Transgender rights in the United Kingdom

Transgender rights in the United Kingdom have varied significantly over time, with transgender Britons facing certain social challenges not experienced by non-trans individuals. These include various laws and public attitudes in regards to identity documents, as well as anti-discrimination measures used by or pertaining to transgender people, in the areas of employment, education, housing and social services, amongst others.

Trans people have been able to change their passports and driving licences to indicate their preferred binary gender since at least 1970. Transgender people were, prior to the ruling in Corbett v Corbett, able to have their birth certificate informally amended to reflect their gender identity. The ruling prevented the amendment of the sex marker on birth certificates for other than clerical errors. The 2002 Goodwin v United Kingdom ruling by the European Court of Human Rights resulted in parliament passing the Gender Recognition Act of 2004 to allow people to apply to change their legal gender, through application to a tribunal called the Gender Recognition Panel. The application requires the submission of medical evidence and a statutory declaration. The tribunal is made up of medical and legal members appointed by the Lord Chancellor.

Anti-discrimination measures protecting transgender people have existed in the UK since 1999, and 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 the UK, with the exception of Northern Ireland, where this became an option nearly a decade later on 13 January 2020.

Since the late 2010s, the treatment of trans people in the UK has been an increasing source of controversy, particularly in regards to British news media. The Council of Europe criticised what it described as a "baseless and concerning" level of transphobia gaining traction in British society. YouGov noted an "overall erosion in support towards transgender rights" among the general public by the early 2020s, and while Ipsos found that most Britons supported trans people getting protections for discrimination, support for gender-affirming healthcare in the UK was amongst the lowest of the thirty countries they studied.

Medical classification

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]

Medical treatment for young people

In December 2020, the High Court ruled that children under 16 in England and Wales could not consent to puberty blockers, with NHS England consequently stating that any requirement for puberty blockers would have to be brought through a court order before treatment. On 29 January 2021, the High Court's order was stayed, and in September 2021 it was overturned (Bell v Tavistock),^[2] with the Court of Appeal saying that "it was for clinicians rather than the court to decide on competence" to consent to receive puberty blockers.^[3]^[4] The Appeal Court also ruled that the High Court should not have issued guidance on the Gillick test and puberty blockers, because that court should have dismissed the case when it ruled that the Tavistock guidance was lawful.^[2]

Despite the later successful appeal, the 2020 ruling caused interruptions to gender-affirming healthcare for children in the UK, with many reports of existing patients at GIDS having their treatment abruptly cut off.^[5]^[6] As of 2021 no minors were being referred for puberty blockers or hormone treatment on the NHS.^[7]^[8] As of February 2021^[update], it had not been made clear how a court order could be brought in order for a minor to access puberty blockers, and no court orders had yet been issued, with waiting lists for hormone treatment for adults on the NHS heavily exceeding targets of 18 weeks to first appointment.^[9]^[10] However, in a separate case (AB v CD and others), the High Court ruled in March 2021 that parents are allowed to give consent on behalf of their children to receive puberty blockers without having to gain a judge's approval.^[11]

In April 2022, Secretary of State for Health and Social Care Sajid Javid announced an inquiry into gender treatment for children, following concerns raised in the interim report of the Cass Review.^[12]^[13]

In June 2022, The Times reported Javid announcing a proposed change in UK medical privacy law, allowing the state to gain access to and scrutinise the medical records of all minors treated for gender dysphoria within the preceding decade, estimated at 9,000 people. The Times reported Javid having "likened political sensitivities over gender dysphoria to officials' fear of being labelled racist if they investigated abuse by men of Pakistani heritage in Rotherham".^[14]

At the end of May 2022, Tavistock GIDS, the NHS' only youth gender identity clinic, reported there were over 5,035 people on its waiting list. Young people seen for the first time that month had waited on average 1,066 days for a first appointment – just under three years.^[15] In July 2022, it was announced that the NHS would close Tavistock GIDS, with the intent of transitioning to a more regional system of care access.^[16]^[17]

