The Gender Recognition Act 2004 is the legal framework by which a transgender person can have their preferred gender legally recognised. Since its introduction there have been approximately 4,500 gender recognition certificates (GRC) issued. The vast majority of transgender people do not have legal gender recognition and remain legally the sex they were born. Most of their rights as a protected group in fact come from the Equality Act 2010 which protects them from discrimination because they are intending to undergo, are undergoing or have undergone a process of reassigning their gender.
Transgender activists say that the process of legal gender recognition is unnecessarily invasive, humiliating and lengthy. The UK government has proposed to reform the Gender Recognition Act to de-medicalise and speed up the process. The aim is to introduce a process based on self-declaration with no medical gate-keeping. This would effectively mean that any man, who chooses to for whatever reason, could make a statutory declaration and become legally female with no bodily modifications or even superficial changes to his outward appearance. The opportunity for abuse is startlingly obvious and Fair Play For Women strongly opposes these proposed changes because it will seriously undermine the meaning of what it is to be legally female and a woman. Transgender lobby groups however claim that this is merely an administrative process that will have little effect beyond the transgender community.
This article will set out the key features of the GRA 2004. I am not a lawyer and I offer no legal interpretation of the law. However, the GRA 2004 is available on-line for anyone to read and it is accompanied by official explanatory notes. I will demonstrate each aspect of the law with direct reference to the wording of the law and the notes. You will then have the facts at your own finger tips and you can decide for yourselves what the law really means for you.
Who can apply for legal gender change?
Any adult aged at least 18 can apply for a gender recognition certificate on the basis that they are living in the other gender.
If someone has legally changed their gender under the laws of a different country they must still apply for a GRC here for legal recognition in the UK.
What criteria must be met?
The Act sets out the conditions that must be satisfied so the Gender Recognition Panel can grant a Gender recognition certificate.
|The applicant must satisfy all these conditions:|
|(a) has or has had gender dysphoria,|
|(b) has lived in the acquired gender throughout the period of two years|
|(c) intends to continue to live in the acquired gender until death,|
|(d) Must provide evidence by a report made by a registered medical practitioner or registered psychologist practising in the field of gender dysphoria AND a report made by another registered medical practitioner (who may, but need not, practise in that field)|
If some one already has acquired legal recognition of gender in another approved country only (d) is required. There is a list of approved countries (decided by the Secretary of State) which have gender recognition criteria at least as rigorous as the UK.
How does the Act comply with the European Convention on Human Rights?
In 2002 the European Court of Human Rights (ECHR) ruled on a case that set the legal precedent in international law that not allowing the legal recognition of someone’s gender reassignment was in breach of Article 8 and Article 12 of the Human Rights Convention. This was the right to privacy and the right to marry. The GRA 2004 was passed in the UK to comply with the ECHR’s ruling. The GRA 2004 went beyond the minimum legal requirements in a number of ways but complied with human rights convention in two crucial ways:
1. The right to privacy:
The GRA 2004 Act makes it a criminal offence for a person to disclose information he has acquired in an official capacity about a person’s application for a gender recognition certificate or about the gender history of a successful applicant. This information is termed ‘protected information’ under this Act. The Act does not apply to members of the public in a private capacity. There are a number of exceptions where disclosure is legal. Most notably, this includes when the person remains anonymous and disclosure is intended to prevent or investigate crime.
|(3) A person acquires protected information in an official capacity if the person acquires it:|
|(a) in connection with the person’s functions as a member of the civil service, a constable or the holder of any other public office or in connection with the functions of a local or public authority or of a voluntary organisation,|
|(b) as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or|
|(c) in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.|
An important part of maintaining privacy for a person who has legally changed gender is that a replacement birth certificate can be issued. This replacement birth certificate does not reflect in any way the fact that the legal gender has been changed but a link to the original birth registration is confidentially maintained. The way this is done is slightly different for both Scotland and Northern Ireland compared to England and Wales, but the overall effect is the same.
