Gender Recognition Act

Jackie Doyle-Price Excerpts

Monday 21st February 2022 Westminster Hall

[Elliot Colburn]

Absolutely. There is a strong case, simply if we look at the statistics around GRCs, to show that the process does not work. The fact that only 1% to 3% of trans people go through the process of obtaining a GRC demonstrates to me that the process is too bureaucratic, too expensive for many and simply not fit for purpose.

[Jackie Doyle-Price (Thurrock) (Con)]

I hear the point that my hon. Friend makes, but should we not also consider whether GRCs fulfil any useful purpose? The GRA was introduced in 2004, at a time when we did not have same-sex marriage. We now do, so what is the point of a GRC?

[Elliot Colburn]

I think the point of a gender recognition certificate is the difficulty that trans people have in getting their legal gender recognised by very many bodies. That is why reform of the GRA to allow for an easier process to obtain a GRC is needed. We may need to come on to a discussion later about whether GRCs are fit for purpose in their entirety, and I would welcome that discussion, but given what we have been left with through these two bits of legislation, the first step is reform of the GRA to get us to that point—then we can look to the future.

The changes that were recommended in the Government’s 2018 consultation and in the two Women and Equalities Committee inquiries focused on three particular asks. The first was for the removal of the requirement to obtain a diagnosis of gender dysphoria before applying for a gender recognition certificate, as well as removing the need to provide medical reports detailing all treatment that people have undertaken. Both sides of the debate throughout the Select Committee inquiry agreed with that. The 2018 Government consultation showed that 64% agreed with removing the need for a diagnosis and 80% supported the need to remove detailed medical reporting.

The second ask was for the removal of the spousal veto, which requires a married transperson to obtain consent from their spouse before getting their legal gender recognised. Again, in the Select Committee inquiry there was agreement about this from both sides, and 85% of consultation respondents agreed that it should be scrapped.

Finally, there was a call to remove the need for transpeople to provide evidence that they have lived in their so-called “acquired gender” for two years prior to obtaining a GRC. That was condemned very strongly by both sides because it was felt that it reinforces gender stereotypes, and because there is no agreement on how to define or prove that someone has lived as a man or a woman for two years before obtaining legal recognition of their gender. Again, nearly 80% of people who took part in the Government consultation agreed that that should be removed.

Instead of having to collate all the information and submit it to the gender recognition panel, which from the anecdotal evidence we received is very confusing because there does not seem to be any accountability as to who sits on that panel or how it operates, the call was instead for a form of Registrar General to be introduced in England and Wales, before whom transpeople would have to make a legal declaration to an official in order to obtain a gender recognition certificate and legal recognition of their gender. That would, of course, come with consequences in law for any false declarations being made.

That change would not allow people to self-identify without an application to an official. The phrase “self-identify” has been confusing and, potentially, unhelpful. I admit that it conjures up images to those on the outside, who might think people can just wake up one day and decide to change their gender. That is not what the petition calls for, and I do not think anyone here would recommend that.

The model I have outlined has already been introduced in a number of countries, including Argentina, Brazil, Ireland, Denmark, Norway, France, Portugal, Greece, Iceland, Luxembourg and Malta, as well as four provinces of Canada and 10 states in the United States, and it is being introduced in New Zealand and Germany. The Irish model is probably the closest example to what some campaigners have been asking for, and is reported to have worked particularly well.

There is a lot of agreement, Sir George, about reform of the application process to obtain a GRC, so I hope the Government can take that away and look at it again, and that colleagues here, as well as those who have not taken part in the debate but would have liked to, can come together to realise that politics is a battle for hearts and minds, but we do not need to be at each other’s throats to talk about this subject.

There are strongly held views, and a temptation to steer the conversation into areas that are not directly relevant to the GRC, but we have to appreciate that transpeople face huge challenges in the country today, not least recognition of their gender, as well as the violent and sexual crimes to which they are subjected. They are twice as likely as other LGBT+ people to be subjected to conversion therapy, for example, and they face discrimination in their everyday lives.

However, there is reasonable and understandable concern, particularly from women, about the protection of sex-based rights. That comes from unacceptably high levels of physical and sexual violence towards women, which creates concerns about erosions of these rights. We must allow space and time for everyone to legitimately be heard, and to find a way forward.

Change is a slow process. I know that is frustrating to hear, particularly in the age of social media in which we live, where we demand instant gratification and action, but in my short time in this House I have found the real world, and the battle for hearts and minds, to be infinitely more complex. We have a duty to lead from the front, in order to remove the toxicity from the debate, because continuing in that way will not end well. It will just push people further in one of two directions, or leave them afraid to say anything or to act.

I urge colleagues to join me today in trying to take the toxicity out of this debate. Let this be the moment that we come together to do more and express the real and genuine concerns held on both sides, so we can work towards what everyone wants: a society where the rights of all are respected, and where what people get out of the country is what they are willing to put in.

Let us try to be the leaders on this issue that the country needs right now and calm this debate down, working together across the divide to find the answers and find the way forward.

