Trans Rights in the United Kingdom

Updated: Jun 11

Article by Sarah Jayne


Hey people! It’s Sarah, one of the four ReportOUT Education Officers here! I thought I’d write this here blog to introduce myself, since this is my first one for ReportOUT, and also to create a snapshot of the current conversations around the rights of trans gender people in the United Kingdom. The trans gender conversation is not a new one, but if its new to you, then it’s worth a quick terminology check before we dive in properly. There are really just ten key terms that need to be clearly understood to make sense of the whole issue.

1. Sex: The physicality one has, usually acknowledged by genitalia, but also including hormonal factors and genetics, reproductive organs and secondary characteristics etc. Usually broadly characterised as male or female.

2. Gender: The socially constructed characteristics of a given set of people, usually divided into women and men, such as norms, roles, and relationships of and between groups. It varies from society to society and can be changed over time.


3. Trans gender: A term for a person who experiences difference in their sex as assigned at birth and their internal sense of self, known as a 'gender identity'. They may feel the need to transition.

4. Cis gender: A term for a person in whom their sex as assigned at birth and their internal sense of self, known as a 'gender identity', align and therefore they feel that there is no need to transition.

5. Trans woman: a person assigned male at birth who transition to become a woman.

6. Trans Man: a person assigned female at birth who transition to become a man.

7. Non-binary: a person who identifies outside of the more commonly seen labels of man or woman.

8. Inter-sexed: an older term now superseded by “disorder of sexual development” that refers to someone who has been identified as having ambiguous development of their physical sex. "intersex" still exists as an individual identity marker for people with various types of DSD's

9. Gender incongruence: The condition of having a distinct difference between ones assigned sex, and therefore expected gender, and one’s internally experienced gender. This is a term used by the World health organisation in their most recent edition of the international classification of diseases.

10. Gender dysphoria: A condition of “significant difficulty” coping with an incongruence of gender identity and any socially assigned gender. Currently listed by that name under the Diagnostic and Statistical Manual of mental health 5th edition. (DSM5)

OK, still with me? Great! So where do we start? How about at the beginning…?

Giving birth to a medical problem

When a child is born here in the UK that’s usually in hospital, and the first people to physically see the baby with the MK 1 eyeball are the medical staff in the delivery suite. Unsurprisingly, the first question is “ what is it?” This is not only the wonderful moment where a new life begins, but the very first act of defining a person. The birth must be registered within six weeks and currently there are only two options that can be entered onto the birth certificate, male or female. In the usual case of affairs this a pretty simple process and if baby is happy and healthy then the medical and official process quickly fades into a memory. But for some people there is a wrinkle, or a hiccup in the process. That wrinkle may occur at birth, perhaps because the medical staff cannot identify a sex of the baby, or it may happen latter during puberty or even later, during adulthood. The wrinkle I am talking about of course is what the current international classification of diseases lists as a “disorder of sexual development” or DSD. (formerly known as someone being “intersexed” in some way).


The ICD is on its 11th edition having been revised in May of 2019. This is the medical ‘bible’ if you will, listing the conditions that medical professions around the world can diagnose and have diagnosed. Since 1948 it has been written by the World Health Organisation (WHO) and continually updated. The 11th edition will come into effect on 1st Jan 2022, so the 27 countries that use it are currently in a phase of preparation. This includes the UK. OK, OK, I can already hear you all saying, “But hang on Sarah, what this got to do with trans rights?” Well, based on years of medical evidence and treatment of patients, the 11th edition of the ICD moved its classification of trans gender people from their previous placement within mental health, (ICD-10) to the section that deals with DSD. This is an extremely important move. Why? because it takes a trans gender persons experience and places it on a par with those who experience more visible, or physically observable forms of DSD. (for example, through ultrasound, or MRI imaging that allows us to see inside the body, and examine physical structures) This re-categorisation is the World Health Organisation’s attempt to close a gap created by the health profession itself in the early 20th century when it separated physical sexual disorders from those that appeared to merely exist ‘in the mind’. These “mental’ disorders were at the time deemed unreal and unnatural and thus false, so those who presented with “non-physical” effects were directed to psychiatry in an attempt to “correct” their mind and make it match their supposedly normal body. At the time, circa 1900-1976 this included not only people who felt their gender to be different, but also their desire and sexuality towards others (Griffiths 2018). Since that the the medical professions stance on the issue of what is known as a "gender identity" but really amounts to a sense of ones own sexed body and mind, has changed markedly. Much of that work owes its evidence base to the early studies of inter-sexed individuals, and the realisation that gonads (testes or ovaries) cannot be taken as definitive markers of a persons sexed body. Today it is broadly accepted that the human body whilst broadly divisible into male and female categorisations, has a physicality that is not mutually exclusive, thus unusual variations can and do exist. Currently, although trans people are treated through the NHS, timelines for referral to treatment are way outside government guidelines of 18 weeks with some people waiting 4 years for a diagnosis that enables them to even start treatment.

