The Scottish Government have proposed reforms to the Gender Recogntion Act 2004 one of which is to remove the need for applicants to have a medical diagnosis of Gender Dysphoria. Full details of the current requirements and proposals can be read here. Probably the most frequent response we hear when anyone raises any concerns about the proposals is that any changes to the Gender Recognition Act will have zero impact on the protections within the Equality Act. I don’t believe this to be an accurate statement, and I have several reasons why I think so, and this post will explain one of them.

The following are quotes from the relevant legislations (and/or the explanatory notes) the first being what the original purpose of the GRA legislation was and the defintion of the protected group as stated within the Equality Act.

Gender Recognition Act 2004

The purpose of the Gender Recognition Act is to provide transsexual people with legal recognition in their acquired gender.

The Panel must grant the application if satisfied that the applicant—

  • has or has had gender dysphoria

Equality Act 2010

Protected Characteristic – Gender reassignment

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

In relation to the protected characteristic of gender reassignment—

  • a reference to a person who has a particular protected characteristic is a reference to a transsexual person;  
  • a reference to persons who share a protected characteristic is a reference to transsexual persons.

There is no doubt that both legislations are referring to transsexual people, not trans people, not transgender people but very clearly transsexual people.

It’s widely argued that the use of the terms ‘gender reassignment’ and ‘transsexual’ in the Equality Act 2010 are outdated and misleading, with the preferred umbrella term being trans. However, those are the terms used within the current laws, and the laws clearly only apply to those people and not to everyone else who comes under the wider trans umbrella.

When the UK government consulted on the definition of Gender Reassignment within the Equality Bill, it was well aware of the different groups who might be covered.

The reason given for not including the wider trans umbrella within the definition of gender reassignment was because it was specifically aimed at only those people with gender dysphoria, “we do not consider it appropriate to provide a person who presents themselves temporarily in other than their birth gender with the same protection against discrimination that is available to a person with gender dysphoria.”

This was the mindset for the drafting of what would become the Equality Act 2010. The PC Gender Reassignment is for people with Gender Dysphoria, or similar diagnosis.

It’s not enough to say the word transsexual is no longer used, so don’t use it, and just use trans or transgender instead. It needs to be acknowledged that the laws were only referring to a very small specific group of people within the larger trans umbrella. If people want to use a different word, then that’s completely understandable, but we do need to have a word for the people these laws were written for, and that was for people who were transsexual or people with gender dysphoria, and now, people with gender incongruence.

The following quotes include the definitions for transsexualism and gender dysphoria as currently defined by NHS Scotland, World Health Organisation (WHO) and Scottish Trans Alliance.

NHS Scotland Gender Reassignment Protocol

Before any medical treatment would be considered a diagnosis of transsexualism / gender dysphoria is required.

  1. Transsexualism is the desire to live and be accepted as a member of the opposite sex, usually accompanied by the wish to make his or her body as congruent as possible with the preferred sex through surgery and hormone treatment
  2. Gender dysphoria refers to discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristic).

World Health Organisation (WHO) ICD 10

Gender Identity Disorder / Gender Dysphoria – A disorder characterized by a strong and persistent cross-gender identification (such as stating a desire to be the other sex or frequently passing as the other sex) coupled with persistent discomfort with his or her sex (manifested in adults, for example, as a preoccupation with altering primary and secondary sex characteristics through hormonal manipulation or surgery).

Transsexualism – A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomic sex, and a wish to have surgery and hormonal treatment to make one’s body as congruent as possible with one’s preferred sex.

World Health Organisation (WHO) ICD 11

The diagnosis of “transsexualism” was renamed “gender incongruence” and moved from the “Mental and Behavioral Disorders” chapter to the “Conditions Related to Sexual Health” chapter. The rationale being that while evidence is now clear that it is not a mental disorder, and indeed classifying it in this can cause enormous stigma for people who are transgender, there remain significant health care needs that can best be met if the condition is coded under the ICD”

Description: Gender incongruence is characterised by a marked and persistent incongruence between an individual’s experienced gender and the assigned sex. Gender variant behaviour and preferences alone are not a basis for assigning the diagnoses in this group.

Draft versions of ICD 11 have been circulated to all member states in order for them to make preparations for it coming into effect in Jan 2022.

Scottish Trans AllianceTransexual Woman

Transsexual women seek to bring their physical bodies and gender expressions into better accordance with their strong gender identities so that their identities as women finally become clearly visible to their friends, families and colleagues. However, some may be restricted by their personal or social circumstances in their ability to achieve this.  Transsexual women often experience significant emotional distress, usually referred to as gender dysphoria, if unable to live fully as women.”

