Gender Recognition

In the UK, it is possible for many trans people to have their gender legally recognised, without necessarily requiring us to have surgery. And of course, that’s a huge privilege, and there are many people, in many countries who are nowhere near so lucky.

Our legislation came into force in 2004. At the time, it was pretty progressive. And I know there was a lot of behind-the-scenes negotiation which was necessary to make sure something went through which would help a lot of people. I was one of those who benefitted, and I’m grateful for that.

But eleven years on, the legislation’s looking dated, and frankly unfair. It allows for the recognition of people as either male or female, if they can prove they have been living in their new gender for at least two years by submitting document, and make a legal declaration to say they intend to live as that gender for the rest of their life, and can provide letters from two doctors (one an “expert”) to verify the situation. You don’t need to have had medical treatment, but if you haven’t you need to provide a good reason why not.

The process can be expensive. There’s a fee of £140 to have your application considered (it may be reduced for those on low incomes). Doctors can charge for medical reports, and if you haven’t kept documents like old bank statements or utility bills, you may have to pay to get copies or wait till you have those things before you apply. The statutory declaration has a set legal fee of £10. If you’re in well-paid work, these charges are irritating but manageable, but for someone on a low income, it’s a lot of money.

The final decision about the gender is taken by a panel under the Courts and Tribunal Service. You never meet any of the panel members, you don’t sit in on their deliberation, and as far as I know, the names of the panel members are not readily available. So even after submitting all this evidence, the final decision is taken by strangers who have never met me and know very little about my life, other than having seen a few old gas bills. They have the right to overrule both my legal oath, and the opinion of doctors who do know me and take a decision on my gender. That seems intrinsically wrong.

A legal system which allows recognition as only male and female, and requires an oath that you have no intention to change that, is unfair on non-binary people. At the moment, they are less protected under other UK equality legislation too, and the whole issue is in need of urgent review. There is also still ambiguity around the medical requirements – if you have a trans identity, wish to be recognised in a different gender, but don’t want medical treatment, the onus is on you to justify that. Unfortunately, I’ve heard some bad stories about that.

The passing of same-sex marriage legislation in the UK was fantastic, but there are still problems for trans people who are married or in civil partnerships. They have to get their spouse to agree to the change. Which is fine if they’re with a spouse they want to stay with. But what if they’re in the middle of a messy divorce, or their former partner has disappeared? Their estranged partner can now hold over them a refusal to consent to their new gender.

The irony of it all is that gender is increasingly irrelevant in legislation anyway. Pensions will be equal in the next few years, we have same-sex marriage, and it’s no longer to discriminate regarding gender on issues such as insurance. For someone my age, there are virtually no situations where it is legally relevant what gender I am.

The simple fact is, gender should not be a matter for state control. If I want to call myself a man on Monday, a woman on Tuesday, and non-binary on Wednesday, that is nobody’s business but my own. After all, the government does not maintain a register of my other identity characteristics (they may be monitored for equality reasons, but that’s optional and up to me how I describe myself). Over the course of a few years, I went from Christian to agnostic to atheist – but I didn’t have to get my passport reissued, or swear an oath in front of a lawyer promising I would never again enter a church. I still frequently waver between calling myself gay or bisexual – but no-one requires me to get a doctor’s letter, or submit photos of who I’ve slept with over the last two years every time I change my mind. Even my ethnicity, although it certainly has a biological dimension and is fairly externally obvious, is not something that is recorded on my birth certificate nor regulated by the government. Gender seems to be the one thing where there is an absolute requirement to stick to a single category, and we must seek special permission to change that.

But as I say, the world has moved on since 2004. Ireland, Argentina, Malta, Italy and Denmark now allow trans people to simply declare what gender they are. The UK should be joining them


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