The trans inquiry report was released today. As a witness I received the report a few days early, which has given me the time to read and reflect on it. I thought I’d use this time to write a blog post, highlighting the things which really stood out to me, the good and the bad. This is the first part covering my thoughts on the first 5 chapters.
The first thing that interested me, highlighted in paragraph 13, is that the inquiry covered a wide range of policy areas, but due to devolution in the UK health services, schools and social care are only covered for England. The comments on the criminal justice system only cover England and Wales, under which gender recognition comes. This is great for those of us in England, but if we were hoping this inquiry might address the lack of a gender clinic in Wales or problems faced for trans people in Northern Ireland, then this is not the case. I hadn’t realised this would be a limitation of this inquiry until I read this report, but I can see that there will be much more work to be done in parts of the UK that are not England.
Non-binary and non-gendered people
There have been concerns that the report was going to leave non-binary people out, and ignore their existence, and despite being binary gendered myself I would not feel comfortable accepting change if it means selling out the rights of non-binary people. Right from paragraph 3 of the introduction, it is made clear that whilst non-binary identities feature in the report, they are certainly not a priority.While issues relating to these particular [non-binary and non-gendered] trans identities do feature in this report, it was not possible within the scope of our inquiry to undertake an in-depth consideration of the position of all non-binary and non-gendered people.Now, having read the entire report, I'm not sure this is necessarily a negative thing. They are simply saying that they did not have the time or resources within this inquiry to properly take into account the needs and wishes of all non-binary and non-gendered people, and perhaps for them to admit that they have not been able to investigate this fully is better than them making an inadequate attempt at covering them.
The rest of paragraph 3 recognises that non-binary people exist and do face specific needs which will need to be addressed by the government.
However, we note that increasing numbers of trans people do identify as nonbinary or non-gendered and many of our recommendations will address some of the problems faced by people with these identities. But there is a need for Government policy to address their specific needs.Non-binary people are mentioned throughout the rest of the report, and I will come back to them as I go through the different sections. The feeling I got from reading this was that they considered non-binary people to be something other than trans, and not to come under the scope of their 'trans' inquiry.
I’m not sure about the definition and terminology given to describe non-binary people in paragraph 3, but as I don’t identify as non-binary I will wait to see how it is received by non-binary people themselves.
Advancing transgender equality: a plan for action
The first proper section of the report is entitled 'Cross-government strategy' and is really concerned with a report that was undertaken in December 2011 called 'Advancing transgender equality: a plan for action'. I've never heard of this plan, and the evidence given seems to be that not much came of it, and the action set out within it was not put in place.However, the inquiry recognises that it ‘remains largely unimplemented’ , and says that ‘within the next six months the Government must agree a new strategy which it can deliver’ (paragraph 26) as well as look at the previous plan and tell us which actions have been completed and which are still outstanding. A new strategy must be agreed to tackle the issues which remain unaddressed.
Right at the end of this paragraph they say that this new plan ‘should also include a wholesale review of issues facing non-binary and non-gendered people’. This is within the context of a strategy that the inquiry has said must be produced within the next six months, and so it would appear that non-binary people are not going to be forgotten in this context, and if we have no results in six months time, then we have a concrete piece of evidence to use to force something to happen.
Smash the Gender Recognition Act
When it comes to legal gender recognition, one huge flaw with the current system is that non-binary genders cannot be legally recognised. The report states that 'the Government must look into the need to create a legal category for those people with a gender identity outside that which is binary and the full implications of this' (p 31). Whilst it's positive non-binary people's needs appear to be recognised here, there are no time scales given and it does not seem as strong as the later recommendations in this section. It may be good if they do take the time to fully investigate how best to implement legal recognition for non-binary genders, in order to ensure there are no flaws or problems with the new system, but this is time during which non-binary people will continue to be failed by our legal system, and have to live with being misgendered constantly.I was annoyed by some factual errors made in this report with regard to the current law and guidance on the gender recognition process. Firstly in the section entitled ‘providing proof’ paragraph 32 lists the things required for a gender recognition certificate. Unfortunately it implies that only one medical report is required, when in fact two reports are required. One must be from a registered medical practitioner or registered psychologist practising in the field of gender dysphoria, and the other can be from any other registered medical practitioner, such as your GP.