--- Later in debate ---

[Jackie Doyle-Price (Thurrock) (Con)]

It is a pleasure to serve under your chairmanship today, Sir George. It was also a pleasure to listen to the opening speech by my hon. Friend the Member for Carshalton and Wallington (Elliot Colburn), who I think set the tone extremely well.

If there is one thing that I think about this debate, it is that it has become very toxic. It is—dare I say it—rather too binary. There is, in effect, a clash of rights here between sex and gender, and I am afraid that we, as a political class, have failed. We have failed to show leadership in this area, and it is high time that we did. We should not run shy of debating these issues.

However, by viewing the issues through the sentiments of the petition and the existence of the current Gender Recognition Act, we are rather limiting ourselves when it comes to the remedies to ensure that we properly empower people of all genders—however anyone wishes to live and express themselves. As I said in my intervention on my hon. Friend, that Act predates same-sex marriage. We really need to have a fresh look at how we approach all issues of sex and gender in our legislation, because the world has changed. The hon. Member for Wallasey (Dame Angela Eagle) was absolutely right: the Act was groundbreaking in 2004, but it now looks very out of date.

I make one comment about the toxicity of the gender recognition debate. We can all condemn the abuse and vitriol that people are exposed to when they engage in the debate, but we must recognise that the reason why that happens is that, for many people, this is very personal. It is very personal for the transgender person who thinks that their existence is being erased, and equally personal for women who feel that their sex-based rights, for which they and their forebears fought for generations, are being erased. However, it should not be beyond the wit of us all, as policy makers, to overcome that, because the truth is that they are both right. We have to get behind that and keep up with meaningful solutions.

As I said, we need a fresh look at the whole issue of how we tackle sex and gender in our legislation. I come to the point mentioned by the hon. Member for Wallasey and my hon. Friend the Member for Carshalton and Wallington: the fact that so few trans people actually apply for a GRC. That, perhaps, begs the question of whether we need a GRC. Do we need a GRA that enables people to have a certificate that confirms their gender? In this country, we do not need papers to tell us who we are and how we live.

That is really the point: what useful purpose does a GRC serve? I look forward to hearing the Minister’s views on that. I know we are looking at it from what has been described as a “minor reform”, but let us just challenge the purpose of the documentation. What is it designed to deliver? Does it really deliver any enhanced rights over and above those that anyone has under the law as it is?

For a lot of people, moving towards self-ID puts trans people on a collision course with women’s rights—a collision course that no one really wants to see—so I want a more challenging approach. For me, the way forward is not about establishing gender recognition certificates; it is about going into our laws to determine where sex matters and where gender identity can prevail.

There are a number of areas where sex needs to trump gender, one of which is health. It is fundamentally unhelpful for people’s declared gender to trump their sex on their medical records. We are seeing people not being called for routine screenings, based on sex, for example. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) said that transgender prisoners are risk-assessed in the criminal justice system—well, they are if they do not have a GRC, but a trans woman with a GRC is automatically put in the women’s estate. [Interruption.] It is the transgender person who self-declares who is risk assessed—

[Sir George Howarth (in the Chair)]

Order.

[Jackie Doyle-Price]

We have transgendered prisoners with or without a GRC in the women’s estate.

It should be for service providers to risk-assess their premises. That would be a safer situation all round. Do we need to rely on a piece of paper that is no longer necessary? I come back to the fact that the Act was passed to enable same-sex marriages, which are now uniformly enabled in law, so do we need a GRC?

The other area where sex really matters is in sport. It appals me, as I am sure it appals most people, that sports governing bodies are turning a blind eye to women’s sport being destroyed by transgender athletes, where there is an innate physiological advantage. This is all practical common sense. We as a political class have neglected to grip these issues for so long that we have allowed this toxic debate to happen. We have allowed the extremes to happen, and it is incumbent on all of us, as my hon. Friend the Member for Carshalton and Wallington said in his opening remarks, to bring back some common sense. We as legislators need to have cool heads and come up with a law that suits anyone and that empowers transgendered people to be who they want to be and to live their lives free of prejudice and discrimination, but that enables everyone to be comfortable with that and that protects women’s spaces.

--- Later in debate ---

[Mike Freer]

I think the hon. Lady jumped to the bottom of the page, because the Government recognise that the reference to “disorder” in the Act is outdated and dehumanising, and it will be removed.

I want to ensure that we remember the people involved. Many Members have talked about the people who are impacted by our debate, and again the conversation has become too toxic. Bizarrely, I have been described as a misogynistic self-hating gay because I support trans rights. The ability to have a rational conversation about some of these issues has passed too many people by. We have a responsibility to ensure that we make our decisions based on fact.

