Sarah Brown's Blog, UK
Posted on 14 January, 2016
This morning, the government’s Women and Equalities Committee released its first report on transgender equality, detailing its recommendations. They fall into a few broad areas:
- Reform of the 2004 Gender Recognition Act
- Reform of the 2010 Equality Act
- Reform of healthcare services for trans people
- “Tackling everyday transphobia”
I’ve had a short while to skim this document and these are my initial impressions. It’s a very long report of nearly 100 pages, but much of it is summarising submitted evidence and explaining the current situation. The committee has helpfully written their recommendations in bold, and those are the sections I’m going to focus on. Zoe O’Connell has also blogged on this and is worth reading.
Before doing that, I’ll note that this is very much a report of our time, and fits with the narrative of the current Conservative government. While noting that the government has work to do, it defends the deeply discriminatory Spousal Veto and only really takes the gloves off when it comes to talking about the NHS.
Taking the parts as they are presented in the document, I’ll start with the Summary:
The report recognises that “High levels of transphobia are experienced by individuals on a daily basis with serious results“, and references the appalling suicide statistics faced by transgender people.
It recognises that the 2004 Gender Recognition Act was “pioneering but is now dated“, and criticises the pathologisation of trans identities and the need for self-determination.
It recognises that the Equality Act is unclear in who it covers, and suggests that the fuzzy concept of “gender reassignment” be relaunched as “gender identity“. Hopefully this will clarify and enhance the position of non binary people.
It has some strong words for the NHS, pulling no punches with “the NHS is letting down trans people: it is failing in its legal duty“. This seems to refer to both gender identity, and general healthcare services
Now on to the detailed sections, starting with the Gender Recognition Act. The report:
- Recognises that the Act has nothing to offer non binary people, stating that “The Government must look into the need to create a legal category“.
- Urges the government, “within the current parliament” to “bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration“.
- Recognises that the Spousal Veto is open to abuse and that this is “deplorable and inexcusable“, but recommends that the veto remain in place.
- Recommends that gender recognition be available to 16 year olds, but suggests this should be subject to parental consent or Gillick Competency.
- Notes there have been no prosecutions under Section 22 of the Act (the protection from outing clause), and expresses concern that this may be effectively useless. It suggests the Ministry of Justice “take action to address this“.
There’s some good stuff here. I’m pleased the committee spotted the uselessness of Section 22 as a piece of criminal law that is routinely violated and never enforced, and welcome suggestions that this be tightened up. I welcome the recognition of the need to extend recognition to non-binary people but am disappointed that the committee presents no suggestion as to how this might be attempted. Similarly, while it recognises the need for self determination instead of the current practice of having bureaucrats literally put your gender identity on trial, it presents no suggestions for how this might be done.
In regards to the above, the committee’s report is essentially, “isn’t this terrible? The government ought to do something!”
The attitude towards the Spousal Veto is extremely disappointing. The report notes that Scotland effectively did away with it, but stubbornly insists it must stay, while noting that abuse of it is “deplorable”. Again, it offers no suggestions to how such abuse might be prevented, nor what can be done in the instances where spousal consent is not possible to obtain (e.g. the spouse is in a coma, or cannot be contacted).
This is, perhaps, the most disappointing aspect of the report for me, and the point at which it is at its most timid. The justification for retaining the veto is both paper thin and nothing we haven’t heard before. Stating, “in a marriage where one party transitions, the non-trans spouse does have a legal right to be consulted if it is proposed to change the terms of the marriage contract in consequence“.
Let’s note here what it is that’s being vetoed: it’s not transition itself, nor any of the hormonal or surgical changes that have potentially profound consequences for the nature of what is supposed to be a life-long monogamous sexual relationship.
What is being vetoed is access to equality before the law.
While I will never agree that the veto is anything other than a gross and disgusting infringement on the liberty and humanity of trans people, I would perhaps understand it more if those defending it were able to present an argument that actually made sense. How can you possibly give a spouse power of veto over access to employment nondiscrimination, but not access to genital reconstruction surgery?
On The Equality Act, the report:
- Suggests that the protected characteristic of “gender reassignment” be replaced with “gender identity“.
- Suggests clarification of the Act so it is obvious that its protections apply to children.
- Recommends that the granting of a Gender Recognition Certificate prevents the exclusions on access to single sex services and jobs from applying to someone.
- Recommends “the Government work with Sport England to produce guidance which help sporting groups realise that there are likely to be few occasions where exclusions are justified” from single sex sport competitions.
There’s some really good stuff here. The Equality Act was a rush-job at the end of the 2005-2010 parliament and many (myself included) think that its provisions for trans people are a mess as a result. The single most important change, perhaps, is changing the definition of what’s protected from discrimination from “gender reassignment” to “gender identity“. It is currently very unclear just “how trans” you have to be to be covered by the Act, and this should go a long way towards addressing that, especially for non-binary people.
At present, you can be fired from certain jobs (or prevented from applying for them), and refused access to single-sex services (such as domestic violence shelters and rape-crisis counselling) if you are trans, and this is explicitly legal under the Act. The report proposes removing these exceptions but only if you have a Gender Recognition Certificate. According to some legal experts I have spoken to in the past, this is very much the situation that existed prior to the Act passing in 2010.
