The UK House of Commons Trans Equality Report 2016, was published today, January 14th, and contains several dozen recommendations for policy shifts and improvements in the UK’s treatment of its gender-variant citizens. Unlike Ireland, which started with the possibly dubious advantage of a clean slate in drafting its Gender Recognition Act last year, the UK has had a GRA in place since 2004. The Report recognises that this was, at the time, ‘world-leading’; it was implemented in good time following the decision of the ECtHR in Goodwin v UK (2002). However, the UK GRA 2004 has not aged well, and some of its provisions – although they may have been progressive at the time – now seem woefully lacking by best practice standards.
The Report has several interesting concentrations, among them the lack of recognition of non-binary individuals. A minority within a minority, persons who choose to identify as genderqueer, agender, or other identities operating outside of the male/female binary have been neglected in law even in comparison to binary-identified trans persons. By contrast to countries such as India, Pakistan, Nepal, and Bangladesh, neither the UK nor Ireland have a visible and vocal non-binary community (in the aforementioned jurisdictions, the phrase ‘third gender’ is often used as a catch-all which includes non-binary identities). However, there are similar, Westernised jurisdictions which recognise the right to identify as non-binary – Australia, since the case of NSW Registrar of Births, Deaths and Marriages v Norrie in 2014; Malta, with its Gender Identity, Gender Expression, and Sexual Characteristics Act 2015, to name two. The Report states that “[i]f Australia is able to implement such a policy, there is no reason why the UK cannot do the same,” a statement with which it is difficult to argue – and which could apply equally to Ireland.
Despite our progressive self-declaration legislation, Irish people may still only identify as either male or female. There is no facility for registering one’s identity outside of those options, which limits the freedom of gender-variant individuals to self-declare. The Yogyakarta Principles understand “gender identity” to mean “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms”, which clearly allows for a spectrum of gender identities. Equally, Malta’s GIGESCA 2015 allows for recognition of intersex as an identity, and removes any requirement for medical procedures before a child’s sex can be registered. There are few convincing arguments as to why this is not a workable option for other jurisdictions. Concerns over the function of registries and the possibility of “confusion” if more than two options were offered is dispensed with in a clear and logical fashion in the Norrie judgment. If we are to allow for rights for transgender individuals, it would seem contrary to the spirit of such legislation for those rights only to be extended to persons falling within socially comfortable categories. It is social conservatism which holds us back on these matters, there is no doubt; it is worth remembering that we are the ones who build the registry systems, and we are not stuck forever in their thrall in some manner of Kafkaesque bureaucratic labyrinth. So, I repeat: if Australia can do it, why can’t we?
The Report spends much time on the interactions between trans* persons and the medical system, and it is clear to see the dichotomy faced by practitioners in this area. While the journey toward best practice in trans* law is also by necessity a move toward depathologisation of what is a normal, if somewhat rare, element of the human condition, the fact that trans* individuals often require or wish for medical intervention is also an indisputable fact. The UK GRA 2004 places heavy emphasis on a medicalised model of being transgender, requiring testimony from a psychologist and a doctor that the applicant suffers from gender dysphoria and either has, or is to have, gender “reassignment” medical intervention. As not all trans*-identified persons wish to alter their physical presentation medically, this requirement is another barrier to gaining recognition rights for some sections of the community. In Ireland, the original draft of the Gender Recognition Bill included some medicalised requirements, but as the Bill made its way through the legislature, the effects of sterling campaigning by trans* lobby groups informed the lawmakers that such provisions would form an obstacle to uptake, and they were dropped.
The Report recommends that the NHS in the UK remove trans* health services from the realm of mental health, and instead consider them to be part of another branch of medicine (endocrinology is suggested as an option). This would be in line with the World Professional Association for Transgender Health’s Standards of Care, which distinguish gender-nonconformity (a state of being) from gender dysphoria (a physical and mental discomfort with the incongruity between one’s gender identity and physical presentation). The WPATH also recommends a model including both informed consent and ongoing medical monitoring for individuals undergoing major medical interventions, a recommendation which the Report endorses. While I cannot share the Report’s concern for resources with doctors “simply granting on demand whatever treatment patients request” – sounds a lot like more gatekeeping to me – I do agree that for clinical ethical standards there does need to be ongoing care when it comes to major medical decisions. It is a difficult line to walk between acknowledging the necessity of medical interventions and not simply reducing trans* persons to their physicality. It will be interesting to see how the UK government choose to address this question if they follow the Report’s recommendations.
Sandra Duffy 