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This Commons Library briefing paper considers the current law relating to gender recognition; the medical diagnosis of gender dysphoria; the current protections from discrimination, including in schools; consultations by the UK Government and the Scottish Government on reform of the Gender Recognition Act 2004; and the "self-identification" debate

Download the full report

Introduction

• The Gender Recognition Act 2004 (GRA) enables transgender adults to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC).
• Successful applicants, who are granted a full GRC, are, from the date of issue, considered in law to be of their acquired gender.
• Separate law and guidance protect people, including pupils in schools, against discrimination on the basis of gender reassignment.
• The UK Government and the Scottish Government have conducted separate consultations on reforming the process for achieving legal gender recognition in England and Wales and Scotland respectively.

A note on terms used in this briefing paper

• In this briefing paper:
  • The term “transsexual person(s)” (which is now a predominantly historical term) is used in the context of references to the Equality Act 2010 and reflects the vocabulary used in that Act. Otherwise the term used is “transgender person(s)/people”;
  • The term “acquired gender” reflects the term used in the GRA. The House of Commons Women and Equalities Committee found that many people now prefer the term “affirmed gender”.

Gender dysphoria

• Gender dysphoria or gender identity services are specialised services that are directly commissioned by NHS England. There are three components of the gender dysphoria pathway, each of which works to a separate service specification:
  • a therapeutic service for children and young people up to 18 years of age, and their families; including a linked paediatric endocrinology service for hormone therapy;
  • Gender Dysphoria Clinics from 17-years of age, offering assessment, diagnosis, overall care coordination, hormone treatments, voice and communication therapies and talking therapies; and
  • certain surgical interventions of the chest and genitals for adults.

  
  Gender dysphoria is a term used to describe a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity. Treatment for gender dysphoria aims to help people live the way they want to, in their preferred gender identity or as non-binary.

Protection from discrimination

Equality Act 2010

The Equality Act 2010 prohibits discrimination, for example in employment or the provision of public services, on the basis of protected characteristics, one of which is gender reassignment. However, this Act allows providers to offer single-sex services that exclude transgender people if it is proportionate to do so and it achieves a legitimate aim.

Protections and provisions for transgender pupils in schools

• In England, Wales and Scotland, the Equality Act 2010 prohibits discrimination against transgender children in all schools.
• In Northern Ireland, guidance issued by the Education Authority says the European Convention on Human Rights may offer some protections for transgender pupils.
• In 2014, the Equality and Human Rights Commission (EHRC) published guidance on the Equality Act 2010 and how it applies to schools in England and Scotland.
• Decisions on uniform, provisions for shared sanitary and changing facilities and mixed sport are primarily made by schools themselves, within their respective statutory framework.
• For example, the DfE cites Schools transgender guidance by Cornwall County Council and the Welsh Government recommends Transgender guidance issued for Wrexham schools as good practice.In2017, the NASUWT Teachers Union published guides for England, Wales, Scotland and Northern Ireland.

Gender recognition reform

Consultation on reform of the GRA

• In July 2018, the UK Government published a consultation on reform of the GRA.
• This consultation, which ended on 22October 2018, concerned the legal gender recognition system in England and Wales only.
• The Government stated that the focus of the consultation was the process for achieving legal recognition and the removal of the requirement for a medical diagnosis was one option on which views were sought.
• The Government has not yet published its response but has said that it will do so this summer.

The “self-identification” debate

• The current process for legal gender recognition has been criticised by some people for its medicalised approach.
• Many transgender people also consider the process to be overly intrusive, humiliating and administratively burdensome.
• The fee and associated costs are seen as expensive and there is no right of appeal against the decision unless on a point of law.
• Concerns have also been raised that there has been intimidation of those organising and attending meetings to consider the Governments proposals, and that debate has been stifled.

The position in Scotland

• The draft Gender Recognition Reform (Scotland) Bill: consultation was published on 17 December 2019 and ran until 17 March 2020. It proposes (among other things):
  • removing the need for applicants for a GRC to provide medical evidence, but they would still need to provide a statutory declaration that they intend to live permanently in their acquired gender;
  • requiring applicants to live in their acquired gender for at least six months – three months before applying for a GRC and three months after applying – before a GRC could be granted;
  • retaining the position that a false statutory declaration is a criminal offence and introducing a new offence of false application – each with a potential punishment of up to two years’ imprisonment; and
  • reducing the minimum age of application from 18 to 16.
  • However, gender recognition is a devolved matter meaning that legislation in this area is within the competence of the Scottish Parliament.
  • This sought views on whether and how the GRA should be amended in relation to the law in Scotland.
  • It set out the ScottishGovernments initial view that, subject to views expressed during the consultation, Scotland should adopt a self-declaration system for legal gender recognition.
  • In June 2019, Equalities Secretary, Shirley-Anne Somerville, announced that a draft Gender Recognition (Scotland) Bill, to reform the current process for obtaining a GRC, would be published by the end of the year.