The views expressed by Robin White recorded in this Report are those of Robin personally, not of Old Square Chambers
The Report ‘Reform of the Gender Recognition Act’ has been published. Robin White, who gave oral evidence to the Committee in February 2021, reviews the 113-page report, in which she is quoted several times by the Committee.
In 2020 Equalities Minister Liz Truss announced, despite the commitment made by the May government and in the face of substantial support in the public consultation for de-medicalisation of the process to recognise a person in their affirmed gender, that this aspect of reform would be dropped. As an immediate response, the Woman and Equalities Committee, chaired by Caroline Noakes MP, announced an enquiry prompted by that decision.
The Enquiry Process
The enquiry looked at the justification and effect of reform, attempted to look at the reasons for that reform being dropped and also considered the state of health services for trans people in the UK. In doing so they were careful to cast their net widely, to include evidence from those supporting reform to the gender recognition process, those resisting reform and those not supportive of trans rights including those organisations who see trans rights as harmful to society, particularly to the rights of women.
The report will make uncomfortable reading for Liz Truss and junior Equalities Minister Kemi Badenoch, who both refused to appear before the Committee. The Committee were clearly also unimpressed by Minister Truss appearing to abrogate to herself work done without any involvement by her to advance trans healthcare. The non-attendance was plainly viewed as contemptuous by the Committee, not a good look for ministers. By contrast, 848 written responses were provided to the Committee by members of the public and interested organisations such as the Employment Lawyers Association and organisations adopting positions for and against trans rights. Oral sessions were arranged for academics, lawyers, interested non-governmental organisations and health care professionals
The Committee was divided over a number of matters with recent appointments to the Committee during the conduct of this enquiry taking a number of matters to a vote. Had they carried the day the final report would have been considerably less trans-supportive.
This is a substantial piece of work pulling directly much of the direction in government at the moment and is unlikely to be pleasant reading for Ministers Liz Truss or Kemi Badenoch. Whether Boris finds time for any of it while under siege over such important matters as the latest garden or Christmas party scandals or the need to re-focus his party on the May elections remains to be seen. It should be salutary reading for the leadership of the GEO and EHRC as well.
Trans people and those who support them now have a powerful tool with which to argue for reform.
Conclusions and Recommendations in more detail
The Committee’s deliberations are boiled down into 30 ‘Conclusions and recommendations’ grouped into 6 sections.
The first section deals with the consultation on GRA reform and the Government’s response.
The rationale for the GRA fee, now that it is reduced to £5 is questioned. What is it for? The move to a digital application process is welcomed, as long as those who may struggle with this are accommodated. The abrogation of health reforms to the Government Equality Office is mentioned. The awful two-year delay in responding to the consultation is criticised as adding to the toxicity of the discussion. Whilst recognising the need for safeguards for those with concerns, the Committee recommends that reform be restarted within 12 weeks for the need for medical diagnosis as a condition of recognition, the period of living in an acquired gender and the ‘sposal veto’ provision of the GRA. The Committee is highly critical of the Equality and Human Rights Commission and Government Equalities Office response to the reform agenda and the enquiry. They specifically mention a failure to follow the Ministerial Code – a serious charge.
The second section looks at the Gender Recognition Act 2004
In what is likely to be seen as its most controversial recommendation, the Committee come out strongly for de-medicalising the process whilst retaining the need for a policed declaration from the transitioning person. They say that this should be done by 2023 and point to the support for this in the consultation. They recommend that the period of ‘living in an acquired gender’ be removed, and that a ‘way back’ for those who come to regret their transition be included. They suggest reform of the way the spousal veto provisions work to remove the ‘veto’ element. They suggest that 18 should remain the age at which a formal gender change can be registered. The need for improved mental health services for young people considering transition. It is suggested that the opaque ‘gender Recognition Panel’s function moves to the Registrar General (as is proposed in Scotland). It is recommended that the criminal offence in section 22 of the Gender Recognition Act is retained as a Criminal Offence only where the act is deliberate (That was my suggestion!)
In its third section the Committee review the interaction of the Equality Act 2010 and the Gender Recognition Act,
(In passing, I gave evidence on this are and Baroness Fawkner of the EHRC said that this interaction was ‘complex’ which I take to mean ‘controversial’.)
The Committee renewed the request (previously made in its 2016 Report) for more clarity on the working of single-sex exemptions, with an emphasis on services being inclusive for trans and non-binary persons. They ask for urgent work by the EHRC and the GEO, and review by the GEO of the working of the ‘genuine occupational requirement’ exception. The call for the GEO to review the interaction of the Equality Act and the GRA makes specific mention of the need to strengthen protection for trans and gender no-conforming people at work. The need for women’s sport to be protected is recognised as well and trans and gender non-conforming inclusion in sport. The conflation and confusion over the terms ‘sex’ and ‘gender’ are recognised and work is recommended to bring clarity to this area in legislation and government documents. Lastly, work is recommended to ensure clear guidelines on data collection with the aim of minimizing distress to trans and gender non-conforming people.
The fourth section looks at trans healthcare
It recommends the opening of more gender identity clinics and the funding for this. The Committee seek annual updates on progress. It is suggested that more should be done to encourage medical staff to qualify in this area. The Committee reflect the Equalities Minister’s comment when denying forward progress with self-declaration that healthcare was a greater priority for trans people but note that she doesn’t appear to have done anything about it. The absence of work by the GEO on trans healthcare is noted and it is suggested that in the next year the GEO and Department for Heath and Social Care should develop a strategy including training for GP’s; guidance for medical staff on dealing with trans and non-binary individuals; and improvement of access to services for such patients.
LGBT+ Action Plan
Fifthly, the Committee notes that the LGBT Action Plain, while recognised by the Department for Heath and Social Care, appears to have bee abandoned by the GEO. The Committee specifically recommend a refreshing of the commitment to the plan and ask for Government to establish a timetable for this.
Sixthly and lastly, the Committee consider the recognition of Non-binary people
The Committee note the previous government’s commitment to improve the position for intersex and non-binary people. Government is asked to clarify what the barriers are for that and the EHRC is asked to research how recognition could be achieve in the present parliament.