As the national body charged with protecting and promoting equality and human rights in Britain, we welcomed the Scottish and UK governments’ consultations on proposed changes to the Gender Recognition Act 2004 to remove unnecessary barriers trans people currently face in obtaining a Gender Recognition Certificate (GRC) in England, Wales and Scotland.
In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC. A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes.
The Equality Act 2010 protects individuals sharing a protected characteristic from discrimination and harassment. Protected characteristics include sex (being a man or a woman) and gender reassignment (an individual who is ‘proposing to undergo, is undergoing or has undergone a process or part of a process to reassign their sex’). There is no requirement for a trans person to have any kind of medical supervision or intervention in order to be protected from gender reassignment discrimination.
Certain exceptions in the Act set out circumstances in which it is permissible to treat someone differently because of their sex or gender reassignment, for reasons of public policy or to protect the rights of others. The use of such exceptions generally needs to be justified as being a proportionate way to achieve a legitimate objective. This will often require a case-by-case approach to determine what is legitimate and proportionate in any given circumstance.
Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. There are some exceptions permitting different treatment on the basis of gender reassignment, for example the exceptions related to single-sex services and associations. These exceptions do not hinge on whether or not an individual has a GRC. Any use of the exceptions permitting different treatment must be objectively justified, meaning that it must be a proportionate means of achieving a legitimate aim, and will therefore depend on the particular circumstances. While an individual’s possession, or not, of a GRC may be part of the evidence a court would consider in a gender reassignment discrimination case, it is unlikely to be a determining factor. The one exception to this relates to the solemnisation of marriage through religious ceremony in Part 6 Schedule 3 of the Act.
At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.
We recognise that the present system for obtaining a GRC may be creating unnecessary barriers for people to have their change of sex recognised. As of July 2018, only 4,910 GRCs had been issued since the GRA came into force in 2005, which falls far short of the number of trans people estimated to be living in Britain. While the reasons for this disparity are not fully understood, it suggests that the current mechanism may not be meeting the needs of its users.
However, the interaction between the Gender Recognition Act 2004 and the Equality Act 2010 is a complex area of law, which affects how people are protected from discrimination and harassment. Our response to the England and Wales consultation sets out our view on the law and makes recommendations on the best ways to ensure respect for everyone’s rights.
We know there are specific concerns that removing barriers to acquiring legal gender recognition might affect women-only spaces and services provided under the single-sex and separate-sex service provisions in the Equality Act 2010.
Our firm legal view is that reform of the Gender Recognition Act will not erode the special status of these important services, such as women’s refuges, health services and clubs.
We would however recommend that any changes made to the Act are supported by clear, practical guidance to help trans people, other service users and service providers fully understand their rights and responsibilities.
'Gender’ refers to socially constructed roles of women and men and/or an individual’s conception of their identity. The term is often used interchangeably with ‘sex’, partly in recognition that much of the inequality between women and men is driven by underlying social and power structures rather than by biological sex. Although the Equality Act protects people from discrimination because of their sex, other UK legislation (such as the regulations requiring employers to publish their gender pay gap) refers to gender. This may cause confusion in some circumstances. To avoid any ambiguity, we are reviewing our use of language across our website and publications to ensure clarity and consistency. However, it is important to note that any mistaken or structural use of the term gender does not affect how the law works in practice.
As with the Scotland consultation, in preparing our response to the England and Wales consultation we consulted widely and gave careful consideration to the need to respect the rights of all individuals affected by any proposed changes. The issues at stake are complex and personal, and we are aware that some people have expressed concerns and uncertainty about the effect of change. It is essential that we all continue to engage in a constructive and respectful way when we have these important conversations, in order to understand the full implications of the current system and any proposed changes to it.
