4th July 2016

On 30 June 2016 Ben Hoare Bell sponsored LAGLA North East’s event UK Transgender Law: Past, Present & Future. The event, which was held at Trinity Chambers, was extremely well attended by members of Newcastle’s legal profession.

Maria Munir
Maria Munir

Speaking at the event were Maria Munir and Robin White. Maria is a young Muslim law student and non-binary campaigner who challenged Barrack Obama at a talk he gave in London in April when he said he would be answering questions ‘boy girl boy girl’. Maria confronted Mr Obama about the inequalities faced by non-binary people and highlighted the lack of knowledge and understanding surrounding the issue.

Maria spoke of the importance of recognising diversity within the gender spectrum and noted that many people do not identify with any gender (gender neutral) or may identify with different genders at different times (gender fluid).

Maria spoke about how gender must be an inclusive concept and there are still many practical steps needed to achieve equality in this regard. For example, we must respect pronouns and acknowledge that many people do not relate to either ‘he’ or ‘she’. It is also fundamental to have equality of dress codes, toilet access and support networks. Maria believes that in order to achieve equality, the law must move towards a model of accessible and self-defined gender, rather than prescriptive definitions dictated by the law or medical professionals.

Robin then provided us with a helpful summary into the past, present and future of transgender law in the UK. Robin is a barrister specialising in employment and discrimination law at Old Square Chambers. Robin transitioned from male to female in 2011 and was the second transgender barrister in the UK. In highlighting the importance of trans law, Robin noted that 1 in 1500 people in the UK experience gender dysmorphia and 1 in 5000 are taking steps to change their gender.

We were introduced to the first case in this area, Corbett v Corbett (which was heard in 1969). Mr Corbett sought to annul his marriage to April Ashley on the basis that their marriage was invalid because April had been born male. The court adopted a medical definition of sex, based on an individual’s chromosomes, and as April was ‘XY’ she was, in the eyes of the law, a male and therefore there had been no valid marriage.

Since the case of Corbett v Corbett, things have moved on and there are now two significant sources of transgender law: the relevant provisions of the Equality Act 2010 and the Gender Recognition Act 2004.

Robin White
Robin White

Under the Equality Act 2010 ‘gender reassignment’ is now one of the protected characteristics, meaning that it is unlawful to directly or indirectly discriminate against someone who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex.

The Gender Recognition Act 2004 establishes a process for recognition of change of gender by a panel. If this is accepted, a Gender Recognition Certificate is issued and the person must then be treated for all purposes in the new gender.

However, there continue to be areas where little or no protection is offered to the trans community. For example, in the case of Croft v RM G plc [2003] it was held not to be discrimination where an employer asked an employee who was undergoing the transition from male to female to use the disabled toilet until their transition was more complete.  Further, it is not discriminatory for an employer to impose a gendered dress code on trans employees.

In relation to the future of trans law, Robin noted that the spectrum of human experience is very wide and liberal western democracies are moving to embrace that. In 2016 the House of Commons published the report on ‘Transgender Equality’. The report recommends a move within the Gender Recognition Act to self-definition, meaning that rights are not dependent on a medical professional’s analysis. Further, the report recommends the introduction of gender based on a ‘declaration of identity’. This means trans people would not need to commit to a process of transition before being able to identify as their true gender.

Finally, it is recommended that the protected characteristic in respect of trans people under the Equality Act should be amended to that of “gender identity”. This would improve the law by bringing the language in the Act up to date and making it clearer that protection is afforded to anyone who might experience discrimination because of their gender identity. This may include transvestites, intersex, and non-gendered individuals.

Robin concluded by warning that “bad consultation leads to bad law” and therefore the most important steps we can take to protect the future of trans law is to “be involved” in the ongoing consultations.