Transgender Rights in the United Kingdom and Ireland: Reviewing Gender Recognition Rules

By Mr Peter Dunne, Lecturer in Law (University of Bristol Law School).

In the coming months, the United Kingdom (UK) and Irish governments will (separately) review the legal processes by which transgender (trans) persons can have their preferred gender (currently referred to as the ‘acquired gender’ in UK law) formally recognised. Drawing upon my scholarship from recent years, in this post, I consider current movements for reform in the UK and Ireland, with a particular focus on trans minors (who are largely excluded from the UK and Irish frameworks) and non-binary individuals. I conclude this discussion, in the last section, by reviewing the question of ‘self-determination’, and asking if/how the UK can move beyond its current diagnosis-orientated recognition model.

Gender Recognition in the United Kingdom and Ireland – Movements for Reform

In the UK, following a long (often controversial) history of litigation before the European Court of Human Rights (ECtHR) – culminating in the landmark 2002 judgment, Goodwin v United Kingdom – Parliament enacted the Gender Recognition Act 2004 (2004 Act). While this statute does not contain an automatic review clause, the Ministry of Justice (the Ministry) has been encouraged to reassess the existing framework following recommendations from a 2016 report, ‘Transgender Equality’, published by the House of Commons Select Committee on Women and Equality (into which process the author contributed at various points – see e.g. here) (see also: P. Dunne Ten Years of Gender Recognition in the United Kingdom: Still a “Model for Reform?” (2015) Public Law 530-539). In July 2017, the Ministry announced that it would undertake a public consultation on reforms to the 2004 Act. In November 2017, the Scottish Government has also announced that it too will review the existing law.

By contrast, in Ireland, trans populations were denied legal gender recognition (although they could obtain an amended passport document) until 2015 (see Foy v Registrar General (No 1) and (No 2)). Following Ireland’s same-gender marriage referendum (also in 2015), however, the then coalition government announced finalisation of (what ultimately would become) the Gender Recognition Act 2015 (2015 Act). In addition to establishing a generally accessible regime for acknowledging preferred gender, s. 7 of the 2015 Act requires that Ireland’s Minister for Employment Affairs and Social Welfare (the EASW Minister), “not later than 2 years” after commencement (i.e. September 2017) of s. 7, to undertake “a review of the operation” of the statute. On 7 November 2017, the EASW Minister announced the creation of a ‘Gender Recognition Act Review Group’, to be chaired by Moninne Griffith, Executive Director of the lesbian, gay, bisexual, trans and queer (LGBTQ) youth organisation, BeLonGTo Youth Services.

For some observers, there might be surprise that, among all the possible jurisdictions, it is the UK and Ireland that have chosen to re-evaluate their gender recognition structures. While (as discussed below) both the 2004 and 2015 Acts suffer (to different extents) from important defects, they are comparatively progressive when considered against the spectrum of gender identity laws operating across the Council of Europe. Unlike Polish and Czech Law, for instance, neither the UK nor Ireland condition recognition on submission to (possibly involuntary) surgical interventions. Similarly, applicants for acknowledgement in neither jurisdiction must undergo sterilisation – a particularly controversial (and ECHR non-compliant – see AP, Garcon and Nicot v France, see also P. Dunne Legal Gender Recognition in Europe: Sterilisation, Diagnosis and Medical Examination Requirements (2017) Journal of Social Welfare and Family Law) requirement still imposed in countries, such as Finland and Turkey (see P. Dunne Trans Sterilisation Requirements in Europe (2017) Medical Law Review).

Yet, in a European (and even global – e.g. G v Australia) environment, where judges and policy-makers are increasingly aware of gender diversity (an interesting example being the recent decision of the German Constitutional Court requiring acknowledgement of legal categorisation outside ‘male’ and ‘female’), it is perhaps natural that those in the UK and Ireland will also (irrespective of the comparative merits of their legislation) advocate possible improvements.


