My answer to Question 3:
Do you think there should be a requirement in the future for a diagnosis of gender dysphoria?
[third draft, 22/9/18]
I think that if an individual is to be treated as having a different legal sex from their biological sex, this should be limited to cases where there is a clear need for this legal fiction to be applied.
The shift in public attitudes towards transgender people over the period since the GRA was first enacted is to be welcomed. It is now much easier for people to live their lives in a variety of ways, and there are fewer restrictions on everyone’s choices regarding clothing, grooming, and the words and names they choose to identify themselves. These freedoms can be exercised without altering a person’s legal sex. I think this is a good thing, as I do not believe that a person’s sex should prescribe or restrict their choices in any of these areas. There is no reason to alter the law to enable people to more easily change their legal sex, because of this shift in cultural attitudes.
The Gender Recognition Act was originally drafted in order to afford transsexual people the human rights to privacy and a private family life. Now that same sex marriage is legal, a large part of the original reason for introducing the law has disappeared. The fact that transsexual people are protected from discrimination by the Equality Act 2010 also means that the need for privacy is diminished.
In general, I think it is in the best interests of society as a whole if the law is based on facts and words used in the law have their ordinary meaning in English. If the GRA is to be amended, I would like to see it clarified that a change of legal sex does not alter a person’s biological sex, which remains relevant in some circumstances.
I understand that some people still feel a need to alter their legal sex, but I think they should be asked to provide some evidence for why they need to do this.
The serious implications of permitting people to change their legal sex were discussed in Parliament when the Gender Recognition Act was originally passed. The Act creates two different ways for a person to be legally “female” or “male” – via birth, or through legal “gender recognition”. This affects all other laws, where these categories are relevant. It also has an impact on statistical data, regarding health issues, crime, and many other aspects of society.
It is clear from the records of the Parliamentary debates that everyone involved recognised these implications. The Act was passed on the basis that the people affected would be limited to those with a medical diagnosis of dysphoria, who would be seeking a medical transition. This was the stated justification for blurring the definition of sex, as the number of people affected was likely to be very small (approximately 5,000 individuals).
If the government is considering opening up the possibility of changing legal sex to anyone, on the sole basis of self-declaration, then the implications for the entire system of law and the safety of women and children who use single-sex services and spaces must be carefully considered.
The current system provides an opportunity for doctors to identify and assess those individuals whose reasons for seeking gender reassignment give cause for concern. In a paper published in 2011 (https://www.cambridge.org/core/journals/the-psychiatrist/article/gender-reassignment-5-years-of-referrals-in-oxfordshire/6B5F217162ABD9B3189F2EB82787034E/core-reader#), Kate Saunders and Christopher Bass noted that out of 54 people who were assessed for suitability for gender reassignment surgery in Oxfordshire over a period of five years, two male individuals (5% of the 39 male applicants) were “seeking gender reassignment to facilitate or normalise paedophilia. This latter small group described gender reassignment as a means by which to increase their intimate contact with children, which they viewed to be more socially acceptable in a female role.”
Currently, the requirement for a diagnosis of gender dysphoria means that people who are identified by psychiatrists as having a harmful reason to seek a change of legal sex are filtered out. It means that people with a GRC are distinguished from such people, and gives confidence to other members of the public that a person with a GRC has undergone a process with some safeguarding measures in place. If this requirement were to be removed, the meaning and value of having a GRC would be diminished, and this would be to the detriment of trans people who already have a GRC.