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Legal changes

LGBT History Month – a time for change?

We reflect upon the progress that has been made in terms of achieving legal equality for the LGBTQ+ community and what changes still need to be made.

LGBT History Month is not only a time to reflect upon the progress that has been made in terms of achieving legal equality for the LGBTQ+ community, but also what changes still need to be made to make the UK a more tolerant and diverse society as a whole.

As highlighted by my colleague Tania Derrett-Smith in her recent article Equal Rights for All – it’s been a long time coming…, over the last decade we have witnessed a number of notable changes in the UK as far as legal recognition of same sex relationships and the LGBTQ+ community is concerned. In particular, same sex marriage was legalised in 2014 and just last year it became possible for opposite sex couples to enter into a civil partnership. Whilst it is important to celebrate these advances, it is equally important to look to the future and continue to strive for further reform, so as to ensure that everyone, regardless of their gender or sexual orientation, can reach their full potential, whilst feeling not only supported by the communities in which they live, but also accepted.

In 2017 the Government conducted the largest national survey of LGBTQ+ people in the world to date. Over 100,000 responses were received and duly collated. Shockingly, the findings confirmed that despite significant progress being made in a number of areas, the LGBTQ+ community continues to face many barriers to full participation in public life. Stonewall, an organisation which campaigns for the acceptance of LGBTQ+ people, reports that one in five of the LGBTQ+ community have experienced a hate crime within the last 12 months because of their gender identity or sexual orientation. Such statistics serve as a grave reminder that the need for further reform is as vital as ever.

The UK is presently ranked seventh by Rainbow Europe, which looks at how a country’s laws impact the lives and rights of LGBTQ+ people living in it. This supports the view held by many LGBTQ+ organisations that the UK is now lagging behind other European countries in terms of legal equality for trans and non-binary people.

So where are we going wrong and what are countries at the top of the Rainbow index doing differently?  One main distinction is that a number of countries, including Malta and Norway, have reformed their laws to make it easier for trans people to have their true gender legally recognised.

The legal gender recognition process in the UK

The Gender Recognition Act (GRA) was the first piece of legislation in the UK which officially recognised transgender people. It governs the legal process by which a person can legally change their gender and obtain a Gender Recognition Certificate. Unfortunately however, the Act was last updated in 2004 and attitudes towards gender have come a long way since then.

The current process for gender recognition has been labelled dehumanising, bureaucratic, expensive and intrusive. Although a large proportion of trans men and women are aware of the process to apply for a Gender Recognition Certificate, a lot of misconception and misunderstanding surrounds the application process. Approximately 15% of those who completed the aforementioned Government survey mistakenly believed that gender reassignment surgery was a prerequisite, whilst 43% were under the impression that they would have to be interviewed by a Gender Recognition Panel. It therefore comes as no surprise that a large number of trans men and women have been deterred from applying for a Gender Recognition Certificate. Indeed, data obtained to date shows that only 12% of trans people have taken steps to have their gender legally recognised.

As things stand anyone applying for a Gender Recognition Certificate has to be over the age of 18 and has to produce evidence that they have been diagnosed with gender dysphoria (which is still classified as a mental illness). They also have to confirm that they have lived in the role of their acquired gender for at least two years and that it is their intention to continue doing so for the rest of their life. The current fee is £140 which is more than the fee for a marriage certificate, passport or driving licence.

The application is then referred to a Gender Recognition Panel consisting of legal and medical experts who then get to decide whether or not to issue a Gender Recognition Certificate. The applicant is not presented with an opportunity to make representations to the panel in person and they decide each case without meeting the trans individual face to face.

Whilst such requirements are viewed as unduly onerous, some will argue that safeguards need to be put in place to prevent fraudulent applications.

A further difficulty with the current system is that it only allows an individual to change their gender from male to female or vice versa. It follows that there is no legal recognition of non-binary people in the UK and they cannot obtain ID that is in line with their identity.

Debate and controversy also surround the age requirement. At the age of 16 one can marry and join the army but it is not possible to obtain a birth certificate recognising your true gender. This can be incredibly frustrating for many young trans people who are forced to go about their life not being recognised as who they actually are. Each time they go on holiday or sign for a parcel they have to produce ID which is in direct conflict with their true identity.

Although reform in this area appears to have the backing of the Government, changes to the Gender Recognition Act 2004 have yet to be made. The Government has commissioned further research on non-binary experiences as part of its LGBT Action Plan announced back in July 2019. It intends to rely on this research when considering what reforms are appropriate.

In October 2019 Baroness Williams, Minister for Equalities, indicated that she remained committed to the reform of the GRA. She said “I want as Minister for Equalities to live in a world where people at work and at home can be who they are.”

As yet no-one knows what changes will be made to the existing legislation, if any. It is very much hoped however that they will serve to simplify the current process and make it less costly, time consuming and invasive. Stonewall has put forward a number of recommendations which include:

  1. Ending the requirement to provide medical evidence in support of an individual’s gender identity.
  2. Introducing self-determination in line with Ireland, Malta, Norway and Argentina.
  3. Legal recognition for non-binary people.
  4. Lowering the age in respect of applications for Gender Recognition Certificates from 18 to 16.

LGBTQ+ organisations warn that action needs to be taken sooner rather than later, as the delay in implementing any reforms is having a detrimental impact on trans and non-binary people.

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