The Council of Europe short guide to legal gender recognition provides a clear layout of the judgments and recommendations in respect of the recognition of a transgender person’s gender identity. The European Court of Human Rights has ruled that ” a state’s failure to alter the birth certificate of a person who has undergone gender reassignment, and to recognise the “new” gender, constitutes a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR).”

The guide goes on to state that the “situation is very diverse in Council of Europe member states as regards the rights of transgender persons seeking legal gender recognition. Most countries do not have procedures in place for legal gender recognition. “. In the UK, people have had the right to legal gender recognition since the Gender Recognition Act (GRA) was introduced in 2004.

In 2010, the Council of Europe Committee of Members adopted measures to combat discrimination on grounds of sexual orientation or gender identity. Recommendation CM/Rec(2010)5 was issued to member states to provide guidance on how states can ensure the right to respect for private life of transgender persons. The paragraphs relevant to the ongoing discussions about possibly reviewing the GRA are:

IV.        Right to respect for private and family life

20. Prior requirements, including changes of a physical nature, for legal recogni- tion of a gender reassignment, should be regularly reviewed in order to remove abusive requirements.

21. Member States should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member States should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates.

22. Member States should take all necessary measures to ensure that, once gender reassignment has been completed and legally recognised in accordance with paragraphs 20 and 21 above, the right of transgender persons to marry a person of the sex opposite to their reassigned sex is effectively guaranteed.

The UK has met all these recommendations as there are no requirements for a person to undergo medical or surgical changes prior to authorising legal gender recognition. A person can already easily alter their name and gender on official documents like their Passport or driving licence, on a self identification basis as there is no need for a legal gender recognition certificate. The only document that won’t be altered until a legal Gender Recognition Certificate (GRC) has been issued is the birth certificate. Finally, there are no barrier to Same Sex Marriages within the UK.

Campaigners calling to reform the GRA claim that the process of obtaining a GRC is cumbersome, bureaucratic and overly invasive. It requires a person has a medical diagnosis of Gender Dysphoria and 2 years ‘lived experience in their preferred gender’. Since the GRA was introduced in 2004 less than 5000 people in the UK have applied and been issued with a GRC. A UK Government LGBT survey carried out revealed there to be a great misunderstanding of the requirements for a GRC with some wrongly believing that medical intervention was required or face-to-face interviews with a Gender Recognition Panel. It’s also unknown how many people would apply for a GRC if the Act were to be reformed. NHS records, passports, employer records etc are all currently able to amended without the need for a GRC so we don’t really know what the demand for these reforms are.

Campaigners argued that the requirement of a psychiatric medical diagnosis of gender dysphoria is a barrier. In response to this the World Health Organisation (WHO) has proposed a reclassification of ICD 11 which moved it out of the Psychiatric conditions to Sexual Condition.

Campaigners argue that is this if “as change of name and gender in official documents in a quick, transparent and accessible way” waiting 2 years for a new birth certificate is not quick enough, although reissueing of all other Identity documents do not require a 2 year wait

The Council of Europe is quite clear that it is Gender not sex, and the problems in U.K. is that the GRA haas conflated sex and gender. This has then created problems for the EqAct. Sex is protected. Too much confusions with organisations as to recognising a persons gender is to be interpreted as them having changed sex. This needs to be clear. Sex based exemptions exist and are not being implemented because of these confusions. We first need to separate sex and Gender to enable sex based protections to be enacted.