Trans-exclusionary Laws

A look at the Trans-exclusionary laws in the UK and US

On October 21 The New York Times reported that the Trump administration had drawn up a policy paper to define gender as strictly male or female. The administration further instructed the Department of Health and Human Services to consider ‘sex’ as an unchangeable condition that is determined by a person’s genitals at birth, despite the American Medical Association ruling last year that gender and sexual identities are not always binary.

The proposed reforms have apparently been influenced by recent meetings of the UN’s Third Committee concerned with social, humanitarian and cultural rights, in which US officials have pushed for general assembly policy statements to remove what the administration sees as vague and politically correct language — an ‘ideology’ of treating gender as an individual choice rather than an unchangeable biological fact.

“It’s clear the administration is engaged in a broad strategy of erasing transgender people’s existence across the federal government […] They are saying we don’t exist”, said Mara Keisling, executive director of the National Center for Transgender Equality (NCTE), who also described the proposed reforms as a “super-aggressive, dismissive, dangerous move”.

The proposed reforms follow the recent move to ban transgender people from serving in the US military, as well as the administration’s decision last month to change the name of a webpage to address transgender issues on passports from ‘gender designation change’ to ‘change of sex marker’.

According to The New York Times, a leaked memo from the Department of Health and Human Services also suggested government agencies to adopt a definition of gender-determined “on a biological basis that is clear, grounded in science, objective and administrable” under the Title IX law, in what has been argued to be an effort to reverse changes to federal programmes made by the Obama administration. The reforms allowed gender designations to be made based on the individual decision rather than on the sex assigned at birth.

Trans rights activists and the NCTE consequently called for protests against the proposals outside the White House. Several hundred protesters gathered in Washington Square Park in New York on the Sunday night after the proposed policies were first reported, whilst thousands of others expressed their condemnation on social media using the hashtag #WeWontBeErased.

The reports of the US trans policies have occurred around the same time as the UK government’s consultation on the Gender Recognition Act (GRA), which has not been reformed since it first came into effect in 2004. The consultation, which closed on October 19th 2018, will address how the UK government can improve the process currently in place to allow trans and non-binary people to have their gender identity legally recognised. Tens of thousands of people campaigned for reforms to be made to the GRA online through the LGBTQ+ rights charity Stonewall.

Currently, the GRA requires trans people to have a formal diagnosis of gender dysphoria to live in their ‘acquired gender’ for two years. Non-binary people have no legal recognition under the current GRA, and people must be at least 18-years-old to have legal recognition of their gender identity. According to Stonewall, only 4,910 people have legally changed their gender since the GRA was first implemented, which is fewer than the number of trans respondents to the government’s LGBTQ+ survey.

Their responses highlighted that they wanted legal recognition, but had not applied because they found the process to be too bureaucratic, expensive and intrusive. Stonewall’s campaign asks for the GRA to require no medical diagnosis or evidence for trans people to have their gender identity legally recognised, to recognise non-binary identities, and to give all trans people,  the right to self-determination through a simpler administrative process.