My responses to the government GRA consultation

The government finally started its consultation on reform of the Gender Recognition Act in England and Wales today.

These are my responses. Feel free to nick bits for your own if you want.

Please do respond to this if you’re trans, or a cis ally. Transphobes will be attempting to drown us out in the volume of their responses.

About the Consultation

Additional information (as published in the consultation document)

Questions 1 and 2 – Experiences of Trans Respondents

Question 1: If you are a trans person, have you previously applied, or are you currently applying, for a Gender Recognition Certificate?


If yes, please tell us about your experience of the process. If no, please tell us why you have not applied?:

I applied in 2009. I was hesitant because it meant my 8 years of marriage would no-longer be recognised but I felt it important as, at the time, the GRA affected my equality in law as a woman. The Equality Act and Same Sex Marriage Act rendered these points largely moot (in particular, the Equality Act made it clear that a GRC no-longer guaranteed my treatment as female in situations where I might face discrimination). I feel like I have had part of my marriage stolen from me for a bargain which the government has not upheld its end of.

The process was bureaucratic and long-winded. The decision of the panel felt arbitrary. I felt like I was operating in an information vacuum. The Act talked of the ability to be able to have civil partnership ceremony and annulment on the same day, but in reality this was a logistical impossibility.

The court paperwork was byzantine and assumed we were having a hostile divorce. Even though my wife and I were standing next to each other when we handed the paperwork in, the other party had to be “served” by post. The court didn’t seem to know what they were doing.

Question 2: If you are a trans person, please tell us what having Gender Recognition Certificate means, or would mean, to you.

Initially: that my identity was recognised by the government and that I had some protections in law against discrimination because of it.

After 2010: very little, mostly that 8 years of marriage were taken from my wife and me under duress and we got essentially nothing in return.

Questions 3 and 4 – Medical Reports

Question 3: Do you think there should be a requirement in the future for a diagnosis of gender dysphoria?


Please explain the reasons for your answer.:

Medical care for transition is incredibly difficult to obtain in the UK, with waiting lists lasting many years. Some GPs will not refer trans people in any circumstances. A diagnosis of gender dysphoria has less to do with someone being trans than it does to do with their ability to wait many years under a system of institutionalised neglect and to “win” a postcode lottery.

Many trans people medically transition using “grey-market” hormones and ad-hoc medical care. Cases where someone has literally turned up to their first GIC appointment after having already had sex reassignment surgery are not unheard of. The current situation makes getting a diagnosis and hence a gender recognition certificate harder than actually getting genital surgery. This is absurd.

Question 4: Do you also think there should be a requirement for a report detailing treatment received?


Please explain the reasons for your answer.:

I have encountered many trans people who are unable to obtain any such report, often because their doctor has retired, or because of administrative incompetence within the NHS. Some people have treatment abroad and are either unable to obtain such evidence, or have such evidence rejected when they do obtain it.

Question 5 – Evidence

Question 5: (A) Do you agree that an applicant should have to provide evidence that they have lived in their acquired gender for a period of time before applying?


Please explain the reasons for your answer. :

I literally used a gas bill as part of the evidence to obtain my GRC. It’s now 2018, and I receive almost no paper bills or bank statements. I own my own house, which many do not. If someone was renting in a house of multiple occupation, as so many now do, even if they did receive paper utility bills, which are almost extinct amongst anyone under the age of 70, they likely wouldn’t be addressed to them anyway.

(D) If you answered no to (A), should there be a period of reflection between making the application and being awarded a Gender Recognition Certificate?:

Any such reflection would simply encourage people to apply early, before they felt ready, so that it was “in process”. Deterrent from making a frivolous application should be based on making the gravity of what someone is doing, and the consequences of making a false application abundantly clear.

Question 6 – Statutory Declaration

Question 6: (A) Do you think this requirement should be retained, regardless of what other changes are made to the gender recognition system?


Please explain the reasons for your answer.:

Transphobes have recently tried to create press suggesting a reformed GRA would allow anyone to receive recognition in frivolous or nefarious circumstances.

