Transgender rights in the United Kingdom

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Transgender rights in the United Kingdom had been gaining ground since the 1990s, with the granting of rights and protection to the transgender community. The laws pertain to areas of identity documents, marriage rights, and anti-discrimination measures in the areas of employment, education, housing, and services.

Transgender people were once able to have identity documents informally amended until a 1970 ruling, which would end the practice for the following decades. After a 2002 ruling by the European Court of Human Rights against the United Kingdom (UK) government, the parliament passed the Gender Recognition Act of 2004 to allow people to apply to change their legal gender.

Anti-discrimination measures have existed since 1999, were strengthened in the 2000s, to include anti-harassment wording. Later in 2010, gender reassignment was included as a protected characteristic in the Equality Act. With the 2013 introduction of same-sex marriage, it became possible for a spouse to legally change their gender without requiring a divorce in mainland UK; however, Northern Ireland remains an exception.

Medical classification[edit]

In December 2002, the Lord Chancellor's office published the Government Policy Concerning Transsexual People document that categorically states that transsexualism "is not a mental illness", but rather a "widely recognised medical condition" characterised by an "overpowering sense of different gender identity".[1]

As of 2010, the Green Party supports a reform of the UK's Mental Health Act to remove transgender people from the Psychiatric Disorder Register, which they view as discriminatory.[2] They also oppose a "spousal veto",[3] described by Pink News as "a stipulation in the Marriage (Same Sex Couples) Act that married transgender people can only be legally recognised as their correct gender if their spouse gives permission".[4]

Gender recognition[edit]

The Gender Recognition Act 2004 was drafted in response to court rulings from the European Court of Human Rights. On 11 July 2002, in Goodwin & I v United Kingdom, (a.k.a. Christine Goodwin & I v United Kingdom [2002] 2 FCR 577), the European Court of Human Rights ruled that rights to privacy and family life were being infringed and that "the UK Government had discriminated based on the following: Violation of Article 8 and Article 12 of the European Convention on Human Rights". Following this judgment, the UK Government had to introduce new legislation to comply. In response to its obligation, the UK Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for binary transgender people.[5]

Since 4 April 2005, as per the Gender Recognition Act 2004, it is possible for transgender people to change their legal gender in the UK, allowing them to acquire a new birth certificate. Transgender people must present evidence to a Gender Recognition Panel, which considers their case and issues a Gender Recognition Certificate (GRC); they must have transitioned two years before a GRC is issued. It is not a requirement for sex reassignment surgery to have taken place. However, such surgery will be accepted as part of the supporting evidence for a case where it has taken place. There is formal approval of medical gender reassignment available either on the National Health Service (NHS) or privately.

In contrast to some systems elsewhere in the world, the gender recognition process does not require applicants to be post-operative. They need only to demonstrate to the Gender Recognition Panel that they have suffered gender dysphoria, have lived as "your new gender" for two years, and intend to continue doing so until death.[6]

In July 2018, the UK Government started a public consultation regarding reform of the Gender Recognition Act 2004.[7]

Non-binary gender[edit]

The title "Mx.", is widely accepted in the United Kingdom by government organisations and businesses as an alternative for non-binary people[8] while HESA allows the use of non-binary gender markers for students in higher education.[9] In 2015, early day motion EDM660 was registered with the Parliament.[10] EDM660 calls for citizens to be permitted access to the X marker on passports. When the text of EDM660 came to light in 2016, a formal petition was launched through the Parliamentary Petitions Service calling for EDM660 to be passed into law. The government has not responded as of June 2016.[11][12]

In September 2015, the Ministry of Justice responded to a petition calling for self-determination of legal gender, stating that they were not aware of "any specific detriment" experienced by non-binary people unable to have their genders legally recognised.[13] In January 2016, the Trans Inquiry Report by the Women and Equalities Committee called for protection from discrimination of non-binary people under the Equality Act, for the X gender marker to be added to passports, and for a wholesale review into the needs of non-binary people by the government within six months.[14]

Discrimination protections[edit]

The Sex Discrimination Act 1975 made it illegal to discriminate on the ground of anatomical sex in employment, education, and the provision of housing, goods, facilities and services.[5] The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the existing Sex Discrimination Act, and made it illegal to discriminate against any person on the grounds of gender reassignment, but only in the areas of employment and vocational training.[5]

The Equality Act 2006 introduced the Gender Equality Duty in Scotland, which made public bodies obliged to take seriously the threat of harassment or discrimination of transsexual people in various situations. In 2008, the Sex Discrimination (Amendment of Legislation) Regulations extended existing regulation to outlaw discrimination when providing goods or services to transsexual people. The definition of "transsexual" used in the Gender Equality Duty is still technically the same as that in the Sexual Discrimination Act; however, this legislation was meant to prevent discrimination against all transgender people.[5]

The Equality Act 2010 officially adds "gender reassignment" as a "protected characteristic", stating that:

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.[15]

This law provides protection for transsexual people at work, in education, as a consumer, when using public services, when buying or renting property, or as a member or guest of a private club or association.[16] Protection against discrimination by association with a transsexual person is also included.

