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Gender identity and the law – where are we now?

Posted: 28/06/2024

With Pride Month drawing to a close, and the new month heralding a potential change in government, there is a firm focus on LGBTQIA+ issues, and the major political parties have all included the subject in their recently published manifestos. 

While claims for sexual orientation discrimination continue to occupy the courts and tribunals, in recent months the focus has been more on gender identity and trans rights, and barely a day goes by without a debate being seen in the news and on social media between those championing ‘gender-critical’ beliefs (JK Rowling being just one high-profile example), and those who believe in gender theory, namely that people have the right to gender self-identity. 

The political landscape

It is of course to be expected that changes in this, and indeed all other, areas will happen if we see a change in the governing party. The Conservative Party has pledged however that, if it is returned to power, it will amend the definition of ‘sex’ in the Equality Act 2010 to ensure that it covers biological sex only. It will also ensure that an individual can only have one sex in the eyes of the law in the United Kingdom. 

The Labour Party manifesto contains a number of proposed changes in the field of diversity, equality and inclusion. One of these is Labour’s commitment to reform the Gender Recognition Act (GRA), making it easier for transgender people to change their gender legally. The GRA requires transgender people who wish to have their new gender legally recognised to obtain a gender recognition certificate. Under the existing law, an application requires two years of documented living in the new gender and must be made to a panel of legal and medical professionals. Under the Labour proposals, the application will no longer require any documented living as the new gender and the panel will be abolished. There will still be a requirement for a medical diagnosis, but this could be supplied by only one specialist doctor. 

As part of its reforms to the GRA, Labour will also remove the requirement for what is referred to as ‘spousal consent’. Under the existing law, when a person applies for a gender recognition certificate, their husband or wife is asked for their consent to change the marriage from an opposite-sex marriage to a same-sex marriage (or vice versa). If the husband or wife does not consent, then an interim (rather than full) gender recognition certificate is issued which can be used to obtain an annulment to the marriage. 

The Labour Party has further pledged that it will continue to support the implementation of the single-sex exceptions contained in the Equality Act.

The Labour manifesto also contains a commitment to a ban on full, trans-inclusive conversion therapy, which has long been an item on the political agenda. The details of the proposed ban are still vague and will need to sit alongside Labour’s commitment to honour the recommendations of the Cass Review. This independent review into children’s gender identity services in the UK expressed opposition to conversion therapy, but highlighted the importance of allowing doctors and parents to help children explore psychological causes of gender dysphoria – something that critics are concerned could be conflated with conversion therapy by too broad a ban.

The Liberal Democrats have pledged to respect and defend the rights of people of all sexual orientations and gender identities, including trans and non-binary people. They have also confirmed that the gender recognition process will no longer include a requirement for medical reports.

Legal cases to watch

In what could be a landmark case, the campaign group For Women Scotland has been granted permission to appeal to the UK Supreme Court a judicial review decision on the legal definition of the word ‘woman’. Should the appeal be successful, it would provide increased clarity on when and how service providers can provide single-sex spaces and, in doing so, exclude transgender people based on biological sex regardless of whether they hold a gender recognition certificate. Should a Conservative government enact its amendments to the Equality Act, however, this case will be of less relevance.

In another high-profile case, Allison Bailey, founder of gay rights charity LGB Alliance, is awaiting judgment in her appeal against the LGBTQIA+ charity, Stonewall. In 2022, Bailey, a barrister, brought a successful claim for discrimination on grounds of religion or belief, against her chambers, Garden Court Chambers (a Stonewall ‘Diversity Champion’), after expressing her gender-critical beliefs. Her claim that Stonewall induced that unlawful discrimination was unsuccessful, and she is appealing this aspect of the court’s decision. If successful, the case could have wider significance, particularly in relation to the Stonewall ‘Diversity Champions’ programme which has been signed up to by companies across the UK.

Following the 2021 ruling in Forstater v CGD Europe, which established that ‘gender critical’ beliefs are protected under law, the courts have seen many similar cases brought against a range of respondents in education, law, business, and politics. One such case is Higgs v Farmor’s School, which is due to be heard by the Court of Appeal this October. Mrs Higgs, a Christian, expressed in Facebook posts her belief that gender could not be fluid and that an individual cannot change their biological sex or gender. Although these were capable of being protected beliefs, as per the Forstater case, the employment tribunal found that Mrs Higgs had not been discriminated against, but rather that she had been disciplined and dismissed because of the inflammatory language used in her Facebook posts, which could have led people to believe that she held beliefs which were homophobic and transphobic.  

The Court of Appeal’s decision will be awaited with interest and should shed further light on this developing area of law, and how employers can properly and fairly protect all their employees.

Over the next twelve months, the spotlight will continue to remain on LGBTQIA+ issues, in particular on the rights of those individuals who are trans or non-binary. Should Labour come to power, as is widely expected at the time of writing, changes in the law could be significant.

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