Without any pre-announcement – a move that, judging by some tweets, annoyed even the Women & Equalities Select Committee – the government released it’s overdue response to the trans inquiry. Once could be forgiven for thinking that the sudden, unannounced arrival of a report in the middle of the largest political crises the UK has seen for decades was an attempt to bury bad news. Despite some oddly positive press coverage suggests the report is promising things it doesn’t, reading the report does little to put those suspicions to rest.
By way of explanation, I should say that there are some well tried and tested methods of dealing with troublesome reports that politicians and civil servants will use. These tactics are not as lavish as Sir Humphrey Appleby, but they work if nobody is paying too much attention.
If you want to genuinely do something about an issue, a response will say something like “We welcome the suggestions made by the inquiry. The Ministry of Silly Walks will publish a green paper later this year, with a view to introducing legislation on the promotion of especially silly walks in public life during the next session of parliament”. This has someone who is responsible (the Ministry of Silly Walks) for doing something concrete (a green paper) by a given date (the end of the year) with a clearly defined end goal. (new legislation with a defined scope)
Conversely, you might not want to do something. In which case there are several tactics:
- (1) State that existing legislation adequately promotes especially silly walks in public life.
- (2) In response to calls to do more on a topic, give a long list of positive things you’re already doing to promote silly walks, but try to hide the fact you were already doing them.
- (3) State that more evidence about the need for silly walks is needed. Don’t do anything to encourage evidence, so you can state later that nobody sent any in.
- (4) Promise a review of silly walks. If you don’t actually want to commit to anything, don’t give any details of the remit, don’t say which group is doing the review and give any details about timescale. This makes chasing the results nearly impossible, because you can keep saying it’s still a work in progress.
- (5) If it’s nothing too harmful, publish a report into silly walks at some unspecified future date. Try to avoid giving the scope of the report, which allows you to neatly forget about any inconvenient issues when you get round to publishing it
- (6) If you really must be seen to do something promise “training” on how to develop a silly walk. Don’t give any further commitments and definitely don’t commit any money to it.
- (7) Confuse two unrelated or barely related situations to construct a straw-man argument you can dismiss as unworkable.
It’s usually considered polite to promise to “continue to monitor the issue” .
So, with all that in mind, I’ve gone through all the responses given by the government and scored them on how well the government addresses the requests from the original inquiry. I’ll warn you now, this is long (although not as long as the original report) and few areas outside the NHS score above 2/10. Most areas give excuses for inaction covered by the list above, and I don’t believe that it’s any coincidence that the areas that show some glacially slow progress in the right direction – i.e. the NHS – are being delivered by NHS England, not central government.
The original recommendations of the committee are given in italics, followed by the government’s response.
Cross-government strategy
“Within the next 6 months, the Government must agree a new strategy”
“It must also draw up a balance sheet of the previous transgender action plan, confirm those actions which have been completed and agree a new strategy to tackle those issues which remain unaddressed. This must be done within the next 6 months.“
Government’s response: “We are monitoring the remaining commitments and will publish an update report on both the existing Transgender Action Plan and the 2011 LGB&T Action Plan”
Score: 2/10. A number (5) from the fob-off tactics list. At least they’ve said something, but it’s already been 6 months since the inquiry report, and this gives no timeline for when they will publish the report.
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“The Government must also make a clear commitment to abide by the Yogyakarta Principles (setting out various protections for LGB&T people) and Resolution 2048 of the Parliamentary Assembly of the Council of Europe“. (Calls for various protections for trans people, including self-determination of gender and non-binary recognition)
Government’s response: “We have noted the ideals set out in the Yogyakarta Principles and Resolution 2048… we believe that existing international and domestic legislation provides adequate protection for transgender people, and that those mechanisms already in place for ensuring effective implementation are adequate.”
Score: 0/10. A number (1) from the fob-off list. Short of outright denouncing the Yogyakarta Principles and Resolution 2048, it’s hard to see how the government could be more dismissive. They simply note that they are non-binding and go on at length saying little more than “we’re already doing OK, so why try harder”. However, there is no explanation of which bits of the principles or resolution they disagree with.
Gender Recognition Act 2004
“The Government must bring forward proposals to update the GRA, in line with the principles of gender self-declaration”
“The Government must look into the need to create a legal category for those people with a gender identity outside that which is binary”
“We recommend that provision should be made to allow 16/17-year-olds, to apply for gender recognition“
Government’s response: “We will keep these issues under consideration. The Government will review the GRA to determine whether changes can be made to improve it in order to streamline and de-medicalise the gender recognition process. We would like to see more evidence on the case for change and the implications of altering the minimum age, moving to a self-declaration process and extending legal recognition to non-binary gender identities. We will therefore monitor the implementation of alternative gender recognition processes in other jurisdictions and we will analyse the evidence placed before the Committee to inform our work.”
