Today the Women and Equalities Select Committee released its report on its recent inquiry into transgender equality. The Inquiry heard written and oral evidence from trans individuals and organisations, including from Action for Trans Health, on various areas of life which affects trans people. Their report can be found here. Overall, we were pleasantly surprised by some of the recommendations made in the report, but feel that there are significant areas for improvement. This is our response.
[For a media contact please get in touch at jess(at)actionfortranshealth.org.uk]
Healthcare: Significant work needs to be done to engage trans people in decision making around healthcare issues beyond tightly managed consultations; education needs to be embedded in healthcare curricula and not just in continuing professional development; considerable attention needs to be placed on waiting lists and improving capacity in GICs; we are disappointed the Inquiry dismissed calls for the informed consent model be adopted
Child and Adolescent Services: We support the Inquiry’s call for shorter assessment times so hormone blockers and HRT can be provided earlier; we also discuss the problems of the Tavistock clinic having an effective monopoly on child and adolescent care.
Gender Recognition Act and Administration: we believe that the de-gendering of various forms of identification is necessary; we support the de-gendering of marriage is a neater solution to the problem of the spousal veto than two separate marriage systems.
Equality Act: We are disappointed to hear that single gender services (ie. survivors services) are to continue to be exempt from the Equality Act, this will have a disproportionate impact on the most vulnerable members of our community
Hate Crime: We are unconvinced that hate crime legislation is an appropriate tool for combating transphobia due its poor record as a deterrent and low engagement from the trans community. We believe a focus on education, awareness and combating medical neglect is more appropriate a response to transphobia.
Prisons: We welcome recommendations that policies on the management of trans prisoners be less reliant on legal definitions of gender. We believe that these policies should explicitly address the management of non-binary prisoners. We are disappointed to note the lack of discussion around trans people incarcerated in immigration detention centres. We also discuss reparative alternatives to punitive justice.
General NHS Services
We welcome the acknowledgement by the Inquiry that current practice within the NHS represents a failure to provide trans people with safe and accessible healthcare under the Equality Act (2010). It is clear that the Inquiry recognises that there is a lot of work to be done to improve NHS services in this regard.
Whilst it is right to commend NHS England’s creation of a Transgender and Nonbinary Network of consultees, the consultations themselves lead a lot to be desired. These meetings are tightly managed by NHS staff, provide little space for trans organisations to speak (nevermind being listened to) and are not very representative of the wide diversity of the trans community itself. The trans healthcare system needs to be delivered as a partnership between the trans community and medical practitioners, not solely by NHS administrators who occasionally deign to placate the trans community with a carefully managed consultation.
We welcome the recommendation for a systematic review covering transphobia in NHS services and contractors, and that the Inquiry have linked this to a lack of education on trans issues and a lack of knowledge around treatment pathways. We believe that any education efforts should go beyond Continuing Professional Development (CPD) short-courses for doctors, but should be embedded in the curriculum in all healthcare courses across the country. All NHS staff, including doctors, nurses, healthcare assistants and administrators, need to demonstrate a degree of cultural competency around trans issues.
We are happy to hear that the Inquiry calls on the General Medical Council to take complaints around transphobia in healthcare seriously. We would note in that our experience, the medical neglect of trans people is so common within the NHS that many trans people do not feel it is ‘worth it’ to complain as it is perceived to have very little impact on a system which is institutionally transphobic. We believe significant efforts to improve NHS services, through greater funding of Gender Identity Services and through education, is necessary before the trans community feels engaged enough that even the complaints procedures feel accessible to them.
Gender Identity Clinics (Adults)
We welcome the Inquiry’s recommendation to consider removing Gender Identity Services from the realm of mental health towards a different specialism (such as endocrinology) or establishing gender identity services as a specialism in and of itself. Like the Inquiry, we view this shift as potentially depathologising.
