Why reform of the gender recognition process is needed

If, tomorrow, you were asked to prove your gender before a panel of lawyers and medical experts, how would you do it? Would you show them your genitalia as evidence? Or, are there other things that you would provide them with first? Maybe you would show your ID documents that have your gender marker on them; maybe you would point to the clothes you wear or how you do your hair; maybe you would evidence the pitch of your voice or the hair, or lack of it, on your face; maybe you would ask to have your chromosomes or hormones tested; or, maybe it would be obvious from the way you perform a task such as reading a map or looking for something in a cupboard?

Gender is complex. It’s all of those things and more that make us a man, a woman, or something else. But, here’s the kicker, we all got given our gender marker by showing our genitalia to someone the moment we popped into the world. And, that’s a problem if the gender you were assigned at birth, based on this very crude one-dimensional assessment, is not the gender that you are.

At the end of last month, the UK government announced that they are looking at ways to reform the way that the gender recognition process happens in the UK including self-declaration by a trans person of their gender. This is as a result of the Women’s and Equality Committee report that was published in January 2016.  The report found the current process required by the Gender Recognition Act 2004, by which someone can legally change their gender and, by extension, their birth certificate, humiliating, expensive and bureaucratic.

This announcement appears to have got a number of people into a lather including Rev Canon Gavin Ashenden, who was the vicar at Gouray Church. Rev Ashenden no longer lives in Jersey but is still invited to share his thoughts publicly by the Jersey Evening Post. In his column of 3 August 2017, he makes a number of confused and confusing assertions about what it means to be transgender and how the government’s proposals might impact society and, in particular, marriage. If you want to read what he has to say, it is here.

The purpose of writing this piece is not to shine a light on Rev Ashenden’s ignorance of this subject – with his reliance on simplistic stereotypes of the trans community, he needs no help from us in that regard – but to explain why what the UK government is proposing is necessary and to bust some of the myths surrounding the issue.

The process

A gender recognition certificate (“GRC”) is a document that enables a transgender person to change the gender marker on their birth certificate and to have the fact of that change removed from the public record. It also provides legal protection for the trans person that prevents anyone, who discovers a person’s trans status in an official capacity, from revealing that fact to anyone else.

The current system whereby a trans person acquires a GRC requires the trans person to amass a file of documents that are delivered to a gender recognition panel (“GRP”) and that prove they:

  • are aged over 18;
  • have, or  have  had,  a  documented  mental-health  diagnosis  of  gender  dysphoria  (by  producing a statement by a doctor – usually a psychiatrist or sexual-health specialist – or a psychologist on the GRP’s list of experts);
  • are not married (unless their spouse has given consent to changing the marriage from different-sex to same-sex or vice versa, as appropriate);
  • are not in a civil partnership;
  • have lived fully for the last two years in their acquired gender (by producing a selection of  items  of  documentary  evidence  showing  change  of  name  and  gender,  such  as  a  passport, rent book, wages slip or benefits documentation); and,
  • intend to live permanently in their acquired gender.

If the GRP are satisfied with the evidence provided, they will grant the person a GRC.

This is the UK gender recognition process. It is relevant to us in Jersey as our Gender Recognition Law 2010 simply allows for a GRC from an approved jurisdiction to be passed through the Royal Court. Jersey does not issue a GRC unless you already hold a GRC from somewhere else. So, in Jersey, this process is even more bureaucractic as trans islanders are forced through the UK process before going through the Jersey process.

The problems

The requirement for a trans person to have lived for two years as their recognised gender can be difficult in situations where a trans person faces prejudice, discrimination, abuse and/or violence because of being trans. They may not be able to undertake this task if, for example, they would be kicked out of their home for being openly transgender. The requirement for them to start a new life as their recognised gender and to be untraceable by people from their past may be an urgent requirement to keeping them safe, one that cannot wait two years.

The cost of acquiring a GRC, not just in time but money, is prohibitive for some trans people, particularly vulnerable trans people who may need a GRC most urgently. It can easily reach £500.

It takes about 14 weeks for an application to be heard and about 76% of applications are granted. If your application fails, it goes to the back of the queue and will take another 14 weeks to be heard.

The emphasis by the GRP on medical treatment having taken place (although the Gender Recognition Act makes no mention of this requirement) is particularly contentious and continues to pathologise transgender people and perpetuate the myth that being trans is a disease or disorder. Principle 3 of the Yogyakarta Principles (the international human rights principles defined in 2006) make it clear that: “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.”

The process is degrading for trans people. There are many changes that people make to their identity – their name, their nationality, their age (changes every year!), their home address, their religion, beliefs and politics, their sexual orientation, their status as a parent to children – all of them are self-declared and none requires a psychological assessment to decide whether a person can own that identity or not. Why does changing gender require a panel and provision of proof that the trans person is telling the truth about their gender identity?

The Myths

Myth 1: Trans people cannot get ID documents that show their recognised gender without a GRC

Yes, they can. Most often, when a trans person changes their name legally by deed poll they will also take the opportunity to update the gender marker on their driving licence application form (gender is not shown on the face of a driving licence) and their passport.

No confirmation of gender is required for your driving licence to be changed. Only a letter from your GP or gender therapist is required for your passport to be changed.

Myth 2: Changing your gender legally is a big deal and needs to be overseen by experts

No, it’s not. For all practical purposes, your gender is taken from your ID documents, which trans people can already change very simply. (When did you last show your birth certificate to someone?) This is why most trans people don’t bother with the gender recognition process. They can get by on their ID documents most of the time.

The UK government is, therefore, only proposing to bring the legal gender recognition process into line with what is already happening in reality, i.e. trans people self-declaring their gender identity and living as their recognised gender.

Self-declaration of gender identity already happens in the Netherlands, Argentina, Denmark, Malta, Sweden, Norway, Belgium, Columbia and Ireland.

Myth 3: Trans people cannot marry in their recognised gender

Ironically, considering Rev Ashenden’s profession, trans people have been married as their recognised gender by the Church for years. The Church has, in fact, been historically more welcoming of trans people than gay people. Unlike same-gender couples, who are still barred from marrying in most places of religion, opposite-gender couples that may include a trans person have been served by places of religion. The only requirement is that the trans person must have a GRC (i.e. a changed birth certificate) to do so.

At this point, Rev Ashenden’s argument about transgender people threatening biological marriage falls away. Trans people have been marrying right under his nose all this time – he might even have married one without knowing! (But, of course, he’d be able to spot a trans person because they aren’t like you and me… right?)

So, whilst we let Rev Ashenden’s “vivid imagination” work on that thought, the good news is that his portents of doom have not come true. Permitting trans people to marry in their recognised gender has had no affect on the institution of marriage after all these years.

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