Score: 1/10. A number (3). I’m encouraged that the public statements made on this might mean we get some tinkering with the GRA to remove some of the more onerous medical requirements, hence not scoring this zero. However, this is essentially “We don’t really intend to do anything much”. If they haven’t seen enough evidence by now, the implication is they are unlikely to ever be convinced by the case for change.
Spousal Veto
“We do take very seriously the evidence that we have heard regarding the scope that the spousal-consent provision gives for married trans people to be victimised by spouses with malicious intent. … The Government must ensure that it is informed about the extent of this and ways of addressing the problem.“
Government’s response: “We will continue to monitor this issue.”
Score: 0/10. Not even bothering to pick a brush-off from the list. I’d rate this negative if I could, this is the civil service equivalent of Arkell v. Pressdram. I have no idea why the 74 married trans people who gained a GRC are worth quoting here stripped of any context, given they don’t report how many people have been blocked or delayed.
Data Protection
““We note that not a single prosecution has yet been brought under [section 22]. (Protection against outing) The MoJ must investigate why there have not been any prosecutions and take action to address this. It must also work with the courts to tackle the issue of trans people being inappropriately “outed†in court proceedings.“
Government’s response: “We would like to assure the Committee that the MoJ has commenced discussions to ascertain why there have not been any prosecutions under Section 22. All HM Courts and Tribunals Service staff are obliged to undertake equality and diversity training, which includes an overview of legal responsibilities under the Equality Act 2010. Similarly, equality guidance provided to the judiciary specifically addresses the issue of gender reassignment, and provides advice on how to prevent transgender people from being ‘outed’ in court proceedings.”
Score: 2/10. Looking into the reasons why section 22 isn’t being used, which is positive – no dates but this one is my it’s nature a little more open-ended and at least lists who they’re talking to, so I’m willing to cut them some slack. The issue of people being outed however is effectively ignored with a variation on number 6 – “but we already train them” – passing the buck on to staff and judges.
Gender reassignment as a protected characteristic
“The protected characteristic in respect of trans people under the Equality Act should be amended to that of gender identity“
Government’s response: “The provision of a protected characteristic of “gender reassignment†in the Act is fully compliant with our obligations under the Equal Treatment Directive… We will keep this under review and will continue to listen to and monitor people’s experiences of discrimination, harassment or victimisation.”
Score: 0/10. Quite a strong number (1), ie “no, we disagree with you and we’re not going to do it”.
·
“The Equality and Human Rights Commission must be able to investigate complaints of discrimination raised by children and adolescents without the requirement to have their parents’ consent“
Government’s response: “No such restriction exists on the Equality and Human Rights Commission’s (EHRC’s) power to investigate complaints of discrimination.”
Score: ?. Looks like the Trans Inquiry got the wrong end of the stick on this one.
Exemptions in respect of trans people
“We recommend that the Equality Act be amended so that the occupational requirements provision and / or the single-sex / separate services provision shall not apply in relation to discrimination against a person whose acquired gender has been recognised under the Gender Recognition Act 2004.”
Government’s response: “We are keen to receive further representations and evidence on the availability and use of the exceptions in the Equality Act 2010 from all affected parties to take into account for future policy discussions.”
Score: 1/10. This starts off really well, with a statement that the government “agrees with the principle of this recommendation” but then spends two paragraphs talking about recently published guidance before kicking it into the long grass with a number 3, asking for further representations.
Separate-gender sport
“We recommend that the Government work with Sport England to produce guidance which help sporting groups realise that there are likely to be few occasions where exclusions are justified to ensure fair competition or the safety of competitors
Government’s response: “We have established a review of the Duty of Care of sports participants at all levels, and this will include mental wellbeing. Led by Baroness Grey-Thompson, the review is establishing a number of focus groups examining equality issues for all groups, including LGB&T. The Duty of Care Review will publish its findings by the end of 2016.”
Score: 8/10. The government are delivering pretty close to what the Inquiry asked for, even if it’s probably considered too small a step by most people. And they’ve given a date for the group to publish their report. I’m docking them one point for the mention of “mental wellbeing” and because this is almost certainly something that was going to happen anyway, even without the Trans Inquiry.
