have also been raised that there has been intimidation of those organising and attending meetings to consider the Government’s proposals, and that debate has been stifled.

What might happen next?

The 2018 consultation received more than 100,000 responses. The Government has not yet published its own response. On 17 October 2019, Elizabeth Truss, Minister for Women and Equalities, said that the issue of the response to the consultation was very important and needed time for consideration.

The 2019 General Election manifestos of the Labour Party, Liberal Democrats and the Green Party included commitments related to gender recognition.

The position in Scotland

The GRA extends across the United Kingdom. However, gender recognition is a devolved matter meaning that legislation in this area is within the competence of the Scottish Parliament.

The Scottish Government’s separate consultation, Review of the Gender Recognition Act 2004, ran from 9 November 2017 to 1 March 2018. This sought views on whether and how the GRA should be amended in relation to the law in Scotland and set out the Scottish Government’s initial view that, subject to views expressed during the consultation, Scotland should adopt a self-declaration system for legal gender recognition.

In June 2019, Equalities Secretary, Shirley-Anne Somerville, announced that a draft Gender Recognition (Scotland) Bill, to reform the current process for obtaining a GRC, would be published by the end of the year. She said that a Bill would be formally introduced to Parliament only when there had been a full consultation on the precise details contained in the draft Bill.

The draft Gender Recognition Reform (Scotland) Bill: consultation was published on 17 December 2019 and will run until 17 March 2020. It proposes (among other things):

• removing the need for applicants for a GRC to provide medical evidence, but they would still need to provide a statutory declaration that they intend to live permanently in their acquired gender;
• requiring applicants to live in their acquired gender for at least six months – three months before applying for a GRC and three months after applying – before a GRC could be granted;
• retaining the position that a false statutory declaration is a criminal offence and introducing a new offence of false application – each with a potential punishment of up to two years’ imprisonment; and
• reducing the minimum age of application from 18 to 16.

The Equalities Secretary said that women’s rights and protections would not change.