On 12 March 2024, NHS England announced that it would no longer prescribe puberty blockers to minors outside of use in clinical research trials. The children who were already receiving puberty blockers via NHS England will be able to continue their treatment.^[18] NHS England hopes to have a study into the use of puberty blockers in place by December 2024, with eligibility criteria yet to be decided.^[19] Children in England can still be prescribed puberty blockers through some private clinics that are not associated with NHS England.^[20]^[21] On 11 April 2024, the Care Quality Commission announced it will check that licensed healthcare providers that are registered with the CQC which provide care to those who are questioning their gender identity are applying new guidance recommended by the Cass Review and will take enforcement action against private clinics that prescribe puberty blockers to under-18s contrary to the policy of NHS England. While the CQC will expect all private providers registered with them to take the Cass recommendations into account, they do not have to comply with them as private providers are not bound by Cass's recommendations. At present no CQC-registered private gender care clinic issues puberty blockers.^[22]^[23]

Despite this, on 21 March 2024, NHS England announced that it would prescribe hormones to children age 16 and older. This is a departure from GIDS policy, which stipulated that young people could only access hormones at 16 if they had been on puberty blockers for a year.^[24]

On 18 April 2024, Scotland's NHS announced that it would temporarily pause prescribing puberty blockers to children referred by its specialist gender clinic. The Sandyford clinic in Glasgow also said new patients aged 16 or 17 would no longer receive other hormone treatments until they were 18. The children who were already receiving puberty blockers and hormones will be able to continue their treatment. The decision to pause both these treatments for new patients was made to give the government time to review the evidence. The Scottish government plans to issue a position statement on these treatments in the coming weeks. The decision to pause these treatment prompted criticism from several organizations including the Scottish Trans and the Equality Network and the Rainbow Greens.^[25]

Proposed reform

NHS draft guidance obtained by Reuters indicates that, in response to a three-year wait time for access to gender-affirming care causing people to seek private-sector or unprescribed solutions, the NHS is considering banning private care providers from prescribing gender-affirming care, and mandating that the authorities be notified if a patient is found to be using unprescribed hormone medication. If a trans patient is found to be accessing any of these resources, they will be barred from receiving gender-affirming healthcare with the NHS. Furthermore, under the guidance, if an NHS doctor determines a patient should not be allowed access to gender affirming hormone therapy, they can advise the patient's primary care provider to initiate "safeguarding protocols".^[26] The draft guidance also included significant restrictions on social transition (such as changing one's pronouns and clothing), declaring it an active intervention with potential harms, and only authorising it in cases of "clinically significant distress or significant impairment of social functioning".^[27] The reported justification for this was the NHS's stated belief that health providers should be "mindful that this may be a transient phase, particularly for prepubertal children, and that there will be a range of pathways to support these children and young people and a range of outcomes."^[28] The proposed policy has been compared by some to conversion therapy.^[29]

The draft guidance's Equality and Health Inequalities Impact Assessment addressed potential concerns of discrimination based on the legally protected characteristic of "gender reassignment" by stating not all of the patients impacted by the proposal will be allowed to access such care by the NHS, and thus "To apply such a definition to these individuals is to make assumptions upon the aims and intentions of those referred, the certainty of those desires and their outward manifestation, and upon the appropriate treatment that may be offered and accepted in due course".^[30]

Criticism

In November 2022, the World Professional Association of Transgender Health published a statement in which it described the methodology of treatment suggested in the proposed reforms as "tantamount to 'conversion' or 'reparative' therapy", and that the psychotherapy route of treatment recommended "seems to view gender incongruence largely as a mental health disorder or a state of confusion and withholds gender-affirming treatments on this basis". The statement further says that the proposal "makes assumptions about transgender children and adolescents which are outdated and untrue", and that it "quotes selectively and ignores newer evidence about the persistence of gender incongruence in children". It also describes the requirement to obtain medical approval to change one's clothing or pronouns as "an unconscionable degree of medical and state intrusion", and that the proposal document "makes unsupported statements about the influence of family, social, and mental health factors on the formation of gender identity".^[31]

Sports

In September 2021, the UK Sports Council Equality Group issued new guidance saying that in their view, trans inclusion and "competitive fairness" cannot coexist in sports. The SCEG based its guidance on 300 interviews regarding personal opinions on the matter, conducted across 54 sports and 175 organisations, with only 20 of those interviewed being trans people.^[32]