GRA 2004 Explanatory notes Section 10: Registration
|30. This provides the mechanisms by which individuals who have received recognition in the acquired gender and who have a UK birth register entry will have new entries created to reflect the acquired gender.|
|31. Paragraph 2 of Schedule 3 requires the Registrar General for England and Wales to create a Gender Recognition Register (“GRR”). This Register will not be open to public inspection or search.|
|32. Paragraph 3 ensures that the issue of a gender recognition certificate obliges the Registrar General to make an entry in the GRR and to mark the original entry referring to the birth (or adoption) of the transsexual person to show that the original entry has been superseded. This will ensure that caution is exercised when an application is received for a certificate from the original birth (or adoption) record…….. The mark linking the two entries will be chosen carefully to ensure that the fact that an entry is contained in the GRR is not apparent. The mark will not be included in any certificate compiled from the entries on the register.|
2. The right to marry:
Back in 2004, a transsexual who lived as a women would not be able to marry her male partner because she would be legally recognised as male and not female. As such, the Act means that acquired legal gender of transsexual (e.g. female) can be used instead of the birth sex for the purposes of marriage to a man. This is set out clearly in the explanatory notes that accompany the Act.
|GRA 2004 Explanatory notes 27.|
|Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes……..and she would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.|
Special rules if the applicant is already married:
When the Act first came into being in 2004 a marriage was strictly between a man and a woman only and since the legal gender change of one party would effectively result in a same-sex couple the marriage had to be dissolved first. In this situation the married applicant would be eligible for an interim GRC. The interim certificate could then be used as grounds to void the marriage (England and Wales) or as grounds for divorce (Scotland).
Marriage between same sex couples is now allowed in England and Wales since the passing of the Marriage (Same Sex Couples) Act 2013. As such, dissolution of the marriage is no longer required as long as both parties agree to the status being changed from different-sex to same sex (or vice versa). In the case where the non-transgender spouse does not give consent to the marriage being changed an interim certificate will be granted. The marriage must be dissolved by divorce or annulled before a full GRC can be issued. The interim GRC enables either party to apply for the annulment of the marriage.
Similarly, in Scotland same sex marriages are also now legal under the Marriages and Civil Partnership Act (Scotland) 2014. The marriage can continue if both parties consent. If not an interim GRC will be issued and used as grounds for divorce. Slightly different rules apply in Scotland. If obtaining a divorce is problematic the applicant can apply to the Sheriff Court for a full GRC before a divorce or annulment has taken place. The spouse of a trans person is entitled to be notified of the issuing of a GRC and can initiate divorce proceedings on that basis.
What does it mean to have legal gender recognition?
The Act clearly sets out that once a GRC is issued, the person’s gender becomes FOR ALL PURPOSES the acquired gender and that person is eligible for a replacement birth certificate indicating their new gender. This means that, uniquely, the person’s legal sex becomes the opposite of their biological sex. In the UK prior to this Act someone’s legal sex had always corresponded to their biological sex.
Although the conditions required to change legal sex mean the process has to be under the supervision of a medical professional, the Act DOES NOT require any form of sex reassignment surgery. At the time, in 2004, the UK was the first European country to drop this requirement for legal gender recognition. Most notably, the UK went beyond the legal requirement set by the ECHR in which the legal precedent had been set for a post-op transsexual. The UK was under no legal obligation to have removed the need for surgery at that point. However, the case was made that in some cases reassignment surgery was not possible for medical reasons, and also that long delays could occur while people waited for surgery. The consequence of this decision is of course, that now, not only can a biological male be considered legally female but that he can also be fully, bodily male with no modifications at all.
Is legal gender recognition the same as someone’s sex?