Making a false statutory declaration is perjury. The consequences of this should be clear to anyone applying. This should protect trans people, showing that they are committed to their identity, and deter transphobic pranksters eager to play silly games in the media.

Question 7 – Spousal Consent

Question 7: The Government is keen to understand more about the spousal consent provisions for married persons in the Gender Recognition Act. Do you agree with the current provisions?


Please explain the reasons for your answer. If you think the provisions should change, how do you think they should be altered?:

At present, a spouse is presumed to veto a GRC unless they explicitly waive that veto. This puts them in a position of power over a transitioning partner. If a GRC grants any legal rights at all (and the extent to which it does that is questionable post EA2010), then giving one person veto over the equality before the law of another is offensive and unjust.

The spousal veto provisions were clearly intended to empower a presumed cis partner to prioritise their feelings over the identity and equality of the transitioning partner. This assumption is not always valid, however:

– a marriage between two trans people, which are not uncommon, would result in each one being able to veto the other’s GRC.

– the partner holding the veto, be they cis or trans, may not be in a position to revoke it. In a situation where someone was in coma, or suffering from dementia, they would be unable to give consent and the trans partner would either have to divorce the person they love and are caring for, or wait for them to die. This is a horrible situation to put someone in.

The idea that a veto is even necessary contains the implicit assumption that a marriage that is officially same-sex is somehow a less desirable state that one which is mixed-sex (even though the veto applies the other way round, it’s clear the scenario envisaged in the Same Sex Marriage Act was a previously “straight” marriage “becoming gay”). This is not only homophobic; it enshrines homophobia in English law.

Refusal to waive the veto is one partner throwing down the gauntlet to the other, daring them to initiate divorce proceedings. If the partner weaponising their veto in this way has such a problem with being seen to be “officially gay”, then they should be the one to initiate a divorce, rather than mobilising the full weight of the law to passively aggressively make their partner do it. In any other situation, we expect the spouse who is unhappy with the state of the marriage to start the divorce process. It is inappropriate for the government and courts to assist someone to emotionally blackmail their partner into starting divorce proceedings.

In the event you decide to keep this morally objectionable veto, then at least modify an interim GRC so that it automatically converts to a full GRC after 6 months, thus making the veto temporary and allowing the vetoing spouse time to pursue a divorce.

But ideally, just get rid of it. It’s an affront to the idea that LGBT people are equal before the law.

Question 8 – The Cost of Legal Gender Recognition

Question 8: (A) Do you think the fee should be removed from the process of applying for legal gender recognition?


(C) What other financial costs do trans individuals face when applying for a gender recognition certificate and what is the impact of these costs?:

If the veto is invoked, they face the cost of a messy divorce and potentially the loss of their home and children.

Obtaining the medical reports is often very expensive – it can be more than the £140 fee for the application.

Question 9 – Privacy and Disclosure of Information (Section 22)

Question 9: Do you think the privacy and disclosure of information provisions in section 22 of the Gender Recognition Act are adequate?


If no, how do you think it should be changed? :

Section 22 as it exists is essential unenforceable. There have been very few cases even considered to my knowledge, and I am unaware of any successful prosecutions. Enforcement of S22 relies on the CPS being willing to take the case. The reality is that anyone can violate someones S22 protections and be reasonably confident that they will not be subject to any penalty at all. A law which is not enforced or enforceable is a bad law.

Questions 10 and 11 Impact of Legal Gender Recognition Process (Protected Characteristics)

Question 10: If you are, and you have one or more of the protected characteristics, which protected characteristics apply to you? You may tick more than one box.

Age, Gender reassignment, Marriage and civil partnership, Race, Sex, Sexual orientation

Please give us more information about how your protected characteristic has affected your views on the GRC application process.:

This question is a little odd. Everyone has an age, sex and race, and arguably a sexual orientation.