In June 2022, conservative UK culture secretary Nadine Dorries met with the heads of UK sporting bodies and told them that "elite and competitive women's sport must be reserved for people born of the female sex".^[33]

In July 2022, the British Triathlon issued a blanket policy banning any athletes not assigned female at birth above the age of 12 from competing, instead requiring them to compete in a newly announced "open" category. This was a reversal of an earlier 2018 policy which allowed for trans inclusion once certain hormonal prerequisites had been met.^[34]

British Triathlon Chief Executive Andy Salmon was reported as stating that he was not "aware" of any elite-level trans athletes competing in triathlons in Britain, but did not want the governing body to wait for "that to be a problem" before it "tried to fix it".^[34]

Later that same month, both the Rugby Football League and the Rugby Football Union implemented similar bans. Both organisations described this as "a precautionary approach".^[33]

In March 2023, UK Athletics announced a ban on transgender women competing in the female category in the UK.^[35]

The UK Football Association's policy is to allow trans athletes on a case-by-case basis, with trans athletes generally being allowed so long as they meet certain hormonal prerequisites.^[36] In April 2023, The Football Association told CNN that "Our transgender policy has enabled many positive outcomes for people who wish to enjoy and play football either in their affirmed gender or in a safe and inclusive environment. This important subject is complex and is constantly evolving, and as a result, like many other national governing bodies in sport, we are currently reviewing our transgender policy for English football.”^[37]

In May 2023, British Cycling issued a ban on transgender women competing in women's events at elite levels of the sport.^[38]^[39]

Education

In December 2021, the Girls' Day School Trust, the largest network of girls' private schools in the UK, issued a blanket ban on trans girls being admitted to any of its schools.^[40]

In August 2022, Attorney General Suella Braverman opined that it is lawful for schools to misgender, deadname, ban from some sports, reject from enrolment based on their trans status, and refuse any and all other forms of gender affirmation to trans kids, and that to recognise their identities as trans could qualify as "indoctrinating children".^[41]

Transgender prisoners' rights

In England and Wales, the policy on trans women prisoners is that they will be housed in men's prisons if they have committed sexual or violent crimes or have male genitalia. In late 2023, it was announced that trans women prisoners in Scotland would be sent to a men's prison if their crime resulted in any suffering to a woman and they are considered to be a risk to women and girls.^[42]^[43]

Hate crimes

The Office for National Statistics has stated that it is not possible to conclusively identify transgender victims in current homicide statistics because the gender of the homicide victim is determined by the police force that records the crime, however between 2017 and 2018, the Home Office recorded 545 violent hate crimes against trans people.^[44] In October 2023, it was reported that hate crimes against transgender people in England and Wales had risen 11%, which represented 4,732 offences in the last year.^[45]

Research from the LGBT charity Stonewall has found that during that same period, 19% of trans people in the UK were victims of domestic abuse, compared to 7.9% of cis women and 4.2% of cis men.^[44]

Gender recognition

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 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.^[46]

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. 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. If the person's birth or adoption was registered in the United Kingdom, they may also be issued a new birth certificate after their details have been entered onto the Gender Recognition Register.

In June 2020, a report published by the European Commission ranked the procedure established in the Gender Recognition Act 2004 as amongst the worst in Europe with "intrusive medical requirements", which means it now lags behind international human rights standards.^[47]

In September 2020, the UK government published the results of a public consultation into reform of the Gender Recognition Act 2004 which had been launched in 2018.^[48] This showed majority support for wide-ranging changes, however the UK Government decided not to change the current law.^[49]

Cost

In April 2021, it was reported that the fee for a Gender Recognition Certificate would be reduced from £140 to £5 in early May 2021.^[50]^[51] People applying for a GRC still require additional documents that separately increase the cost of applying for a GRC to far more than this £5 fee, leaving many still financially unable to apply for the certificate.^{[citation needed]}