Perhaps the most controversial part of the Act, and most relevant to the rights of women, is the Act’s meaning in terms of sex discrimination. The European Courts of Justice (the court that rules on matters of law for the European union) had previously ruled that discrimination against someone because of gender reassignment is a form of sex discrimination (Fair Play For Women article on this is here). As such, the UK amended the sex discrimination laws to mean that a transsexual person would be protected from discrimination at work if they were intending to undergo, were undergoing or had undergone a process of gender reassignment. However, there is confusion over whether a transsexual who has legally changed sex to female is then covered on the grounds of sex discrimination as a woman instead of grounds of gender reassignment discrimination as a transsexual. In other words, does a transsexual whose legal sex is female become legally indistinguishable from a woman whose legal sex is also female by virtue of her biological sex?
The explanatory notes written at the time of the Act suggest that a transsexual female would indeed be considered as a woman for the purposes of sex discrimination. Note however, it refers to the 1975 Sex Discrimination Act which has now been repealed and replaced by the Equality Act 2010.
|GRA 2004 Explanatory notes 27:|
|Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975|
The GRA 2004 Act goes further and also brings into effect an amendment (called Schedule 6) into the Sex Discrimination laws. Schedule 6 means that the exemption based on ‘genuine occupational qualifications’ that allows someone to be excluded from a work role because of gender reassignment no longer applies once that person has a GRC. They must be considered to be their legally acquired gender and not their biological/birth sex. However, once again this refers to the 1975 Sex Discrimination Act which has now been repealed and replaced by the Equality Act 2010. (interestingly the 1976 Sex Discrimination Act for Northern Ireland is still active and schedule 6 still applies there).
|GRA 2004 Explanatory notes 78:|
|Schedule 6 amends the Sex Discrimination Act 1975 and the Sex Discrimination (Northern Ireland) Order 1976. Those enactments, as amended by the Sex Discrimination (Gender Reassignment) Regulations 1999 and Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999, already make it unlawful to discriminate against a person in relation to employment and vocational training on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment. The definition of gender reassignment in the Sex Discrimination Act and the Order includes any part of a process undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex. A person who has been recognised in the acquired gender under the Gender Recognition Act will therefore necessarily be considered to be undergoing or to have undergone gender reassignment within the meaning of these enactments, and accordingly, discrimination against him or her on this ground will be unlawful. However, this is subject to exceptions based on ‘genuine occupational qualifications’. If, for example, the nature of the job requires a woman, it is open to the employer to show that it is reasonable to treat a male to female transsexual person as being unsuitable for that job. The amendments made by Schedule 6 mean that these exceptions will not be available once a person has been recognised in the acquired gender. They are then, for the purposes of employment, to be treated as being of their acquired gender (that is, of the opposite sex to their birth sex).|
How does the GRA 2004 fit with the Equality Act 2010?
So, the pertinent question now is does the GRA 2004 impose the same requirements on the Equality Act 2010? Do the legal exemptions set out in the Equality Act that allow, in certain instances, the legal exclusion of a transsexual person from a single-sex space still apply when said transsexual legally changes their gender? Frustratingly the wording of the Equality Act 2010 never mentions the Gender Recognition Act 2004 or whether a transsexual with a GRC stops being classed as a transsexual. There is no equivalent of Schedule 6 in the Equality Act 2010 in relation to occupational requirements. However, the explanatory notes that accompany the Equality Act 2010 gives a clear example of when a transsexual female can be excluded from a work role reserved for a woman – even if she has a GRC. This gives a clear indication, that for the purposes of the Equality Act 2010, a legally acquired gender can in certain circumstances be considered different to the legal sex acquired through birth AND that a transsexual history of a person is not disregarded when they get a GRC. A transsexual person remains a transsexual person, in addition to the sex they have legally acquired.
|EA2010 Explanatory notes 789:|
|This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work. The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.|
|Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.|
|Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.|
|A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.|
When can the acquired gender be legally disregarded?
