On Trans Day of Remembrance, we reflect on law reform and what needs to change for trans people in the UK

Trans Day of Remembrance is observed annually on 20 November, and is a sombre occasion on which we remember those whose lives have been lost through anti-trans violence. In 2014 teenager Leelah Alcorn’s name was added to this list, after she took her own life as a consequence of her parents’ negative response to her coming out, religious transphobia and the ensuing loneliness and isolation she experienced. Her suicide note ended with an impassioned plea to: “Fix society. Please.”

Seven years on in the UK, strategic litigation by anti-trans groups is seeking to challenge trans people’s access to single-sex spaces and gender-affirming medical treatment (particularly for trans young people), campaign groups are seeking to undermine the reputation of Stonewall, Europe’s largest LGBT+ rights charity because it is trans inclusive, and the waiting lists for NHS Gender Identity Clinics for both adults and children are years long.

Against this backdrop, progressive law reform may seem a secondary concern, but that does not mean it should be forgotten or overlooked. On a daily basis, we deal with legal problems experienced by trans people in the following key areas where we think there is a need for urgent law reform.

Legal parenthood for trans parents

Trans people conceive children too. Many store eggs, sperm or embryos in anticipation of conceiving a genetic child in the future, and many now conceive children after transitioning, whether that means carrying a pregnancy as a trans man or non-binary person, or being a non-birth parent to a partner or following donation and/or surrogacy.

But UK law on parenthood does not include them. Its rules are rooted in 1990s law which was initially designed to protect the legal parenthood of cisgender heterosexual couples conceiving through IVF, donation and surrogacy and later expanded in 2009-10 to give same-sex couples parity rights, but never designed to cater for trans parents. As a result, the existing rules create some bizarre outcomes for trans parents and their children because of the way in which they assign the titles ‘mother’, ‘father’ and ‘parent’. The most vivid example of this is trans fathers who give birth. As the Re TT/Freddy McConnell case established, even someone with a Gender Recognition Certificate (who for all legal purposes is a man) can only, under English law, be registered as the ‘mother’ on his child’s birth certificate, and not as the ‘father’ or ‘parent’.

Read Natalie and Kelly’s article for family lawyers: When fathers are mothers – Re TT and the absurdity of modern family law which does not include trans parents.

There is also enormous confusion for non-birth parents, since whether they are registered as a ‘parent’ or a ‘father’ depends, not on what is appropriate for them or their child or their legal gender, but on how they child was conceived, who carried them and who the birth parent was married to.

Find out more about how the current law works.

The current law on parenthood omits trans parents entirely, and yet trans parents and their children are real. They are currently being given birth certificates which do not reflect their lived realities, and which forcibly ‘out’ their parents as trans (for example to schools and nurseries which ask for birth certificates) when in no other circumstances would that be considered appropriate. The law does not put children’s welfare first and we need law reform to ensure that families with trans parents are included in the law, and can enjoy the same legal recognition and protection that all other families do.

The process for changing legal gender

The Gender Recognition Act 2004 is now 17 years old. It creates a mechanism for trans people to update the gender recorded on their birth certificates to reflect their ‘acquired gender’ (this is the language used in the legislation) and to give certain legal protections to trans people who have a Gender Recognition Certificate.

The world has moved on since 2004 and the law is outdated for various reasons: the arduousness of the process, its lack of transparency, the need for medical evidence (which suggests that non-cisgender identities are a medical disorder rather than a natural variation of human experience) and the veto given to trans people’s spouses (in England at least). 

In 2017 during Pride, the Government announced its intention to modernise the Gender Recognition Act, acknowledging that the 2004 legislation was burdensome and out of step with modern understanding of gender identity. However, two years later, the Government’s long-awaited response to its own consultation rowed back on its reform commitment, with an announcement there would be no significant reform to the current law even though the consultation response had been overwhelmingly in favour. You can read more about why this happened in:

This was a tragic missed opportunity to update law which so clearly needs modernising. It has left trans people remaining stuck in an odd situation where the state is willing to recognise their gender on official documents in some respects (such as driving licences and passports) through relatively straightforward administrative processes, but to obtain an updated birth certificate that is seldom used day-to-day they have to subject themselves to an invasive process of scrutiny by a faceless Gender Recognition Panel. The identities of Gender Recognition Panel members are not known, and applications are almost always decided on paper by applying overly complex legal rules, depriving trans people of the opportunity to make representations to the Panel. On the ground, the process often feels inhumane. 

Other important issues

Recognising non-binary and other gender identities

Increasing numbers of people openly identify as neither male nor female, but the law has been slow to catch up in enabling people to recognise that appropriately in their identity documents and elsewhere. Currently, birth certificates, passports and other important identity documents can only record a person as either male or female. We would like to see identity documents reflecting gender more flexibly and appropriately to people’s lived realities – or omitting gender entirely.

Fertility preservation and gamete/embryo storage 

Many trans and non-binary people who plan to undergo medical transition are eligible to store their gametes for an extended period of up to 55 years. However, the rules on extended storage are notoriously complex and the Government is currently consulting on whether to simplify them and make them fairer overall, a move we enthusiastically support. We are currently inputting into the Government’s technical consultation and hope to help ensure that the new rules are workable for trans and other people. Read more about the Government’s plans for reform of the law on gamete and embryo storage.

How we make a difference at NGA Law

We have a long history of promoting (and winning) legal progress at NGA Law, in particular for LGBT+ families in relation to their personal lives and family status. We will continue to take every opportunity we can to push for and create better law which is up to date and includes all different family forms. The laws governing trans people in the UK are now decades old and they need to made fit for the twenty first century.

Find out more about how we make a difference.