As a result of all the above, the last 120 years have not been kind to British lesbian, gay, bisexual or transgender people. The United Kingdom is currently ranked the 9th best place for LGBTQIA+ people to live and whilst overall that’s not bad, until recently it was 4th (ILGA Europe, 2020). Historically attitudes towards homosexuality before the Wolfenden report of 1957 and the subsequent decriminalisation of gay male sex 10 years later were not accepting. It may also surprise people to realise that removal of homosexuality from the ICD didn’t come about until 1990, just 30 years ago, with the introduction of the 10th Edition in May of that year. Although public opinion in the United Kingdom regarding sexuality is much improved, social attitudes regarding the legitimacy of a person changing gender, as result of ‘feeling different’, remain generally dismissive, or at best tolerant.

So, given all of that, what is the current situation with trans rights? What can/can’t trans people do here in the United Kingdom, and why? How are they treated?

Existence, health, citizenship and rights

With the ICD-11 being in the preparation phase, the United Kingdom is best described as being in a state of change. Introduced in 2003 and ratified in 2004, the Gender Recognition Act (GRA) is the link between medicalisation of trans people and their legal standing. Prior to its creation trans people could transition medically but would still be legally regarded as their birth sex for purposes of marriage and so on. (The United Kingdom Same Sex Marriage Act wasn’t passed until 2013, thus prior to 2004 trans people were effectively barred from marriage in their acquired gender). In its current form the Gender Recognition Act (2004) allows a trans person to apply for a Gender Recognition Certificate (GRC) that will allow them to be legally recognised in the gender they have transitioned to, for purposes of pension, taxation and other rights. Although, a Gender Recognition Certificate is not required for a trans person to request referral for gender assessment, and to start treatment, change their drivers licences or NHS record, nor change their legally recognised name. In practise therefore a Gender Recognition Certificate tends to be the last thing a transitioning person does.

However, in order to be granted a Gender Recognition Certificate, a trans persons must apply for one. At a cost of some £140, by providing evidence of medical process and their having lived in their acquired or affirmed gender for two years. This in itself creates problems, as living within a gender that is not legally recognised can create difficulties in the job market and means many trans people face discrimination from the minute they attempt to comply with the process.

More problematically, one of the criteria set out that must be met for a Gender Recognition Certificate to be issued is a diagnosis of “gender dysphoria”. In other words, currently in the United Kingdom, to be legally recognised as having changed your gender from that assigned you at birth, you must currently be diagnosed with a mental health condition.


Of course, this is creating an issue. Because, like homosexual people before them, trans people do not regard themselves as being mentally ill simply because they are trans, and neither does the ICD. Furthermore, the ICD”s over all definition of health points to a three-pronged process of physical, mental and social health as a bio-psychosocial model of well-being, first proposed by George Engle in 1977.


As a result of this anomoly, the 2004 Act, along with the Equalities Act 2010 that affords those undergoing ‘gender transition’ the status of having a legally protected characteristic, was widely acknowledged as needing an update. The government therefore ran a consultation process to which some 54,000 people replied, including 14,000 trans and non-binary people. The committee, headed by Penny Mordaunt MP, ran its consultation between July and October 2018. It is this consultation report that our current Equalities Minister Liz Truss is set to act on in the summer of 2020. The committee looked at key areas of the process in an effort to make gender recognition less intrusive and bureaucratic:

  • The requirement for the trans person to provide two medical reports, one evidencing a diagnosis of gender dysphoria and the other outlining details of any treatment received;

  • The requirement for the trans person to provide a range of documentation that proves they have lived in their acquired gender for at least two years;

  • The requirement for the trans person to submit a statutory declaration of their intention to live in their acquired gender until death;

  • The requirement for married applicants to obtain the consent of their spouse or end their marriage;

  • The cost to the trans person of using the GRA process;

  • How the Act protects the privacy of individuals who have applied for a GRC.

