A long read – by stewartb

There is a lot of heat being generated in the corporate media, in social media and in parliaments, especially from the Tories in Westminster and Holyrood, about the Scottish Parliament’s Gender Recognition Reform Bill. It seems that too few people remember or are willing to acknowledge the very recent history of the Tories’ policy position on this subject in Westminster.

Fortunately, an excellent briefing published on 22 February 2022 by the House of Commons Library (HoCL) provides a detailed and, given the source, authoritative account. The briefing deals largely with the UK Government’s consultation in 2018 on reforming the Gender Recognition Act 2004 (GRA) which asked whether the process for transgender people to gain legal recognition in their acquired gender should be reformed.

See Fairbairn et al (2022) Gender Recognition Act reform: Consultation and outcome. House of Commons Library Research Briefing. (https://researchbriefings.files.parliament.uk/documents/CBP-9079/CBP-9079.pdf )

2016: In its report on Transgender Equality, the House of Commons Women and Equalities Committee said: ‘While we recognise the importance of the Gender Recognition Act as pioneering legislation when it was passed, it is clear that the Act is now dated. THE MEDICALISED APPROACH REGARDING MENTAL-HEALTH DIAGNOSIS PATHOLOGISES TRANS IDENTITIES; AS SUCH, IT RUNS CONTRARY TO THE DIGNITY AND PERSONAL AUTONOMY OF APPLICANTS. (my emphasis)

‘Within the current Parliament, THE GOVERNMENT MUST BRING FORWARD PROPOSALS TO UPDATE THE GENDER RECOGNITION ACT, IN LINE WITH THE PRINCIPLES OF GENDER SELF-DECLARATION THAT HAVE BEEN DEVELOPED IN OTHER JURISDICTIONS. In place of the present medicalised, quasi-judicial application process, AN ADMINISTRATIVE PROCESS MUST BE DEVELOPED, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.’

Chaired by the Tory MP Maria Miller, this Committee had 10 other members including five Tories and, amongst its Labour members, Jess Philips. Notably, since then Ms Phillips has been Shadow Minister for Domestic Violence and Safeguarding in Keir Starmer’s Opposition frontbench since 2020.

The Tory Government then committed to review the GRA to determine whether changes could be made “to improve it in order TO STREAMLINE AND DE-MEDICALISE the gender recognition process”.

2018: In July 2018, the UK Government launched a consultation on possible reforms to the GRA: Reform of the Gender Recognition Act – Government Consultation. This consultation, which closed on 22 October 2018, concerned the legal gender recognition system in England and Wales only, though implications for the whole of the United Kingdom were also considered. Importantly, the focus of the consultation was on the process for gaining legal recognition. The government’s document stated (again with my emphasis):

‘This consultation does not consider the question of whether trans people exist, whether they have the right to legally change their gender, or whether it is right for a person of any age to identify with another gender, or with no gender. Trans and non-binary people are members of our society and should be treated with respect. Trans people already have the right to legally change their gender, and there is no suggestion of this right being removed. This consultation simply asks how best government might make the existing process under the Gender Recognition Act a better service for those trans and non-binary people who wish to use it.’

The Tory government’s argument in 2018 for reform

The consultation document set out the Tory government’s case for reform. I replicate this at length because: (i) is shows how closely aligned the reform agendas of the Westminster and Holyrood governments once were; and (ii) how far the policy stance of the Tories has shifted in the interim period.

Here is the Tory case: ‘Put simply, the case for change is as follows. Transgender individuals want legal recognition of their acquired gender and the dignity and respect that can come with it. They will often have already changed their name, and other documents, such as any Government-issued forms of identification that they hold to reflect their acquired gender. This therefore creates A DIFFICULT BUREAUCRATIC SITUATION WHERE THEIR LEGAL STATUS AND BIRTH CERTIFICATE DO NOT MATCH THE REST OF THEIR DOCUMENTATION AND THEIR IDENTITY.

‘To resolve this, however, they have to go through the current gender recognition process that is set out in the GRA. Many trans people feel that this process is overly intrusive, humiliating and administratively burdensome. Further they argue that by requiring A DIAGNOSTIC PSYCHIATRIC REPORT, THE PROCESS PERPETUATES THE OUTDATED AND FALSE ASSUMPTION THAT BEING TRANS IS A MENTAL ILLNESS. As part of the process, the trans person has to collect a range of personal documentation, including information about their medical history, finances and identity WHICH THEY SEND TO PEOPLE WHO THEY DO NOT MEET WHO THEN MAKE A DECISION ABOUT THEIR GENDER IDENTITY. The fee of £140 and associated costs are seen as expensive and there is no right of appeal against the decision unless on a point of law.

Crucially, here the HoCL briefing states: ‘The Government said IT WAS PERSUADED BY THESE ARGUMENTS and wanted to make it easier for transgender people to achieve legal recognition’.