The GRA 2004 clearly sets out a number of situations when legally acquired gender can be disregarded or how it should be interpreted:
If a father legally changes gender this does not make him the mother of his child.
|GRA 2004 Explanatory notes 43:|
|This provides that though a person is regarded as being of the acquired gender, the person will retain their original status as either father or mother of a child. The continuity of parental rights and responsibilities is thus ensured.|
If a will was made before 2004 the acquired gender of someone can be disregarded with respect to the distribution of property, but not if the will is made after 2004. This raises the possibility that if something was willed specifically to the ‘eldest daughter’ she could find herself disinherited if her elder brother acquired a GRC and then became the new eldest daughter. The Act however does allow the original eldest daughter to apply to the High Court (or Court of Session in Scotland) in that scenario. The court may decide to order a different and fairer distribution.
|GRA 2004 Explanatory notes 79:|
|This provides that the fact that a person’s gender has become the acquired gender does not affect the distribution of property under a will or other instrument made before the day on which the Act comes into force. For wills or other instruments made after that day, the general principle stated in section 9(1) will apply, e.g. if a will refers to the ‘eldest daughter’, and a person who was previously a son becomes the ‘eldest daughter’ following recognition in the acquired gender, that person (subject to section 18) will inherit as the ‘eldest daughter’.|
|GRA 2004 Explanatory notes 82:|
|This makes provision for any situation where the disposition or devolution of property under a will or other instrument is different from what it would be but for the fact that a person is regarded as being of the acquired gender. If, for example, an instrument governs succession by reference to the ‘eldest daughter’ of the settlor, and there is an older brother whose gender becomes female under the Act, then the person who was previously the ‘eldest daughter’ may cease to enjoy that position. Subsection (2)allows a person who is adversely affected by the different disposition or devolution of the property to make an application to the High Court, or the Court of Session in Scotland. The court, if it is satisfied that it is just to do so, may make such order as it considers appropriate in relation to the person benefiting from the different disposition of the property.|
Even if someone has a GRC they will still be considered as a transsexual (someone who has undergone gender reassignment) and can be excluded from religious roles.
|GRA 2004 Explanatory notes 78:|
|The exceptions in section 19 of the Sex Discrimination Act 1975 and Article 21 of the Sex Discrimination (Northern Ireland) Order 1976, which exempt discrimination in relation to employment, authorisation or qualification for the purposes of an organised religion where that employment, authorisation or qualification is limited to persons who are not undergoing and have not undergone gender reassignment, are not affected. They continue to apply in relation to people who have been recognised in the acquired gender under this Act.|
Despite the Lords passing this Act to enable someone to legally change their gender ‘for all purposes’ they did manage to include an exemption so that it did not apply to the inheritance of a peerage or honoury title. This would mean the eldest daughter could not inherit land and title from her father by changing legal gender and thereby leapfrogging the succession of the younger brother. This also applies to royal succession to the throne, though this is less relevant now because male-primogeniture no longer applies to royals born since 2011.
|GRA 2004 Explanatory notes 80:|
|This provides an exception to the proposition stated in section 9(1). The descent of any peerage or dignity or title of honour will take place as if a person recognised in the acquired gender were still of the birth gender. The same rule applies to any property that passes with it, unless the will or other instrument governing the property departs from this rule by express provision.|
Having a GRC does not confer automatic eligibility to compete as the legally acquired gender. The legal exemption exists so they can be excluded to uphold fair and safe competition, but this exclusion is not mandatory.
|GRA 2004 Explanatory notes 83:|
|The section provides that a body responsible for regulating participation in competitive sporting events may prohibit or restrict the participation in such events of a person who is recognised in the acquired gender, and is seeking to compete in the acquired gender, if this is necessary to secure fair competition or the safety of other competitors.|
Criminal liability still applies regardless of a legal gender change of the perpetrator or victim.
|GRA 2004 Explanatory notes 84:|
|Many definitions of sexual offences in the law of Scotland and Northern Ireland remain gender-specific and hence refer, for example, specifically to acts committed by a man upon a woman. This section ensures that where criminal liability would exist, but for the fact that a person, either the victim or the perpetrator, has become of the acquired gender, that criminal liability will exist regardless of the gender change. The Sexual Offences Act 2003 introduced gender-neutral terms for England and Wales, but this section extends to England and Wales, as well as Scotland and Northern Ireland, in order to ensure that there is no residual problem.|
What impact does having a GRC have on women-only services, spaces and roles?