The consultation document itself states in paragraph two of its executive summary, that:

“Being trans is not a mental illness. Despite this, and despite the progress that we have made in recent years, trans people continue to face significant barriers to full participation in society. Rates of suicide and self-harm, particularly amongst young trans people, are too high. Trans people continue to face discrimination and harassment in the workplace, in school and on the street. Ultimately this can prevent many from fulfilling their potential, and finding the dignity and respect that they deserve” [emphasis my own]

Most interestingly, paragraph thirteen of the United Kingdom government’s consultation states:


“We understand that intersex people may need to apply for a GRC in order to amend their sex, if it were incorrectly entered on their original birth certificate or if they themselves are transgender. Requiring a diagnosis of gender dysphoria in order to apply for a GRC may not work for intersex people if they have no dysphoria, rather a medical error was made during sex assignment. Removing the need for a diagnosis of gender dysphoria would make it easier for these intersex people to apply for a GRC and obtain a corrected birth certificate”

[emphasis my own]

Yet even the United Kingdom's government seemed confused in wording its own statement: as the same document conflates gender incongruence with gender dysphoria, in so doing erroneously characterising the ICD and DSM classifications as describing the same clinical presentations.


“The Government’s view is clear: being trans is not a mental illness. It is a simple fact of everyday life and human diversity. Indeed, the World Health Organisation has revised the International Classification of Diseases, ICD 11, to ensure that ‘Gender Incongruence’ (another name for gender dysphoria*) is no longer classed under ‘Mental and Behavioural Disorders” *This is incorrect since it is possible to be diagnosed with a gender incongruence, without any gender dysphoria, as part the recognition of a DSD.


So, we come full circle, and begin to see the current double standard with the legislative and medicalisation process in the United Kingdom. Intersex people, recognised by the ICD-11th edition under a heading of DSD, the same categorisation as gender incongruence, i.e. feeling one’s self to be trans gender, are deemed to not require a diagnosis of 'gender dysphoria' in order to obtain a GRC. But trans people currently are.

This is very likely because in the case of observable DSD, it is often demonstrable and therefore accepted that the original birth certificate was incorrect, or at least questionable. Whereas with trans people, they are currently required to prove why they believe their sex assigned at birth was incorrect, via an accepted diagnosis that essentially suggests they are 'mentally ill', when in fact in the governments own document it the position very clearly is that they are not.


If you like, the legal status quo is suggesting that “you cannot be what you cannot see” unless you can prove that you can’t cope with being what society see's you as and therefore says you are. So really what we are asking here is a question of “who has medical jurisdiction, and thus authority over trans bodies? The medical profession? The Government? Or trans people themselves? The either/or argument.

Unfortunately, the proposed changes and streamlining that would remove much of the contradictory medicalisation from the process of obtaining legal recognition of a change in gender (via a process of self-determination) have been characterised as an either/or discussion between trans rights and women’s rights.


Older ideas that stem from liberation feminism are being re-packaged in such a way as to paint trans women as a threat to cisgender women and young girls. Because, say the proponents of this view, they (trans women) are essentially male, and thus prone to violence and predatory behaviour as a matter of biology. Oddly the existence of trans men are all but ignored in these discussions.


Needless to say, this is a view that is met with stiff resistance from most major feminist, academic, medical and legal bodies, as it commits the same injustice towards those assigned male at birth as has been historically directed towards those assigned female, or people of colour, etc. Others may suggest that 'gender incongruence' is still a mental fallacy, since they hold onto a binary mutually exclusive model of sex. Refuting any possibility of a physically derived basis for transgender feelings, and simply stating that sex is gender. This stance is usually aligned with recommendations for a form of conversion therapy, that would allow the trans person to accept themselves as they “are” since the underlying idea of this approach is that “trans” gender identities don’t exist, and augments of it being socially constructed are 'false'.


As you might imagine then, given all of this, the long-term legal status of trans people is somewhat unclear in the UK at this time. On 22 April 2020, Liz Truss, the Conservative government's incumbent Minster for Equality, announced that she would recommend specific changes to the Gender Recognition Act by this summer. Her remarks to Parliament's Women and Equalities Select Committee included:


"....First of all, the protection of single-sex spaces, which is extremely important. Secondly making sure that transgender adults are free to live their lives as they wish without fear of persecution, whilst maintaining the proper checks and balances in the system.

"Finally, which is not a direct issue concerning the Gender Recognition Act, but is relevant, making sure that the under 18's are protected from decisions that they could make, that are irreversible in the future,"

(Liz Truss, cited in an article by Andersen, 2020)

It is interesting to note the language. Arguably, the population that is most invested in the GRA and its consultation period are trans people, yet they are listed as second in priority. So, it seems that the United Kingdom is set for yet more intertwining of transgender medicalisation and the legal frameworks surrounding their existence. The wording of the ministers statement has seriously concerned LGBTQIA+ and trans charities such as stonewall and mermaids, yet it was welcomed by the transtrender trend, LGB Alliance and womensplaceuk.org. The latter an organisation that has previously characterised trans women as predatory males, and highlights what it says are “concerns” over the number of younger women (under 18) presenting with gender dysphoria.

