LGBT rights in review – transgender identities and the law

LGBT rights in review – transgender identities and the law

What are the main legal issues affecting transgender persons? To mark LGBT history month, Allan Briddock, barrister at 1 Pump Court and a founding member of the Trans Equality Legal Initiative takes a look at key legislation, the beginnings of Parliamentary discussion and controversy surrounding non-gender assigned bathrooms.

What are the key issues surrounding transgender issues and the law?

There are so many issues effecting trans persons that it’s difficult to know where to start and indeed not possible to cover them all in any single interview.

Despite very significant legal advancements in recent years, and a much more aware and generally sympathetic public awareness of the very existence of trans people, trans people still live in an extremely hostile environment and there is a huge amount of work to do.

One of the biggest legal issues is reform of the Gender Recognition Act 2004 (GRA 2004). GRA 2004 was enacted as a result of the 2002 European Court of Human Rights case of Christine Goodwin v UK (App no 28957/95), [2002] ECHR 588. It allowed, for the first time in the UK, full legal recognition in acquired gender and the right to change the gender assigned at birth by obtaining a gender recognition certificate (GRC). The court stated that it was no longer sustainable for trans people to live in an intermediate zone as not quite one gender or the other.

However, it is estimated that only approximately 3000 people have obtained a GRC due to objections to the procedure and ultimately the principle that ‘a panel’ (whose identity is unknown to the applicant) decides what the person’s gender is based to a great extent on medical evidence and by the person proving they have ‘gender dysphoria’. That is in direct contrast to the Equalities Act 2010 (EqA 2010) as the protected characteristic of ‘gender reassignment’ is self-identified.

However, not having a GRC can be extremely problematic, such as being placed in a prison of the opposite gender, pension rights, accessing banking services, etc. It is extremely traumatic for a trans person to be placed in a single-sex institution not of their gender and indeed there have been many instances of suicide and self-harm.

Another key issue is so-called ‘gender fraud’. There have been a number of cases where trans/non-binary persons have been convicted of sexual assault on the grounds that a sexual partner was not aware of their gender thus vitiating consent. These cases raise serious issues of inequality of trans people in the eyes of the law and again contradict the protected characteristic in EqA 2010 as being self-identified.

Access to health care and the proper implementing of NHS policies is another major legal area for the trans community. There is a significant problem with access to proper medical and mental health treatment, if required or wanted, such as hormone treatment and access to consultants. At present this is woefully underfunded and is ripe for legal challenge as there is a significant negative impact on persons not able to access treatment. In addition there is a huge disparity in GPs’ policies, with some GPs simply refusing to prescribe necessary medication.

The issue of transgender children is a controversial and emotive one and likely to be aired in the legal system. For example, in the recent case of Re J (a minor) [2016] EWHC 2430 (Fam), [2016] All ER (D) 17 (Nov) a child was permanently removed from her mother’s care as the father complained that the mother was ‘forcing’ the child, who was assigned male gender at birth, to present as a girl.

This really is a brief overview of some of the bigger topics. An in-depth look at the legal issues facing trans and non-binary persons would be a tome.

Are there particular legal obstacles to legislating for trans persons?

Yes – public opinion and significant opposition. There is a huge amount to be legislated for and indeed there was a debate in Parliament in December 2016. In my opinion, in the Brexit/May/Trump era the issue is hardly even on any government radar and there is little chance of any meaningful legislation under the current UK administration.

Have ministers been receptive to legislative changes to accommodate some of these issues?

The simple answer is no. In December 2015 the House of Commons’ Women and Equalities Committee published its ‘Transgender Equality’ report in which a number of recommendations were made, including amending GRA 2004 in a variety of ways. This included the issues of access to NHS services, age limit, exemptions for trans people regarding single-sex services and treatment, hate crime, and others. The report was comprehensive and offered a change of real and significant proportions that would hugely increase the quality of many lives.

However, the government’s response, published in July 2016 was lacklustre at best and dismissive at worst. So far none of the report’s recommendations have been implemented and there is little chance they will be in the near future. Although the debate in Parliament last month was positive, the government does not appear to have any appetite for implementing much needed change. At the end of the debate the House endorsed the proposal:

‘That this House notes the UK’s status as a pioneer in legislating for equality for LGBT people; welcomes the government’s announcement of a new trans equality action plan; and calls on the government to review its response to the recommendations of the Women and Equalities Committee’s report on Transgender Equality to ensure that the UK leads the world on trans equality rights, in particular by giving unequivocal commitments to changing the Gender Recognition Act 2004 in line with the principles of gender self-declaration and replacing confusing and inadequate language regarding trans people in the Equality Act 2010 by creating a new protected characteristic of gender identity’.

Time will tell if any of those proposals become reality.

Is there an international dimension to legislation and awareness of the issue?

The most relevant international instrument so far has been the European Convention of Human Rights (ECHR). There are certainly many cases that potentially reach the Art 3 ECHR (inhuman and degrading treatment) threshold, such as the prison cases and countless cases that potentially breach other articles such as ECHR Art 8 (right to private and family life and moral and physical integrity) and ECHR Art 14 (non-discrimination).

However, EU law has become increasingly important at pushing these issues forward. For example, the issue of access to a state pension for trans people is directly affected by Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security (Equal Treatment Directive). In MB v Secretary of State for Work and Pensions [2016] UKSC 53, [2016] All ER (D) 40 (Aug), the Supreme Court struggled with the interpretation of the Equal Treatment Directive and has referred this question to the Court of Justice of the European Union:

‘Whether Council Directive 79/7 EEC precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.’

Depending of course on the UK’s future relationship with the EU, EU law is likely to be increasingly important. In addition the issues are ones that obviously are cross-jurisdictional and comparisons can certainly be made with systems in place in other countries around the world. For example, the Irish Gender Recognition Act 2015 allows self-declaration of gender identity and provides for the acquisition of a new birth certificate with the correct gender on it.

What is the relevance of controversy surrounding non-gender assigned bathrooms in the US?

This is a path that I deeply hope will not be followed in Europe but thankfully there is no sign it will be. The development of the issue is curious and seen by many as a backlash to the development of LGBT rights in the US, such as same-sex marriage. It remains to be seen why transgender people using the lavatory of their own sex has presented such a problem in the individual states that have implemented these laws or how a such a law would stop a sexual predator from entering a lavatory to commit a serious criminal offence. With the new administration in the White House (which removed reference to LGBT rights on the White House website within 30 minutes of the new President taking office) it is a worrying time for trans people in the US.

How can lawyers respond to the situation and prepare for increasing attention being given to the subject?

Lawyers should be aware that being transgender or non-binary may, or may not, have an impact on issues faced by transgender people. For example, trans persons face a massively disproportionate amount of discrimination in the work place that may be hidden but nevertheless the real cause of dismissal or unfavourable treatment.

The number of other issues are really countless, and being transgender could be the reason for, or part of the reason for being a victim of crime, housing problems, access to NHS services, care proceedings for children, obtaining documents, etc.

In general lawyers should be aware of these issues but equally should not assume that every legal problem is as a result of being trans. Increased awareness is key.

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