The Equality Act 2010 prohibits discrimination against people with the protected characteristic of gender reassignment in the provision of separate and single-sex services but includes an exception that service providers can use in exceptional circumstances.[17] In general, organisations that provide separate or single‑sex services for women and men, or provide different services to women and men, are required to treat transsexual people according to the gender role in which they present.[17]

However, in limited circumstances, treating transsexual people differently may be lawful. For example, excluding a transsexual woman from group support sessions within a sexual abuse crisis centre and instead electing to provide individual support privately, may be justified if her presence is considered detrimental to the support of other service users.[18] This is likely to meet the legal requirements of the exemption in the Equality Act which states that it may be applied as "a proportionate means of achieving a legitimate aim". The exclusion can only be applied on an individual case-by-case basis and must not form part of a blanket policy for the treatment of transsexual people (Equality Act 2010, Schedule 3, Part 7; Equality Act 2010, Schedule 23).

In 2018, a spokesperson for the Government Equalities Office maintained that the government had no plans to amend the Equality Act 2010 either directly or indirectly, and that it planned to maintain the Equality Act's "provision for single and separate sex spaces".[19]

In addition to the basic legal protection afforded by the Equality Act 2010, the UK government has published good practice guidance on providing services that are inclusive of transgender people as customers, clients, users or members.[18]

Some transgender rights activists, such as Transgender Equality & Rights in Scotland, advocate adding the category of "gender identity," "in order to be more clearly inclusive of those transgender people who do not identify as transsexual and do not intend to change the gender in which they live". They also want to introduce measures that would clarify protections from discrimination in education, certain kinds of employment, and medical insurance.[20]

Marriage[edit]

Corbett v Corbett[edit]

The legal case of Corbett v Corbett, heard in November and December 1969 with a February 1971 decision, set a legal precedent regarding the status of transsexual people in the United Kingdom. It was brought at a time when the UK did not recognise mutual consent as reason enough to dissolve a marriage. Arthur Corbett, the plaintiff, sought a method of dissolving his marriage to the model April Ashley, who had brought a petition under the Matrimonial Causes Act 1965 for maintenance. As a result of Justice Ormrod's decision, the marriage was deemed void, and an unofficial correcting of birth certificates for transsexual and intersex people ceased.

In the 1980s and 1990s, the pressure group, Press for Change, campaigned in support for transgender and transsexual people to be allowed to marry,[21] and helped take several cases to the European Court of Human Rights.[22] In Rees v. United Kingdom (1986), the court decided that the UK was not violating any human rights.[23]

Situation since the Gender Recognition Act 2004[edit]

Since the Gender Recognition Act 2004, transgender people who are married have been required to divorce or annul their marriage in order for them to be issued with a Gender Recognition Certificate (GRC). The government chose to retain this requirement in the Act as, effectively, it would have legalised a small category of same-sex marriages. The Civil Partnership Act 2004 allowed the creation of civil partnerships between same-sex couples, but a married couple that includes a transgender partner cannot simply re-register their new status. They must first have their marriage dissolved, gain legal recognition of the new gender and then register for a civil partnership. This is like any divorce with the associated paperwork and costs.

With the legalisation of same-sex marriage in England and Wales, existing marriages will continue where one or both parties change their legal gender and both parties wish to remain married. However, civil partnerships continue where only both parties change their gender simultaneously and wish to remain in their civil partnership. This restriction remains as, effectively, it would legalise a small category of opposite-sex civil partnerships. The legislation also does not restore any of the marriages of transgender people that were forcibly annulled as a precondition for them securing a GRC; a GRC will not be issued unless the spouse of the transgender person has consented.

If the spouse does not consent, the marriage must be terminated before a GRC may be issued. Marriages conducted in Northern Ireland, even if the parties are living in mainland UK, cannot legally divorce, as same-sex marriage remains illegal.[24] By contrast, Scottish same-sex marriage law does not allow a person to veto their spouse's gender recognition in this manner.[25]

Summary by legal jurisdiction and territory[edit]

Transgender rights in: Right to change legal name Right to change legal gender Right to access medical treatment Right to marry Military service Anti-discrimination laws Hate speech/hate crime laws
EnglandWales England and Wales Yes Deed poll and Statutory Declaration available Yes Gender Recognition Act 2004 Yes Since 1999 via court case of North West Lancashire Health Authority v A, D and G. Yes Since 2004 Requires divorce in some circumstances in the Marriage (Same Sex Couples) Act 2013 Yes Since 1999 Yes Equality Act 2010, with some exemptions Yes s146 of the Criminal Justice Act 2003
Scotland Scotland Yes Deed poll and Statutory Declaration available Yes Gender Recognition Act 2004 Yes Since 2004 Yes Since 1999 Yes Equality Act 2010, with some exemptions
Northern Ireland Yes Deed poll and Statutory Declaration Yes Gender Recognition Act 2004 Yes Same Sex marriages recognised as Civil Partnership Yes Since 1999 Yes Equality Act 2010, with some exemptions

