1. Background

1.1 This response has been prepared by The Board of Trustees of FOCUS: THE IDENTITY TRUST, a Charitable Trust registered by the Charity Commission Northern Ireland (Charity number NI 100557) and member of the Transgender Organisations Network (TON).

1.2 Our Mission Statement is:

“FOCUS: THE IDENTITY TRUST exists to provide social, educational and recreational activities for Transgender and Intersex individuals in Northern Ireland and the Border Counties of the Republic of Ireland who have been referred to it by a Gender Identity Specialist or other medical professional. The Trust will endeavour to provide a welcoming, safe and secure environment for all its members at all times.

1.3 Additionally the Trust exists to promote the development of educational information and advice, both to individuals and to policy makers and service planners and delivery agents, to raise awareness  in all sections of society on Transgender and Intersex issues in Northern Ireland and the Border Counties of the Republic of Ireland in regard to health, employment, housing, legal and general education issues in regard to how they impact on the daily lives of Transgender and Intersex individuals and their relatives and friends.

1.4 FOCUS: THE IDENTITY TRUST is the only organisation on the island of Ireland which exclusively represents this constituency of individuals.

1.5 This response is directly informed by the Membership of our various support groups garnered at a special meeting of our individual members and their families convened specially to discuss the specific questions posed in The Government’s on-line questions document. (Appendix No.1 represents the consensus responses to the individual questions).

2. INTRODUCTION

2.1 Focus: The Identity Trust welcomes the opportunity to respond to the Government consultation.

2.2 The Trust notes the Government’s intention to improve the lives of transgender individuals by making appropriate revisions to the Gender Recognition Act 2004 to make it easier for transgender people to achieve legal recognition of their true gender. We welcome the Government’s recognition of the importance of separating the legal recognition process from the pathway we have to follow to obtain the medical treatment we may wish to pursue to make our bodies more congruent with our internal sense of self-determined gender identity. We believe this to be absolutely essential in arriving at a revised Gender Recognition which will be fit for purpose and meet the needs of our constituency. We recognise that this consultation exercise is intended to look at the law in terms of England and Wales only, however, particularly in the absence of a devolved administration in Northern Ireland; we believe it essential that our constituency’s views are heard in this consultation exercise.

2.3 We note with great concern that the Government is not considering any amendment to the Equality Act 2010 (which applies to England and Wales) or the “protections” contained within it, particularly relating to the exceptions outlined in your consultation document.

We view these as discriminatory against the rights of individuals possessing the protected characteristic “gender reassignment” and particularly those in possession of a Gender Recognition Certificate. We refer to this in more detail later in our submission.

We add, for completeness, that the Equality Act 2010 does not extend to Northern Ireland, which we believe further undermines the protection of transgender people in this part of the United Kingdom. We would welcome an equivalent protection in Northern Ireland subject to the comment above and observation below about the proposed amendment.

2.4 We recognise that this consultation confines itself to a review of the existing Gender Recognition Act 2004 which only allows for the legal recognition of transgender individuals in their “acquired gender” provided that gender is either as a man or as a woman (the only sexes currently recognised in UK Law) and it is the Government’s declared intention not to make any changes to that at present and we welcome that clarity.

We believe it is important to distinguish between those people for whom gender is desperately important and those who wish to define without a gender (the non-binary debate). The non-binary debate should not be permitted to cloud the issues or to undermine the central importance of gender recognition for transgender people.

2.5 Bearing in mind your declared intention to undertake an in-depth examination of the aspirations, wants and needs of those individuals who are intersex and /or self- identify alternatively outside this Gender/ Sex binary as currently legally recognised, we make some small recommendations later in our submission relating to these 2 cohorts of individuals who don’t sit easily within our constituency.

2.6 We are concerned that the Government is not considering extending the provisions of the Gender Recognition Act to include minors particularly given the views expressed by The Transgender Inquiry Report and the experience of other countries, notably the Republic of Ireland, which did make such provision in its 2015 Gender Recognition Act and is actively considering widening and lowering the age that minors may make application. We address this issue in greater detail in the main body of our response.