In paragraph 35 they state that medical treatment is not required, but ‘the Panel may ask for evidence regarding why treatment has not been commenced’ but in fact the official guidance to filling in the form for a GRC states that ‘if you have not undergone surgery the report must explain why‘. They haven’t managed to get some of the basic information about the current gender recognition law correct, which is readily available on the internet. Alternatively, perhaps the guidance provided to the public differs from the actual law, in which case we’re being lied to and told we need evidence that isn’t necessarily required.
I don’t think the inquiry has managed to fully grasp how awful the concept of the gender recognition panel is and how invasive the requests for documentation and evidence is despite being told by many people.
However, for binary trans people we have a major victory as the report says that ‘within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration‘ (p 45). This is the model that was suggested to the inquiry by trans people as well as the model used in several other countries such as Ireland and Malta who have more progressive gender recognition laws. It’s good to see that they have listened on this point, it’s just incredibly disappointing that it won’t include recognition of non-binary genders from its inception.
Age
Another aspect of gender recognition law which is important, is the age at which one is allowed to apply for gender recognition, which is discussed from paragraph 64. At present it stands at 18 years old, and anyone younger simply cannot change their gender legally. The inquiry was presented with evidence that supported lowering this age limit, to those aged 16 and 17 years old, and younger with parental consent.There is a growing number of young trans people in the UK and the report outlines the reasons for granting gender recognition to children under 16, either with parental consent or similar to some other countries where there are court procedures. The report recommends ‘provision should be made to allow 16- and 17-year-olds, with appropriate support, to apply for gender recognition, on the basis of self-declaration’ (p 70) which is a step in the right direction, but does not go far enough, as it goes on in paragraph 71 to say they are ‘very cautious’ about recommending gender recognition for children under 16. There is no reason given for this, and I would very much like to know why they have dismissed the overwhelming evidence they received in support of gender recognition for children under 16.
Spousal veto
The spousal veto is something which trans people are usually very familiar with, where in order to get gender recognition whilst married or in a civil partnership, the non-trans partner has to consent. This means gender recognition for people who are married or in a civil partnership can be delayed or even stopped completely by their non-trans partner.Despite evidence demonstrating ‘widespread hostility’ (p 49) to the spousal veto, the report upholds the need for it as ‘marriage is a legal contract’ (p 62) and whilst the Ministry of Justice Minister said that they won’t ‘rule out considering the Scottish approach to this issue’ (p 59), the Government won’t be taking any further action on this issue, unless a case occurs and is brought to their attention.
This is a disheartening response, and one I’m sure many trans people will be unhappy with.
Equality Act 2010
Something I have wondered about, and discussed with friends is whether or not non-binary people are covered under the Equality Act's protected characteristic of 'gender reassignment'. The report goes into this in quite some detail, which I found very interesting to read, and actually learnt from.Under the current law it is unclear at best as to whether non-binary people, and trans people who do not wish to medically transition are covered. Something which I think is really positive is that the report states that ‘the protected characteristic in respect of trans people under the Equality Act should be amended to that of “gender identity”‘ (p 108) to ensure that protection is given to anyone who might experience discrimination because of their gender identity.
Exemptions (here come the TERFs)
The Equality Act 2010 allows for the provision of separate-sex and single-sex services where this is “a proportionate means of achieving a legitimate aim”. In other words, services are allowed to discriminate against trans people, and not allow them to access separate-sex and single-sex services if they haveAs well as many arguments against the current exclusions, there was evidence submitted in favour of it by a group called Women Analysing Policy on Women, who turn out to be a very thinly veiled group of TERFs.
When the inquiry asked the Minister for Women and Equalities ‘how far she thought these
provisions were being used proportionately, appropriately and fairly‘ (p 122), she mentioned examples such as public changing rooms, bathing facilities, toilets and hospitals. Now she acknowledges these are huge areas, but there are very, very few cases in which these services should be allowed to exclude trans people. Public changing rooms, toilets and hospitals are places where the Equality Act should be protecting us, not banning us from using them. This is what the Minister for Women and Equalities thinks is an example of the provisions being used appropriately, and quite frankly that disgusts me.
