The Legal Rights, Recognition and Limitations of the Trans Community

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Disclaimer: The views expressed within this article are entirely the author’s own and are not attributable to Wessex Scene as a whole.

To what extent are trans people recognised and protected under law? Although trans rights have improved in leaps and bounds since the Gender Recognition Act, I would argue that there is still a long way to go until they can be considered as having equal rights.

Historically, trans people were allowed to informally change official government identity documents to reflect their true gender until a 1970 court ruling prevented this, due to the prevailing stigma that they, alongside other people in the LGBT+ community, faced from society.

The notion of changing the gender an individual is legally recognised as from that which they were assigned at birth was considered so radical that it wasn’t until nearly 30 years later, in a 1999 Court of Appeal ruling, that hormone replacement therapy and gender reassignment surgery was accepted as ‘the proper treatment for a recognised illness’, rather than a cosmetic procedure.

Three years later, the European Court of Human Rights ruled against the UK government’s policy of prohibiting individuals from being able to change the gender on their birth certificates, which led to parliament passing the Gender Recognition Act.

Through the Gender Recognition Act, those with gender dysphoria can change their gender on birth certificates and adoption certificates, if their adoption was organised in the UK. They have to apply for a Gender Recognition Certificate (GRC), which is meant to show that a person has met the criteria to legally change their gender. This includes evidence they have suffered from gender dysphoria, have lived as their preferred gender for at least two years, and intend to do so until death. It should be noted that the gender which an individual is recognised as on their passport, medical records or driving licence does not require this, but proof an individual is living in their true gender and a letter from an individual’s GP, or other medical practitioner.

A positive about the GRC process is that it isn’t just open to “post-op” trans people. Not everybody wants to go through an invasive operation and may deem it unnecessary, and it also serves to reflect that gender isn’t only based on biology and hormones. The GRC also involves legal protection, as the information related to gender recognition is considered protected information so nobody has the right to “out” you.

However, there are potentially some limitations. Individuals have to present evidence to a Gender Recognition Panel, which considers their case and issues the certificate. The idea that you have to justify your gender to a panel of strangers who then determine whether you can change the gender to which you are legally recognised as may seem, for some, to be an unnecessary boundary.

Since 2002, being trans has not been considered as being a mental illness in the UK. However, in order to get a Gender Recognition Certificate, you are required to have a documented diagnosis of gender dysphoria. The continued link between mental illness and being trans may seem, again, to be reductionist in assuming that being transgender means you have something “wrong” with you.

Something that is even more concerning is the fact that, under this law, if the person involved is in a legally recognised marriage or civil partnership in England and Wales, they require spousal consent for the certificate to be issued. In Northern Ireland, divorce or annulment of a marriage or civil partnership is required if one or more of the parties seeks a GRC (Scotland requires neither annulment nor spousal consent). Again, it seems irrelevant and wrong to involve other people in such a personal decision, and why does the spouse get the power to determine whether one can get their gender reassigned?

Due to some of these issues and countless more, between 3rd July-22nd October 2018, the government opened a consultation into how to reform the legal recognition process to make it less ‘bureaucratic, expensive and intrusive’. Only time will tell how the Gender Recognition Act will change in light of this feedback.

Editor’s Note: With thanks to a reader for feedback on the original magazine piece.

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Wessex Scene Editor // meme queen // fan of chocolate digestives // @colombochar on Twitter.

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