Perhaps the most obvious point of contention surrounding both the 2004 and 2015 Acts is their (almost absolute) exclusion of applicants under the age of 18 years (P. Dunne Transgender Children and the Law (2017) Family Law 123-124). Section 1(1) of the 2004 Act acknowledges only “person[s] of either gender who [are] aged at least 18.” This means that, without exception, trans children do not (and cannot) come within the terms of the UK’s gender recognition framework. In Ireland, all children under the age of 16 years fall outside the 2015 Act. There is, however, limited scope (s. 12) for adolescents – between 16 and 17 years – to legally transition, as long as they satisfy a series of (strict) access criteria – including having the consent of both parents or guardians (with narrow exceptions), the agreement of the minor’s primary treating medical physician and another endocrinologist or psychiatrist, and an order of the Irish Circuit Family Court. Given the difficulty that many trans youth experience in obtaining gender confirmation healthcare in Ireland, and high rates of parental disapproval of non-cisgender (i.e. identifying with one’s birth-assigned gender) identities, the s. 12 exception creates a significant obstacle for 16 and 17-year-old applicants to surmount.

Much of the apprehension, both in the UK and Ireland, about recognising trans youth arises from a fear that it would not be possible, at least in a reliable manner, to identify those young people who, in addition to expressing a trans identity as children, would persist in that status through adulthood.[i] During the recent legislative debates in Ireland, there was an evident fear that – if formal acknowledgement is extended to minors – there is potential for misidentification with a subsequent need for ‘de-transitions’. Absolute age-limits (or at least the 16-year-old threshold established under the 2015 Act) are justified as necessary safeguards against premature applications, occasioned by the supposedly fluctuating nature of gender in youth.[ii]

There is no doubt that the best interests (or ‘welfare’) of minors should be the paramount consideration in deciding the recognition rights of trans children. Despite growing evidence that young people benefit from affirmation of their preferred gender[iii], policy-makers should be cautious to adopt any legal framework which would (routinely) misidentify children as trans.

The existing research in this area presents mixed messages vis-à-vis the desirability of reform. On the one hand, there is an important (but not substantial) body of data that suggests that approximately 70% to 80% of children who are ‘diagnosed’ as trans in youth do not continue to express that identity in adulthood.[iv] For advocates of reform, this research stands as a stark warning: to the extent that a majority of children, who are identified as trans will not develop a trans identity post-majority, there are clear policy justifications for withholding legal transitions. On the other hand, however, the existing research is affected by significant defects: it incorporates children who should never have been identified as trans (and who, therefore, are not evidence of ‘desistence’ among trans youth)[v]; it includes children who were lost to follow-up among desistence rates (although their current gender identities are unknown)[vi] and it fails to consider how peer-pressure forces trans youth (who have and always will identify as trans) to internalise and hide their preferred gender.[vii]

In the past decade, a growing body of scholarship has emerged which suggests that, where young people have an intense and persistent identification as their preferred gender, they are likely to continue in that identification into adulthood.[viii] In jurisdictions, such as Malta, Argentina and Norway, provision has been made to recognise children below the 16-year threshold. In its report, the House of Commons Select Committee on Women and Equalities called upon Parliament to begin acknowledging (at least some) adolescents below majority ([70] – [71]). Similarly, in Ireland, there are calls to (at the very least) ease restrictions for 16 and 17-year-old applicants. Whether either the UK or Irish parliaments adopt these measures, or go even further, will perhaps be the most eagerly observed aspect of the forthcoming review.

Non-Binary Recognition

A second common area of consideration for the review in both jurisdictions will be non-binary recognition. This refers to structures for acknowledging – through law – persons who experience their gender as neither ‘male’ nor ‘female’. In recent years, an increasing proportion of those, who self-identify within British and Irish trans communities, have sought to obtain an official gender status beyond ‘man’ and ‘woman’ (see here and here) (although, it should be noted that not all persons who have a non-binary or non-gendered identity identify as ‘trans’). Among youth and young adult populations, there is a particularly high incidence of non-binary identification. However, under the existing terms of the 2004 and 2015 Acts, it is only possible to be affirmed in a preferred gender that adheres to traditional (i.e. male/female) binary norms.