This does risk widening the perceived gap between those who have a Gender Recognition Certificate and those who do not though. Given there are no actual proposals for how the Gender Recognition Act might be extended to non-binary people, if this proposal is implemented by itself then it very much maintains non-binary people as “second class” trans people, from a legal standpoint.
It also makes a retained Spousal Veto much nastier by creating the unpleasantly ironic situation where an embittered spouse of a trans person can subject them to domestic abuse while withholding their legal right to access a domestic violence shelter.
There are kinds of discrimination that the Equality Act allows which the report does not address. One such is marriage in church, where if the priest reasonably thinks you are trans, they can refuse to marry you. Another relates to military service. The report has no recommendations to make here.
On The NHS the report:
- Says there is "too much evidence" of discrimination towards trans people in the NHS.
- Notes that trans people encounter "significant problems" accessing general healthcare and sometimes encounter "out-and-out prejudice".
- Notes GPs often lack understanding of trans issues and referral pathways and this can lead to "appropriate care not being provided".
- Calls for a “root and branch review" of failures in professional development, commissioning and incidences of transphobia in healthcare to be published within six months.
- States that the General Medical Council must provide reassurance that it takes transphobia seriously.
- Welcomes ongoing depathologisation of trans identities, in the same way that LGB people have been depathologised.
- Suggests that gender identity services be separated from mental health services, and perhaps become a discipline in their own right.
- Recognises that while gender recognition on request is something it would support, it would not support the informed consent model for “medical intervention as profound and permanent as genital … surgery“
- Notes the inappropriateness of prescribed gendered codes of dress and mannerisms to access treatment.
- Demands that the “lack of capacity” which is causing long waiting lists be addressed urgently.
- Recommends much easier access to puberty blockers for adolescent trans people and notes the urgency this represents.
I have less of a dog in this fight than many, as my own interactions with transition related health services largely finished nearly a decade ago. I do still experience problems accessing general healthcare, and I have campaigned continually on the difficulties trans people face accessing all forms of healthcare, because it’s really important.
I know the recommendation against an informed consent model will be disappointing to many. I’m not going to talk about that in depth here as it’s a complex topic and this is already getting really long.
Many clinicians will likely welcome the possibility of gender identity services becoming a fully fledged discipline in their own right, rather than the poor and neglected stepchild of mental health trusts. I would welcome this too: GIC’s currently live rather like a primary-school aged Harry Potter, shut away in the cupboard under the stairs by an adoptive family that would really rather they weren’t there at all, and if pushed, doesn’t really hold with “that sort of nonsense”. In order for GICs to properly reform and grow, they should be set free.
The last major section is called Tackling Everyday Transphobia. The report:
- Notes that legal change will “only bite” if there is social change too.
- Calls for the Ministry of Justice to work with trans people on hate crimes reporting.
- Calls for the government to strengthen hate crime legislation.
- States that the requirement for a doctor’s note to obtain an updated-gender passport “must be dropped“.
- Calls for public bodies to justify those occasions where they record name and gender, and notes there is no such thing as a “legal name” in the UK.
- States that the UK “must” introduce “an option to record gender as ‘X’ on a passport“.
- Suggests the government move towards non-gendering of official records as a general principle.
- Notes it is not appropriate for trans people in prison to be put in solitary confinement just because they are trans.
- Asks the prison service to clarify its position on trans prisoners and requires prison staff training and that the implementation of policy be monitored.
- Tasks the Independent Press Standards Organisation and OFCOM with working out how to get trans people to complain about poor representation.
- Notes harassment of trans people online needs to be taken seriously.
- Suggests schools need to cover trans issues in Personal, Social and Health Education.
- Asks further education bodies to better promote trans equality.
- Calls for trans-appropriate training of social workers “as a matter of urgency“.
This is the single largest section and there’s a lot here. The stuff on official documents is eminently sensible and the call for X markers on passports (with a move towards removing gender on them altogether) is very welcome indeed.
Treatment of trans people in prisons is a festering sore and urgently needs addressing. The committee seems, in its language, to be putting the prison service on notice, and I welcome that.
I think the committee have missed the point on press and media depictions of trans people. The problem isn’t that trans people aren’t complaining; it’s that nothing is done in response. This is symptomatic of a much larger problem with the press in our society, and I’m not optimistic much will happen any time soon.
I couldn’t help but smile at the suggestion trans issues be covered in PHSE. At my school, the only time they were mentioned was to note that people like me “should be locked up”. Things have improved, thank goodness.
Internet harassment really needs to be tackled. I had a nervous breakdown because of it 2 years ago. This report doesn’t suggest any kind of compulsion to do anything about it though. The government, apparently, doesn't want to tell ISPs what to do (apart from when it comes to spying on us and making them censor LGBT news sites as “porn”).
I will close by apologising for the length, but there was a lot to get through and the committee have done a thorough job.
What they’ve produced is a curate’s egg. There’s some really good stuff in here, but some of it is really disappointing too, particularly the stuff about the Spousal Veto, especially since Scotland proved there is no need for it whatsoever. I can only wonder why the government is so attached to it, particularly since this report, if implemented, gives it more teeth.
And finally, a word of caution. This is not a bill before parliament. It’s a report from a committee, and while it contains a list of recommendations, it doesn’t have the power to implement any of them without ministerial support.
Still, it’s a step in the right direction, and quite a big one.
But the Spousal Veto guys – sort yourselves out, seriously.