The Gender Recognition Act 2004 (GRA) aimed to bring British law in line with rulings from the ECHR. It enabled transsexual people to obtain a Gender Recognition Certificate (GRC) which in turn permitted them to amend their birth certificate to reflect their acquired sex.
Careful readers will already have seen one of the issues with the act; a conflation of ‘sex’ and ‘gender’, and this confusion (sometimes accidental, sometimes deliberate – the Hansard debates are interesting) dogs debate in this area. The act runs to 71 pages, but the highlights are as follows:
Certain criteria have to be met before a GRC can be issued by the Gender Recognition Panel (GRP).
- The applicant must have a clinical diagnosis of gender dysphoria
- The applicant must have lived in their acquired gender for at least two years (in practice, this is often a paper trail).
- The applicant must provide two letters from qualified clinicians (one of whom may be a psychiatrist)
- In the case of a married applicant, a declaration from their spouse is required.
In terms of the Equality Act 2010 (EA), using a transwoman as an example, those without a GRC would be treated as male; those with, as female. ‘Gender reassignment’ is one of nine protected characteristics under the act, but the definition is extremely unhelpful in terms of practical day to day service operation:
‘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.’
That notwithstanding, the EA allows for discrimination in the provision of single-sex spaces and services if they are ‘a proportionate means of achieving a legitimate aim’. This means it is lawful if necessary to exclude a transsexual from a single-sex space or service, whether or not they hold a GRC. However, the implementation of this restriction rests with service providers, resulting in a good deal of confusion which leaves the door open for exploitation by activists.
Protection against unlawful discrimination because of Gender Reassignment doesn’t of itself change legal sex nor entitle someone to use single sex services of the opposite sex. That is because they are excluded because of their sex not their gender reassignment. However, this has been misinterpreted, and one such misinterpretation was criticised by The Reindorf report (summary here) but has not been tested in court. Some Gender Critical people will call this interpretation “Stonewall Law”, because of the organisation which, rather stealthily, propounded this idea to its “champions” in government and business.
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