The question of whether (and how) policy-makers in the UK and Ireland can accommodate non-binary identities is highly complex. On the one hand, there is growing evidence of the significant hardships which non-male and non-female individuals experience. Where UK and Irish law is structured to recognise only two rigid, immutable genders, there is little space for those whose simple existence challenges that gender dichotomy. Even among trans populations (which already have disproportionately higher rates of negative mental health outcomes), non-binary persons are particularly likely to experience poor mental health. While, in many respects, persons with a non-male and non-female gender confront the same prejudices as the wider trans community, they are also exposed to additional challenges – such as identity erasure and systematic undermining of their experiences of gender. As such, given the especially precarious position that non-binary persons may occupy, they would receive both a practical and symbolic benefit from legal gender recognition.

On the other hand, however, non-binary recognition does present unique challenges for UK and Irish policy-makers. Even if there was the political will to move beyond male and female genders, it is uncertain how that would be achieved? In recent years, a small number of jurisdictions, including India and Australia have sought to formally acknowledge categories outside ‘male’ and ‘female’. Yet, in many ways, these examples (and others like them in Nepal, Pakistan, etc.) are culture and context-specific. Unique identities, which are rooted in a particular culture or which are the result of a specific (possibly highly-restrictive) legal framework (consider the actual requirements of the widely-reported Norrie Case in Australia), cannot serve as a general blueprint for reforms in the UK and Ireland. There is also a question as to what extent non-binary recognition frameworks have de facto been implemented in these jurisdictions.[ix]

One possibility is to enact a third or ‘X’ gender marker, which accommodates persons who do not/cannot self-identify as a man or woman. In many ways, this may be the optimal solution – and it is a result for which a number of non-binary or non-gendered persons are currently litigating in the UK and Irish courts. ‘X’ gender markers provide individuals with official recognition, but also exempt them from having to embrace traditional male or female status.

Yet, as an inclusive-strategy of recognition, it is not without critique. First, there is the practical question of how ‘X’ gender markers will be properly accommodated within (what is likely to remain – both legally and socially) a binary-orientated society. Put simply: one can question the utility of UK and Irish officials providing non-binary identity documents (including a re-issued birth certificate) if those same officials continue to anchor state services and benefits on dichotomous, male-female genders. In this regard, it may be useful to monitor the unfolding legal reforms in California, which has recently introduced non-binary recognition policies. There is also a fear that ‘X’ markers would be simultaneously over and under-inclusive: grouping together numerous, possibly conflicting identities while, at the same, excluding fluid or changeable gender experiences, which are incompatible with any rigid or fixed categorisation.

Another possibility (and one which has been a source of recent controversy in the UK – see here and here) is a movement away from gender as a category. To the extent that nobody has to reveal an official gender status, non-binary persons are less likely to experience discomfort or disadvantage because their experiences fall outside traditional gender norms. In recent years, there have been increasing steps –legally, commercially and socially – to decrease the relevance of gender as an identity classification. This has manifested itself in many forms, extending to issues, such as the de-gendering of spaces (P. Dunne (Trans)forming Single Gender Services and Communal Accommodations (2017) 26(5) Social and Legal Studies 537 – 561) and pregnancy. In its 2016 Report, the House of Commons Select Committee on Women and Equalities encouraged the Government to move “towards ‘non-gendering’ official records as a general principle and only recording gender where it is a relevant piece of information” [299]. To the extent that law can be used to reproduce or instigate arbitrary gendered distinctions, there may be a benefit (for all persons in society – cisgender and trans) to neutralising the law as an instrument of gender oppression.

On the other hand, scholars have also raised numerous objections to processes of fully de-gendering the law. First, legal gender plays an important role in responding to discrimination.[x] While law may facilitate certain prejudices, it is a primary instrument for remedying gender-based inequality.[xi] Second, gender unfairness is not solely a product of law. It is also a social phenomenon. De-gendering the law will not fully eradicate gender inequities. It simply reduces law’s capacity to intervene.[xii] Third, de-gendering diminishes the experiences of female-identified persons.[xiii] For many women, the legal category ‘female’ acknowledges the unique biases that they face “as women”.[xiv] It is a symbolic strategizing tool around which all female-identified individuals (including trans women) can organise for collective rights.[xv] Finally, many trans persons reject abolishing legal gender. While scholars have described trans experiences as inherently challenging gender, Prosser criticises failures to acknowledge the numerous trans persons for whom gender, and the ability to reproduce standard gender norms, is a core desire.[xvi] Many trans people struggle for a significant proportion of their lives to be accepted and validated in their lived-identity. Legal gender recognition is a key step towards self-actualisation.

