Transgender rights in the United Kingdom

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Since the 1990s, a series of laws have gradually been affording more rights and protections to transgender people in the United Kingdom in the areas of identity documents, right to marry, and anti-discrimination measures in the areas of employment, education, housing, and services.

Transgender people were sometimes 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 UK government, 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 to include anti-harassment wording in the 2000s, and 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.

Medical classification

In December 2002, the Lord Chancellor's office published a Government Policy Concerning Transsexual People document that categorically states that transsexualism "is not a mental illness".[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

Historically transgender people in the United Kingdom have succeeded in having their birth certificates changed and marriages conducted. This was first legally challenged in the 1960s in the case of Ross Alexander, where the Court of Session ruled that the certificate change was legitimate for the purposes of inheriting a title, a decision later upheld by the Home Secretary. The case was held secretly and in a Scottish court, and there was not a publicly reported case in an English court until 1970.[5] That year, in the case of Corbett v Corbett, Arthur Corbett attempted to annul his marriage to April Ashley on the grounds that transsexuals were not recognised by English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they were assigned at birth.[6] This set the precedent for the coming decades.

The Act was drafted in response to court rulings from the European Court of Human Rights. The European Court of Human Rights ruled on 11 July 2002, in Goodwin & I v United Kingdom, (a.k.a. Christine Goodwin & I v United Kingdom [2002] 2 FCR 577), that rights to privacy and family life were being infringed: "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 judgement, 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.[7]

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, affording them full recognition of their acquired sex in law for all purposes. 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, although 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 demonstrate to a 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.[8]

Non-binary gender

The title "Mx.", is widely accepted in the United Kingdom by government organisations and businesses as an alternative for non-binary people[9] while HESA allows the use of non-binary gender markers for students in higher education.[10] In 2015 early day motion EDM660 was registered with Parliament.[11] 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.[12][13]

In September 2015 the Ministry of Justice responded to a petition calling for self-determination of legal gender, saying that they were not aware of "any specific detriment" experienced by nonbinary people unable to have their genders legally recognised.[14] In January 2016 the Trans Inquiry Report by the Women and Equalities Committee called for nonbinary people to be protected from discrimination under the Equality Act, for the X gender marker to be added to passports, and for a wholesale review into the needs of nonbinary people by the government within six months.[15] As of October 2016 the government has done none of these things.

Discrimination protections

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.[7] 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.[7]

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, but this legislation was also meant to prevent discrimination against all transgender people.[7]

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.[16]

Some trans 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.[17]

Voting

There are concerns that, if a transgender person's documentation seems not to correspond to their current appearance or if the name and gender on multiple forms of documentation is inconsistent, they may have difficulty voting.[18]

Marriage

Corbett v Corbett

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, and 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,[19] and helped take several cases to the European Court of Human Rights.[20] In Rees v. United Kingdom (1986), the court decided that the UK was not violating any human rights.[21]

Situation since the Gender Recognition Act 2004

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 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 and states that 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.[22] By contrast, Scottish same-sex marriage law does not allow a person to veto their spouse's gender recognition in this manner.[23]

Summary by legal jurisdiction and territory

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

References

  1. ^ "Government Policy concerning Transsexual People". People's rights / Transsexual people. U.K. Department for Constitutional Affairs. 2003. Archived from the original on 2008-05-11. 
  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. ^ Playdon, Zoe-Jane (1996). "The Case of Ewan Forbes". Press for Change. Archived from the original on 2 December 2008. Retrieved 9 November 2008. 
  6. ^ Associated Press (3 February 1970). Judge in Britain Rules Surgery Cannot Alter a Person's Sex. New York Times
  7. ^ 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. 
  8. ^ "Applying for a Gender Recognition Certificate". Gov.uk. The UK Government. Archived from the original on 25 April 2015. Retrieved 5 April 2015. 
  9. ^ 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 29 April 2016. Retrieved 2 May 2016. 
  10. ^ "HESA parameters for SEXID". Higher Education Statistics Agency. Archived from the original on 16 August 2016. Retrieved 2 May 2016. 
  11. ^ "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. 
  12. ^ Jo McKillop. "Consider taking EDM660 forward into law". Petitions. UK Government and Parliament. 
  13. ^ "Community Post: UK Govt Asked To Recognise Non-Binary Gender". BuzzFeed Community. Archived from the original on 17 September 2016. Retrieved 6 May 2016. 
  14. ^ Duffy, Nick. "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. 
  15. ^ Lodge, Cassian. "The Trans Inquiry Report: A Non-Binary Summary". Beyond the Binary. Archived from the original on 27 October 2016. Retrieved 27 October 2016. 
  16. ^ "Equality Act 2010". legislation.gov.uk. The National Archives. 2010. Archived from the original on 31 March 2015. Retrieved 5 April 2015. 
  17. ^ "Equality Act 2010". ScottishTrans.org. Transgender Equality & Rights in Scotland. Archived from the original on 11 April 2015. Retrieved 5 April 2015. 
  18. ^ Duffy, Nick (6 March 2018). "Fears that UK 'voter ID' rules could stop transgender people from voting". Pink News. Retrieved 28 March 2018. 
  19. ^ "British transsexuals to get right to get married". The New Zealand Herald. 10 December 2002. Retrieved 5 April 2015. 
  20. ^ "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. 
  21. ^ "Transsexuals' rights" (PDF). European Court of Human Rights. Archived (PDF) from the original on 3 July 2015. Retrieved 5 April 2015. 
  22. ^ "Marriage (Same Sex Couples) Act 2013". Legislation.gov.uk. 2013-07-19. Archived from the original on 2013-11-19. Retrieved 2014-04-07. 
  23. ^ "Scottish parliamentary committee votes to remove spousal veto from equal marriage bill". PinkNews. 2017-01-16. Archived from the original on 2016-01-07. Retrieved 2017-11-02. 

External links

  • Gender Recognition Panel
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