Question 11: Is there anything you want to tell us about how the current process of applying for a GRC affects those who have a protected characteristic?

Enter your answer below.:

The Equality Act is interpreted by the EHRC and others on the understanding that a trans person’s sex, for the purposes of the Equality Act, is their acquired gender and that any treatment contrary to this must be done on a case by case basis and be a proportionate means of achieving a legitimate aim.

The Equality Act’s explanatory notes suggest that a GRC makes no difference to this.

However, many of a transphobic intent are keen to interpret the Equality Act as if a trans person’s sex, for the purposes of equality law, is immutably the one assigned at birth.

When updating the GRA, the opportunity should be taken to amend the Equality Act to make it clear what the existing practice actually is, rather than leaving it open to finding EHRC guidance and interpreting it through a lawyer, that is: trans women are women, trans men are men and non binary people are valid.

This is of more than academic interest. Trans women in particular are a highly vulnerable group, at significantly elevated risk of poverty, domestic violence and sexual assault. The law needs to be far clearer than it is that these women are entitled to the same assistance that any other woman is.

Women’s organisations have been negotiating this issue for decades. There is no risk that a man with nefarious intent will pretend to be a woman to enter a DV shelter, for two reasons: firstly, there are far easier ways to do that (e.g. pretend to be a maintenance worker), and secondly, DV shelters already have the ability to throw out anyone they regard as operating dishonestly, and because they can apply this policy equally (they would still refuse access to the abusive female partner of a woman in a same sex relationship), the issue of sexual discrimination need not arise.

Furthermore, pretty much all a GRC does now is reissue a birth certificate. A birth certificate is clear that it is not evidence of identity, and so an abusive male partner of a woman in a DV shelter proves nothing by turning up with a birth certificate that says “female”. It’s not an identity document.

Introduction to Wider Considerations of Impact (Equality Act)

More information (as published in the consultation document)

Question 12 – Impact on Sport (Equality Act)

Question 12: Do you think that the participation of trans people in sport, as governed by the Equality Act 2010, will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

Why would it? This consultation is quite clear in that it isn’t changing the provisions set forth in the Equality Act.

Sport governing bodies already navigate this issue based on hormone levels, length of transition and suchlike. Equalities law has not proven a barrier to them doing this until now and there is no reason why it should in the future.

Question 13 – Impact on Single-sex and Separate-sex Service (Equality Act)

Question 13: (A) Do you think that the operation of the single-sex and separate-sex service exceptions in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

Gender recognition reissues the birth certificate. Nobody ever showed their birth certificate to access, e.g., a leisure centre changing room. I refer to my answer to Q11 for further information here. The existing gatekeeping around the GRC application process is not acting as any kind fo safety mechanism or barrier to entry for accessing DV services, so relaxing said gatekeeping should make no appreciable difference.

(Sexual assault question) Please give reasons for your answer.:

I have been subject to sexual assault. I did not report it because as a trans woman I do not have confidence in the authorities or other organisations to treat me appropriately, and fear that reporting it would make my experience worse.

Question 14 – Impact on Occupational Requirements (Equality Act)

Question 14: Do you think that the operation of the occupational requirement exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

The EA2010’s explanatory notes clearly state that this exception is not affected by the issue of a GRC.

I would like to take this opportunity to note, however, that the way the EA is drafted makes it unlawful to require an applicant for a position *is* transgender.

This seems like a curious omission. Practically it effectively makes it impossible to set up services for trans people operated by trans people.

Question 15 – Impact on Communal Accomodation (Equality Act)

Question 15: Do you think that the operation of the communal accommodation exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

See my answer to Q11. I would note, however, that in practice such exemptions have more often than not been used to deny service to “butch” cis women because someone thinks they look a bit trans.

The language in the Equality Act needs tightening up here. The EHRC did what they could when drafting their guidelines, but the source material constrained them. The presumption should be one of inclusion, not exclusion. The current law is not at all clear on this.