We also are glad that the Inquiry recognises the inconsistency and inaccessibility produced by gatekeeping in all areas of transition related healthcare, including with GPs, Gender Identity Clinics (GICs) and in Real Life Experience. However, we are saddened to hear that the Inquiry does not recognise the clear benefits of adopting an Informed Consent model of trans healthcare treatment which we feel would address many of the concerns witnesses had around gatekeeping and inconsistent diagnostic protocols, particular those faced by nonbinary people.
We feel that the Inquiry may misunderstand some key features of the Informed Consent model, which is used in many US-based clinics. The Inquiry seems to imply that the Informed Consent model is simply about giving surgical interventions on demand without any diagnostic evaluation. Instead, Informed Consent is based upon a genuine partnership between healthcare practitioner and patient, based around an understand of trans as an identity rather than a pathology. Further, the Inquiry seems to be under the belief that the Informed Consent model is inconsistent with the WPATH Standards of Care, which is arguably not the case. If the Inquiry wishes to see trans people have “full involvement” in their healthcare and “full personal autonomy in gender identity and presentation”, as they say in the report, then a move towards an Informed Consent model of healthcare is a necessity.
We note that the Inquiry recommends a consistent application and interpretation of guidelines between different GICs and different practitioners. It is true that inconsistent treatment between GICs, clinicians, and even between individual clinicians depending on the day of the week, is a source of confusion and anxiety for many trans people. Where guidelines are to be applied consistently, it needs to be ensured that these are interpreted in a manner which is empowering to all trans patients, including those that identify as nonbinary.
We also note that the Inquiry recommends that the requirement for Real Life Experience shift from being about conforming to potentially outdated gender norms, and more about preparing the patient for the mental, physical and social consequences of surgery. We believe this is a positive step in the right direction, but that in order to do this justice a significant investment needs to be made in mental health support for those trans patients who need it. These mental health services need to be non-pathologising.
We are glad that the Inquiry shares our concerns around waiting times for treatment and the capacity in GICs. Demand is rising 20-30% per annum and there are no clear plan to recruit the gender specialists that are needed. Waiting times already unacceptably and illegally long. We are sitting on crisis in trans healthcare. Significant financial investment is needed to meet the increasing demand. Further, recruitment and training of new specialists should happen as a matter of urgency. This should be augmented with further education work in medical schools so more young doctors are aware that specialising in trans healthcare is a career option. In the meantime, the recruitment of additional administration staff to improve the poor quality of administration and communications (alongside a review of how admin is processed) is necessary.
Children and Adolescent Trans Healthcare
We are happy to see that the Inquiry recommends a review of the Tavistock’s services with a mind to reducing the time of assessment so that hormone blockers and HRT can be provided earlier. This is an area where it has been clearly proven that failing to provide hormone blockers can cause significant harm, and compared to similar services in different countries, the UK Tavistock service is actually far behind. As the Tavistock has an effective monopoly on treatment for young trans people in the UK, this raises the issue, which we note the Inquiry has not addressed, of young UK based trans people having fewer choices of how and where to access their treatment.
Gender Recognition Act and Administration
We welcome the move away from gender recognition based on submitting medical and legal data to a panel and towards self-definition, as recommended in the report, which would see legal gender recognition move to an administrative process centred on the wishes of the individual applicant. We are glad to see the recommendation to create a legal category for nonbinary people in order to allow freer self-identification and welcome this development. However, we feel that this should be a step towards the systematic degendering birth certificates altogether. In their current form, birth certificates assign a gender to infants before they can speak, when they are unable to self-define. Degendering would be a move towards the depathologisation and destigmatisation of trans identities. The degendering of birth certificates would also be in line with recommendations from intersex rights groups, such as Intersex UK.
Degendering of birth certificates would also support young trans people who would not be benefitted by the current recommendations from this report. While the decision to reduce the age of legal gender recognition from 18 to 16 with parental permission will benefit young trans people with supportive parents, it will put in place additional barriers for children with unsupportive parents. Unfortunately, for many young trans people, parents and family members can be unsupportive and can often be sources of abuse. We believe legislation intended to support young trans people must recognise this fact. Action for Trans Health supports gender self-determination for all trans people, regardless of age, and encourages the development of legislation to allow this.