The Tory government’s allaying of concerns

The same 2018 consultation paper recognised concerns being raised about the potential implications of reform on exceptions in the Equality Act 2010 associated with gender reassignment discrimination.  Again at length, this was the considered view of the Tory government in 2018:

‘We want to be ABSOLUTELY CLEAR – we are not proposing to amend the existing equality exceptions relating to single- and separate-sex services in the Equality Act. IT WILL STILL BE POSSIBLE TO EXCLUDE INDIVIDUALS WITH THE PROTECTED CHARACTERISTIC OF GENDER REASSIGNMENT FROM SINGLE OR SEPARATE SEX SERVICES WHERE DOING SO IS A PROPORTIONATE MEANS OF MEETING A LEGITIMATE AIM. The fact a trans person has LEGAL GENDER RECOGNITION WILL FORM PART OF A SERVICE PROVIDER’S DECISION AS TO WHETHER TO PROVIDE A DIFFERENT, OR EVEN NO SERVICE TO A TRANS PERSON, BUT HAVING A GRC IS NOT A COMPLETE ANSWER.

‘TRANS PEOPLE WITH A GRC CAN STILL BE EXCLUDED FROM SINGLE SEX SERVICES, OR PROVIDED WITH A DIFFERENT SERVICE IF IT IS PROPORTIONATE TO DO SO ON THE FACTS OF THE INDIVIDUAL CASE. Although reliance on this exception should be rare, it is most likely to be needed in particularly difficult and understandably sensitive areas, such as the provision of women’s domestic violence refuges.

‘Whether it is proportionate to exclude a trans person would have to be judged by the service provider on a case by case basis, considering the trans person’s needs and the impact on other service users. Refuges will continue to make sensible risk assessments of potential service users. SUCH ASSESSMENTS ARE REQUIRED OF ALL USERS, whether or not they are trans: FOR EXAMPLE THE REFUGE MIGHT WANT TO PREVENT AN ABUSIVE LESBIAN FROM ENTERING WHEN HER ABUSED FEMALE PARTNER IS INSIDE, OR IT MAY EXCLUDE A WOMAN WITH A HISTORY OF VIOLENCE AND INSTABILITY.’

2020: There were over 100,000 responses to the UK government’s consultation. The Government’s response was eventually published on 22 September 2020. Also published was an Analysis Report of Consultation Responses by researchers at Nottingham Trent University. The latter report included these findings:

• ‘Nearly two-thirds of respondents (64.1%) said that THERE SHOULD NOT BE A REQUIREMENT FOR A DIAGNOSIS OF GENDER DYSPHORIA IN THE FUTURE, with just over a third (35.9%) saying that this requirement should be retained.’
• ‘Around 4 in 5 (80.3%) respondents were IN FAVOUR OF REMOVING THE REQUIREMENT FOR A MEDICAL REPORT, which details all treatment received.’
• ‘A majority of respondents (78.6%) were IN FAVOUR OF REMOVING THE REQUIREMENT FOR INDIVIDUALS TO PROVIDE EVIDENCE OF HAVING LIVED IN THEIR ACQUIRED GENDER for a period of time.’
• ‘The majority of respondents (83.5%) were in favour of retaining the statutory declaration requirement of the gender recognition system. Of those who were in favour of retaining the declaration, around half (52.8%) did not agree with the current declaration wording that the applicant intends to “live permanently in the acquired gender until death”.’

There is a lot more detail and on a wider range of germane issues in the Analysis report.

Reactions to the UK government’s response to the consultation

On 24 September 2020, there was a Commons debate two days after the minister, Liz Truss issued her written statement on the response to the above consultation on behalf of Johnson’s government. The Tory MP, Crispin Blunt asked an urgent parliamentary question concerning the ministerial statement and in his speech stated:

‘Does she (Truss) appreciate that trans people CANNOT DISCERN ANY STRONG OR COHERENT REASON FOR THIS SCREECHING CHANGE OF DIRECTION? They are aware of the fear being used against them and fears, void of evidence, to sustain them. Does she understand the anger at the prospect of their receiving their fundamental rights being snatched away?’

He added: ‘She has presented the House with an inherently unstable settlement that will have to be addressed—hopefully sooner rather than later.’

In the same debate, the Labour MP Marsha De Cordova, then-Shadow Secretary of State for Women and Equalities, stated: “After three years of toxic debate, it is deeply disappointing that the Government have let trans people down and DROPPED THEIR PLANS TO REFORM THE GENDER RECOGNITION ACT. The debate around reform of the Act has been intensely fought and has caused great harm to many. Trans people face daily discrimination and the average wait for a first appointment with a gender clinic is 18 months, so it is vital that steps are taken to tackle discrimination and provide the services and support that people need.”

