What do you need to know about gender recognition processes?
When the Gender Recognition Act 2004 was passed, it was considered a world leading piece of legislation. The GRA enables binary trans people to change their legal gender “for all purposes” and since it was introduced, thousands of trans people in the UK have used this process to legally change their gender.
However, the vast majority of trans people in the UK have not applied for or been granted a GRC (Gender Recognition Certificate). Government figures from 2022 show that at that time, less than 7,000 people in the UK had a GRC, while the 2021 Census found that there were just over a quarter of a million trans people in England and Wales alone.
There are a range of reasons that explain this: many trans people object to the nature of the process the GRA sets out, which is bureaucratic, lengthy and intrusive. Others object to the concept of legal gender or state recognition of gender. There is no mechanism at all for non-binary genders to be recognised, so non-binary people do not have a suitable option open to them.
Today, the global human rights based standard for gender recognition processes is not complex and intrusive medicalised bureaucracy, but legal declaration (so-called “self-ID”). Globally, 18 countries and four territories now use legal declaration as the basis for gender recognition, while a further two countries use legal declaration for recognition of non-binary identities.
Far from being a world leader in this area of human rights law, the UK now lags behind.
Where do the different political parties stand on hate crime and protection from discrimination?
🔵 Conservatives
The Conservative government consulted on potential reform to the Gender Recognition Act (GRA) between 2018 and 2020. Despite the majority of responses being in favour of progressive reform, the government chose not to reform the GRA, although it did reduce the application fee to a nominal amount. Then Minister for Women and Equalities, Liz Truss said, “It is the Government’s view that the balance struck in [the GRA] is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex.”
In 2022 Scotland passed the Gender Recognition Reform (Scotland) Bill, which sought to make legal declaration the basis for gender recognition in Scotland. The Conservative government used powers set out under Section 35 of the Scotland Act to block the legislation from coming into force, and subsequently vigorously and successfully defended a legal challenge from the Scottish government.
In addition to this, there are commitments in the Conservative manifesto that if implemented would potentially undermine the GRA as it stands, in particular their commitment to redefine the protected characteristic of “sex” in the Equality Act.
Analysis: If elected, the Conservatives will not support progressive reform of the GRA and are likely to promote legislative and regulatory changes that undermine the GRA as it currently stands.
🔴 Labour
Reform of the GRA is a longstanding Labour policy commitment, and is featured in their manifesto, which promises in broad terms to: “modernise, simplify and reform the Act”.
Over the last few days in interviews with the media, it has become somewhat clearer what the scope of this reform might be. It appears that Labour is proposing to take significant steps towards reducing GRA bureaucracy by abolishing the Gender Recognition Panel and requiring a report from one doctor rather than two. They are proposing to abolish the “spousal veto”, a provision in the GRA that allows married partners to block the issuing of a Gender Recognition Certificate, as well as the requirement that someone should live in their “acquired gender” for a period of two years in order to be eligible. These are significant reforms, though they fall well short of the international human rights based standard.
However, Labour appear to also be proposing a two-year “cooling off” period between the application being made and the GRC being issued. It is not clear what the policy goal of this “cooling off” period is, or what the legal status of GRC applicants would be during this protracted time period.
Analysis: If elected Labour is likely to introduce some reforms to the GRA, though these will fall short of the international standard: legal declaration.Some of the policy changes being trailed in the media are welcome, though others – in particular the concept of a protected “cooling off period” appear misguided at best, and harmful at worst.
🟡 Liberal Democrats
The Liberal Democrats also have a manifesto commitment to reform the GRA: “to remove the requirement for medical reports, recognise non-binary identities in law, and remove the spousal veto”.
Taken at face value, this would de-medicalise the process and extend the GRA to meet the needs of non-binary people, both very important steps forward. However, it would not remove the need to live in the “acquired gender” for two years, or to have applications assessed by the Gender Recognition Panel. The process would therefore remain onerous and bureaucratic, falling short of the international standard.
The party has also committed to introducing ‘X’ passports.
Analysis: If elected, the Lib Dems would support reform of the GRA although these reforms would fall short of the international standard: legal declaration.
They have a clear manifesto commitment to support the introduction of legal gender recognition for non-binary people, which would represent a significant improvement to protecting the rights of LGBTQIA+ people in the UK.
🏴 Scottish National Party
The SNP manifesto does not have a specific commitment on GRA Reform. However the SNP-led government introduced and passed the Gender Recognition Reform (Scotland) Bill, which provides for a process based on legal declaration, and they have recently confirmed that they will seek to move this bill forward in the next parliament.
In practical terms, the only thing that is required for the Bill to become an Act is for the UK Government to remove its Section 35 order. The Conservatives used the order for the first time to block the bill, in a move that many commentators see as a threat to the devolotion settlement. It’s important to note that the Bill does not cover non-binary identities, though the SNP government has committed to working towards legal recognition of non-binary genders.
Analysis: If elected, the SNP will support reform of the GRA, and the introduction of a process based on legal declaration. The likely scenario is that they will seek to negotiate with the income government to remove the s35 order, enabling the Gender Recognition Reform (Scotland) Bill to become law.
🟢 Green Party
The Green Party has a clear manifesto commitment to “campaign for the right of self-identification for trans and non-binary people”.
They also played a very significant role in the introduction and passage of the Gender Recognition Reform (Scotland) Bill.
The party also supports the introduction of X passports.
Analysis: If elected, the Green Party will support reform of the GRA, with the explicit aim of bringing the UK into line with international human rights standards and implementing a system based on legal declaration that applies to all trans and non-binary people.
In Scotland, they are likely to campaign vigorously for the newly elected government at Westminster to remove the Section 35 order, enabling the Gender Recognition Reform (Scotland) Bill to become law.
Analysis: Why should LGBTQIA+ voters care about reform of gender recognition law?
While legal recognition of gender is not necessarily the most pressing issue facing the trans community when compared to things like access to gender-affirming health care, it is a profoundly important one for many trans people.
In addition to this, reform of the Gender Recogntion Act has been at the heart of the politics of “culture wars” for years.
So for some LGBTQIA+ voters, party policy on gender recognition will be perceived as a “bellwether” for wider LGBTQIA+ rights commitments.
Stay tuned to Queer Election Watch for more on the issues that matter to you. Check out the most recent policy check, on conversion practices, on DIVA and QueerAF now.
