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A failure of leadership and duty – the Government’s response to the GRA consultation

The Government has published its long-awaited response to the Gender Recognition Act consultation. The consultation explored the process by which an individual may obtain a Gender Recognition Certificate (GRC) to receive legal recognition of their acquired gender, under the Gender Recognition Act 2004.

Before we examine the consultation process itself, we should probably acknowledge that many of the issues raised in this consultation are intensely controversial. Groups on both sides of the argument have raised significant arguments about health, safety and equality. Here at the Institute, we take no position on the substance of those arguments, and we certainly do not take sides. Our interests lie purely in the process of the consultation. So how does it stack up?

Perhaps the most prominent and controversial part of the consultation is the issue of ‘self-identification’. In broad terms, this means that transgender people would not require medical certification to change their gender but could do it on the basis of their own ‘self-identification’. The consultation addressed this in its third section on the Evidence Requirements for Legal Gender Recognition, asking two questions. First, “Do you think there should be a requirement in the future for a diagnosis of gender dysphoria?” and second, “Do you also think there should be a requirement for a report detailing treatment received?

The responses to the consultation were resounding, totalling 64% in favour of getting rid of the diagnosis requirement (although, as we often remind people, ‘Consultation is not a vote’).

This double question has drawn some media attention, particularly in light of reports back in June that the Government was intending to drop the self-identification proposals, primarily because officials believed that the results of the consultation had been ‘skewed’ by responses generated by trans rights groups. In the consultation analysis, a comprehensive document which runs to 184 pages, the analysts are keen to stress that (for them at least) this is not the case:

The authors have treated all responses from individuals equally, regardless of how they were submitted. It was assumed that all respondents were sincere in the viewpoints that they expressed, including those responses which were informed by or submitted through external campaigns.

The Government, as you would expect, does not directly address in its response, the issue of how they weighed the fact that many responses came from campaign groups. This in and of itself is questionable, as we might expect the response to explain how decisions were made considering the new evidence brought forward in the consultation. It is not the only problem with the response.

At barely three pages long (if you attach the ministerial written statement to the House, to the bottom of it), the Government response is significantly less thorough than the analysis. It makes few changes to the original proposals, other than reducing the fee required for a gender recognition certificate, and putting the application process online. So what did it have to say about the key question of self- identification? Surprisingly little. Which is to say nothing at all. It is not the only question raised by the consultation that goes more or less completely unanswered. There is a distinct pattern of significant issues being highlighted, and then receiving no attention, apparent consideration, or even dismissive response. Extracting key data from the analysis report, we find that:

  • 80% are in favour of removing reports of all related medical treatment received – not mentioned in the government response, except to state that this evidence will still be required
  • 78.6% are in favour of removing the requirement for individuals to provide evidence of having lived in new gender for period of time – again, not mentioned in the government response, except to state that this requirement will be maintained
  • 84.6% are in favour of removing the spousal consent requirement – the same story again, not mentioned in the government response, except for the fact that this requirement is being maintained
  • 58.5% are in favour of removing the fee for getting a GRC – here, the government has responded by reducing the necessary fee
  • 73.4% do not think that the privacy and disclosure provisions are adequate – another point not addressed by Government

It is important to underline at this point that consultation is not a numbers game. Even an overwhelming response in favour of something does not necessarily mean it should be brought into policy. David Cameron’s Equal Marriage Consultation in 2010-11 would have fallen straightaway had that been the case. Nevertheless, we would expect at the very least the key issues to be engaged and discussed in a manner that is almost totally absent here. Reasons should be given why positions advanced by consultees have been rejected. An explanation should be given as to why the Government has made only two changes to the policy – these being reducing the fee to get a GRC and putting the process online.

Is there a reason for the absence of response? On the question of self-identification, at least one journalist has reported that Government sources told him the absence of a response was because the question was not asked in the consultation. Reading back over the questions asked in section three (which we have highlighted above) and given the context of the consultation as looking at improving the process by which a GRC might be acquired, this argument seems somewhat facile. The question may not have been directly asked, but it was certainly heavily implied, and the qualitative responses made it quite clear that this was how respondents had taken it.

Perhaps then it is merely a case of poor drafting? The Government’s response identifies that one of the reasons so few changes have been made to the original proposals, despite the significant support in favour of many of them, was because gender recognition reform was not the top priority for transgender individuals, with more being concerned about the healthcare available for transgender people. Where they have got this information from is unclear. It receives a few mentions in the analysis report, but hardly sufficient that one could conclude from that report alone that it was a significant problem. Looking back to the LGBT+ Survey undertaken in 2018, we can find a little more evidence to support this assertion, but nothing definitive.

On the wall of our office, we have the Institute’s definition of ‘consultation’. It reads as follows:

Consultation is the dynamic process of dialogue between individuals or groups, based upon a genuine exchange of views, with the objective of influencing decisions, policies or programmes of action

We believe that it sums up what a consultation should be. In light of the cumulative issues in this consultation, and the lack of engagement on key problems highlighted by respondents to the consultation, it is difficult to conclude that this process was undertaken as a genuine exercise to find out views, and difficult to determine whether it was designed to feed into and influence a programme of action. It is certainly difficult to agree that it supports the policy that has been its end result.

There seems little doubt that this consultation will be challenged. There’s a prima facie Gunning 4 case, and many potential equalities issues that could be engaged. Although this issue does not affect huge numbers of people, it is important to remember that those it does affect suffer hugely from discrimination, bigotry and are often some of the most vulnerable people in society. They have some of the highest rates of suicide and mental health difficulties of any group. Ensuring that the right structures are in place to support them is an essential duty of government, and must be done right, deploying evidence from that community. We’re left with no choice but to feel that with this consultation, the government has failed in that duty.

The Institute will be looking further at this consultation and seeking further information on the decision-making process between analysis and decision.

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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