3. OUR RESPONSE

3.1 At a special meeting convened to consider the review of the Gender Recognition Act 2004 our members expressed the view that the existing process is too bureaucratic, too costly, off-putting, overly burdensome, stressful, intrusive and demeaning. They were of the opinion that each transgender individual is fully aware of their sex and gender but that the current Act doesn’t permit them to own their own identity and find it insulting that faceless people they will never meet or be able to challenge sit in judgement over their internal sense of personal identity.

3.2 We considered the consensus responses to the individual questions posed in the Government’s consultation documentation (copy attached as Appendix1 to this response). Having reviewed these individual responses the Board of Trustees recommends the following.

3.2.1 Recommendations

1. A revised process, open to minors as well as adults, based solely on self-determination, with no requirement for any form of medical diagnosis. We are aware that in 2016 the Women’s and Equalities Select Committee (WESC) recommended that the age for Gender Recognition, with appropriate support, should be lowered to age16. Whilst we would agree this is an important step given the ability of adolescents in the UK to consent to their own medical treatment: see s.8 0f the Family Law Reform Act 1969, which requires that any consent given by a minor of 16 years of age shall be as effective as it would be if they had already reached majority. We would argue, however, that WESC’s recommendation doesn’t properly reflect the evolving capacities of children (as recognised in Article 5 of the United Nations Convention on the Rights of the Child); indeed it doesn’t reflect in any way the fact that many children are capable of demonstrating competency to make such a decision before their 16^th Birthday.

Accordingly, we suggest that where a child meets the test of “independent competence” he/she should be permitted to apply for gender recognition on the same basis as those over the age of 16 years.

We recommend that the question of “independent competence” should be assessed by an independent specialist in child development and/or child psychology, unconnected to the gender recognition process. Once competence has been determined the issue should play no further part in the application process.

We further recommend that the threshold for establishing “independent competence” should not be set too high; it should only require  the child to have a clear and settled understanding of their identity (i.e. of the stated gender) and to be of sufficient maturity to make the decision independently.

We recognise that any competence test could be manipulated as a method of re-introducing the medicalisation of the gender recognition process but suggest that this can be overcome if young people under the age of 16 are facilitated in their application with the approval of a court or other approved body. Such application should be automatically approved where that body finds that the child has a clear and settled understanding of their identity as being of the stated gender.

In regard to whether parental approval should be a mandatory condition, particularly for those under 16 years who are not independently competent, we recommend that there should be a discretion to permit (but not require) parents to be consulted and to permit the court/ authority to take into account any parental evidence of whether the child has a clear and settled understanding of his/her identity. It is absolutely imperative, however, that parental approval or otherwise, must not be used as a determinant of the recognition of the child’s identity.

2. There should be no requirement to have a medical report regarding any form of treatment.
3. There should be no requirement to produce evidence of having lived in an “acquired gender “ for any period.

A witnessed statement of intent to live permanently in the “acquired gender” should be sufficient evidence. We consider it an unnecessary and stressful burden to include a “cooling off/ qualifying period”.

Transgender individuals don’t seek to change their sex on a whim, and provided there is a requirement for a doctor or psychologist to evidence their permanent intent and understanding of the implications of their decision to permanently change their sex, there is no need for a period of “reflection”.

The requirement to provide a medical report by a Gender Specialist to access a recognition certificate has proved problematic in Northern Ireland and highlights the potential for this requirement to undermine the very process itself. In Northern Ireland, there is only one doctor who is accredited to produce such specialist reports but that doctor has recently refused to complete reports. That has left many transgender people abandoned and feeling desperate. It means there is no possibility of obtaining a certificate unless and until they can fund their travel to Great Britain to access a report privately. Many people are not able financially, or indeed emotionally, to make such a trip. They are effectively confined to live in the wrong gender.

4. We don’t believe there is a need for any additional statutory declaration. It is our view that having to go another person for this would be an additional unnecessary burden on transgender people that they don’t need. We do believe however that it should be an offence, punishable in law by a hefty penalty, to knowingly falsely complete the application process frivolously or with nefarious intent.
5. We recommend the complete removal of a spousal veto. The present system puts unnecessary barriers in the way of transgender individuals accessing their true gender. As outlined by ourselves and many other transgender representative organisations, no-one, particularly vengeful or disgruntled ex-spouses, should have control or influence over a transgender individual’s ability to have their true gender recognised in law.
6. We recommend a greatly reduced fee of £25 for what will, if our other recommendations are accepted, be a simple administrative process.
7. We recommend and claim forcefully that the exceptions under the Equality Act 2010 (in terms of access to Goods, Facilities and Services) should be removed.

