1. The National Union of Students welcomes the opportunity to respond to this inquiry into the reform of the Gender Recognition Act (GRC). The NUS is a voluntary membership organisation which makes a real difference to the lives of students and its member students' unions. We are a confederation of 600 students' unions, amounting to more than 95 per cent of all higher and further education unions in the UK. Through our member students' unions, we represent the interests of more than seven million students.
2. A central part of NUS’ work are the Liberation campaigns, led by our Vice-President Liberation and Equality, Sara Khan. The campaign involves working and engaging with Black students, Disabled students, LGBT+ students, Women students and Trans students.
3. The Government’s proposal for reform of the GRC lacked a number of measures that could improve the lives of trans people. Measures that would improve this environment would be -
4. Despite the 70% positive response to the huge public consultation around GRA reforms, coupled with a recent petition[1] with over 100,000 signatures in support of self-declaration, the Government have chosen not to listen to the voices of trans people and their allies, undermining trust from trans communities. This was perceived as an attack on an already-marginalised community, who have been subjected to a toxic discourse, whipped up around a minor legislative reform that would have had no impact on anyone but the trans people who would benefit from these reforms.
5. Placing the whole procedure online will make it more accessible for many trans people, but not for the most marginalised ones. For example, this would add additional barriers to the 4% of households who don’t have access to online services in Great Britain.[2]
6. Similarly, reducing the fee from £140 to a “nominal amount” is not enough. We know that 35% of trans women and 43% of trans men are unemployed[3]. Nearly a fifth of trans adults has experienced homelessness, with a tenth having been homeless several times[4]. A quarter of young people at risk of homelessness identify as LGBT+[5].
7. Trans people face many extra costs as part of their transition, including costs associated with accessing healthcare. This can include extensive costs for travel, as there are not many Gender Identity Clinics. Some trans people also face the cost of prescriptions and private health care, for those who are unable to access support through the NHS for a variety of reasons beyond their control.
8. Trans people may also face the costs relating to their social transition including new clothes, losing or changing jobs and extra costs borne through being less employable if you are visibly trans.
9. Regarding the process of legally changing gender, trans people also face costs in relation to acquiring new documentation including a new passport and birth certificate as well as the cost of safe postage of important documents by courier.
10. We would recommend that all fees linked to the GRA should be removed.
11. Gender Identity Clinics (GICs) can and do cause harm to trans people. Therefore, we should be cautious of overstating their role in addressing the issues trans people face in accessing healthcare in the UK.
12. According to McNeil, J et al (2012), 62% of trans people had experienced one or more ‘negative interactions’ in GICs. Negative interactions included being ridiculed for being trans, being discouraged from exploring their gender, or experiencing someone using the wrong pronoun on purpose. 10% further felt they had to educate professional healthcare staff in this setting. These findings are consistent with NUS’ own research in which students reported they had experienced disrespectful attitudes from medical staff in GICs.
13. We would recommend an integrated approach within general healthcare, so that trans people could choose between a GIC or their GP for transition related healthcare.
14. It is important to remember that not all trans people experience dysphoria, or feel the need to access healthcare treatment for their dysphoria. Those trans people should still be able to access gender recognition should they want to.
15. Requiring trans people to have a diagnosis of gender dysphoria before having their gender legally recognised pathologises trans identity by placing emphasis on medical treatment. This in turn perpetuates the myth that being trans is a ‘mental disorder’ which is damaging for trans people. This has been widely discredited including, as recognised by the government in their consultation document, by the World Health Organisation.
16. What is more, many trans people may be prevented from getting a diagnosis because of the multiple barriers that exist to trans people accessing suitable healthcare. Gender identity clinics have extensive waiting lists for example which, as noted by the government’s own Trans Equality Report, negatively define access to transition related healthcare in the UK[6]. Waiting lists dramatically vary by clinic, creating a postcode lottery in relation to healthcare, therefore legal gender recognition. This is unfair, meaning that different people in different parts of the country will get different levels of access to legal gender recognition. It is extremely damaging to trans people to have to provide often dehumanising and re-traumatising ‘proof’ that they are trans, especially when transphobic medical professionals could still choose to deny them.
17. We support a non-assessment based model which would eliminate the need for a diagnosis of gender dysphoria.
18. The requirement for trans people to have ‘lived in their acquired gender’ for at least two years makes it difficult for them to express their gender in the way they want to in the first place, because in order to access the resources they might need to do so, they need to have already done it.
