Written evidence submitted by Ms Rebecca Hardman [GRA1263]

Submission to the Women and Equality Committee on the Gender Recognition Act

I am a trans woman living and working in London. I write this in my personal capacity. In this submission I want to draw the Committee’s attention to the international human rights context, as I think in fairness this is something Government and the Committee really need to engage with if they’re not going to allow gender recognition based on self-identification.

The Government’s response to the GRA consultation:

Will the Government’s proposed changes meet its aim of making the process “kinder and more straight forward”?

Moving the form online and reducing the fee will make things easier for some people. But the real problem with the current process is that, rather than being a simple bureaucratic act, is it requires a great deal of evidence.

It was a mistake for the government not to move ahead with measures based on self-identification. According to the United Nations,[1] states should respect the physical integrity of transgender persons and legally recognise their self-identified gender without additional requirements that may violate human rights.

In 2015, the Annual report of the United Nations High Commissioner for Human Rights, Discrimination and violence against individuals based on their sexual orientation and gender identity, called on states to address discrimination against trans people by “Issuing legal identity documents, upon request, that reflect preferred gender, eliminating abusive preconditions, such as sterilization, forced treatment and divorce.”[2]

Regional human rights bodies also demand that states respect the self-defined gender of individuals. The European Court of Human Rights and the European Court of Justice in the development of equal rights for trans people. Elsewhere, in January 2018, the Inter-American Court of Human Rights issued an advisory opinion on Gender Identity, Equality, and Non-Discrimination of Same Sex Couples.[3] This concluded that gender recognition processes

“(a) […] should be centered on the complete rectification of the self-perceived gender identity;

“(b) these should be based solely on the free and informed consent of the applicant without involving requirements such as medical and/or psychological or other certifications that could be unreasonable or pathologizing;

“(c) these should be confidential, and the changes, corrections or amendments to the records and on the identity documents should not reflect the changes made based on the gender identity;

“(d) these should be prompt and, insofar as possible, cost-free, and

(e) these should not require evidence of surgery and/or hormonal therapy.”[4]

I also draw the Committee’s attention to the recommendations of the UN treaty bodies:

• The Committee on the Elimination of Discrimination against Women says that intersectionality is fundamental – “discrimination of women based on sex and gender is inextricably linked with other factors that affect women such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity. […] State parties must legally recognise such intersecting forms of discrimination and their compounded negative impact on the women concerned and prohibit them.”[5]
• The Human Rights Committee has classified gender identity and expression as a prohibited category of discrimination under Article 2(1) of the International Covenant on Civil and Political Rights.
• The Committee on Economic, Social and Cultural Rights has also ruled that gender identity is protected under Article 2(2) of the International Covenant on Economic, Social and Cultural Rights.[6]

Should a fee for obtaining a Gender Recognition Certificate be removed or retained? Are there other financial burdens on applicants that could be removed or retained?

The fee to obtain a Gender Recognition Certificate should be removed. The process should be, in so far as is possible, cost free in line with the UK’s binding obligations.

Should the requirement for a diagnosis of gender dysphoria be removed?

The requirement of a diagnosis of gender dysphoria is at odds with both international best practice and recent moves to depathologise gender identity. While in the late 20th century, medical consensus said that trans people suffered from a mental health disorder, this attitude is no longer considered valid.[7] Second, because the waiting lists for treatment are so long. It means that an individual’s fundamental rights are subject to whether they can afford private medical treatment.

The United Nations says that states should a straightforward administrative process to officially recognize the self-identified gender identity and name of transgender persons through a simple declaration without such requirements as medical certification or diagnosis, surgery or medical treatment, divorce or sterilization.[8]

Laws recognising gender identity based on self-declaration have been passed in Denmark, Malta and Ireland.

Should there be changes to the requirement for individuals to have lived in their acquired gender for at least two years?

There’s no good reason to require individuals to live in their acquired gender for two years. In practice, the Equality Act and international best practice[9] means that trans people are already able to access goods and services on the basis of self-defined gender, whether or not that gender is recognised by the state. I already have a debit card and other identity documents reflecting my acquired gender without the need for a GRC. Birth certificates are not used as proof of identity – and so I really can’t understand the purpose of the two year requirement – it just adds additional hassle to the process of transition.

What is your view of the statutory declaration and should any changes have been made to it?

It’s unclear what the statutory declaration actually does in practice. I think the requirement of an intention to remain in the acquired gender until death doesn’t reflect the existence of genderfluid people, or that people may develop different understandings of their gender with time.

Does the spousal consent provision in the Act need reforming? If so, how? If it needs reforming or removal, is anything else needed to protect any rights of the spouse or civil partner?

It needs removing. Otherwise, the Government needs to show that this is a proportionate restriction on the individual, given their obligations to recognise self-defined gender.

Should the age limit at which people can apply for a Gender Recognition Certificate (GRC) be lowered?