Scottish Trans AllianceGender Dysphoria

Gender Dysphoria is a recognised medical issue for which gender reassignment treatment is available on the National Health Service in Scotland.  Gender dysphoria is when someone experiences significant and long-standing distress, unhappiness and/or discomfort about their physical body not fully matching their gender identity.  Transsexual people usually experience intense gender dysphoria which is significantly reduced or even eliminated by transitioning to live as their self-identified gender and by taking hormones and perhaps getting surgery to make their physical bodies match their gender identity and gender expression better.  Other types of transgender people may also experience various degrees of gender dysphoria, especially when unable socially to fully express their gender identity

The Scottish Transgender Alliance recognises that being gender variant does not mean that someone will necessarily experience any gender dysphoria.  A person may have a gender identity or gender expression which others feel does not match with that person’s physical body. However, so long as that person themselves feels content with their physical body in relation to their gender identity and does not experience distress or discomfort about it, then they do not have gender dysphoria

The Scottish Government want to remove the need for a medical diagnosis meaning that applicants for a Gender Recognition Certificate will no longer be restricted to just those transsexuals as defined above as people diagnosed with transexualism/gender dysphoria. There will now be a set of people who can obtain a GRC purely of the basis of Seld Identification alone.

However the GRA was created to enable transsexuals (people who have (or have had) a diagnosis of Gender Dysphoria) to live a private life without their history being known.  These reforms will now change the fundamental basis of who the 2004 Act was aimed at. The proposals are not simply about making the process of obtaining a GRC easier, as we are regularly told, it’s about widening the scope of applicants to include people that the original act was never intended for i.e. Non-transsexuals.

As a result, this new introduction of Self ID GRC holders will have a knock on effect to the current protections within the Equality Act, which remember, have been written on the basis that those protected under the characteristic of Gender Reassignment were transsexuals. The GRA proposals will now clash with the current definition of the Protected Characteristic Gender Reassignment as this new eligible group will also now include Self ID GRC holders who are non-transsexual/non-Gender Dysphoric/non-Gender Incongruent.

The Equality Act protected charactistic Gender Reassignment would therefore need to be amended to enable the Self ID GRC holders the protection they require. However, the Equality Act is a reserved matter so the Scottish Government don’t have the legislative power to make such amendments, and the UK Government have already announced they won’t be making any amendments to this Act.

And it’s not just the protected characteristic that would be affected as these changes would also impact the current occupational requirements for a person NOT to be a transsexual in relation to occupations that rely on this on the basis of sex or religious needs.

Also affected would be the section on Sports which currently enables lawfully excluding

“a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

  • fair competition, or
  • the safety of competitors.

If the person isn’t a transsexual person, how then would sporting event organisers lawfully exclude Self ID people with a GRC, who don’t fit within the proteced characteristic Gender Reassignment criteria because they are not transsexual?

Are we really risking creating a scenario where a person can get a GRC, yet will not fit the criteria for Gender Reassignment?

This would also have a huge impact on the single-sex exemptions that currently state that services can exclude people who have the protected characteristic of Gender Reassignment (i.e. transwomen with a GRC) if it is a legitimate aim.

Would it even be possible to exclude Self ID GRC holders who are non-transsexual / non-Gender Dysphoric, if they do not meet the criteria of the PC Gender Reassignment? The ability of excluding transwomen with a GRC under our current system is already proving to be a very difficult issue and is widely discussed.

Has the Government considered how service providers would be able to exclude a person who is biologically male, but now legally female, and wouldn’t have the protected characteristic of Gender Reassignment from female only spaces?

The Equality Act is not designed to be able to support this situation. If the Government want to change the Gender Recognition Act to give people who are not transsexuals (and therefore outwith the Gender Reassignment protected characteristic criteria) legal recogntion of the opposite sex then this loophole will need to be addressed.

Perhaps the Scottish Government will include a similar section, as was done when the original 2004 Act was introduced, making it explicit that “a person who has been recognised in the acquired gender under the Gender Recognition Act will therefore necessarily be considered to be undergoing or to have undergone gender reassignment within the meaning of these enactments” in relation to the Equality Act protected characteristic definition of Gender Reassignment?

Do the UK Government need to agree to this? Will it?

We shouldn’t be rushing ahead to make a bad law.

Follow me on Twitter SusanSinclair@Scottish_Women