19. Some trans people may not, whether through fear of discrimination or personal choice, have wanted to live as their gender identity before applying for legal gender recognition. This is their right and we believe that they should not be prevented from changing their legal gender because of it.
20. Furthermore, living in any particular way does not necessarily indicate or reflect a person’s gender identity; there is no universal way of ‘proving’ a person’s gender upon observing the way they choose to live. In order to ‘prove’ something requires some universal metrics by which a thing can be verified, however we believe that there are no universal experiences of living as any gender. This phrase questions the validity of the person’s gender, saying it’s ‘acquired’ rather than who they are. It also re-enforces traditional gender roles and can be deeply misogynistic.
21. It is important to remember that transitioning can be difficult and sometimes dangerous for trans people. The burden of requiring evidence to prove their gender is overly invasive, and presents a barrier to many, as trans people are more likely to be estranged without a fixed address, be unemployed or struggle to access employment because of transphobia on the part of employers[7] and would add yet another burden to an already difficult process.
22. A non-assessment based model would eliminate the need for an applicant to provide evidence that they have lived in their acquired gender for a period of time before applying.
23. Making a statutory declaration and then acting contrary to that declaration is a criminal offence and can result in fines, criminal records, and other financial and social costs. There is a significant risk here of trans people being accused maliciously by anti-trans individuals or groups. Due to the risk of prosecution, anti-trans individuals or groups can use statutory declarations against trans people in order to cause them harm.
24. The statutory declaration requires that the individual commit to ‘living as your acquired gender’, but as we mentioned above, there is no ‘right’ way to be a man or a woman.
25. Additionally, one cannot currently make a statutory declaration that they are non-binary. In the hypothesis that non-binary was introduced as a third option, there would not be one way to live as non-binary either. In this case, there would be no way for non-binary people to perform their gender in the ‘correct’ way to avoid prosecution.
26. There is also the fact that one cannot change their gender via statutory declaration more than once. For people with complex or changing gender identities, or those who come to new realisations and conclusions about their gender at different stages in their lives, this currently puts them at risk of prosecution.
27. We recommend that statutory declarations should be abolished, and self-identification for trans people should be sufficient for them to access the resources that they need.
28. There is no ethical or evidence-based reason for the inclusion of spousal consent. Requiring spousal permission for a trans person to legally change their gender essentially leaves the decision regarding someone else’s gender up to another person. We believe that this denies trans people autonomy and infantilises trans people.
29. The spousal veto actually causes significant distress for many trans people and leaves them vulnerable to domestic abuse and manipulation from their spouse. A recent survey[8] showed that 29% of trans respondents stated that their spouse made getting a divorce difficult, while 44% said that their spouse had actively tried to prevent them from transitioning. Some spouses have purposefully delayed or caused difficulties in divorce or annulment proceedings, or have used it to as leverage when dealing with arrangements for any children or finances.
30. We recommend that the spousal consent provision should be removed entirely.
31. We believe that a self-determination model should be available to anyone, both over and under 18 years old.
32. Many young trans people feel isolated and vulnerable, typically suffering discrimination and violence across society, so being unable to obtain legal recognition for their gender identity until they are 18 years old can have a negative impact on their mental health.[9]
33. The positive impact of the proposed changes will be marginal considering that most of the recommendation from the consultation and the previous inquiry have been ignored.
34. The Scottish proposed Bill is more suitable, to an extent, as trans people in Scotland would benefit from:
35. However, this bill would have been improved if it included:
36. Many of our members believe that the process to get a Gender Recognition Certificate (GRC) is currently too bureaucratic, time consuming and dehumanising. We also have concerns around how GRCs are granted and believe the evidence threshold is too high. As the Council of Europe[10] writes as far back as 2009, often trans people choose not to enter the official procedures at all due to discriminatory medical processes and inappropriate treatment.
37. In addition, currently the GRC only allows trans people to be recognised as either a man or a woman, even though about 1 in every 250 people of the UK population identify as non-binary[11], which is 1/3 of people who identify as trans[12]. The gender identity of these individuals are still not legally recognised and it is impossible for them to gain a GRC.
38. People can ‘transition’ with or without a GRC, but having one makes some administrative tasks easier and smoother. Reforming it in a way that follows our recommendations would bring the UK in line with other progressive countries which allow people to be legally recognised simply by a statement of intent (such as in Denmark).
39. The Equality Act 2010 does not adequately protect trans people mainly due to the language used, there are also many dissonance between the GRA and the Equality Act.
40. For instance, the protected characteristic under which trans people are protected in the Equality Act 2010, is called ’gender reassignment’, this is offensive and re-enforces pathologising narratives about trans people. We would recommend changing this to ‘gender identity’.
