Authors: Alex Watson (Senior Associate) and Craig Longhurst (Trainee Solicitor)
Since the Gender Recognition Act 2004 (GRA) came into force in 2005, only 4,910 have been issued a Gender Recognition Certificate (GRC). Given these figures, the legal gender recognition process's effectiveness is now being consulted on by Government's Equality Office. The consultation is focussing on the possibility of removing the need for medical gender dysphoria diagnosis as part of the application.
Currently, the most common GRA process used by a person to legally change their gender requires a person to:
1. be over 18 years old
2. provide a medical diagnosis of gender dysphoria and a report from a medical professional detailing any medical treatment;
3. provide proof of having lived for at least two years in their acquired gender through, for example, bank statements (which can be changed without legally changing gender);
4. provide a statutory declaration that they intend to live in the acquired gender until death;
5. if married, provide the consent of their spouse;
6. pay £140 (or prove low income for reduction/removal of the fee); and
7. submit this documentation to a Panel, which the applicant does not meet in person.
If a person is adjudged by the Panel to meet the requirements, they will be issued with a GRC, amending their birth certificate and (subject to certain limitations) their birth gender and that person then assumes the legal rights (i.e. retirement, pension and marital) of that gender. However, if a person is adjudged to have not met the requirements, their birth gender shall continue to be their legal gender and they shall not have the right to appeal, unless on a point of law. It hardly seems fair that an independent panel can make such fundamental decisions without meeting an applicant and the applicant shall have no recourse if unsuccessful.
The view from the trans community
The results of a recent LGBT Government Survey revealed that many trans people feel that the current process is too bureaucratic, expensive and intrusive and the Government feels that most trans people feel that the current requirements are too intrusive, humiliating and administratively burdensome and are denying people access to legal recognition. More specifically:
I. the provision of a diagnostic psychiatric report perpetuates the view that being trans is a mental illness, despite the Government and the World Health Organisation recognising that that is not correct (the WHO has declassified 'Gender Incongruence' [i.e. dysphoria] as a 'Mental and Behavioural Disorder');
II. the trans person has to send a range of personal health and financial documentation to people who they do not meet and who make a decision about their gender identity; and
III. the £140 fee is expensive and there is no right of appeal unless on a point of law.
The Government's consultation is therefore reviewing items 2-7 above with a view to improving accessibility and protection that the GRA affords individuals applying for a GRC.
Whilst the results of the consultation are awaited, it is positive to see that legislation adopted 13 years ago and not in-tune with present day society's approach to LGBT+ issues is being revisited and it appears likely that legislative changes will improve access for trans people exercising rights to exist in the gender that they identify with.