See also[edit]

References[edit]

  1. ^ "Government Policy concerning Transsexual People". People's rights / Transsexual people. U.K. Department for Constitutional Affairs. 2003. Archived from the original on 11 May 2008.
  2. ^ "Greens to launch LGBT general election manifesto". Green Party. 24 February 2010. Archived from the original on 2 April 2015. Retrieved 1 April 2015.
  3. ^ McCormick, Joseph Patrick (2 March 2015). "Green Party leader to speak out against 'spousal veto' at PinkNews Debate panel". Pink News. Archived from the original on 3 July 2015. Retrieved 17 May 2015.
  4. ^ Duffy, Nick (1 May 2015). "Green Party wants every teacher to be trained to teach LGBTIQ issues". Pink News. Archived from the original on 18 May 2015. Retrieved 17 May 2015.
  5. ^ a b c d "Transgender: what the law says". equalityhumanrights.com. Equality and Human Rights Commission. Archived from the original on 18 March 2015. Retrieved 5 April 2015.
  6. ^ "Applying for a Gender Recognition Certificate". Gov.uk. The UK Government. Archived from the original on 25 April 2015. Retrieved 5 April 2015.
  7. ^ "Reform of the Gender Recognition Act 2004". GOV.UK. Retrieved 11 October 2018.
  8. ^ Paton, Callum (3 May 2015). "Mr, Mrs, Miss... and Mx: Transgender people will be able to use new title on official documents". The Daily Mail. Archived from the original on 3 May 2015. Retrieved 2 May 2016.
  9. ^ "HESA parameters for SEXID". Higher Education Statistics Agency. Archived from the original on 16 August 2016. Retrieved 2 May 2016.
  10. ^ "Legal Recognition For People Who Do Not Associate With A Particular Gender". UK Parliament. Archived from the original on 21 May 2016. Retrieved 2 May 2016.
  11. ^ Jo McKillop. "Consider taking EDM660 forward into law". Petitions. UK Government and Parliament. Missing or empty |url= (help)
  12. ^ "Community Post: UK Govt Asked To Recognise Non-Binary Gender". BuzzFeed Community. Archived from the original on 17 September 2016. Retrieved 6 May 2016.
  13. ^ Duffy, Nick (12 September 2015). "Government claims there will be 'social consequences' if trans people can pick their legal gender". Pink News. Archived from the original on 22 August 2016. Retrieved 27 October 2016.
  14. ^ Lodge, Cassian (15 January 2016). "The Trans Inquiry Report: A Non-Binary Summary". Beyond the Binary. Archived from the original on 27 October 2016. Retrieved 27 October 2016.
  15. ^ "Equality Act 2010". legislation.gov.uk. The National Archives. 2010. Archived from the original on 31 March 2015. Retrieved 5 April 2015.
  16. ^ "Discrimination: your rights". GOV.UK. Retrieved 30 September 2018.
  17. ^ a b "Services, Public functions and Associations: Statutory Code of Practice | Equality and Human Rights Commission". www.equalityhumanrights.com. Retrieved 1 September 2018.
  18. ^ a b "Providing services for transgender customers: a guide". GOV.UK. Retrieved 1 September 2018.
  19. ^ Kentish, Benjamin (25 June 2018). "Transgender people should not have right to use women-only spaces, government says". Independent. Retrieved 25 June 2018.
  20. ^ "Equality Act 2010". ScottishTrans.org. Transgender Equality & Rights in Scotland. Archived from the original on 11 April 2015. Retrieved 5 April 2015.
  21. ^ "British transsexuals to get right to get married". The New Zealand Herald. 10 December 2002. Retrieved 5 April 2015.
  22. ^ "Case Law - Trans Related cases in the European Court of Human Rights". Press for Change. Archived from the original on 25 February 2015. Retrieved 5 April 2015.
  23. ^ "Transsexuals' rights" (PDF). European Court of Human Rights. Archived (PDF) from the original on 3 July 2015. Retrieved 5 April 2015.
  24. ^ "Marriage (Same Sex Couples) Act 2013". Legislation.gov.uk. 19 July 2013. Archived from the original on 19 November 2013. Retrieved 7 April 2014.
  25. ^ "Scottish parliamentary committee votes to remove spousal veto from equal marriage bill". PinkNews. 16 January 2017. Archived from the original on 7 January 2016. Retrieved 2 November 2017.

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