41. Using ‘sex’ as a protected characteristic, and as a synonym for gender, also creates many issues as they do not mean the same thing. Sex refers to characteristics that are ‘biologically defined’ and assigned at birth, whereas gender ‘based on socially constructed features.’[13] So as discriminations against women are often not about biology but about their gender, we would recommend changing this to ‘gender’.
42. The Equality Act 2010 also refers to ‘pregnancy and maternity’, implying that only women can be pregnant and care for a child. When in practice, many non-binary people and trans men are able to be pregnant and should also be protected when they are. We would recommend changing this to ‘pregnancy and parenting’.
43. Finally, non-binary people are currently not included in the GRA and are not included sufficiently under the Equality Act 2010, though technically they are protected against hate crime under the protected characteristic of ‘gender reassignment’. We would strongly recommend adding non-binary identities under ‘gender’ (instead of ‘sex’) and clearly mentioning non-binary identities under ‘gender identities’ (instead of ‘gender reassignment’).
44. Further guidance is needed in relation to single-sex spaces. For example, it is currently not explicit that trans people can use the facilities they feel most comfortable using, when it is actually unlawful, under the Equality Act 2010, to have a policy of exclusion based on gender reassignment as it would discriminate against or exclude trans people. Too often the rhetoric surrounding having a ‘legitimate reason’ is used to illegally exclude trans people. Over 50% of trans people reduce the amount they eat and drink to avoid having to use public bathrooms, fearing for their safety.[14] This leads to many of them having poor mental health and kidney related illnesses.
45. The language surrounding ‘the gender role in which they [the trans person] present’ is also limiting and harmful as, as mentioned earlier, there is not one way to present as a woman, man or a non-binary person.
46. We would recommend making it as clear as can be that it is illegal to discriminate someone based on their gender identity.
47. One of the main issues for trans people in accessing services is transphobia. 21% of trans people reported that their specific needs were ignored or not taken into account when they accessed, or tried to access, services.[15]
48. With regards to healthcare specifically, as mentioned above, the long waiting list for GIC leads to high financial costs to access private healthcare. Integrating trans healthcare GP practices rather than making those only available through Gender Identity Clinics would widen access for trans people.
49. Finally, regarding domestic violence services, it can be very difficult for trans people to find organisations offering specific support to them in the UK. These services also tend to receive less funding than general domestic violence services under the argument that they target a ‘niche’ audience, when trans people actually face very high risk of domestic violence.[16]
50. Non-binary and gender-fluid people should have the legal right to have their gender recorded as something other than ‘male’ or ‘female’ on all legal documents, as 64% of them would benefit from it.[17]
51. We also believe that it should be mandatory for public spaces to have gender neutral facilities, such as bathrooms and changing rooms, in addition to gender-specific facilities, as 55.2% of non-binary people avoid public toilet facilities by fear of being harassed.[18]
52. Finally, we would like to reiterate the issues around the GRA:
[1] https://petition.parliament.uk/petitions/327108
[2] ONS - Internet access – households and individuals, Great Britain: 2020
[3] National LGBT Survey: Summary report, 2019
[4] Trans Mental Health Study 2012
[5] LGBT Youth Homelessness: A UK National Scoping of Cause, Prevalence and Outcome, The Albert Kennedy Trust, 2015
[6] https://publications.parliament.uk/pa/cm2 01516/cmselect/cmwomeq/390/390.pdf
[7] https://radar.brookes.ac.uk/radar/items/5 17779d1-f95f-7b7b-e2b9-368c9c1fc784/1/
[8] Zoe Kirk-Robinson, Spouse Reactions to Transsexuality
[9] More than two in five trans young people (45 per cent) have at some point attempted to take their own life (Stonewall, School Report, 2017).
[10] Human Rights and Gender Identity, 2009
[11] Equality and Human Rights Commission: Measuring Gender Identity 2011/12
[12] When combined with the overlapping EHRC figure of 1% of the population qualifying for ‘gender reassignment’ protection.
[13] World Health Organisation regional office for Europe
[14] Trans Mental Health Study (McNeil et al 2012)
[15] National LGBT Survey: Summary report
[16] up to 80% of trans people are or have been affected by domestic violence according to the Broken Rainbow (UK) National LGBT Domestic Violence Service
[17] Non-binary people’s experiences in the UK, Scottish Trans Equality Network
[18] Non-binary people’s experiences in the UK, Scottish Trans Equality Network