In both the UK and Ireland, achieving non-binary recognition will require novel solutions, which challenge existing understandings of traditional gender. While, as an immediate consequence of the Ministry’s consultation (UK) and the Review Group’s report (Ireland – due in 2018), there may not be a sudden expansion (or removal) of gender categories, the governments in both jurisdictions must begin to consider meaningful reforms (e.g. ‘X’ passports, etc.) for persons whose identities stretch beyond the binary.


One key issue on which the UK and Irish reviews are likely to deviate is whether trans individuals should have a right to self-determine their legal gender (P. Dunne Rethinking Legal Gender Recognition: Recent Reforms in Denmark, Argentina and the Netherlands (2015) 1 International Family Law 41-45). Although the Irish parliament did not adopt gender recognition until 2015, the existing law – once enacted – has enshrined a right for trans individuals to self-declare their own gender. Once (adult) applicants in Ireland provide a statutory declaration requesting a permanent change in their legal gender status, they are (generally) subject to no further pre-conditions. To the extent that the Gender Recognition Act Review Group will consider topics related to trans self-determination as part of their enquires, such discussions are unlikely to stretch beyond whether the current self-determination rules are operating as intended.

By contrast, in the UK, the 2004 Act does not embrace gender autonomy. Instead, under s. 2, applicants must provide evidence that they: (a) have or have had ‘gender dysphoria’ (a mental health classification associated with experiencing distress because of one’s gender identity) (the ‘Diagnosis Requirement’); and (b) have lived in their preferred gender for a period of two years prior to their application (the ‘Real Life Experience’ or ‘RLE’) Test. Since the announcement of the Ministry’s forthcoming consultation, much of the political and media coverage on the proposed reforms have focused on self-determination (see here, here and here). In their 2016 recommendations, the House of Commons Select Committee on Women and Equalities called upon Parliament to permit self-declared gender for all applicants aged 16 years or older [45].

A number of arguments can (and have) been raised both in favour of, and against, adopting a self-determination model under the 2004 Act.

In opposition, some commentators have cited the threat of misuse or fraud. If individuals are able to decide their legal gender without safeguarding checks (e.g. diagnosis requirements, other medical oversights, etc.), there is a fear that cisgender persons will dishonestly use gender recognition procedures to obtain an improper benefit. Two commonly-raised concerns are cisgender men who alter their legal gender to gain access to women-only spaces (also the justification for recent state and city-level anti-trans policies in the United States), and cisgender men and women who apply for a Gender Recognition Certificate to de-fraud social welfare services.

Abuse-orientated objections do raise important considerations – it goes without saying that policy-makers should be aware (and seek to counteract) possible misuses of the laws that they enact. However, in the eight jurisdictions which have thus far introduced self-determined legal gender (Argentina, Malta, Denmark, Ireland, Norway, Sweden, Colombia and Belgium), there are no reported cases of cisgender persons – men or women – applying to amend their legal gender for dishonest or fraudulent purposes.

Furthermore, under the existing terms of the UK’s Equality Act 2010 (2010 Act), those who fall within the protected characteristic of ‘gender reassignment’ (itself a problematic term) should not be excluded from their preferred communal accommodations where exclusion is not a proportionate means of achieving a legitimate aim (Schedule 3, para. 3). A person does not have to undertake a medical transition, or obtain a Gender Recognition Certificate, to come within the scope of ‘gender reassignment’ protections (s. 7 includes within the definition of ‘gender reassignment’: “a person [who] is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” Therefore, through the 2010 Act, individuals in the UK already have a qualified right to enter their preferred gendered-spaces on the basis of their self-defined gender – without any apparent threat to women and other vulnerable occupants.

For those to advocate the introduction of self-determination model under the 2004 Act, this approach would be preferable to existing requirements in a number of ways.