Legal recognition of non-binary identities

There are no formal legal recognitions for people of non-binary gender in any jurisdiction of the United Kingdom.^[52]^[53] However, non-binary status is recognised in the census of England and Wales.^[54] The title "Mx." is also accepted in the United Kingdom by government organisations and businesses as an alternative for non-binary people,^[55] while the Higher Education Statistics Agency allows the use of non-binary gender markers for students in higher education.^[56] In 2015, early day motion EDM660 was registered with Parliament,^[57] calling for citizens to be permitted access to the 'X' marker on passports. In 2016, a formal petition through the Parliamentary Petitions Service calling for EDM660 to be passed into law gained only 2,500 signatures before closing.^[58]^[59]

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.^[60] 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.^[61]

In May 2021, the Government rejected a petition to legally recognise non-binary identities, claiming there would be "complex practical consequences" for such a move.^[62] The petition has passed the threshold of 100,000 signatures to be considered for a debate in Parliament, which was held on 23 May 2022.^[63]^[64]

In January 2024, judges at the High Court in London ruled that, "We have decided that whenever the Gender Recognition Act refers to ‘gender’ it refers to a binary concept – that is, to male, or to female gender. The GRP accordingly, had and has no power to issue a gender recognition certificate to the claimant which says that they are ‘non-binary’."^[65]

Discrimination protections

The Sex Discrimination Act 1975 made it illegal to discriminate on the ground of sex in employment, education, and the provision of housing, goods, facilities and services.^[46] (The text of the Act was ambiguous as to the intended definition of "sex" —i.e. whether it referred to gender, legal gender, sex assigned at birth, or sex implied by biological traits when those designations would differ— except insofar as it defined "woman" as "a female of any age" and "man" as "a male of any age".) In 1996, the judgement in the landmark case P v S and Cornwall County Council in the European Court of Justice found that the plaintiff, a trans woman who was dismissed from her post after informing her employers that she was undergoing gender reassignment, had been unlawfully dismissed because "to dismiss a person on the ground that he or she intends to undergo, or has undergone, gender reassignment is to treat him or her unfavourably by comparison with persons of the sex to which he or she was deemed to belong before that operation."^[66]^[67] 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.^[46]

The Equality Act 2010 officially adds "gender reassignment" as a "protected characteristic", stating: "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."^[68] This law provides protection for transgender 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.^[69] Protection against discrimination by association with a trans 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.^[70] 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 trans people according to the gender role in which they present.^[70]

In limited circumstances, treating trans people differently may be lawful. For example, excluding a trans woman from group support sessions within a sexual abuse crisis centre and instead electing to provide individual support privately, may be legal if their presence is considered detrimental to the support of other service users.^[71] 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 trans people (Equality Act 2010, Schedule 3, Part 7; Equality Act 2010, Schedule 23).^{[citation needed]}

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".^[72]

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 trans people as customers, clients, users or members.^[71]

In 2020, the court case Taylor v Jaguar Land Rover Ltd ruled that non-binary gender and genderfluid identities fall under the protected characteristic of gender reassignment in the Equality Act 2010.^[73]

In July 2022, Vice News reported that the Financial Conduct Authority had planned to issue regulations which required the 58,000 businesses under its jurisdiction to allow trans people in their employ to self-declare their gender without the need for a gender recognition certificate. Vice reported that after receiving pressure from the Equality and Human Rights Commission, the FCA pivoted to a policy of requiring trans people to be referred to by the sex on their birth certificate, unless they have a gender recognition certificate, which only 1% of trans people in the UK possess. Following the corresponding backlash from LGBTQ employees within the FCA, all proposed policy changes were scrapped in their entirety.^[74]

Conversion therapy

On 31 March 2022, a Downing Street briefing paper leaked to ITV News showed that the government had planned to drop proposed legislation banning conversion therapy, following an announcement that ministers would explore non-legislative methods of handling the practice. The legislation would have included a ban on conversion therapy for transgender people.^[75] Within hours of the leaks, a senior government source stated that the legislation would be introduced in the Queen's Speech in May, and that plans to drop the legislation had been shelved following backlash within the Conservative Party and from media outlets. However, in a change from the originally announced plans to ban conversion therapy, the legislation would not criminalise conversion therapy against transgender people.^[76]^[77]

In response, at least 120 LGBT groups pulled out of the UK's planned first-ever Safe To Be Me conference on LGBT issues.^[78] Zdroj:https://en.wikipedia.org?pojem=Transgender_rights_in_the_United_Kingdom
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