We offer the following general observations in that regard.

We in Northern Ireland looked on enviously at the Equality Act 2010 in the belief that it afforded superior protection to transgender people in England and Wales than that offered in Northern Ireland.

We are therefore devastated and disappointed to learn that you have reneged on your commitment not to diminish, by the 2010 Act, any of the rights afforded by previous Sex Discrimination Legislation. Not only have you undermined the rights of those intending to or undergoing gender reassignment but also those in possession of a Gender Recognition Certificate.

We were always led to believe that once one was in possession of such a document then one acquired all of the same legal protection as a natal person of the same gender. That is not the case, clearly.

8. We welcome the Government’s decision not to bring forward any proposals at this stage in relation to legally recognising a 3^rd/ alternative/non-binary gender within the realms of this review of the Gender Recognition Act 2004.

Our organisation has been to the forefront in attempting to establish a path towards legal recognition for those individuals who don’t self-identify within the current gender binary recognised in current legislation.

We were the first on the island of Ireland to call for such recognition to be enshrined in a Bill of Rights for Northern Ireland and called on all political parties in our 2015 document “ A Comparison of, and Commentary on, Gender Recognition Legislation in Northern Ireland, the remainder of the United Kingdom, the Republic of Ireland and globally” (see Appendix 2) to embrace this concept in the run up to the last round of European, national and local elections. This call was also central to our response to the Women’s and Equality Committee’s Transgender Inquiry (see Appendix 3).

We are particularly encouraged by the Government’s commitment to undertake a full scale intensive study of this (so far) misunderstood, marginalised and misrepresented group of individuals in society.

We firmly believe you have made the correct decision not to act in a knee-jerk fashion but rather to have an in-depth considered approach to the aspirations, wants and needs of this important emerging cohort in Society. We applaud the Government’s desire to facilitate non-binary individuals to live discrimination -free lives in accordance with who they believe themselves to be.

We consider it imperative, however, that in addressing the rights issues of non-binary individuals the Government firmly resists the inclination to interfere with or damage the rights and equality of our constituency. The two issues are entirely separate and should not be muddled. To put them together is to do a disservice to both groups.

We are wholly in agreement that it is appropriate and proportionate that those non-binary individuals who are discriminated against because they are perceived to have the protected characteristic of “gender reassignment” and that they receive protection under the Equality Act 2010 but that can be achieved by a properly defined perception test

We understand why the public are often confused about transgender issues and conflate them with the issue of non-binary identification. We believe that partly explains the ignorant and damaging discussions one often hears about toilets and the risk of temporary switching between genders from day to day.

A transgender person would never arbitrarily switch gender. Rather, they wish to have their true gender recognised at law and to forever live in their true gender. Once recognised, a Trans woman or man is always simply a woman or man respectively and should be treated as such.

The situation is made worse when, for example, the Crown Prosecution Service arbitrarily decides that “non-gender, non-binary or gender fluid“ people may be included under the definition of “transgender identity” in terms of Hate Crime legislation. In our experience non-binary people are rarely subjected to hate because they are perceived as non-binary but because they are perceived to be transgender or same sex attracted. They can be protected by the perception test, referred to above. Those who are subjected to hate because they are non-binary would be better protected by a specific category of “Non-binary Hate Crime”. This would protect those individuals while not confusing transgender with non-binary. This can and should be done immediately.

9. Our organisation believes, in relation to intersex people that once an individual receives an indication from a clinical professional that their sex is actually opposite to that recorded on their Birth Certificate there should be a simple administrative procedure, not forming part of any Gender Recognition Legislation, for that anomaly to be corrected.
10. Conclusion

We welcome the fact that you are conducting a much needed review of existing legislation but encourage you to consider all of the issues from the viewpoint of a transgender person.

Our members are perhaps the most overlooked and vulnerable members of society. If true equality is to be achieved and transgender people are to be treated decently and respectfully this consideration of legislation needs to be informed and wide-ranging.

We appreciate your efforts in seeking to make this review as comprehensive and inclusive of all the needs of our constituency and remain willing and able to offer whatever assistance we can.

 

 

©FOCUS: THE IDENTITY TRUST (9^th October 2018)