A primary criticism of s. 2(1)(a) of the 2004 Act (‘gender dysphoria’) is the implicit link that the diagnosis requirement makes between trans identities and mental health difficulties.[xvii] To the extent that applicants can only be acknowledged where they are diagnosed with gender dysphoria, this inevitably defines gender recognition through a lens of pathology.[xviii] It requires trans communities to share in existing social stigmas surrounding psychological and psychiatric illness.[xix] While this critique relies upon an ableist perception of mental health as ‘sickness’ rather than ‘difference’,[xx] many trans persons do strongly resent the pathologisation of their gender experiences.[xxi]

There are also critiques of the ‘Real Life Experience’ test.[xxii] The very notion of living a ‘real’ gendered life is highly abstract. It is unclear in what conduct individuals must engage to sufficiently live as a ‘man’ or ‘woman’. Many cisgender women avoid dresses or make-up, and many cisgender men are more interested in fashion than sport. In such circumstances, one can ask whether trans women who wear jeans and reject beauty products live an inadequately ‘real’ life (and vice versa for trans men). Despite law-makers’ intentions, there is a considerable risk that RLE does encourage third-parties to judge the ‘realness’ of trans men and women’s identities. It reinforces troubling gender norms and validates discriminatory gender expectations. RLE raises a gender-bar, which cisgender persons need not meet and which applicants would not have to satisfy once they are legally recognised.

While political and social debates on the desirability of self-determination continue to rage – both in Parliament and in national newspapers, across the UK, there are compelling arguments (practical and legal) why law-makers should embrace self-determined gender as part of a reformed 2004 Act. In doing so, they will not only harmonise gender recognition frameworks across the UK and Ireland, they will also facilitate the (not insignificant) number of British trans individuals who, for a multiplicity of reasons, cannot/will not bring themselves within the current, medicine-focused gender recognition model.


[i] Kristina Olson, ‘Prepubescent Transgender Children: What We Do and Do Not Know’ (2016) 55(3) Journal of the American Academy of Child and Adolescent Psychiatry 155, 155. For a recent media example of the debate on this issue, see: ‘Do We Need More Education on Transgender Issues?’ (BBC Sunday Morning Live, 6 November 2016) accessed 5 July 2017.

[ii] For recent evidence of stability in young trans persons’ identity, see: Kristina R Olson, Aidan C Key and Nicholas R Eaton, ‘Gender Cognition in Transgender Children’ (2015) 26(4) Psychological Science 467; Anne Fast and Kristina Olson, ‘Gender Development in Transgender Preschool Children’ (2017) Child Development.

[iii] Kristina R Olson and others, ‘Mental Health of Transgender Children Who Are Supported in Their Identities’ (2016) 137(3) Paediatrics; Annelou de Vries and others, ‘Young Adult Psychological Outcome After Puberty Suppression and Gender Reassignment’ (2014) 134(4) Paediatrics 696.

[iv] Herbert J Bonifacio and Stephen M Rosenthal, ‘Gender Variance and Dysphoria in Children and Adolescents’ (2015) 62(4) Paediatric Clinics of North America 1001, 1004.

[v] ‘Statement on Gender Affirmative Approach to Care from the Paediatric Endocrine Society Special Interest Group on Transgender Health’ accessed 3 July 2017.

[vi] Brynn Tannehill, ‘The End of the Desistence Myth’ (Huffington Post, 1 January 2016) accessed 22 October 2016.

[vii] Julia Serano, ‘Detransition, Desistance, and Disinformation: A Guide for Understanding Transgender Children Debates’ (Medium, 3 August 2016) accessed 7 July 2017.

[viii] Madeleine Wallien and Peggy Cohen-Kettenis, ‘Psychosexual Outcome of Gender Dysphoric Children’ (2008) 47(12) Journal of the American Academy of Child and Adolescent Psychiatry 1413, 1420; Diane Ehrensaft, ‘Found in Transition: Our Littlest Transgender People’ (2014) 50(4) Contemporary Psychoanalysis 571, 578; Aiden Key, ‘Children’ in Laura Erickson-Schroth (ed), Trans Bodies, Trans Selves (Oxford University Press 2014) 411.

[ix] See e.g. Michael Bochenek and Kyle Knight, ‘Establishing a Third Gender Category in Nepal: Process and Prognosis’ (2012) 26(1) Emory International Law Review 11.