Recommendations to review the spousal veto and its harmful effects on trans people are very welcome, as are recommendations to address the problem of trans people who are victimised by spouses with malicious intent, especially given the high rates of domestic violence experienced by trans people. However we feel that the argument for the spousal veto rests on a distinction between same sex and different sex marriages and that a neater and all round better solution would be the degendering of marriage contracts. This would allow people the freedom to divorce or annul their marriage at any time but would enable trans people to have full autonomy over their identities, rather than that control being in the hands of their spouse.
We are concerned but unsurprised to hear that there have been no prosecutions under Section 22 of the Gender Recognition Act, which is intended to protect trans people’s right to privacy by preventing trans people from having their trans status unlawfully disclosed. We believe that a review of this Section is an unconvincing solution to transphobic discrimination, especially given the evidence concerning repeated instances of unlawful disclosure during court proceedings. We believe that the degendering of birth certificates and the enabling of gender self-determination regardless of age would be more effective strategies to combat transphobic discrimination on a larger scale.
We support the recommendation to change the wording of the protected characteristic from ‘gender reassignment’ to ‘gender identity’ in order to ensure that all trans people are clearly protected by this piece of legislation. However, while we believe that expanding the scope of this Act to cover all trans people is good in theory, given how ineffective its application often is across those protected characteristics already covered, we have concerns that it will ultimately prove confusing and difficult to apply.
We were disappointed to hear recommendations that single gender services would continue to be exempt from discrimination clauses. The suggestion of only removing exemption when the individual possesses a Gender Recognition Certificate (GRC) clearly does not go far enough, especially considering the criticisms of how GRCs function which have already been outlined in this inquiry.
It is worrying that the inquiry refers specifically to areas where vulnerable trans people are already struggling to access services, such as rape crisis centres, and sees fit to continue these exclusions. Research conducted by the Survivors Network revealed that a large majority of trans people fail to access any kind of support services following sexual violence, with most citing fears of transphobic discrimination as a reason they felt uncomfortable trying to access single gender services. Allowing discrimination against trans people in the case of single gender services legitimises the oppression of trans people and encourages transphobia amongst staff and service users.
Excluding people from work on the basis of trans status is a problem when trans people already face high rates of unemployment and trans staff could better support trans service users. Research suggests that funding is needed for the creation of trans specific services for survivors of sexual violence, which would also be inclusive of non-binary people, but this needs to be done in conjunction with and not as an alternative to making existing services inclusive of trans women in the case of women’s services and trans men in the case of men’s services. Widespread education is needed to make staff aware of the unique challenges which trans survivors face.
The Trans Inquiry recommends that existing hate crime legislation be extended to bring trans in line with other protected characteristics by classifying aggravated offences and stirring up hatred against trans people as hate crimes. Whilst hate crime legislation exists, it is clear that trans people should have legal parity with other protected characteristics. We would like to see clarification as to whether Trans Exclusionary Radical Feminists (TERFs) would be able to be prosecuted for “stirring up hatred” under the new proposals. However, given low rates of prosecution for “stirring up hatred” on racial and religious grounds, we wonder whether if TERF hate-speech qualified as “stirring up hatred” it would be acted upon by the state with any degree of consistency or regularity.
However, we are concerned that the sole focus on hate crime legislation to deal with issues of transphobic violence individualises social problems of transphobia and may have some negative consequences. Hate crime legislation has not been proven to have a deterrent effect on violence borne from prejudice. Rather, hate crime legislation seeks to punish the individual perpetrator for their bias and in doing so increases the number of people in contact with the criminal justice system – mostly this will be individuals from other marginalised groups who are more unlikely to be able to afford good legal representation. Moreover, we are concerned to learn that hate crime legislation will be linked to ‘tackling extremism’, especially when the government’s flagship anti-extremism programme Prevent has been largely criticised for racial profiling and islamophobia. When marginalised groups are disproportionately negatively impacted by hate crime legislation, it is unclear how these tools are useful in bringing about a more equal society.
