BiCon Continuity submitted a response to the government's Gender Recognition Act (GRA) consultation. Our main reasons for doing this are:
1) Since 1992 BiCon official policy has recognised people's self-identification of their gender for all purposes including access to single-sex spaces and workshops. BiCon has a large number of trans and non-binary attenders. In the 25 years since this policy was put in place we have seen no evidence that anyone is harmed by it.
2) We recognise the similarities between accusations and implications currently being made about trans people (especially trans women) and their rights and those made in the 1980s and 1990s about lesbian, gay and bisexual people with Section 28 and other discriminatory laws and policies.
While the response will be published in due course by the government, we felt we should upload a copy here for the BiCon community to read. Not all questions were appropriate for us to answer.
Continuity's consultation responses
Question 3: Do you think there should be a requirement in the future for a diagnosis of gender dysphoria?
No.
Requiring a diagnosis of gender dysphoria is a medical not socio-legal issue. Not all trans and non-binary people wish to access medical transition.
There are excessive delays for trans and non-binary people in being able to access gender identity clinic services with waits of over 1-2 years being common for first appointments. Some GPs will not refer people to gender identity clinic services and self-referral is not usually possible. Further appointments and access to medical transition treatment take years because of delays between appointments and waiting lists.
BiCon Continuity supports a simple process of self-identification of gender identity (including non-binary gender options) via statutory declaration.
Question 4: Do you also think there should be a requirement for a report detailing treatment received?
No.
We do not believe medical treatment received is a useful metric in the GRC process. Details of any medical treatment focus on only one aspect of transition or gender-reassignment activity. Access to NHS gender reassignment treatment is often excessively delayed: 1-2 years until first appointment is not uncommon; subsequent appointments and access to treatments are often delayed years by further waiting lists.
Access and option to access treatments are affected by other characteristics such as disability (other health and impairment issues may limit options) and stability of housing as moving areas can affect access to NHS services. This all delays people's ability to apply for a GRC at present.
BiCon Continuity support a simple process of self-identification of gender identity (including non-binary options) via statutory declaration.
Question 5: (A) Do you agree that an applicant should have to provide evidence that they have lived in their acquired gender for a period of time before applying?
No.
People's lived experiences are not accurately reflected by paperwork. Ability to obtain, retain and manage paperwork needed for a GRC application is linked with other privileges like education, social class, stability of employment, stability of finances, stability of housing, age and disability. Many trans and non-binary people have additional protected and non-protected characteristics which make dealing with evidence, bureaucracy and health services difficult or impossible.
BiCon Continuity Ltd support a simple process of self-identification of gender identity (including non-binary options) via statutory declaration.
Question 5: (D) If you answered no to (A), should there be a period of reflection between making the application and being awarded a Gender Recognition Certificate?:
No.
People are already aware of the legal significance of a statutory declaration and application for legal gender recognition. A 'reflection' period is infantilising and only adds unjustifiable delays to the process.
Question 6: (A) Do you think this requirement should be retained, regardless of what other changes are made to the gender recognition system?
Yes.
Statutory declaration is an existing well recognised legal process which is very low cost and accessible to most people. It has existing and well understood safeguards for fraud and misuse.
Question 7: The Government is keen to understand more about the spousal consent provisions for married persons in the Gender Recognition Act. Do you agree with the current provisions?
No.
No other life or health process (including tattoos, plastic surgery, spending large amounts of money, changing housing or employment) has a system where a person's spouse has to give written consent for that person to proceed with the activity. This provision is cruel to trans and non-binary people and singles them out as people that others need protection from which is not supported by any evidence. Trans and non-binary people are much more likely to be the victims of abuse than the perpetrators.
BiCon Continuity recommend that there is a system in place that allows the trans person to obtain a GRC and if their spouse objects they can file for rapid no-fault legal separation/divorce with appropriate systems for minimising adversarial aspects of this process and protecting any dependants appropriately.
Question 8: (A) Do you think the fee should be removed from the process of applying for legal gender recognition?
Yes.
Question 8: (C) What other financial costs do trans individuals face when applying for a gender recognition certificate and what is the impact of these costs?
Trans and non-binary people are likely to experience marginalisation for multiple reasons related to their trans/non-binary or other protected and non-protected characteristics. Any significant cost becomes a barrier to people most in need, especially those in precarious financial and housing situations. Remission schemes require applications [sic, error should be applicants] to have the capacity and ability to deal with bureaucracy and be able to provide evidence of their financial hardships which is often difficult or impossible – so in itself creates another barrier. Remission schemes often cost more to administer for the government than is saved by the fee.
