Gender Recognition Act 2004: The Government's Response to the Consultation

This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

This week the Minister for Women and Equalities, Liz Truss, announced the Government's long awaited response to the consultation on potential reform of the Gender Recognition Act 2004 ("GRA") which governs the process for legally changing gender. For many, it was not worth the wait.

For its time, the GRA was viewed as a progressive piece of legislation. However, the UK has since fallen behind some other countries when it comes to the legal process for changing gender. This consultation response confirms that the UK will continue to rely on medical diagnosis and has declined the opportunity to develop a more progressive self-determination process.

The Consultation

The GRA introduced the Gender Recognition Certificate ("GRC") which enables transgender people to legally change their gender. The procedure for obtaining a GRC has been criticised for being arduous: intrusive, costly, administratively burdensome. Crucially, the process centres around medical diagnosis, which is often seen as a barrier to transgender people having their gender legally recognised.

In 2018, the Government noted that only a very small proportion of the UK's trans community had in fact legally changed their gender (around 4,910 people). The consultation looked at, amongst other things, how the legal recognition process may be simplified and considered the option of de-medicalising the process.

The position before the consultation

The requirements to obtain a GRC are that a transgender person must:

be 18 years old;
provide documentation that proves they have lived in their acquired gender for at least two years;
provide two medical reports, evidencing (i) diagnosis of gender dysphoria and (ii) details of any treatment received;
submit a statutory declaration of their intention to live in their acquired gender until death;
for married applicants, to obtain the consent of their spouse or end their marriage; and
pay a £140 fee.

The application is then assessed by two members of the Gender Recognition Panel: a judge and a medical professional, who decide whether to issue the GRC.

The process does not currently provide legal recognition for people who do not experience gender exclusively as male or female (known as non-binary).

The Response

Over 100,000 individuals and organisations responded to the consultation, with the majority of participants being in favour of reform. The Government's analysis indicated the following:

64.1% called for the requirement for a diagnosis of gender dysphoria to be removed;
80.3% supported the removal of the requirement for a medical report detailing all treatment received;
78.6% were in favour of removing of the requirement for individuals to provide evidence having lived in their acquired gender for a period of time; and
84.9% called for the removal of the requirement that a married trans person must obtain consent from their spouse.

Statistics obtained from Reform of the Gender Recognition Act: Analysis of Consultation Responses (September 2020)

What has changed?

Regarding the requirements to obtain a GRC, nothing. Liz Truss commented that it is "the Government's view that the balance struck in this legislation is correct, in that there are proper checks and balances in the system" for people wanting to change their gender legally.

However, the Government committed to making the process more "user-friendly" by reducing the application fee to a nominal amount and by digitising the application.

In addition, the Government recognised the issues facing transgender people's access to healthcare. It has committed to opening three new gender clinics this year, with the hope of seeing waiting lists cut by around 1,600 patients by 2022.

Critics of the Government's response say that this was a missed opportunity to bring UK legislation in line with other countries such as Argentina, Denmark and The Republic of Ireland, which have adopted a self-determination process. This avoids the need for a medical diagnosis of gender dysphoria to legally change gender.

The Equality Act 2010 (the "EqA")

It is important for employers to be bear in mind that a trans person does not require a GRC in order to be protected against discrimination under the EqA. Rather, they need only have the protected characteristic of "gender reassignment".

A person has the protected characteristic of "gender reassignment" if they undergo, or propose to undergo, any part of a process for the purpose of reassigning their sex by changing physiological or other attributes of sex. As such, the bar for protection under the EqA is significantly lower than for acquiring a GRC. For instance, there is no requirement for an individual to have actually undergone any medical intervention; it is a "personal" process rather than a medical one. There is also no requirement for an individual to have lived as their acquired gender for any particular length of time; they need only to "propose" to undergo a process of gender transition. Further, the Employment Tribunal recently ruled that non-binary and gender non-conforming individuals should be protected under the EqA (for further details please see here).