NHS services
Score: 4/10. This is a narrative section and doesn’t go head-to-head with inquiry recommendations. Some parts of it are very weak, mentioning that a Parliamentary Undersecretary of State spoke at a trans health conference and that they’re planning a symposium on the issue – most trans activists are suffering from consultation fatigue as the trans voluntary sector just doesn’t have the resources to keep plugging away at this year after year. The report does recognise some of the real problems with training doctors and turning around an organisation as large as the NHS, where decision making is often devolved rather than centrally managed. I don’t want to be too critical here as things are genuinely heading in vaguely the right direction, it just needs more momentum.
Professional regulation of doctors
“The NHS is failing in its legal duty under the Equality Act…A root-and-branch review of this matter must be conducted, completed and published within the next six months“
Government’s response: “NHS England is considering how to strengthen current governance arrangements to deliver this recommendation within the timescale set by the Committee.”
Score: 1/10. I had to triple check my calendar when I saw this. The inquiry report was published in January and it’s now July, which means it has already been six months. And they were only asking for a review in the first place.
Treatment protocols
“We are concerned that Gender Identity Services continue to be provided as part of mental-health services… Consideration must be given to the transfer of these services to some other relevant area of clinical specialism”
Government’s response: “We are supportive in looking at how this recommendation can be achieved. Gender dysphoria is not a mental illness.”
Score: 4/10. There’s some credit due here in that the government is looking into the transfer of services, even if it’s been driven by the clinicians at Charing Cross wanting to get away from West London Mental Health Trust. It’s also really something that it’s not realistic to expect a timetable on. This section also annoys me because the statement that “Gender dysphoria is not a mental illness” has inexplicably attracted positive press as if this is a groundbreaking statement for a government to make, rather than a restatement of the obvious. I’m not sure that whoever wrote the report really intended this to be a headline phrase.
·
“The issues that exist around clinical protocols must instead be addressed through the consistent application of clear and appropriate standards across 19 the Gender Identity Clinics.”
“The requirement to undergo “Real-Life Experience†prior to GRS must not entail conforming to externally imposed and arbitrary (binary) preconceptions about gender identity and presentation.“
Government’s response: “The NHS England Specialised Commissioning Team is leading to review the service specification for adult gender identity services. This will be a significant piece of work but there is a commitment by NHS England to deliver recommendations in 2016. Once the specification is agreed, its implementation will drive consistent application of clear and appropriate standards across all the Gender Identity Clinics.”
Score: 6/10. This is all about GICs with archaic and at times barbaic practices – the kind of institutions that would insist you divorced and wore a makeup and skirt to every meeting before even considering treatmnet. It might only be a review at this stage, but is has a date on it and a clear idea of how the problem will be solved. Only 6/10 because it’s possible the review will drag the more progressive GICs backwards by having to conform to outdated ideas.
The Tavistock Clinic (children and adolescents)
“Consideration be given to reducing the amount of time required for the assessment that service-users must undergo before puberty-blockers and cross-sex hormones can be prescribed.“
Government’s response: “NHS England will consider the outcome of public consultation before making a final decision on the service specification and clinical commissioning policy, which is planned to be by July 2016.”
Score: 9/10. They asked for consideration, a review and consultation has taken place and will publish on or around a given date. Something firmer would be nice, but it’s clinical practice so not something that can be pre-judged by civil servants or ministers. This is what a good response should look like.
Hate crime legislation
“The MoJ must ensure that it consults fully with the trans community in developing the Government’s new hate-crime action plan… This plan must include mandatory national transphobic hate-crime training for police officers and the promotion of third-party reporting.”
“The Government should introduce new hate-crime legislation which extends the existing provisions on aggravated offences and stirring up hatred so that they apply to all protected characteristics”
Government’s response: “The Government continues to carefully consider options for taking forward a review of hate crime legislation. The College of Policing is currently undertaking action to improve the level of police knowledge and training around hate crime.”
Score: 1/10. A weak number 4. Not even a promise of a review, merely a hint that they’re considering it.
Recording names and gender identities
“The Government must take the lead by ensuring public services have clear and appropriate policies regarding the recording of individuals’ names and genders”
Government’s response: “We will carry out an internal review of gender markers in official documents to find ways to reduce unnecessary demands for such markers”
Score: 1/10 on the basis of evidence presented here, likely a number 4. Internal reviews don’t report publicly, so there is no way to know if this might bear fruit.