I am sorry that I am digressing, but I do feel quite passionately. I must correct this completely wrong view that a trans woman can be placed in a prison of her choice. That is simply not true. Three years ago, the Ministry of Justice changed the rules, and now a prisoner will be placed in the estate that is most suited to their position—what their status is on the transition journey, their treatment and what their physicality is like. It is not just simply: “Hello, I’m a woman and I’d like to be in a woman’s prison, please.” That simply is not true. It is important not to minimise the concerns that people have about what has happened in the past, but it is equally right that we make sure that we base our arguments on fact.

[Jackie Doyle-Price]

I welcome what my hon. Friend has just said, but is not the critical point that the Ministry of Justice has a framework in place for risk assessing each individual who identifies as the opposite gender? By using that risk assessment tool, people can be allocated to the correct prison that suits their needs and the needs of their fellow prisoners. Does that not get to the heart of what we really ought to be getting to here, which is for service providers to have sensible policies to manage any inherent tension in what they are delivering?

[Mike Freer]

My hon. Friend is absolutely right, and I will perhaps come on to some of the guidance in a few minutes. However, I wanted to put on the record that some of what is misinterpreted as going on in prisons simply does not occur. The rules have changed, I think three years ago. For reference, I refer colleagues to the answer given at the last Women and Equalities questions by the Under-Secretary of State for Justice, my hon. Friend the Member for South Suffolk (James Cartlidge).

To return the previous point, we are taking steps to amend a specific reference to “disorder” in the Act via a remedial order as soon as possible. In my view, trans people deserve the dignity of being known as their true selves, which for some will include a very personal decision of accessing a robust legal gender recognition certificate system.

It is important to remember that changing legal sex is only one part of the picture. Trans people can and do go about their daily lives as their true selves, including with documents that match their acquired gender, without needing to apply for a GRC. For some, a GRC will be a necessary next step—if they wish to get married in their acquired gender, for example—but that will not be the route for everyone. We often get caught up in focusing on the Gender Recognition Act.

On the subject of the GRA, the 2018 consultation was extensive and it received more than 100,000 responses. We looked carefully at all the issues raised in the consultation. It remains the Government’s view now, as in September 2020 when we responded formally to the consultation, that the balance struck in the legislation is correct: the system provides proper checks and balances, while supporting people who want to change their legal sex. The system is sound. The system is robust. It works in a balanced way for all parties. But that does not mean—as I said at the outset—that we cannot work on ensuring that the process, with all the issues that many Members have raised, is addressed and resolved. That does not mean that we are not working to make things better.

The system can be streamlined to make it more straightforward. People have poked fun about the cost being reduced, but that was an important step. It was something we were able to do quickly because it did not require primary legislation. Members commented on the digitisation process, and all our feedback from beta testing—that is where it is, at the beta testing phase—is that the process is much improved and that those who have used it found it more straightforward and helpful.

I accept, however, the views of Members about the intrusive nature of the information that might have to be required for a panel. I will take that away and look at exactly what has to be provided to see whether it is still relevant. As with many things in Government, we tend to bolt things on and rarely take them away. Perhaps it is time to look at what we are asking for and to see whether it is still relevant.

Numerous Members commented on spousal veto. We will address many of the issues raised today in the formal response to the Women and Equalities Committee report. That response will be published shortly. I understand, however, that the Divorce, Dissolution and Separation Act 2020, which is to come into effect imminently, will remove what is known as spousal veto. I am sure that, if I have got that wrong, officials will quickly give me a kicking.

I turn to single-sex spaces. I assure colleagues that we will not be changing the Equality Act. For many years, trans people have used single-sex spaces in their gender without issue. The Government have no interest in curtailing that. It is also important that we maintain existing provisions that allow organisations to provide single-sex spaces. The Equality Act already allows service providers to restrict access to services on the basis of sex and gender reassignment, where that is justified.

A lot of media attention has been given to the Equality and Human Rights Commission and its work to provide clarity to service providers on the provision of single-sex services, which has long been called for. My hon. Friend the Member for Carshalton and Wallington said that it might be time to ensure that there is more clarity about what the Equality Act allows. I have spoken to the chair of the EHRC. We had a fruitful, if frank, conversation about how we are not seeking to change the Act, while recognising that for some people—as many have said today—clarity about its provisions might be welcomed. The EHRC is of course independent of the Government, which the Equality Act 2006 provides for. However, I am happy to reiterate our commitment to maintaining the existing provisions under the Equality Act 2010.

I will now turn to some wider issues that impact on the LGBT community. Trans lives are impacted not just by legal recognition. I know from my conversations with trans people and organisations that more needs to be done to improve the health and safety of trans people. Since I took up this role, I have gone out of my way to engage with stakeholders in the trans community and I saw for myself, when I visited CliniQ and met service users and the dedicated staff and volunteers, exactly the level of support that is needed and provided by the amazing team of clinicians and volunteers.

As numerous Members have said and as far as I am aware, no one in this Chamber is a trans person and therefore we cannot speak from personal experience. It was important in my role to ensure that I heard from trans people themselves. However, I also want to put on the record my personal commitment that the proposals in the Conversion Therapy (Prohibition) Bill—I realise we may have some differences to overcome on particular provisions—will include protecting the trans community.