She added that the delay in responding to the consultation was “completely unacceptable”. She said LABOUR WOULD “CONTINUE TO SUPPORT UPDATING THE GRA TO INCLUDE SELF-DECLARATION FOR TRANS PEOPLE”

On 25 September 2020, the House of Lords considered the Minister’s statement. The Labour peer Lord Collins of Highbury (the Opposition Whip in the Lords, and Shadow Spokesperson for Foreign and Commonwealth Affairs and International Development), asked: “WHAT EVIDENCE DOES THE MINISTER HAVE THAT MEDICALISATION REMAINS NECESSARY FROM THE JURISDICTIONS THAT DO NOT MEDICALISE THE PROCESS?”. He referred, as had Crispin Blunt in the Commons debate, to a July 2020 report of the APPG (All-Party Parliamentary Group on Global Lesbian, Gay, Bisexual, and Transgender Rights) on Global Lesbian, Gay, Bisexual and Transgender Rights and asked why it was rejected, “BEARING IN MIND THAT IT WAS ALSO BACKED BY THE LGBT GROUPS OF THE MAIN POLITICAL PARTIES, INCLUDING HER OWN?”. Lord Collins said the decision “has caused huge hurt to the trans community” and that “LABOUR BELIEVES THAT IT IS SIMPLY WRONG”.

2020-21: The Women and Equalities Committee inquiry

On 28 October 2020, the House of Commons Women and Equalities Committee launched an inquiry, Reform of the Gender Recognition Act. The Committee published its report, Reform of the Gender Recognition Act on 21 December 2021. The Committee Chair, the Tory MP Caroline Nokes criticised the Tory Government’s response to Gender Recognition Reform: “The Government took nearly two years to respond to the consultation on an Act that was written at the turn of the millennium. THE GRA IS CRYING OUT FOR MODERNISATION, AND THE GOVERNMENT HAS SPECTACULARLY MISSED ITS OPPORTUNITY. This is an area of reform which has attracted strong opinions and debate, but there are areas – such as the removal a time period for living in an acquired gender – which many can agree on. The Government’s failure to implement even these changes – made clear in its consultation – suggest ITS LACK OF WILLINGNESS TO ENGAGE.”

Nokes added: “Being trans is not an illness. IT IS IMPERATIVE THAT THE GOVERNMENT DE-MEDICALISE THE PROCESS OF GENDER RECOGNITION BY REMOVING THE OUTDATED REQUIREMENT FOR A GENDER DYSPHORIA DIAGNOSIS. The current response to the 2018 consultation has amounted to little more than administrative changes. We are now calling on the Government to enact real, meaningful change.”

2023: Summarising this history is probably worthwhile in itself: from reading social media contributions since the veto was applied to the Scottish BILL, there seems to be a widespread lack of knowledge and understanding of this background.

However, candidly, my motivation for spending time and energy on this comes from reading the speech of the Shadow Secretary of State for Scotland, Ian Murray in the Commons debate (17 January) on the Section 35 veto. In this Mr Murray said:

‘Now Scotland is saddled with an Administration in Edinburgh who are hellbent on breaking devolution, and a Conservative Administration here in London who are intent on ignoring it. Indeed, the Secretary of State seems to spend more time with Government lawyers trying to stop things happening than making them work, while THE SCOTTISH GOVERNMENT SPEND HUNDREDS OF THOUSANDS OF POUNDS ON LAWYERS CHALLENGING LAWS THAT THEY KNOW ARE UNCHALLENGEABLE IN ORDER TO MANUFACTURE POLITICAL GRIEVANCE.’

So here is Mr Murray perching on some kind of high ground of political righteousness on behalf of the people of Scotland? Aye right!

As the history set out above demonstrates, Mr Murray’s implied equivalence of two political parties or two governments over this matter and his implication that the Scottish Government’s objective has been to ‘manufacture political grievance’ is both unworthy and risible. As the history shows, the Scottish Government’s reform objectives and the Westminster government’s reform objectives regarding gender recognition were once, recently, very close – and close to Labour’s in Westminster too. Then Tory Party power politics changed with the elevation of Boris Johnson to the position of Prime Minister. And a screeching U-turn followed!

On 26 December 2022 The Herald had this headline: Theresa May intervenes over Rishi Sunak’s threat to block gender recognition law.

The article reports: ‘Speaking to the BBC’s PM programme, Ms May said she was disappointed that similar changes to gender recognition laws were not being considered in England. During her time in office, THE EX-TORY LEADER HAD PROMISED TO STREAMLINE AND DE-MEDICALISE THE PROCESS FOR OBTAINING A GRC, but with no majority in the Commons, a reliance on the socially conservative DUP to prop up her government, and Brexit battles dominating her final months in power, the plans were never enthusiastically pursued.

‘Speaking on Monday, Ms May told the BBC: “The very fact that I put the proposal forward shows that that was SOMETHING THAT I THOUGHT WAS IMPORTANT TO DO, particularly to take some of the medical aspects out of this,” she said.’

Regrettably, it is yet again a weakness of corporate media and BBC journalism that important information on Tory party policy shifts over gender recognition reform is air-brushed out of analysis and comment, denying many people access to important context and perspective.