In the United Kingdom (UK), the House of Commons Select Committee on Women and Equalities is currently undertaking an inquiry into the equality status of transgender (trans) persons. Among the topics being addressed are workplace discrimination, access to healthcare, media portrayals of trans identities, and whether existing laws reflect modern trans realities. How the law interacts with individuals is currently a particularly sensitive flashpoint for trans rights advocacy.
When the Gender Recognition Act 2004 was adopted, its revolutionary character lay in the absence of a surgical intervention requirement. The UK became one of the first jurisdictions to acknowledge preferred gender without mandatory surgery or sterilisation. A decade later, many countries throughout the Council of Europe still impose physical alterations as the price of securing a correct legal status. However, the UK does not have a fully ‘de-medicalised’ system. In order to obtain recognition, section 2 of the 2004 Act requires trans persons to prove a diagnosis of gender dysphoria. The diagnosis is understandably controversial among trans individuals. Framing trans identities through a ‘dysphoria’ lens implies that applicants for recognition are ‘ill’. It excludes those persons who experience no stress because of their gender identity, as well as the many trans individuals who, because of economic and social marginalisation, have minimal engagement with NHS medical services. Maintaining a ‘diagnosis-centred’ regime is inconsistent with evolving standards of international best practice. In 2012, Argentina became the first jurisdiction to introduce ‘self-declaration’ (i.e. trans persons legally define their identity), a model that now operates in Ireland, Columbia, Denmark, Malta, and in Sweden from January 2016. In promoting reform to the existing UK rules, the Committee should endorse the self-defining capacities of trans individuals.
The 2004 Act’s application is limited to persons who have achieved the age of majority. This means that trans children and adolescents are unable to apply for legal gender recognition. Although, any policy that permits changes to a minor’s legal status should inspire deep caution, an absolute prohibition renders child applicants invisible. It is neither proportionate nor in the best interest of trans youth.
Irrespective of legal recognition, trans children do exist. They are a vibrant and engaged community. Many young people socially and culturally transition long before their eighteenth birthdays. Using services, such as London’s Tavistock Centre, some also pursue a medical transition. Excluding trans youth from the 2004 Act does not stifle the development of trans identities. But it does mean that, where a young person decides to give expression to their preferred gender, they are denied a correct legal status. Recent studies illustrate the significant benefits of affirming preferred gender at an early stage. In recent years, Ireland, the Netherlands, Argentina, Malta, Sweden and Norway have all taken steps to acknowledge the true identity of trans minors, and the UK should follow.
Non-binary identities are also fully excluded from the 2004 Act. The current recognition rules only account for an “acquired” male or female identity. Healthcare professionals are unlikely to provide a diagnosis of gender dysphoria if persons express gender fluidity (instead of a male-to-female or female-to-male narrative). The systematic legal erasure of non-binary persons reflects society’s intense investment in a rigid, dichotomised gender experience. It results in the marginalisation of persons who cannot — and will not — locate their identity within a binary gender structure.
In recent years, there have been increasing calls to accommodate non-binary genders in the UK. However, even at grassroots level, there is little community agreement about what legal recognition should look like. While some favour an ‘X’ gender marker, others suggest that this would merely create a third, exclusionary classification into which many trans individuals, particularly those who experience a fluid gender, will not fit. What is clear, however, is that the UK Government can no longer ignore non-binary concerns. UK activist, Christie Elan-Cane, is currently pursuing judicial review proceedings over the lack of a non-gendered passport option. ‘X’ passports are available in a number of jurisdictions, such as Australia and New Zealand. Courts and policy makers in India and Nepal increasingly acknowledge a ‘third gender’ option. While adopting specific policies in this area will require meaningful reflection, the Committee should encourage Parliament to at least begin that conversation.