Many people live some distance from gender identity clinic so have travel and accommodation costs. Medical reports to support a GRC application cost substantial amounts as letters and reports are not covered by NHS. NHS delays often mean people feel the need to pay for private treatment so they can get on with their lives. Trans people are likely to be in lower paid and less secure jobs due to stigma about their gender identity status. These all exist alongside other incidental costs of transitioning like potentially having to move house (especially if a relationship breaks down), replace clothing, change other documents etc.
Question 9: Do you think the privacy and disclosure of information provisions in section 22 of the Gender Recognition Act are adequate?
No.
There are too many loopholes in s22 that leave trans and non-binary people at real or perceived risk of being unnecessarily outed in their everyday lives. An example is the fear of being outed for taking any kind of case to court, disclosure of a GRC or trans/non-binary status should be avoided as a default with a private hearing before this kind of disclosure is permitted. The permitted disclosure circumstances should be strictly limited with those reasons clearly published for reference. Judges should be required to follow those reference reasons and have to specifically justify deviation from them rather than it being decided on a case by case basis. Being "outed" as punishment for taking a court case or any other activity should never be something a trans or non-binary person has even a small percentage risk of having to face unless their trans and GRC status is directly relevant to the case.
Health professionals should include clinical psychologists and should be broadened to be less specific to avoid future loopholes.
Enforcement of breaches of s22 should have no period of statutory limitations, a breach is a breach whether it was 6 months or 6 years ago – it often takes people a long time to process the effects of traumatic situations and they should not be further punished by being unable to enforce a complaint later. Enforcement should also be handled by a statutory body rather than a complainant having to make any kind of individualised complaint which leaves them vulnerable to "robust" bullying and outing defence tactics used by respondents.
Clarity should be provided to everyone about the security of the database of GRC applicants or holders so they can be assured this data will not be inappropriately shared or used to put GRC holders at risk in future.
Question 11: Is there anything you want to tell us about how the current process of applying for a GRC affects those who have a protected characteristic?
As there is now same-sex and different sex marriage, marriages do not have to be dissolved if one or both spouses seeks a GRC, however until civil partnerships legislation is updated (as is now likely as of Oct 2018 and the recent supreme court judgment) there is a discrepancy here.
Some trans people may be wary of applying for a GRC as they do not know where the data about their application and or outcome is stored, used and secured from improper abuse. There is a worry that governments themselves may abuse this data in future, especially after Brexit.
Question 12: Do you think that the participation of trans people in sport, as governed by the Equality Act 2010, will be affected by changing the Gender Recognition Act?
No.
The existing safeguards have exceptions for trans people which have to be complied with (e.g. treatments) before someone can complete in single-sex and other sports. A GRC does not affect these requirements. This is handled by sports authorities.
More research into this should be supported as physical abilities are on a bell curve with athletes at extremes of that anyway regardless of sex.
Question 13: (A) Do you think that the operation of the single-sex and separate-sex service exceptions in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
No.
The single-sex and separate-sex service exemptions from the Equality Act can only be used if they can be objectively justified as a proportionate means to meeting a legitimate aim. Unfounded fears or prejudice of staff or other service users are not (and should not) usually considered legitimate aims. The bar for exclusion of a trans person is and should remain high. All of these services should have safeguarding policies around staff and service users based on cautious prevention and any actual behaviour (and behavioural history) not an individual's sex and gender identity history.
Fear or prejudice against trans people, especially trans women should be treated in the same way that 'fear' or prejudice of BME or LGB people should be treated. It should not be validated or legitimised as a reason to limit or deny trans and non-binary people's access to services. Deal with behaviour not identities.
Question 13: (B) If you provide a single or separate sex service, do you feel confident in interpreting the Equality Act 2010 with regard to these exemptions?
Yes.
BiCon does not wish to use the exemptions and does not support the exemptions existing in the Equality Act even if they are rarely or never used as they suggest trans women are a group who others may need protecting from despite lack of credible evidence to support this.
BiCon Continuity represents the organisers of "BICON®" which is an annual 3-5 day residential and non residential conference style event with 200-500 bisexual people, their families, friends and allies attending. BiCons are organised by volunteers and have taken place every year since 1984 providing on-site accommodation from 1989.
In 1992 BiCon passed a policy to allow trans people to access single-sex spaces (such as toilets and some workshops) by self-identification for all purposes. From 2007 onwards BiCon has provided unisex toilet facilities to be more inclusive and welcoming to non-binary people.
Research has shown bisexual people, especially cisgender women are at high risk of sexual abuse with trans bisexual women's risk being even higher again. BiCon often runs survivors sessions and single-sex spaces. Since 1998 BiCon has had an official written code of conduct which applies to all attenders (including volunteers and organisers) equally. For the last 8 BiCons, attenders have had to sign to confirm they have read this code and agree to abide by it. Sanctions for serious breaches include asking people to leave BiCon event and banning people from future events.
