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A time to reflect: the impact of the pandemic on the LGBTQ+ community and the need for continuing law reform

We consider changes that still need to be made to make the UK a more tolerant and diverse society.

The current pandemic has presented an opportunity to reflect on progress that has been made in terms of achieving legal equality for LGBTQ+ people, and also the impact COVID-19 has had on the LGBTQ+ community. We consider changes that still need to be made to make the UK a more tolerant and diverse society.

Progress

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 in 2019 it became possible for opposite sex couples to enter into a civil partnership. For more details see our article on ‘Equal rights for all’.

Just this year there have been further positive developments including:

  • Adrian Hanstock became the first openly gay man to be made Chief of Police of a British Police force
  • The Bank of England released a new £50 banknote with an LGBTQ+ person on it – Alan Turing
  • Owen J Hurcim became the world’s first non-binary mayor and Wales’ youngest ever elected mayor of Bangor City Council
  • Following the Queen’s Speech, Liz Truss, the Minister for Women & Equalities, confirmed that the Government will take legislative steps to ban conversion therapy
  • Blood donation laws changed to allow some men who have sex with men to donate

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.

Impact of the pandemic

Sadly, the past year has not been without its setbacks and many LGBTQ+ organisations report that the effects of COVID-19 have had a disproportionate impact on the LGBTQ+ community. Certainly the pandemic can be said to have exacerbated pre-existing inequalities within the LGBTQ+ community.

Whilst almost everyone has found the lockdown restrictions challenging, it is important to recognise that some LGBTQ+ people (particularly younger members of the community) often find themselves living in unsafe environments. It may be, for example, that they are not supported or accepted by their immediate family.

According to Stonewall, an organisation which campaigns for the acceptance of LGBTQ+ people, more than one in ten LGBTQ+ people have been subjected to domestic abuse in their own home. It follows that being cut off from support networks during lockdown magnified the effects of the pandemic and meant that members of the LGBTQ+ community were more susceptible to mental health issues.

Important fixtures in the LGBTQ+ calendar are the Pride events. However due to the pandemic it is estimated that over 100 Pride events were either cancelled or postponed in the UK including Pride in London, Leeds and Brighton. 

A further blow was the High Court ruling in the case of Bell v Tavistock. This brought in to question the ability of children under 16 being able to consent to hormone blocker treatment and brought a halt to all referrals of under 18s from GIDS (Gender Identity Development Service). An appeal was brought by the Tavistock and was heard on the 23 and 24 June 2021. The decision is awaited.

The continuing need for reform

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 continue to face many barriers to full participation in public life.

Stonewall report that one in five of the LGBTQ+ community and two in five trans people have experienced a hate crime within the last 12 months because of their gender identity or sexual orientation. In addition, Stonewall report that 25% of trans people had experienced homelessness at some point of their lives. Such statistics serve as a grave reminder that the need for further reform is as vital as ever.

The UK is presently ranked tenth 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.

What reforms could the UK consider?

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.

What is trans?

Trans is a general term for people who identify as a gender which is different from the one assigned to them at birth.

What is gender change?

Changing gender involves social, legal, medical and administrative changes. Trans people can change their name and gender for a wide range of services without changing their legal gender. They can, for example, apply for a passport or driving licence which recognises their gender without first applying for a gender recognition certificate.

The legal gender recognition process in the UK

It is estimated that between 200,000 and 500,000 trans people currently reside in the UK. However, this is merely an estimate and no robust data exists. The Office for National Statistics is currently researching whether and how to collate a population estimate.

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 has not kept pace with changes in society and is in desperate need of reform.

The current process for gender recognition has been labelled dehumanising, bureaucratic 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 application is then referred to a Gender Recognition Panel consisting of legal and medical experts who 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. 

What could be reformed?

 A criticism of 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 surrounds the age requirement (18 years). 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.

In September 2020 the Government published its response to the Gender Recognition Act (2004) consultation which aimed to review and update the law in respect of gender recognition. Whilst this led to some small administrative changes, including the application process being moved online and the fee being reduced from £140 to £5, it was labelled as a “missed opportunity” by human rights organisations including Amnesty International UK and Liberty. Many hoped the process itself would be de-medicalised and a substituted for a self-determination process, similar to that already adopted in countries such as Iceland, Norway and Argentina. It was also hoped that the process would be extended to under 18s and non-binary people.

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