Based on the (unconfirmed) assumptions that when a GRC is granted i) an applicant who was born a male would, in law, become a woman for all purposes (and vice versa) AND ii) an applicant has undergone a process of reassigning their sex and therefore also falls under the definition of a transsexual how does this affect the protections afforded in the EA2010 of single-sex services for women?
Below are the six main examples of women-only scenarios set out in the Equality Act where people can be lawfully included or excluded based on having a protected characteristic of sex. In four out of six of these there is also the legal option to exclude based on having undergone gender reassignment. There is no explicit mention in the Act, or the accompanying explanatory notes, about whether it is legally permissible to exclude a transsexual with a GRC from a women-only association or political short list. Each of these women-only scenarios is discussed in detail the Fair Play For Women review of the Equality Act 2010 here.
|Exemption based on sex?||Exemption based on gender reassignment?|
|ALL WOMEN SHORTLISTS:||YES||NO|
|WOMEN ONLY CLUBS:||YES||NO|
Legal gender recognition really matters in prison
Since its enactment in 2004 the usefulness of the Gender Recognition Act has diminished. This is largely due to the introduction of the Equality Act in 2010, which provides most of the rights transgender people have today, making discrimination, harassment or victimisation unlawful. In most cases the legal exemptions in the examples above are not invoked, either through choice or ignorance about the law. As such, most transgender people are treated according to the gender in which they identify, rather than as their legal sex, and so already have access to the single-sex spaces opposite to their birth sex if they choose. Also, the need for legal gender recognition to allow a transgender person to marry is largely negated now that marriage can be either different-sex or single-sex. It is not surprising then perhaps that only 4,500 transgender people have legally changed gender since the act came into force (1% of the total transgender population in the UK estimated by GIRES in 2015).
In daily life, having a gender recognition certificate makes very little difference. However, it becomes of crucial importance if a transgender person goes to prison. Prison regulations in England and Wales (and similarly in Scotland) mean that prisoners are automatically located based on their legal sex. This means that a male-born prisoner with a GRC will be automatically eligible to be housed in a women’s prison. Without a GRC, someone’s gender identity is acknowledged and they are allowed to live in role as a woman, but they must do so within a male prison. Transfer to a women’s prison is discretionary and the decision made by a transgender review panel.
It is worth noting that although UK prison regulations confer special privilege to someone with a gender recognition certificate they are not legally bound to do so. Like any other single-sex communal accommodation or service, an exemption exists to exclude access based on gender reassignment. UK prison policy is currently not to use these legal exemptions. Of course, with only 4500 people in the UK with a GRC, the number of prisoners with a GRC will be extremely small, so the impact on the prison services is currently relatively low. However, if the process to obtain a GRC becomes easier and quicker, numbers would be expected to rise, especially in prison where it confers such an advantage. Fair Play for Women has written in more detail on this issue here and here. We have also submitted written evidence to the Prison Planning Consultation here.
Reform of the Gender Recognition Act 2004
The UK government has announced its intention to reform the Gender Recognition Act 2004. At the time of writing (January 2018) the Government Equalities Office is undertaking a period of pre-consultation engagement. Fair Play For Women is participating in this process. So far no date has been set for the official Consultation and the details of the draft bill are of course not yet known.
In contrast, the Scottish government has already opened a consultation on the Gender Recognition Act which closes on 1st March 2018. Fair Play For Women, which represents all UK women, will be publishing a response to the Scottish consultation very soon. In fact, anyone can fill in the consultation questionnaire. You do not need to be Scottish or even resident in Scotland.