The reality of the situation is that most trans people do not have the ability to seek legal recourse after a hate crime incident. This is due to a number of barriers some of which are discussed in the report, including but not limited to; unwillingness to be ‘outed’, lack of energy to pursue legal recourse over incidents due to their frequency, lack of willingness to deal with the police, and lack of access to legal support (including the issue of potentially paying court fees, etc.). The inquiry recommendations encourage third party reporting to increase the number of trans related hate crime reports. However, as hate crime legislation actually gives very little in terms of protecting trans people due to it being an ineffective deterrent, it is unsurprising that trans people often do not engage with it, and will probably not do so even if the barriers above are solved. Rather, we feel that the government would do better to focus on the causes of transphobic violence through methods such as education, income equality and the reduction of medical neglect.
Recording Names and Gender Identities
We support the Inquiry’s recommendation to introduce clear and appropriate policies regarding the recording of individuals’ names and genders across public services. However, we are concerned that little guidance is given as to how this might be achieved. With widespread misinformation about the existence of ‘legal names’ in the UK, as is referenced in the report, and many trans people’s’ information currently being stored in ways that directly contravene the Data Protection Act (1998), it is difficult to see how these policies would be implemented and maintained.
We are in support of the recommendation to remove the requirement for a doctor to produce a letter enabling a trans person to apply for a passport that accurately reflects their gender and the recommendation to introduce a category on passports to include nonbinary people, such as the X category in Australia. The move towards degendering of documentation, such as passports and driving licenses, may seem an important one in ending transphobic discrimination. However, we question the necessity and impact of nationalist documents such as passports that are used to reinforce the category of citizenship and therefore cause direct harm to trans migrants and refugees. We express these concerns especially given the absence of any recommendations to support trans migrants and refugees within the Inquiry’s response.
We agree that the recording of gender should be for equalities monitoring purposes and not for identification purposes, where the recording of gender is used to uphold cissexist standards of gender. Overall, we support smarter and more comprehensive equalities monitoring that monitors gender, trans status and sexual orientation in a way that enables self-determination.
Prison and Probation
In light of the recent deaths of two trans women held in male prisons, and the high profile case of Tara Hudson hitting the media, we are glad that trans people incarcerated in prisons and in probation were discussed in the report. We note that the report acknowledges the large gap between the current guidelines for the management of trans prisoners and the reality that many trans prisoners face due to inconsistency, prejudice and bias of prison institutions. We welcome recommendations that guidelines for the management of trans prisoners be made more flexible and less reliant on legal definitions of gender, and further we support the Bent Bars Collective’s submission which recommends that any guidelines should cover the management of prisoners who identify as non-binary. We would also like to see prisons being ‘opened up’ to researchers and trans organisations so that the status of trans prisoners can be assessed more accurately.
However, we were disappointed to learn that despite evidence being presented to the inquiry about trans people incarcerated in immigration detention (by us and the UK Lesbian and Gay Immigration Group), the report did not explicitly mention immigration or issues facing trans people incarcerated in detention centres. This is a significant oversight which should be addressed immediately.
Further, we feel that any discussion of prison policy would be amiss not to discuss the very low effectiveness of the prison system in terms of reducing recidivism rates, whilst operating at high expense to the public purse. Prison is an inherently harsh environment which is not conducive to reparative forms of justice, nor is it an effective deterrent to crime. The current government has announced plans to build a £250m “mega-prison” in Wrexham, which is likely to be run by a private company. This expansion of the prison system will undoubtedly result in an expansion of the prison population as the prison estate’s capacity is increased. It is expected that this will lead to an increase in trans and gender-nonconforming people being incarcerated. In a backdrop of austerity, is likely that living conditions in prisons are likely to decrease over this period. We recommend that the government explore alternatives to the ineffective and punitive prison system which emphasise more reparative forms of justice.