Under section 3(3) of the Gender Recognition Act 2004 (GRA) a person applying for a Gender Recognition Certificate (GRC) is required to tell the Gender Recognition Panel (GRP) about their past “treatment for the purpose of modifying sexual characteristics” or any such treatment which is planned or has been prescribed.
This post unpicks how this requirement works in practice, and the background to Section 3(3). The post suggests that updating or repealing what appears to be an ambiguous requirement to provide evidence on medical treatment (over and above a diagnosis of gender dysphoria) might provide a point of consensus on GRA reform, independently of the wider debate on statutory self-declaration.
The law at present
Under the current GRA, there is no requirement that a person has undergone or plans to undergo any medical treatment. Sections 2(1)(a) and (b) only require that person has gender dysphoria and has lived for two years at least “in their acquired gender”. The evidence required to demonstrate the second of these is decided by the Gender Recognition Panel (GRP).
Section 3(3) of the Act however, requires that a person also tells the GRP about their past “treatment for the purpose of modifying sexual characteristics” or any such treatment which is planned or has been prescribed. It appears to require all such treatment to be detailed. Much of the concern about the intrusiveness of the GRC process at present, and the difficulty of meeting current requirements, appears to stem from this specific requirement: it can for example, cause problems for people whose initial treatment was long ago, who have moved between several different practitioners, or have had treatment abroad.
The Act in practice
If a person has had no treatment and plans to have none, the Act as drafted would suggest they need provide nothing. The government online guidance however says that “If you have not had any treatment or surgery yet, you must send a report that includes details of any planned treatment or surgery”. Guidance from the advocacy group GIRES, presumably based on experience of dealing with the process as it operates in practice, states “If you have not had any surgery then the report must explain clearly as to the reason why. This could be because you are currently still waiting for surgery on a waiting list, or you aren’t medically able to or for any other reasons, but an explanation has to be included as to why this is so.” This goes some way further than the Act.
For those who have had treatment the GIRES advice says: “The information must be detailed and specific, listing what medication and doses that are involved rather than just stating you are on ‘hormone therapy’, or stating specific procedures that have been carried such as ‘Hysterectomy’ rather than just stating ‘gender reassignment surgery’.”
Despite this, simply going by the face of the Act it is not obvious on what basis someone could be turned down who had had no treatment and planned none, or for not having had or planned “enough”, given the Act itself does not require any. Section 3(3) is an odd-looking provision, and its further interpretation even more so.
Background to Section 3(3)
Section 3(3) appears to be a sort of fence-sitting provision, which brings in references to medical treatment short of making them a formal requirement. The report of the Joint Committee which considered the draft legislation at Westminster explains what lies behind this. It notes (paragraph 25, emphasis added) that:
“There is no requirement for a person to have had, be having or be planning to have any treatment to change his or her physical appearance before applying for a certificate (clause 1(4)), although evidence of any such treatment would have to be given by a medical practitioner and would strengthen the case for recognition (clause 2(1), (3)).”
Nothing in the Act however specifies that evidence of treatment or plans for it should increase an applicant’s chance of success.
The Committee went on to consider at length “Should recognition be limited to post-operative transsexual people?”. The whole section is quoted here (emphasis added), because it gives insight into the thinking behind the original Act.
27. The Draft Bill’s focus on gender rather than sex has given rise to contrasting reactions among those who gave evidence to us. Most of them welcomed the decision not to require transsexual people to undergo surgery to change their physical characteristics before applying for a gender recognition certificate. On the other hand, a few correspondents considered that legislation should be aimed at the really serious harm suffered by those transsexual people who, despite social, personal, medical and legal hurdles, had felt forced to change their sex, and had undergone surgery as part of that process. These correspondents considered that the Draft Bill, by extending beyond post-operative transsexuals and concentrating on gender rather than sex, comes perilously close to giving legal recognition to a lifestyle choice, and demeans the suffering of those people who are most severely affected by the present law.
28. In our view, the flexible approach adopted by the Government in not restricting recognition to people who have undergone surgical sex reassignment therapy is entirely appropriate, and we welcome it. Allowing people to apply for recognition before, or without, surgery or other specified therapies would avoid discriminating against people who for some medical reason unconnected with their gender are unsuitable for particular kinds of surgical, hormonal or other treatment. It would also allow people in the process of sex or gender reassignment to have their acquired gender recognised by law without waiting an uncertain period for particular types of treatment to become available through the National Health Service if the Gender Recognition Panel is satisfied that they have or have had gender dysphoria, have lived in the acquired gender for two years, and intend to live in that gender for life (clause 1(4)(a)-(c)). The evidence presented to us suggests that the expert professional members of the Panels are unlikely to issue certificates to people who are making a mere lifestyle choice. Indeed, there were suggestions in the evidence that medical experts are sometimes unfairly sceptical about whether a person is suffering from gender dysphoria.
29. We conclude that the Draft Bill represents a sensitive and sensible compromise by allowing pre-operative transsexual people to have their acquired gender recognised, with the Gender Recognition Panel providing a safeguard against premature or frivolous applications. In our view, the absence of a requirement for people to undergo surgical or medical reshaping of their bodies before applying makes it sensible to speak of gender rather than sex in the Draft Bill.”
Section 3(3) therefore was an attempt to deliver on a political intention in 2004 that obtaining a GRC should somehow be tied to physical transition, except in exceptional circumstances. But rather than write that into the criteria, it was delivered by a sort of backdoor law, so that expectations of physical change were introduced in a less visible way. That is not a good way to make law.
The description of the process provided by GIRES above suggests that a sub-statute set of restrictions may be operating which in practice have tended to limit GRCs to those who have or are demonstrably committed to making physical changes. However, there are no statistics available from the panel about the nature of GRC holders in terms of their actual or planned physical treatments, to show this. And, based on a response to a recent Freedom of Information request, it does not appear that the Scottish Government has undertaken any analysis of its own of the functioning of the GRP prior to publication of its current consultation paper. More than this, it is not good practice to legislate with the appearance of breadth and then place signals in the law that the people applying it should operate as though the law is tighter than it is.
Whatever their view on the wider issues, fans of coherent, transparent legislation might be persuaded to support the repeal of Section 3(3). It would go some way towards meeting concerns about an over-intrusive process, and could happen even without wholesale reform. This sort of statutory tidying up is often tagged on to other legislation (the GRA has been reformed this way in the past: the Marriage and Civil Partnership (Scotland) Act 2014 was used to amend some of the provisions relevant to applicants who are married or in a civil partnership). The case for removing section 3(3) is strengthened by a decision of the European Court of Human Rights since 2004 that states may not require a person to undertake surgery as a condition of obtaining a change of legal status.
It would be wrong to suggest that this would meet the concerns of campaigners for self-declaration, who have as an aim in principle that self-defined gender identity should be recognised in law in place of sex at birth, with no medical or other third-party gatekeeping. Meanwhile, those concerned about the Scottish Government’s proposals might draw from this analysis that the change proposed may be even greater in effect than it first appears, given how the Act appears to work in practice. Last, the comments of the Joint Committee from 2003 bring out how narrowly the current Act was conceived, if not drafted, and how large a change in the thinking behind a GRC the Scottish Government’s proposals represent, despite their framing as an essentially administrative change.
But in the search for points on which a consensus for updating a sixteen year-old Act might be built, the repeal of Section 3(3) may offer one possibility worth investigating further.