In the Programme for Government 2016-2017 and the Fairer Scotland Action Plan, the Scottish Government said it would review and reform the 2004 Act so that it is in line with international best practice. The Scottish government’s intention is that Scotland should adopt a self-declaration system for legal gender recognition in a similar manner to that proposed by the UK government for England and Wales. However, Scotland also proposes that the minimum age of applicants should be reduced from 18 to 16. It is also considering access to legal gender recognition for people who do not identify as men or women (non-binary people).
In Scotland the process of applying for legal recognition of gender is a devolved matter that the Scottish Parliament can legislate for. There are also some reserved areas impacting on gender recognition where responsibility is largely with Westminster (like the impact on pension rights). In 2004 the Scottish parliament agreed (through a Sewel motion, see table below) that Westminster could legislate for Scotland in respect of the provisions relating to the devolved matters in the Act to ensure a consistent UK approach. However, the GRA 2004 does contain Scottish-specific parts and Scottish ministers do have limited powers to amend aspects relevant to Scotland.
|Sewel motion relating to Gender Recognition:|
|49. Gender Recognition Bill (S2M-0813)
“That the Parliament endorses the principle of giving transsexual people legal recognition of their acquired gender and agrees that the provisions in the Gender Recognition Bill that relate to devolved matters should be considered by the UK Parliament thereby ensuring a consistent UK approach and early compliance with the rulings of the European Court of Human Rights with respect to the Convention rights of transsexual people under Article 8 (right to respect for private life) and Article 12 (right to marry).”
Powers to modify statutory provisions
The UK government has the ability to modify the regulations following a consultation process. The Scottish government also has these same powers, enabling it to modify the legislation for Scotland.
Due to differences in the legal systems of Scotland and of England and Wales there are already some small differences between the legal gender recognition process in Scotland. For example, on account of differences in marriage law, the granting of an interim certificate will provide a ground for divorce in Scotland, rather than make the marriage voidable as is the case for England and Wales. The UK birth register is maintained by three Registrars General, covering England and Wales, Scotland, and Northern Ireland. There is separate legislation covering the functions of each and hence there are different procedures for registering any changes in legal gender. Scottish courts uniquely also have the power to order a full gender recognition certificate in the absence of spousal consent.
Following the ongoing consultation, the Scottish government may attempt to introduce more Scottish-specific changes to the Act such as lowering the age of applications in Scotland to 16 or lower, changing the eligibility criteria for a GRC in Scotland, and introducing legal recognition for non-binary people. It is yet to be seen if major changes like this are possible without UK government approval or some form of concerted joint action. Nevertheless, it is crucially important that clear feedback on any possible changes is received by the Scottish government using the current consultation process.
|GRA 2004 Explanatory notes Section 23|
|91. This provides the Secretary of State with the power to make an order modifying the operation of any enactment or subordinate legislation in relation to persons who have acquired a new legal gender under this Act or any description of such persons. This power is strictly limited and is provided due to the entirely novel nature of this legislation. Legislation has made distinctions on the basis of gender for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts. Though a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities, this section acknowledges the possibility that other instances may come to light in the future. Subsection (5) provides that, before an order is made under this section, there must be appropriate consultation with persons likely to be affected by it.|
|92.This power is also extended, for the same reasons as given above, to Scottish Ministers and the appropriate Northern Ireland department should they need to modify legislation that falls within the devolved competence of the Scottish Parliament or the Northern Ireland Assembly respectively.|
What can I do now?
|EDUCATE women so they know what is being proposed. Share this article and talk to your friends and colleagues so they know that the government wants to make legal gender change as simple as filling in a form. Tell then how this will allow male prisoners to transfer to women’s prisons.|
|REJECT the proposed reforms to the Gender Recognition Act by making your views know in the government consultations. Fill in the Scottish consultation even if you are not Scottish. This matters to all women. If unregulated access to the female sex class is legalised this undermines the whole concept of what the protected characteristic of sex means under equality law. How can members of the female sex be monitored and legally protected if biological sex becomes a meaningless concept. This legal uncertainty must never be allowed to happen.|
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