Question 16 – Impact on the Armed Forces (Equality Act)

Question 16: Do you think that the operation of the armed forces exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

As you state in the preamble to this question, a GRC has no bearing on someones combat effectiveness.

The armed forces have been navigating this issue for years.

Question 17 – Impact on Authorising or Solemnising Marriages (Equality Act)

Question 17: Do you think that the operation of the marriage exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

It may. The current exception is effectively that a priest may refuse to solemnise a marriage, essentially if they genuinely believe that one of the people involved “looks trans”.

Increased publicity around this issue, regardless of what the government ends up doing, may result in this issue coming to the fore.

Previous experience suggests that if and when it does, the person who “looks trans” will most likely actually be cis.

I’m not religious and am already married (to the same person 3 times, thanks largely to this act!), so there is an extent to which this is not a problem that directly concerns me, butI believe it represents an other area in which the EA2010 is not properly thought though in this area.

Question 18 – Impact on Insurance Operation (Equality Act)

Question 18: Do you think that the operation of the insurance exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?


Please give reasons for your answer.:

I know very little about this area, and will take your word for it.

Question 19 – Impact on Other Public Services (beyond the Equality Act)

Question 19: Do you think that changes to the Gender Recognition Act will impact on areas of law and public services other than the Equality Act 2010?


Please give reasons for your answer. :

The practical consequence of obtaining a GRC is that you get 2 bits of paper: a gender recognition certificate and (if you were born in the UK), a birth certificate.

Nobody knows what the first one looks like (well, I do because I have one. They’re quite underwhelming in the flesh), and I have never encountered a public toilet, leisure centre, etc. where anyone ever asks to see a birth certificate.

The prison service operate their own guidelines, and place difficult cases in certain accommodation regardless of sex anyway. The Equality Act is full of

exemptions for religions to engage in sexual and other forms of discrimination.

The only issue I can think of where it might make a difference is with respect to the succession of hereditary titles. The current situation around that is sexist and in need of more reform than can be accomplished by just changing the GRA.

Question 20 – Non-binary Gender Identities

Question 20: Do you think that there need to be changes to the Gender Recognition Act to accommodate individuals who identify as non-binary?


If you would like to, please expand more upon your answer.:

Non binary people are currently in a situation where they have to lie about who they are pretty much every time they engage with the government.

We can wait to be dragged kicking and screaming into the modern world by what other nations do, and then find ourselves back here doing this again in another 14 years, or we can lead the world in making a statement that non binary identities are valid, and we recognise and support non binary people.

A good start would be issuing X passports on demand. The current intransigence to do this, given it is allowed by international treaty, seems petty and mean spirited.

The world won’t end if we stop pretending non binary people don’t exist.

Question 21: Experiences of Intersex Respondents

Question 21: (A) Do you have a variation in your sex characteristics?


Question 22 – Any further comments?

Question 22: Do you have any further comments about the Gender Recognition Act 2004?


If you answered yes, please add your comments.:

The delay in this consultation has been unfortunate. It has allowed a climate to exist in which trans people have faced weekly demonisation in the press and allowed transphobe groups to thrive and spread misinformation, sending “resource packs” to schools that are reminiscent of the dark days of Section 28, and creating a narrative where several major newspapers started talking about the possibility of banning trans women from public toilets; a conversation hitherto unimaginable in the UK.

This has been very hard on trans people and has largely exhausted our resilience. Statements of support made by the government have been very welcome. A comprehensive review of the GRA done in such a way as to show that transphobes shouting loudly does not influence government policy would also be welcome, even if they have been comprehensively misinterpreted by the press. The tidal wave of hate that has been unleashed against trans people is not going to be easy to put back in its bottle (excuse the mixed metaphor), but we need resolution on this.

I appreciate the government is busy with Brexit, and the political situation in the UK is not wholly stable, but please do not allow this to be delayed further. Trans people are desperate.

Finally, there are not many of us, but those of us who’ve had our marriages taken under duress , and arguably under false pretences, have not been well treated. This is an open sore and you should address it.