[x] Government of Australia, Australian Government Guidelines on the Recognition of Sex and Gender (Government of Australia 2015) 6 accessed 10 April 2017; Anna James Neuman Wipfler, ‘Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents’ (2016) 39(2) Harvard Journal of Law and Gender 491, 539. See also: Linda C McClain, ‘Categorizing by Sex is a Remedy for Discrimination’ (New York Times, 20 October 2014) accessed 11 April 2017.

[xi] Judith Lorber, ‘Using gender to undo gender A feminist degendering movement’ (2000) 1(1) Feminist Theory 79, 90.

[xii] Pauline Park, ‘GenderPAC, the Transgender Rights Movement and the Perils of a Post-Identity Politics Paradigm’ (2002) 4(2) The Georgetown Journal of Gender and the Law 747, 757-758.

[xiii] Marie Gustafsson Sendén, Emma Aurora Bäck and Anna Lindqvist, ‘Introducing a gender-neutral pronoun in a natural gender language: the influence of time on attitudes and behavior’ (2015) 6 Frontiers in Psychology accessed 11 April 2017. According to Vade, “[i]f we act as if gender does not exist, then we act as if sexism and transphobia do not exist and so reinforce the privilege of…in particular, male genders”, Dylan Vade, ‘Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that is more Inclusive of Transgender People’ (2005) 11(2) Michigan Journal of Gender and Law 253, 277-278.

[xiv] Catherine MacKinnon, ‘From Practice to Theory, or What is a White Woman Anyway?’ (1991) 4(1) Yale Journal of Law and Feminism 13, 15; Geraldine Christmas, ‘Research note: intersexuality, feminism and the case for gender binaries’ (2010) 24(1) Women’s Studies Journal 60, 60.

[xv] Surya Munro, ‘Beyond Male and Female: Poststructuralism and the Spectrum of Gender’ (2005) 8(1) International Journal of Transgenderism 3, 16.

[xvi] Jay Prosser, Second Skins: The Body Narratives of Transsexuality (Columbia University Press 1998). See also: Viviane Namaste, Invisible lives: The erasure of transsexual and transgendered people (University of Chicago Press 2000); Henry Rubin, ‘Phenomenology as method in trans studies’ (1998) 4(2) GLQ: A Journal of Lesbian and Gay Studies 263

[xvii] Jennifer Levi and Bennett Klein, ‘Pursuing Protection for Transgender People Through Disability Laws’ in Paisley Currah, Richard M Juang and Shannon Price Minter (eds), Transgender Rights (University of Minnesota Press 2006) 80-81.

[xviii] Parliamentary Assembly of the Council of Europe, ‘Discrimination against Transgender People in Europe’ (22 April 2015) Resolution No. 2048(2015), [1]; Emma Inch, ‘Changing Minds: The Psycho-Pathologization of Trans People’ (2016) 45(3) International Journal of Mental Health 193, 194.

[xix] Zowie Davy, ‘The DSM-5 and the Politics of Diagnosing Transpeople’ (2015) 44(5) Archives of Sexual Behaviour 1165, 1173, Kevin Barry, ‘Disabilityqueer: Federal Disability Rights Protection for Transgender People’ (2013) 16(1) Yale Human Rights and Development Law Journal 1, 44.

[xx] Dean Spade, ‘Resisting Medicine, Re/modeling Gender’ (2003) 18(1) Berkeley Women’s Law Journal 15, 34.

[xxi] Christopher Hutton, ‘Legal sex, self-classification and gender self-determination’ (2017) 11(1) Law and Humanities 64, 79.

[xxii] Timothy Cavanaugh, Ruben Hopwood and Cei Lambert, ‘Informed Consent in the Medical Care of Transgender and Gender Nonconforming Patients’ (2016) 18(11) AMA Journal of Ethics 1147, 1148; Helen Barker and Kevan Wylie, ‘Are the Criteria for the ‘Real-Life Experience’ (RLE) Stage of Assessment for GID Useful to Patients and Clinicians?’ (2008) 10(3-4) International Journal of Transgenderism 121, 127.

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