On 6 December Kemi Badenoch MP, Minister for Women and Equalities, announced an update to the list of ‘approved countries or territories’ under the Gender Recognition Act (GRA). This impacts who may apply for a UK Gender Recognition Certificate (GRC) via the ‘overseas route’ – a process for people who have legally changed gender outside of the UK. The process is restricted to a number of ‘approved countries or territories’. Badenoch’s update has removed a number of countries and states which offer gender recognition via a process of self-determination, so called “self-ID”. This will impact very few people (Government statistics indicate a total of 232 applicants using the overseas route since 2009), but it is symbolic of the UK government’s attitude towards trans people and foreigners in that they appear to be seeking to make life as hard as possible for us.
The reason given for the removal of the countries from the list and government opposition to self-determination was the “complex interactions between the GRA and Equality Act”. Much was said about single-sex spaces. The Equality Act already allows trans people to be excluded from single-sex spaces on a case-by-case basis if it’s proportionate to do so. It rarely happens because it’s rarely proportionate. Case law has established that Equality Act protections for trans people under the protected characteristic of ‘gender reassignment’ are not based on the possession of a GRC but from the start of social transition.
The Minister made many references to evidence-based policy making, yet offered no evidence of countries where gender recognition on the basis of self-determination, or where those who had gained UK gender recognition by the overseas route, had caused any issues. That may be because there is no such evidence – we’ve certainly not seen any.
Badenoch also stated that “the law is no longer clear” in relation to sex and gender. The laws she is referring to have not changed since their introduction in 2010 (Equality Act) and 2004 (Gender Recognition Act). Whilst TransActual have concerns that the government may wish to make changes to the Equality Act, we would like to reassure trans people that courts appear to think those two Acts remain clear, and it will be unlikely that the government will have enough time before the next General Election to make any changes.
Miriam Cates MP stated that she thinks it’s too easy for trans people to change their passport and driving licence, documents used to prove ID, as opposed to a birth certificate which is what legal gender recognition changes. Badenoch appeared to agree. Currently a doctor’s letter is required for a trans person to be able to change their gender marker on their passport. Trans people are able to change the marker on their driving licence on a basis of self-declaration. No evidence was presented by Cates in relation to the use of driving licences as proof of one’s sex or gender. Given that the gender marker is coded into the driver number rather than being present as an M or F on the photocard itself, we suggest that Cates was using this as a straw man argument. And we are unsure why gender needs to be recorded on such documents anyway, in line with Cabinet Office findings in 2014.
There was much discussion about trans children and young people in this Parliamentary statement, which was about a change to a process that is not available to under 18s in the UK. Badenoch stated that “No child is born in the wrong body” appearing to indicate that she thinks nobody is born trans. This would certainly be news to the Endocrine Society, who state that ‘considerable scientific evidence has emerged demonstrating a durable biological element underlying gender identity’.
In her statement, Badenoch suggested that social transition is a ‘new phenomenon’. This will have come as a surprise to the likes of Ewan Forbes, who socially and medically transitioned in the 1930s. Social transition has existed as long as trans people have existed. The Minister quoted the first Cass Report in saying that “social transition is not a neutral act”. However she failed to also mention that the same report also states that “It should also be recognised that ‘doing nothing’ cannot be considered a neutral act”. Evidence repeatedly shows that social transition generally improves the mental health of all trans people, including children and young people.
The Minister also ignored the evidence from the National LGBT Survey (2018), which indicates that only 9% of trans adults identify as heterosexual (for example, trans men that are attracted exclusively to women). Instead the Minister made reference to “transing away the gay” and referred to social transition conversion therapy. We would like to remind the Minister of Articles 8 and 12 of the UN Convention on The Rights of The Child, which state that “Every child has the right to an identity” and “Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously.” By endorsing efforts to restrict young people’s access to social transition, she is in danger of encouraging a violation of these rights.
Far from being evidence-based, the Minister’s statement was just another dangerous example of talking about myths as if they were established facts, and ignoring the actual evidence acquired over many years by scientists, medics and social researchers.
Badenoch made reference to a “climate of fear” and referred to the “chilling effect” of people being told that something they had said or done is transphobic. What we find really chilling are the year-on-year increases in transphobic hate crimes, government ministers repeatedly talking about restricting trans people’s rights, and the ongoing attempts by this government to breach international human rights laws.