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This briefing paper and a separate briefing paper, Provisions to support transgender children in schools (Number 9078, 10 December 2020), together supersede a previous Commons Library briefing paper, Gender recognition and the rights of transgender people (Number 08969, 22 July 2020). The two new briefing papers include developments since the previous paper was published.

This paper’s coverage

This briefing paper deals with the UK Government’s consultation on the Gender Recognition Act 2004 (GRA) and, more briefly, with the consultations conducted by the Scottish Government. These consultations asked whether the process for transgender people to gain legal recognition in their acquired gender should be reformed.

This paper also includes some information about medical treatment for gender dysphoria. Although this issue did not form part of the UK Government’s consultation, when responding to that consultation, the Government said that their research had shown that improving healthcare support was a priority for transgender people.

Gender recognition

The GRA enables transgender adults to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC). In most cases, applicants must provide medical evidence of a diagnosis of gender dysphoria and details of any treatment received; evidence of living in their acquired gender for at least two years; and a statutory declaration that they will continue to do so permanently. There is no requirement for applicants to have undergone gender reassignment surgery or hormone treatment.

Applicants who are granted a full GRC are, from the date of issue, considered in law to be of their acquired gender (man or woman).

Gender dysphoria and access to medical treatment

Gender dysphoria is a term used by the NHS to describe a “sense of unease that a person may have because of a mismatch between their biological sex and their gender identity.” The NHS states that “treatment for gender dysphoria aims to help people live the way they want to, in their preferred gender identity or as non-binary”. Gender dysphoria or gender identity services are specialised services that are directly commissioned by NHS England and NHS Improvement.

A 2016 Government-commissioned review on LGBT inequalities in the UK, published by the National Institute of Social and Economic Research, found evidence of long waiting times for a first referral to a gender identity clinic, with negative consequences for transgender people’s mental health.

The 2017 national LGBT survey, cited in the Government’s 2018 LGBT Action Plan, made similar findings. Dr Michael Brady was appointed as the National Advisor for LGBT Health in April 2019. His role will focus on reducing the health inequalities faced by LGBT people by advising on ways to improve access to health services, and on increasing healthcare professionals’ awareness of LGBT issues.

Protection against discrimination

The Equality Act 2010 protects people from discrimination on the basis of gender reassignment. There are several exceptions to this prohibition of discrimination. For example, it is lawful to exclude transgender people from single-sex services in some cases if this is “a proportionate means of achieving a legitimate aim”.

UK Government consultation on reform of the GRA

In July 2018, the UK Government published a consultation on reform of the GRA in England and Wales. The consultation ended on 22 October 2018.

The consultation focused on the process for achieving legal recognition. The removal of the requirement for a medical diagnosis was one option on which views were sought. The consultation paper did not deal with access to medical treatment and stated explicitly that its remit extended only to the legal process of gender recognition.

In the consultation paper, the Government said it wanted to make it easier for transgender people to achieve legal recognition. It said many transgender people feel the current process is: “overly intrusive, humiliating and administratively burdensome,” and that they argue “by requiring a diagnostic psychiatric report, the process perpetuates the outdated and false assumption that being trans is a mental illness.”

The Government also said concerns had been raised about the potential implications of reform on the exceptions in the Equality Act 2010 associated with gender reassignment discrimination. The Government confirmed that, where it is a proportionate means of meeting a legitimate aim, it would still be possible to exclude transgender people from single-sex services.

Government response to the consultation

There were over 100,000 responses to the consultation and the Government’s response was published on 22 September 2020. This was not in the more common format of a response document published by the relevant department. Instead, Elizabeth Truss, Minister for Women and Equalities, made a written Ministerial Statement and the Government Equalities Office published an Analysis Report of Consultation Responses by researchers at Nottingham Trent University.

The Government does not intend to change the criteria in the GRA for legal gender recognition, meaning that a system based on self-identification is not being introduced. Elizabeth Truss said: “it is the Government’s view that the balance struck in [the GRA] is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex.”

The Minister acknowledged the need to improve the process and experience that transgender people have when applying for a GRC, to make it: “kinder and more straightforward.” She said the Government’s proposed changes would address the main concerns that transgender people themselves had expressed about it. The GRC application process is to be moved online and the fee reduced to a “nominal amount.”

Elizabeth Truss said the Government would improve access to healthcare for transgender people, who had reported that waiting lists at NHS gender clinics are too long. The Minister said at least three new gender clinics would open in 2020 which should mean waiting lists are cut by around 1,600 patients by 2022.

Parliamentary debate on response

On 24 September 2020, the Government’s response was debated in the House of Commons.

Crispin Blunt (Conservative) spoke of the “crushing disappointment of trans people,” and Marsha De Cordova, Shadow Secretary of State for Women and Equalities, expressed disappointment that the Government had “let trans people down.”

Elizabeth Truss reiterated the Government’s view that the settlement reached “balances and upholds the rights of transgender people and of women” and “protects access to single-sex spaces”.

David Mundell (Conservative) asked Elizabeth Truss to clarify whether there would be any new gender clinics in addition to pilot projects previously announced, and about their impact on NHS waiting lists. In the debate, the Minister was not able to provide clarification on this point. Subsequently the Department of Health and Social Care said that the first of the three clinic services “began in July 2020 in London and they will be evaluated as pilots over a period of up to three years to determine how they could be expanded nationally.”

Independent review of Gender Identity Services for children and young people

On the same day as the analysis of consultation responses was published, the NHS announced an independent review into gender identity services for children and young people. This is to be led by Dr Hilary Cass OBE, the former President of the Royal College of Paediatrics and Child Health.

Women and Equalities Committee inquiry

On 28 October 2020, the House of Commons Women and Equalities Committee launched an inquiry entitled Reform of the Gender Recognition Act. The Committee will examine the Government’s proposals and also wider issues concerning transgender equality and current legislation.

A future Westminster Hall debate

An online petition calling for the GRA to be reformed to allow transgender people to self‑identify without the need for a medical diagnosis, to streamline the administrative process, and to allow non-binary identities to be legally recognised, has attracted over 100,000 signatures. The Petitions Committee has agreed it will be scheduled for debate, although a date has not been set.

Scottish Government consultation

The GRA extends across the UK. 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 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. It 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.

The Scottish Government has since consulted on a draft Gender Recognition Reform (Scotland) Bill. This consultation ran from 17 December 2019 to 17 March 2020. It proposes (among other things):

  • removing the current requirement for people to apply to the UK Gender Recognition Panel. Instead, people seeking legal gender recognition would apply to the Registrar General for Scotland;
  • removing the current requirement for applicants to provide medical evidence of their diagnosis of gender dysphoria;
  • retaining the requirement that applicants must make a solemn statutory declaration they have been living in their acquired gender – but for three months – and intend to do so permanently;
  • introducing a minimum three-month period of reflection between applying for a Gender Recognition Certificate and confirming the application. This means that the applicant must have lived in their acquired gender for a minimum of six months before a certificate is 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
  • reducing the minimum age of application from 18 to 16. 

While confirming that it remains committed to reforming the GRA, the Scottish Government has paused its work on this for now, in the light of the impacts of Covid-19. The Scottish Government said it will not now bring forward a Bill to reform the gender recognition process before the next Scottish Parliamentary elections in May 2021 and did not give a timetable for any further work.

The Scottish Government is arranging for the responses to the consultation on the draft Bill to be independently analysed and has said that it will publish the analysis report in due course.

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