Fighting for legal and social recognition outside the gendered societal structure
WHY I’M HAVING NOTHING TO DO WITH HM GOVERNMENT’S GRA CONSULTATION
That the Gender Recognition Act 2004 [GRA] needs urgently to be reformed is not in dispute. I’d protested before the bill became law that it was a nasty and ultimately highly discriminatory piece of legislation that failed sections of the trans population that the law should have been designed to protect. The legislative system recognised nothing other than male or female. Sex or gender, it did not matter because the law treated those who defined as neither male nor female as though we did not exist. As a trans person of non-gendered identity the GRA compounded my social invisibility. When the GRA became law it felt as though the shutters had come down firmly in a way that annihilated any vague hope that I’d managed to hold onto that my life chances would improve within the foreseeable future.
For those of us who were left behind because we were considered ‘inconvenient’ at a time where trans people were expected to complete their transition and disappear into the mainstream of gendered society, the GRA represented the death knell of hope because there would be no further movement on trans ‘rights’ for years.
Earlier this month the UK Government published its long awaited and indeterminately postponed consultation eliciting the public’s views on proposed GRA reform. Trans people are being urged to respond if only to counter balance the inevitable negative responses from groups and individuals with a different agenda who want to see the government roll back on trans ‘rights’.
I’d welcomed that the recent judicial ruling in my case had placed a requirement upon HM Government to carry out the potentially far reaching ‘review’ belatedly proposed by the Government Equalities Office [GEO] that I heard about during the latter stages of proceedings however I will not be responding to this consultation and I will not encourage others in my position to respond because under the present governing administration I do not believe there is any benefit. Certainly not for trans people of non-gendered identity. I believe the current initiative is a cruel charade. A pretence of doing something in order to disguise the fact that HM Government is intent upon doing nothing.
I should know. I’ve recently sat through two days in court listening to HM Government’s representations as to why its discriminatory passport policy should be retained. I’ve waded through lengthy witness statements prepared by civil servants under the direction of this government arguing that my identity is not recognised in law and therefore it cannot be discriminatory to force me to accept an inappropriate gendered reference on my passport.
HM Government’s position on ‘X’ Passports and the wider issue of the full legal recognition of non-gendered identity has not changed since the sham policy ‘review’ that took place [or rather did not take place] as part of the previous trans equality action plan that I later slammed as being ‘’all plan and no action’’ during an oral evidence session before the Women and Equalities Select Committee.
The UK Government had been under pressure to reform the GRA. Trans people who do meet its narrow criteria and can apply to have their identities legally recognised [ie. trans men and trans women] are forced to complete a burdensome and humiliating process that offers no guarantee of approval and no right to appeal. Trans campaigners have long argued that the UK should adopt the humane model of self-declaration pioneered by Argentina and shown to work in a growing number of countries. HM Government vaguely committed to review the GRA in July 2016 in response to the Women and Equalities Committee’s damning report but the consultation launch was effectively on hold until very recently.
In the meantime I’d adopted a pragmatic piecemeal approach in an effort to legitimize my non-gendered identity. Although full legal recognition for trans people who define in any way other than male or female remains beyond reach I’ve managed, through painstaking processes that have taken years, to get gendered references removed from some of my documentation and files. Every victory in a campaign that now extends to almost three decades went some way towards achieving my goal [eg. I’ve persuaded key organisations to move to gender neutral public/customer announcements and to provide non gender-specific options on forms]. Legitimizing my identity became my life’s work because without legitimate identity I could have no life. Achieving recognition of my identity was something I had to do before I could go back to doing what I’d really wanted to do. It took a visit to my former MP and an impending threat of criminalization [due to noncompliance with an impending mandatory ID card scheme] before anyone took notice of what I was saying:
That non-gendered invisibility was and remains a genuine and serious human rights issue.
That legitimate identity is a fundamental human right.
I was eventually invited to engage with government civil servants in various departments only to find myself unceremoniously disengaged after it had become clear that what had been presented as a genuine opportunity to raise the issues was no more than lip service. Whenever I pushed for a sign of commitment towards addressing the issues the more negative was the response until I reached the inevitable conclusion that, despite the positive gestures, there had been an underlying intention all along to kick these serious issues further down the road in order they should be buried. It is a pattern that became all too familiar over the course of my engagement where commitments were made only for HM Government to firmly close the door on issues it did not want to address. With the notable exception of the Dept. of Health that took my input on board in terms of defining policy in this area, the ‘engagement’ process proved to be an endless depressing cycle of ‘review’ followed by inaction and having my expectations managed by disdainfully clueless civil servants until they could not be bothered to continue the pretence that non-gendered peoples’ needs would be considered in future government policy. I was cut adrift and all communications from the GEO and the Home Office ceased.
My aim to persuade HM Government to change its passport policy and permit passports to be issued with an ‘X’ character [‘X’ Passports] became a high profile endeavour due to government resistance that led to my initiating a campaign of letter writing to the passport authority, then a petition, then persuading MPs to table what became a series of Early Day Motions [EDMs] over what is currently five consecutive parliamentary sessions. The EDMs raised MPs’ awareness that enabled ‘X’ Passports and the wider issue to gain a platform within the political arena. HM Government’s blanket refusal to change its policy on ‘X’ Passports led to my instigating legal action against the UK Home Secretary in order that HM Government’s discriminatory passport policy should be subject to judicial review.
I must make clear that the ‘X’ character indicates the sex of the passport holder is ‘unspecified’. It is not correct to assume the provision of ‘X’ Passports offers recognition [legal or otherwise] to a third category of people. The ‘X’ Passport does offer an acceptable alternative to inappropriate gendered references for people who do not define as male or female. The provision of ‘X’ Passports is not controversial. A policy change to that effect would have passed relatively unnoticed had HM Government followed those countries that adopted the inclusive policy without fanfare. ‘X’ Passports had proved to be a forerunner to legal reform in some instances [eg. Australia] however passport issuance is governed by an international body [the International Civil Aviation Organisation, ICAO] and therefore policy in respect of ‘X’ is not bound within national legislative systems. The provision of ‘X’ Passports enables people who define as neither male nor female to obtain a gender-neutral identification document without the requirement for legislative reform.
A new precedent was established last month in the ruling of my case. It was determined that Article 8 of the European Convention on Human Rights applied. This is a significant development in that it was recognised that my non-gendered identity did not preclude an overarching right to respect for private and family life. My case was not successful at this stage despite the engagement of Article 8. HM Government submitted a witness statement very late in proceedings that contradicted earlier statements and muddied the waters.
The statement indicated, you’ve guessed it, that the wider issues raised in my case [the official recognition of a third category of people] will be subject to review.
The Reform of the Gender Recognition Act Consultation Document does not include proposals for the legal recognition of trans people who do not define as either male or female. The exact opposite is indicated [Para. 136]. The Yes/No question further down the document is completely irrelevant because there will be no further movement on this issue for many years in the unlikely event the current government does legislate GRA reform.
There are no indications that HM Government are giving genuine consideration to the issues surrounding non-gendered identity. Only that [yet another] ‘call for evidence’ will follow.
IT IS SMOKE AND MIRRORS.
One final thing to bear in mind is the parlous state of the current government. If news reports are to be believed there could soon be a new governing administration. It is undoubtedly an interesting if tumultuous period. A governmental or departmental shake-up would affect the progression of GRA consultation and the delivery of proposed reform. It is likely that trans equality will slide even further down HM Government’s list of priorities.
An application for permission to appeal against the ruling in my case has been submitted.