The Government responds to the Gender Recognition Act 2004
In October 2018, the Government commenced consultation on the Gender Reassignment Act 2004 (the Act). Whilst the Equality Act 2010 (EqA) provides the same protection to all protected characteristics, including sex and gender reassignment, the Act provides specific protection to trans individuals.
Prior to the consultation, there were concerns that the Act was archaic, requiring a heavily medicalised process for an individual to obtain a gender recognition certificate, in contrast to countries such as Norway and Argentina, where a simpler self-determination process is in place. Over 100,000 people and organisations responded to the consultation, many of whom supported some kind of reform.
In September 2020, the Government published its response and the Minister for Women and Equalities, Liz Truss, announced the Government's plans to reform the gender recognition process.
This article intends to set out the key changes and clarify the interaction between the Act and an employer's obligations under the EqA.
What is the Act?
To summarise, the Act governs how an individual can legally change their gender from male to female or vice versa. By early 2015, there were approaching 4,000 applications, with only a little over 100 refusals. In an effort to ensure that a decision of this type is considered carefully by the individual in question, the Act contains numerous and rather onerous requirements.
At present, if an individual wishes to change their gender, they must:
- obtain a letter from their doctor which states that they have a condition called gender dysphoria;
- show the Government a report about the medical treatment they are undergoing;
- prove they have lived as the new gender for at least two years;
- sign a statement in front of a solicitor that they agree to stay living as the new gender for the rest of their life;
- if married, obtain consent from their husband or wife to the change;
- be over 18; and
- pay a fee of £140.
Once the above steps have been satisfied, the individual will be given a gender recognition certificate from the Government, which means that they are officially recognised as their new gender.
Consultation on the Act
Of the 100,000 respondents to the consultation, over 1,000 people were trans. A commonly raised theme by those who had personally attempted to obtain a gender recognition certificate under the Act was that the process was bureaucratic, time consuming and expensive, with one respondent stating that they "ended up sending a pack of evidence two inches thick" with their application.
Even more concerning than those who had applied under the Act, was the huge proportion of trans respondents (94.5%) who had not applied at all. Whilst it will surely be the case that the reasons for this will vary, one respondent noted that "it requires far too much evidence and I feel uncomfortable sending original copies of all my personal legal documents off in the post." In addition, respondents commonly voiced the feeling that the application process was dehumanising, humiliating or had made them feel like they needed to justify themselves or prove who they were.
Stonewall has summarised some additional key trends in the consultation responses as a whole:
- Nearly two thirds (64.1 per cent) called for the requirement for a diagnosis of gender dysphoria to be removed.
- Four in five (80.3 per cent) supported the removal of the requirement for a medical report detailing all treatment.
- Nearly four in five (78.6 per cent) called for the removal of the requirement for individuals to provide evidence of having lived in their 'acquired gender' for a period of time.
- Five in six (84.9 per cent) called for the removal of the requirement that a married trans person must obtain consent from their spouse before successfully obtaining legal gender recognition.
Notwithstanding this, there were also responses to the contrary, highlighting the importance for restrictions to be in place to ensure that those who take the decision to change their gender take "gender change seriously".
What changes are the Government making?
The Government has decided that the current provisions within the Act allow for those that wish to legally change their sex to do so safely and fairly. Liz Truss stated that “it is my view that the balance struck in the existing legislation is correct. There are proportionate checks and balances in the system, alongside support for people that want to change their legal sex."
As such, the changes are limited and include:
- A significantly reduced application fee;
- The application system being moved into one accessible place on the Government website;
- Action to ensure transgender people can access the appropriate healthcare they need;
- The opening of three new gender clinics in an effort to reduce waiting times.
As such, the Government's view is that the Act correctly strikes the balance between (i) respecting the rights of those wishing to change their gender; and (ii) ensuring that applicants take gender change seriously. However, this does mean that the process won’t be de-medicalised, and a self-determination process – as is already in place in the Republic of Ireland, Norway and Argentina – will not be introduced.
How will the Act interact with an employer's obligations under the Equality Act 2010?
As stated above, the EqA provides broader protection to all protected characteristics in comparison with the Act, which provides specific protection to trans people.
Under section 7 of the EqA, gender reassignment is defined as follows:
"A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex…"
As such, for an employee to be protected from gender reassignment discrimination, they do not need to have undergone any specific treatment or surgery to change from their birth sex. The Equalities and Human Rights Commission’s guidelines also clarify that there is “no requirement for a trans person to have any kind of medical supervision or intervention” to be given the protection from discrimination under the EqA.
However, it is also worth noting that the House of Lords (as it then was) identified the 4 stages of gender reassignment in the case of Bellinger v Bellinger as follows: (i) psychological assessment; (ii) hormone treatment; (iii) the so-called ‘real-life test’ where the individual temporarily transitions to the opposite sex; and (iv) permanent transition to the opposite sex and/or gender reassignment surgery (if desired by the individual, but not a requirement of Stage 4).
Difficult questions can sometimes arise for employers in respect of the earlier stages of the gender reassignment process. With matters such as the use of the correct pronouns, it is recommended that employers respect the wishes of an employee regardless of the stage of the process in which they fall and provide adequate training to staff in this regard.
Trickier considerations have arisen with regards to gender specific facilities. For example, there has been ample press coverage of when an individual should be permitted to use the toilet facilities designated to their newer gender. The case of Croft v Royal Mail Group plc shows that a "judgment has to be made as to when the employee becomes a woman and is entitled to the same facilities as other women". There is no doubt that an employee who has obtained a gender recognition certificate will be deemed to fall under stage 4, as they have permanently transitioned to the opposite sex. Hence, they will be fully entitled to the same treatment as non-trans individuals. This is not to say that those who are at earlier stages of the transition will not be entitled and such judgment will depend on the facts of the specific case.
As such, whilst the proposed changes to the Act are limited, employers should be aware that a gender recognition certificate is evidence of a permanent transition to the opposite sex and any treatment to the contrary will likely constitute discrimination. At the same time, the absence of such a certificate does not remove an employer's obligations under the EqA, which provides that a person has a protected characteristic from the stage of "proposing to undergo" gender reassignment.