With the recent step forwards for gender equality and a new year coming in it seems a fitting time to consider how far English law has come in regard to establishing equal rights and to consider and highlight where, as housing lawyers, we need to see some change.
One such issue that we continue to encounter is that trans* people are not protected adequately by the law and the justice system.
*According to Stonewall, trans is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, cross dresser, non-binary, gender queer.
Hate crime (noun): a crime, typically one involving violence that is motivated by prejudice on the basis of race, religion, sexual orientation, or other grounds.
The first most apparent issue is that individual discrimination towards trans people has become more prolific in the UK; this is abundantly clear when considering hate crime statistics against trans people from 36 police forces across the UK. By comparing recorded incidents of hate crime towards trans people from 2016-2017 to 2018-2019 we can see a general increase in hate crime towards trans people. The police force which saw the largest increase in hate crime towards trans people was the Metropolitan Police, which recorded 235 incidents of hate crime against trans people in 2018-2019 period.
It is important to note that these figures are not really indicative of the true numbers. Not every crime is reported to the police and not every report will be recorded correctly as a hate crime. But the increase is indicative of the increase in violence against trans people, it is indicative of how there appears to be systemic discrimination of trans people in the UK and it suggests that little has been done to combat this increase in targeted violence.
Stonewall published a report in 2018 which highlighted a number of issues faced by trans people in the UK; this included prejudicial treatment in regard to housing, healthcare, employment and in the education sector.
The prejudicial way that trans people are treated has also been highlighted by the backlash from proposed amendments to the Gender Recognition Act of 2004 (“GRA”) and Boris Johnson shying away from promised reforms under Teresa May’s leadership.
The GRA is a crucial piece of legislation which facilitates greater protection under the law should you have a Gender Recognition Certificate (“GRC”). The GRA allows some trans people, whose objective is to transition from being legally recognised as one sex to another, to do so. This is done by altering the sex on a person’s birth certificate. This recognition is however based on the premise that wanting to be recognised as having a different sex to the sex you were born as is a mental disorder called “gender dysphoria”; the obvious issue here is that the law assumes that if you are a “fully” trans person you must have a mental disorder. This process also requires medical checks to take place and an individual to demonstrate that they have lived in their “acquired” gender for two years.
This transition process can also be exceedingly difficult and places undue psychological burden on trans people. This can be demonstrated by the high suicide rate among trans people wishing to be recognised under the GRA. In the UK, around only 4,500 trans people have undergone this process and received a GRC.
The reform promised under May’s government was to allow trans people to self-declare rather than go through the above process. Johnson’s government has betrayed this promise.
In reaction to this, some commentators have argued that allowing individuals to identify their own gender will lead to harm and particularly the harm of women’s rights and non-trans women. This fear and criticism seems wholly without empirical foundation and also appears to stem from a misunderstanding of the law and the protection it offers – as argued and explained in Professor Alex Sharpe’s article ‘Will Gender Self‐Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’
The Law and Trans People
As an example of where we can improve in our treatment towards trans people we can look to how this group of people are treated in discrimination cases. An example of this is the case of R (on the application of Green) v Secretary of State for Justice in 2013. Here, a trans woman was incarcerated in a male prison. She had applied for a gender recognition certificate (“GRC”) under the GRA in 2011, but was forced to withdraw this application when she was told that she did not have evidence that she had lived as a women for two years prior to the application. The discrimination issue in question was that the claimant said she did not have access to materials she required to live as a women in the male prison.
Briefly, the main criticism of this case is that the judge, when considering if there was discrimination, concluded that a man is the correct comparator for a trans woman i.e that a trans woman ought to be treated as a man.
This position seems to exemplify issues in the interpretation of the Equality Act and discrimination towards trans people, namely that if you do not have a GRC you can still be categorised as the sex you were assigned at birth despite not recognising this as your gender. Nothing more clearly shows the position of the law and the disregard of the difference between a trans women without a GRC and a non-trans man than the comments of the judge in his judgment of the Green case “There can be no doubt the Claimant has a protected characteristic – gender reassignment. The Claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.”.
This judgment means that of the approximately 200,000-500,000 trans people in the UK, of whom around 4,500 have GRCs, only those 4,500 would have a comparator of their recognised gender for a discrimination case.
A guiding light
Though the above paints a bleak picture of the law generally in terms of treatment of trans people, when we look at specific areas of law there is some hope and positive progress being made; arguably the most progressive area of law being Employment law.
The recent landmark case Taylor v Jaguar Land Rover rules that now those who self-describe as gender fluid or non-binary are captured under the Equality Act 2010 term of ‘gender reassignment’. Though this is somewhat limited because the Employment Tribunal does not have a binding precedent in this case and the expanding of the term may not be extended into other, less progressive, areas of law. It does offer hope that the term of gender reassignment is ready to be expanded and hopefully so are the concepts around the interpretation of what gender is and how we should protect those who are not cisgender. Though the importance of this case should not be understated a major limitation of it is that it has no effect on the interpretation of the Green case above, as the trans person in said case was already captured under the ‘gender reassignment’ term yet still denied protection from the discrimination she was suffering.
Perhaps one crucial difference which has allowed the positive adaptation of the perspective of trans people in Employment law is the frequency of discrimination cases regarding trans people. The difference we see from the attitude of judge in the Green case compared to the 2019 Forstater v CGD employment case is stark.
In Forstater the judge ruled that the comments made by Maya Forstater against trans people were absolutist and though they were a philosophical belief it was not a belief worthy of respect in a democratic society and so failed to be awarded protection under the Equality Act, making it clear that the position that a trans woman is not a woman or that a trans man is not a man is not a tolerable view. This view of trans people seems to be in dichotomy with the Green case and a clear example of the development of the attitude towards protecting trans people.
The current law generally seems to have little recognition of the many ways in which a person might be trans and reinforces normative views around sex and gender in a way that excludes many trans people from adequate protection; an example of this being the decision in the Green case above. Though it seems that there is some movement away from these archaic concepts of sex and gender, with the Taylor case, this may be limited to more progressive fields of law and not lead to movement in the legal and justice system holistically.
It also seems that there is little political will to protect trans people, as we can see from the proliferation of hate crime and lack of effective measures to protect them from this as well as the unwillingness to reform the damaging GRC process. This naturally slows progress as the rights of trans people has become a heavily politicised issue.
It therefore seems clear that the law provides wholly inadequate protection for the majority of trans individuals. If the law continues to ignore the voices and experiences within the trans community and fails to see progress, it will leave many unprotected.
For the law to move forward, trans people who have faced discrimination need to report and seek action against those who discriminate against them. A reason that the Green case has not been overruled despite criticism of it is because a case has not been brought to challenge it based on today’s standards and understanding and should we see challenge to these archaic view, such as with the Taylor case, then we also may see progress in all fields of law, not just Employment law.