There shouldn’t be an “age limit”. Children have rights to self-expression and to have their views taken into account in matters involving them.

The UN Committee on the Rights of the Child “emphasises that the rights of all adolescents to freedom of expression and respect for their physical and psychological integrity, gender identity and emerging autonomy.”[10]

Any safeguards should not be discriminatory or disproportionate.

What impact will these proposed changes have on those people applying for a Gender Recognition Certificate, and on trans people more generally?

Unless the onerous evidence gathering requirements are removed, or lessened considerably, I fear it’s going to turn a cumbersome paper based process into a cumbersome online based process.

What else should the Government have included in its proposals, if anything?

The Government should have moved ahead with self-ID and recognition for non-binary identities.

Does the Scottish Government’s proposed Bill offer a more suitable alternative to reforming the Gender Recognition Act 2004?

The Scottish Government’s proposed bill is an improvement on the current system. The removal of the requirement of a medical diagnosis is welcome; the requirement to live in their acquired gender for three months is less onerous – though it’s accompanied by a period of reflection, which doesn’t seem to serve any purpose at all.

Wider issues concerning transgender equality and current legislation:

Why is the number of people applying for GRCs so low compared to the number of people identifying as transgender?

In part because our rights to live in our acquired gender are protected under the Equality Act. The Equality Act has been a game changer – it means I can go about my day to day life as a woman on the same basis as any other woman, and this does not depend on formal recognition of my gender by the state. Global standards in this area say that recognition of gender by the state is irrelevant to whether individual businesses should recognise gender based on self-identification.[11]

But at the same time, the bureaucratic nature of the process means its inaccessible for many. The requirement for a diagnosis for gender dysphoria means a multi-year wait as individuals go through the process. I’ve decided not to bother – a GRC has very important benefits – it would put my gender beyond legal doubt for all purposes, but the hoops to jump through are too much.

Are there challenges in the way the Gender Recognition Act 2004 and the Equality Act 2010 interact? For example, in terms of the different language and terminology used across both pieces of legislation.

They do use different terminology – but they have very different purposes. The Equality Act reflects human rights to non-discrimination. As I’ve said above, gender identity is a protected status under international law, and is based on self-identification. So the language is necessarily different.

To properly align the GRA with the Equality Act you’d need a system of self-ID, because that’s, in practice, the basis of the protections under the Equality Act.

Are the provisions in the Equality Act for the provision of single-sex and separate-sex spaces and facilities in some circumstances clear and useable for service providers and service users? If not, is reform or further guidance needed?

I have had no problems accessing goods and services as a woman on the same basis as any other woman.

As a derogation from the principle of non-discrimination, any measures to ban trans people from such spaces need to be necessary.[12] The Equality Act talks of a “proportionate means to achieve a legitimate aim”. I think this strikes the right balance – it makes it clear that there is no blanket right to prevent trans people using services, but if there’s a good objective reason it can be done.

Does the Equality Act adequately protect trans people? If not, what reforms, if any, are needed

International best practice would include express protections against discrimination on the grounds of sex, gender, gender identity and gender expression. The Constitution of Fiji protects gender identity and gender expression. The Constitutions of Bolivia and Malta both expressly cover gender identity as a non-discrimination ground. (Some states, like Australia, also includes intersex status – which is beyond the scope of this question, but definitely an area the committee should consider taking forward).

What issues do trans people have in accessing support services, including health and social care services, domestic violence and sexual violence services?

Many providers in this space are trans inclusive. Some aren’t.

Health care is a huge problem, because of the waiting lists to access them. Everyone who can afford to tends to go for private treatment because the waiting lists for NHS treatment are so long.

Are legal reforms needed to better support the rights of gender-fluid and non-binary people? If so, how?

The current framework and language used assumes binary gender – and so protections for gender-fluid and non-binary people are often indirect, either because they’re perceived as having a binary gender, or don’t exist.

We need formal recognition of non-binary gender. India, for example, has very recently introduced regulations allowing for formal recognition of third gender people. Some countries allow X in passports.

Many non-binary people would like X on their passports, and there’s no barrier to the government doing this. Gender fluid people might want ID that reflects this – I was issued two employee ID badges by my employer when I started my transition, and I can see that for people starting their transition, or who are gender fluid, concurrent forms of government recognised ID might be useful.

Concluding remarks

I was deeply disappointed by the Government’s decision not to proceed with gender recognition based on self-recognition. I consider it an act of bad faith. Given the position of the international treaty bodies above, I fear that this will never be a settled issue in the UK until some form of self-ID is introduced. Sexual orientation and gender identity remains a major focus of international treaty bodies. The Government needs to answer: if not now, then when?

International law demands that states implement all freedoms in full. Human rights are universal – everyone has them – and indivisible – there’s no hierarchy or set of rights that take priority or that conflict with others. I urge the Committee to expressly reject the idea that there’s a set of “sex-based” rights that are in conflict with the human rights of trans people.

November 2020