The huge problem with allowing these kind of provisions which allow for discrimination, is that they are mostly based on how well someone ‘passes’, i.e. whether a trans person looks cis or not. This leads to discrimination against cis people who are perceived to be trans, as well as actively harming trans people.
Allowing for this standard of ‘passing’ to be applied to allow services to discriminate against people is deplorable, but the inquiry does not agree, and recommends that only people who hold a GRC should be protected from exclusion from services based on their gender identity. With gender recognition becoming easier to obtain, this won’t be so bad for binary trans people, but once again passes over non-binary people, or people who don’t feel they want to legally change their gender.
Sport
Although gendered sport isn't something I'm particularly interested or involved in, I think the recommendations in this section could produce something good. They 'recommend that the Government work with Sport England to produce guidance which help sporting groups realise that there are likely to be few occasions where exclusions are justified to ensure fair competition or the safety of competitors' (p 143). This would be an excellent piece of evidence to use in campaigning for more gender inclusive sport in schools and universities.NHS Services
This section starts off very strongly with 'we have found that the NHS is letting down trans people, with too much evidence of an approach that can be said to be discriminatory and in breach of the Equality Act.' (p 144), and covers a wide variety of NHS services including gender identity services.Before we get on to the gender identity services, I think the most notable conclusion made here is that ‘a root-and-branch review’ (p 184) of areas such as transphobic behaviour, and continued professional development for GPs, ‘must be conducted, completed and published within the next six months’.
Gender Identity Clinics
The conclusions reached for this section of the report don't go far enough in my opinion.An informed consent model is discussed, but they are ‘unconvinced of the merits’ (p 212) that this would provide. We evidently still have some way to go to reach a gender identity service that is fit for purpose and actually exists to serve and treat trans people.
I am however, pleased that they recognise that Gender Identity Services being under mental-health services is ‘a relic’ (p 209) and that they recommend it is transferred ‘to some other relevant area of clinical specialism’ or they are established ‘as a distinct specialism in their own right’ (p 209). This would certainly be a step in the right direction toward depathologizing us and an end to being transgender being seen as a mental disorder or illness.
There are calls for clinical protocols to be updated and standardised (p 213) and for patients to be fully involved in their treatment (p 214) which I would welcome, but with the NHS as it is, I can’t help but wonder if this will actually make any difference to how we’re treated in our local clinics.
Real life experience has been discussed in this section in some detail, and paragraph 215 summarises this. I have two problems with their conclusions: firstly they’ve missed the point that people are often forced to do ‘real life experience’ even before getting hormones, not just before genital surgery. Secondly, this bullshit about real life experience ‘preparing the patient to cope with the profound consequences of surgery’ doesn’t even make sense. How is living in your prescribed gender role going to help with getting surgery on your genitals? For most of our daily lives our genitals are not visible, they don’t affect how we go to school or work, and experiencing life as one gender before we are allowed the associated genitals certainly isn’t a necessity, and I don’t see how helps.
Capacity
It's common knowledge that Gender Identity Services are in crisis, but once again we are simply told that the waiting times are 'unacceptable' (p 229) without any plan for how this is actually going to be addressed.There is a lack of specialist clinicians, and I eagerly await the response from the Department of Health on ‘how it will work with Health Education England and other stakeholders to ensure that this is addressed’ (p 230).
More factual mistakes
I picked up on another factual mistake in the section on 'children and adolescents' in paragraph 239 which states that 'hair-loss and hair-growth are reversible' which is not true. Any hair that has started to grow as a result of hormones treatment will continue to grow and will need to be shaved or permanently removed using laser or electrolysis hair removal.Conclusion
These sections of the report contain many important promises for change, including self-declaration of legal gender, changes to the Equality Act and improvements for Gender Identity Services. However, I'm not one to put much trust in the establishment to follow through on their promises, and I'm sure it will ultimately come down to labour on trans people to hold these government officials to account over the coming months.Whilst I hope this report will trigger some important discussions and legislative changes for non-binary people, they won’t be immediate and only time, and a lot of hard work, will show if this report will actually bear fruit.