The current United Kingdom government, in looking to restrict healthcare provision for young transgender people is sending a message that people cannot and therefore will not be allowed to know themselves as transgender until they are deemed an adult. More insidiously, this insinuates that being trans is a still regarded as a non-naturally occurring 'adult only' issue, unusual, abnormal, perhaps a choice, one existing the in mind and yes you guessed it "wrong". As Talia Bettcher puts it, this is a “metaphysical scepticism” that resides at the heart of all transphobia. The idea trans people really are the sex and gender they were assigned at birth. They just think they aren’t. That this position should come from the United Kingdom government is extremely concerning.

Consequence and capacity

We are just coming to the close of Mental Health Awareness Week (2020). Given all of the above it’s no surprise that those of us living through this period of legal uncertainty in the United Kingdom are perhaps carrying a little bit of a heavier load than normal. Yours truly is a case in point. Doing what I do means I not only get to shoulder the weight of my own story, but those of others as well.


The knowledge that you are regarded by society as 'wrong', and 'less than' is a weight you can't just "put down" or "take a break from". What’s more, this kind of thing doesn't JUST apply to trans people either. Social disability models and health care needs, injury, life, or life changing incidents can create this situation. Once you no longer fit in an ablest and or cisnormative world, it’s there, like a monkey on your back that never let’s go, and never lets you rest.

Case in point. I currently do not have Gender Recognition Certificate. Mainly down to cost, since I've been excluded from the job market for nigh on a decade. Now, given the Hungary situation, where transition has just been made legally impossible, and the United Kingdom political scene, I feel like this is something I NEED to do before that option is taken away from me. Can you imagine? living in a way that means you know every day, that your legal existence is up for challenge? And what of those in Hungary who have been delayed for the last two years? Their transitions on hold, because they could not be legally recognised, and now never will be? The link below points to an article in the Guardian highlighting some of the United Kingdom labour market injustices. This was written TWO years ago. Nothing has changed. if anything, it’s getting worse, as demonstrated by the United Kingdom’s decreasing ILGA Rainbow Europe ranking.

https://www.theguardian.com/commentisfree/2018/jun/25/trans-equality-class-struggle-obsessive-arguments-boundaries-identity

For someone like me, a former soldier, military medic and nurse, who once served a country that is now systematically excluding me, it's a double blow. And yet the very thing that the military trained people like me to lean on is tenacity. A stubborn refusal to sacrifice principles or bend under the weight of injustices. Or put it another way, we were taught how to find "strength in adversity."

That's why LGBTQIA+ people need your support, and alliance. Their very existence is an act of defiance. Whilst some may exist quietly or in secret, for reasons of their own mental capacity and/or safety, those that stand up and stand out are volunteering to carry more weight. Not for applause or awards, but because they feel they must. All we ask is that you prop us up on the days when we get tired. Then, when we can regain some of that strength we will be healthy enough to fight another day.


If you want to support ReportOUT and their Ride for Rights campaign that I mentioned in the video, then you can check out the ride for rights tab below:


https://www.reportout.org/ride-for-reportout

Bibliography

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[Accessed 8 Dec 2019]

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[Accessed 8 Dec. 2019]

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Stonewall. 2020. Why We're Worried About the Government’s Statement on Trans Rights Legislation. [online] Available at: <https://www.stonewall.org.uk/about-us/news/why-were-worried-about-government’s-statement-trans-rights-legislation> [Accessed 21 May 2020].

Woman's Place UK. 2020. WPUK Response to Liz Truss Statement to Women & Equalities Committee. [online] Available at: <https://womansplaceuk.org/2020/04/24/wpuk-response-liz-truss-statement-women-equalities/> [Accessed 21 May 2020].

Wareham, J., 2020.Transgender People in Hungary Lose Right to Gender Recognition. [online] Forbes. Available at: <https://www.forbes.com/sites/jamiewareham/2020/05/19/hungary-makes-it-impossible-for-transgender-people-to-legally-change-gender/?fbclid=IwAR3-i8myPma5zaJgmwtMJXmHGmLxNcTI2jYru255MPG8P_dWDtYnXpQp6Vs> [Accessed 20 May 2020].

World Health Org (1948) 'Preamble to Constitution of WHO as adopted by the International Health Conference, New York, 19 June - 22 July 1946;

signed on 22 July 1946 by the representatives of 61 States

(Official Records of WHO, no. 2, p. 100)

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