In the final two months of 2015, two transgender women were found dead in male prisons. There has been significant debate about whether they were suitably placed. These women were initially placed in male prisons because they did not possess a Gender Recognition Certificate (GRC), which would have allowed them to be placed in the prison estate of their acquired gender.
Guidelines for England and Wales currently state that prisoners should normally be located in the prison estate of their gender as recognised by UK law. Under the Gender Recognition Act (2004), transgender individuals can apply for a gender recognition certificate (GRC) in order to change their legally recognised gender. While the original legislation was welcomed by most transgender organisations, in recent times the procedure for acquiring a GRC has attracted significant criticism. Many transgender organisations argue that the process is too expensive, that it is offensive to transgender people, that it allows spouses too much control over their partner, and that it prevents young people from seeking recognition.
The cost of the GRC
Currently, the government requires transgender people who are applying for a GRC to pay a fee of £140. This fee has been criticised by a number of transgender organisations. For example, both Stonewall and the National Union of Students (NUS) have raised concerns that the cost may prevent transgender people from seeking legal recognition of their acquired gender.
In response, the Government has argued that many GRC applicants are either exempt from the fee or receive assistance with the fee, due to their personal financial circumstances. Nonetheless, a Women and Equalities Select Committee report into the subject urged the Government to consider removing the fee.
The offensiveness of the GRC process
In order to have their transition legally recognised, transgender individuals are required to have, or have had, a documented mental-health diagnosis of gender dysphoria. Generally, transgender rights organisations object to this requirement on two grounds. First, they argue that it is offensive to transgender people because it classes their gender identity as a mental disorder. For example, Peter Dunne - a New York University law school researcher - argues that “the continued ‘pathologisation’ of transgender identities [treating them as a disease or disorder] through the 2004 Act causes significant offence and distress”. Second, it is argued that transgender people are forced to wait for significant time periods and travel long distances in order to gain medical documentation of their transition. For example, Pink News have highlighted the case of Sue Parscoe, who was forced to wait for two and a half years for her first NHS assessment appointment at Leeds Gender Identity Clinic.
The Government have signified some willingness to relax the requirement for a mental-health diagnosis of gender dysphoria. Appearing before the Women and Equalities Select Committee, Caroline Dinenage MP, the Parliamentary Under Secretary of State for Women, Equalities and Family Justice, stated that the original Gender Recognition Act was groundbreaking. It made the UK one of the first countries to legally recognise transgender people’s acquired gender. Because of this, there were few international points of comparison for British lawmakers to consider. Nonetheless, Dinenage states that the UK Government was willing to learn from other countries, such as Ireland, who do not require a medical certificate.
Following the legalisation of same-sex marriage, marriage is considered to be either a contract between two people of different sexes or two people of the same sex. Because of this, the law requires both participants of the marriage to consent to the status of a marriage being changed - either from different sex to same sex or vice versa. Therefore if one party transitions, the other, non-trans party must give their consent before the acquired gender can be legally recognised.
This proviso - which is frequently described as the spousal veto - has been hugely controversial. The Gender Identity Research and Education Service (GIRES) argues that the spousal veto signifies that the government believes that the rights of transgender people are less important than the views of non-transgender people. In addition, many transgender organisations argue that the spousal veto gives spouses undue influence over their partner. This could be particularly problematic if a transgender individual is engaged in an abusive relationship. Transgender organisation RISE has argued that abusive partners are frequently extremely controlling and that the spousal veto provides them with a tool to exercise this desire to control.
In response, the Government has argued that the spousal veto is necessary because a marriage constitutes a contract between two people. In order to make a change to that contract then the consent of both parties should be required. Caroline Dinenage MP has argued that “for some people, they married a person; they did not marry a man or a woman, for others, [acquiring a different gender] might make a difference”. Nonetheless, while spouses are able to veto the legal recognition of transgender people’s acquired gender, they cannot prevent individuals from undergoing any other stage of the transgender process, such as undergoing hormone treatment.
The process to acquiring a GRC requires transgender individuals to be at least 18 years of age before their acquired gender can be legally recognised. This requirement has proved controversial. Figures show that the number of children seeking medical treatment for gender dysphoria increased fivefold between 2010 and 2015. The Scottish Transgender Alliance has argued that the Government should allow 16 and 17 year olds the right to have their acquired gender recognised, and that the government should open up a “youth route” for children to have their transition legally recognised. This view was largely supported by the Women and Equalities Select Committee who also called on the Government to allow 16 and 17 year olds the right to have their acquired gender recognised. The committee also suggested that the government should consider allowing children the ability to have their gender recognised.
However, while some evidence suggests that children have a relatively stable gender identity from early age, other research suggests that children’s gender identity can be somewhat fluid. For example, Research has found that of children who reported transgender feelings but did not receive medical or surgical treatment, between 70% and 80% of them spontaneously lost those feelings. This finding raising serious questions about whether children can accurately identify their gender.
As the number of transgender people increases in the UK, the need for a fair procedure for legally recognising changes of gender also increases. The issue is particularly crucial because most prisoners are placed in the prison estate of their gender as recognised by UK law. Transgender rights organisations have raised a number of reasonable criticisms of the current procedure for gaining a GRC, particularly around cost and spousal consent. Yet, other issues remain controversial. Particularly so is the question of whether children should be able to transition and, if they do, whether the state should recognise it.