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“The UK must follow Australia’s lead in introducing an option to record gender as “X†on a passport.”
“The Government should be moving towards “non-gendering†official records as a general principle and only recording gender where it is a relevant piece of information.“
Government’s response: “…”
Score: 2/10. Number 7. I’ve struggled to pick some useful details out of the response, but it’s lacking. It appears from irrelevant discussion of biometrics and statements like “The removal of any gender marking on the passport is not currently an option under ICAO standards” (The inquiry doesn’t ask for that) that the government is trying to fudge and confuse the issue by merging together three separate inquiry recommendations. The promise to “conduct a survey with member states on gender and passport markings” is helpful and names specific groups tasked with the work alongside reporting dates. This might well produce evidence useful for campaigning not just in the UK but worldwide, so I’m giving them some credit for that even if they close with the statement “We maintain the need for gender to be gathered at the point of application and included in the passport chip to assist law enforcement and border agencies.”
Prison and Probation services
“The MoJ, National Offender Management Service and National Probation Service must urgently clarify what the situation is pending the publication of the new [Prison Service] Instruction.“
Government’s response: “An MoJ review… concluded that treating offenders in the gender which they identify with is the most effective starting point for safety and reducing reoffending… The NOMS is working to make sure that a new instruction on transgender prisoners will follow the conclusions of the review. To ensure that any new operational policy is fit for purpose and being correctly implemented, an advisory group is proposed, initially for three years.”
Score: 0/10. The Inquiry didn’t ask for much, so a zero score might seem harsh – however, whilst harm to trans people in some of the other areas covered by the inquiry might be regarded as more remote there is clear evidence that the current policy is directly contributing to the preventable deaths of trans people in prison. Three years will cost lives.
Online services
“Government’s desire to work with online service providers rather than further regulate them must not be an excuse for inaction. The Government must keep the situation under close review and work proactively with providers to ensure that they take their responsibilities seriously.”
Government’s response: “Government is committed to making the Internet a safe place for all.”
Score: 9/10. The inquiry asked for nothing substantial, the government delivered nothing substantial. Can’t argue with that. Docking one point for the mention of the UK Council for Child Internet Safety, which isn’t relevant except that it tends towards being pro-censorship. This hurts rather than helps by causing LGBT resources for youth to become inaccessible to those most in need.
Schools
“More needs to be done to ensure that gender-variant young people and their families get sufficient support at school“
Government’s response: A list of generic LGB&T things that were already being done.
Score: 0/10. Number 2: “Look at all the nice things we’re doing”. Most of these were already in place before the trans inquiry report said more was required, and none of it is trans-specific.
·
“Trans issues (and gender issues generally) should be taught as part of Personal, Social and Health Education“
Government’s response: “We trust schools and head teachers to know how best to meet the needs of their pupils in an age-appropriate and sensitive manner, and trust them to decide what specific issues they cover in line with the needs of their pupils.”
Score: 0/10. This isn’t a fob-off, it’s an outright refusal. Printing just “No” would have saved some ink.
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“The levels of bullying and harassment experienced by trans students in further and higher education are unacceptable.”
“The Government should also take steps to ensure all further education and university staff receive gender identity awareness training.”
Government’s response: “Nick Boles, Minister for Skills, who writes to all further education (FE) college governing bodies, college principals and training providers on a termly basis, will reference the importance of providers being proactive on this issue in his next letter. For higher education, Jo Johnson, Minister for Universities and Science, will write to Universities UK, the umbrella body for universities, to highlight the need for transgender equality.”
Score: 1/10. A variation on number 6, only with letter writing rather than training. One point for persuading universities to set up a “task force”, although that’s possibly veering into a number 4.
Social care for young people
“We have heard worrying evidence about some social workers’ lack of knowledge on gender variance… The Government should seek to address this through formal training as a matter of urgency.”
Government’s response: “Government will commission a study to ascertain the adequacy and consistency of knowledge on gender variance in initial social work training and continuous professional development (CPD). It will use the findings to decide whether additional training materials should be made available.”
Score: 1/10. Number 4. A study, a review… all much the same. No dates or departments given.
“A key theme running through this chapter has been lack of sufficient understanding of transgender issues by professionals in the public sector… Appropriate training of public sector professionals on gender identity issues must be a key part of this new strategy.”
Government’s response: “We will write to all relevant heads of profession to highlight the need for training on transgender issues for their profession, asking them to introduce training if not already available, and to monitor effectiveness of the training provided.”
Score: 1/10. Another letter-writing variation on a number 6.