From monitoring questionnaires and other data we know bisexual cisgender women make up a significant majority of BiCon's attenders. Between 25% and 40% of attenders identify as trans or non-binary. Women (of cis, trans or unknown status) are very rarely reported as perpetrators of serious misconduct or behaviour which harms others in any way.
Question 14: Do you think that the operation of the occupational requirement exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
No.
The current law on occupational requirement exemption is unclear to regular and legally trained people as to whether it applies to people currently holding a GRC. We believe as having a GRC is only one factor in determining if exclusion of someone due to trans history is a "proportionate means of meeting a legitimate aim", it would still be down to individual employers' choices and decisions. That would, as at it is now, should be open to challenge and scrutiny.
Question 15: Do you think that the operation of the communal accommodation exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
No.
People are not routinely asked to prove their legal gender with birth certificates before using communal accommodation. A passport and driving licence gender marker can be changed with a single medical letter including from a GP and proof of change of name. It is already unlawful to refuse a person who is perceived to be trans (have the gender reassignment characteristic) access to communal accommodation unless there is a proportionate means to a legitimate aim – which has a high bar.
It is our experience that when access to single-sex spaces is rigidly policed, the people who bear the brunt of this are anyone who is perceived as not looking like cis women (trans and cis people who are perceived not to present in an appropriately gender confirming manner) resulting in those people who are judged not to conform often being subjected to harassment.
BiCon Continuity note that current accusations that trans people in single-sex spaces putting other users at perceived or actual risk of harm are very similar to accusations from the 1980s and 1990s that gay, lesbian and bisexual people would put other users of single sex and other spaces at perceived or actual risk of harm. It is no longer considered widely acceptable to acceptable to automatically assume gay, lesbian or bisexual people as a class are a risk to others in same-sex spaces. It should not be acceptable to assume trans people (or trans women) as a class are a risk.
Safeguarding policies should cover conduct by all individuals regardless of their gender identity or legal gender status, anything else is scaremongering and discriminatory. The legal status of the Equality Act 2010, Schedule 3, Section 28 exemptions to provision of single-sex services to people with the protected characteristic of 'gender reassignment' are unclear as to what effect a GRC has upon the legality of using these. This should be clarified in either a renewed GRA or the Equality Act itself to make parliament's intentions clear.
We would hope these exemptions remain never or rarely used.
Question 16: Do you think that the operation of the armed forces exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
No.
As the measure for whether a trans person can operate in the armed forces appears to be related to their combat effectiveness with or without a GRC then this should not change if the GRA is changed.
Question 17: Do you think that the operation of the marriage exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
Yes.
More people having a GRC means that more people will have access to a birth certificate showing their correct gender which looks no different to a birth certificate of someone living in the same gender as they were assigned at birth. This means it may be harder for those who authorise or solemnise marriages to identify trans people except by asking everyone if they have a trans history or making random value judgements based on someone's appearance. Many trans and non-binary people are not identifiable by their presentation. Guessing if someone is trans by their presentation often results in (usually) cis women being mistakenly accused of being trans and subjected to harassment. There will of course be legal implications around the validity of the marriage if someone is not upfront about their trans history when asked – as there are at the moment.
Question 18: Do you think that the operation of the insurance exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
No.
Question 19: Do you think that changes to the Gender Recognition Act will impact on areas of law and public services other than the Equality Act 2010?
No.
If a GRC does not provide an automatic right to access single/separate sex spaces then it still comes down to judgement on a case by case basis ensuring that any exclusions are only carried as a proportionate means to a legitimate aim and no reasonable alternative of service options being available. Trans people have been using single-sex facilities for decades often unnoticed and just getting on with their day to day lives.
Question 20: Do you think that there need to be changes to the Gender Recognition Act to accommodate individuals who identify as non-binary?
Yes.
Non-binary people currently have no protections under the Equality Act and cannot obtain an accurate legal gender identity assignment as non-binary with a GRC. This forces non-binary people to lie to statutory authorities by remaining with the gender they were assigned at birth, or transitioning to the other binary gender when neither is accurate or appropriate. Non-binary people are caused unnecessary detriment and distress as an appropriate gender identity and protections from discrimination are not in place.
Administrative and legislative challenges are not a good reason to deny non-binary people rights to accurate legal recognition and protection from discrimination on the grounds of their gender identity. We feel the government has delayed too long on this already and needs to start consultation and research processes around recognition of non-binary genders as soon as possible.
Recognition of non-binary people should not be used as a "separate but equal" way to push binary gendered trans people into separate "trans and non-binary services" as a way to avoid the perceived conflict between single-sex space provision and those who believe trans people are not their self-identified sex/gender.