* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.The Gender Recognition Act should be updated so that non-binary people are legally recognised
Lui Asquith is a legal caseworker (non-practising solicitor) at Mermaids UK, a charity that supports transgender and gender-variant children, young people and their families
The current surge of, often negative, media interest in transgender issues is deemed to be off the back of an “explosion” in the number of transgender individuals that has run in parallel with the launch of review of the 2004 Gender Recognition Act (GRA) for England and Wales, which closes on Friday.
Ironically, much of the debate – and the objections – are in relation to legal changes the government is not proposing to make and, therefore, is in effect a shadow debate.
Attitudes are currently split between the two extremes of both transphobia and trans-acceptance. It is difficult to see how this will end, but one solution is to reform the law as it currently stands. There are four main strands that should be examined.
The Gender Recognition Act
The GRA should be updated in line with international best practise to allow for:
- Anyone, whatever age, to have appropriate recourse to legal gender recognition (LGR) and for this process to be as accessible as possible
- Any LGR procedure to be de-medicalised completely; a new procedure should not focus or rely on any medical diagnoses/healthcare in any way
- A model of self-determination
- Non-binary people to be legally recognised
There have been several recent cases in Britain of trans/non-binary persons having been convicted of sexual assault on the grounds that their sexual partner was not aware of their gender (thus vitiating consent).
The current law is confused and does not draw a distinction between active deception, which might prevent true consent from being given, and simple non-disclosure, which does not. Further, the law also ignores the potential discrimination and risk of harm a transgender person might face if we impose a duty to disclose.
Finally, disclosing one’s gender history might be obviated by obtaining a Gender Recognition Certificate, which means that a sexually active trans person aged between 16 and 18 would have no choice but to disclose or run the risk of prosecution.
At present, gender-affirming treatment is underfunded and commissioning decisions are made with confusing, and potentially discriminatory, disparity, for example, when it comes to offering fertility treatment. The Equality and Human Rights Commission has warned Britain’s National Health Service that it must offer trans patients awaiting gender-affirming treatment equal access to fertility services.
In addition, there is a huge disparity in GPs’ approaches to transgender policies around the country, which again I hope we will see challenged over time.
We are also seeing that restrictions for young people are being enforced at the same moment that medical research increasingly reveals the benefits of affirmative treatment at an early age.
Issues around trans/non-binary children are often reported as “controversial”. Yet I would suggest that the reality is that many people don’t understand the subject as they have simply not had the experience of knowing a trans young person.
Child protection issues are also coming through case law, which raises the issue of ensuring that children’s views are being taken into account and not ignored on the basis of it being deemed controversial.
In law, a child’s welfare is of paramount consideration and we must acknowledge that a transgender child’s identity may play an active part in terms of decisions around their welfare. One change that needs to happen therefore is within the profession: we have a duty to be aware of and respect varying gender identities within children, and we should be proactive in organising the necessary training to ensure this.
In conclusion, legal change needs to happen and it needs to happen fast. Once this has been achieved it will ultimately bring about the social change we so readily need.
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