The changing landscape of the Gender Recognition Act

In 2018 the Government Equalities Office consulted on reform of the Gender Recognition Act 2004 seeking views on making it easier for transgender people to obtain a Gender Recognition Certificate. In September 2020, a response was finally provided.

The main reason for the consultation back in 2018 was because it was recognised that transgender people continue to suffer prejudice in and out of the workplace. On top of this, the process of obtaining a Gender Recognition Certificate (GRC) was (and still is) regarded by many transgender people as being overly bureaucratic, longwinded and distressing. As such, the aim of the consultation back then was to simplify the process that transgender people in England and Wales take to obtain legal recognition of their acquired gender, culminating in a GRC.

The recent response however has concluded that the law, and processes, as set out within the Gender Recognition Act 2004 (GRA), are correct and do strike the right balance when it comes to the available support for those who wish to change their legal sex from what they were given at birth. Fortunately, it has however been recognised that the government still need to improve the difficult process for transgender people to legally change their birth gender; with an emphasis that the process needs to be ‘kinder and more straightforward’. The cost of this process also needs to be reduced, and the process moved online as opposed to the intensive and obtrusive physical and in-person interviews and assessments currently in play. The government’s Women and Equalities Committee has therefore launched a new inquiry into further reform of the GRA and GRC process.

For present purposes, in order to obtain a GRC, it still remains necessary for transgender people to:

• be diagnosed with ‘gender dysphoria’, by two medical reports (from two different doctors) – which in many eyes continues to unnecessarily “medicalise” the process;
• provide evidence that they lived in their acquired gender for at least two years: sometimes known as the “real life experience” or “period of reflection”. This requirement as such continues to be viewed as being one of the barriers to obtaining a GRC as it can cause significant delay and distress; and
• ultimately pass an assessment made up of a panel of clinicians, to confirm that they have lived in their acquired gender and that they fully consent, understand what it means, and intend, to continue living as their acquired gender for the rest of their life.

It is hoped that the Women and Equalities Committee’s new inquiry will eventually remove some if not all of these barriers, ultimately allowing a faster, kinder and more straightforward process to obtain a GRC.

All of this also comes at a time where claims of discrimination and harassment against transgender people in the workplace unfortunately appear to be on the rise, or are at least hitting the headlines more. Recent reports from the employment tribunal service confirm that transgender people do not actually need to be undergoing or intend to undergo any medical treatment to have the protected characteristic of ‘gender reassignment’ so as to get the protection from discrimination, harassment and/or victimisation under the Equality Act 2010. Importantly, individuals who identify as being gender fluid or non-binary, can have protection from discrimination, harassment and victimisation under the Equality Act, and fall within the definition of ‘gender reassignment’, where they are transitioning, even if they do not intend to undergo surgery.

As such, it remains fundamentally important for employers to educate their workforce fully in this area, and ensure that their workplaces (including when working remotely) are truly inclusive and provide for a fully supportive environment free from any form of discrimination. Robust equal opportunities policies and inclusion strategies should also be updated (or put in place) to provide for those transgender, transsexual, non-binary and/or gender fluid individuals within the workplace. Similarly, supporting any individual with their transition through such a sensitive process, as it currently is, will only serve to improve the engagement, retention and satisfaction levels of all staff within the workplace.