Campaigns for transgender rights are in the ascendant, prompted partly by the visibility of trans personalities such as the writer and broadcaster Paris Lees and the boxing promoter Kelly Maloney. At the core of the debate is the question of whether the state determines people’s gender, or whether they can do so themselves—and what they are required to do in that case to assert that they have changed. It is rising up the political agenda partly because the milestone of gay marriage rights has been passed, giving some campaigners a sense that other battlefronts are now accessible. There are also an increasing number of cases in which someone who would like to switch gender challenges the ways in which the law differentiates between the sexes: pensions, marriage (until the passage of legislation permitting same-sex marriage), membership of different parts of the armed services, some parts of employment law, as well as other less formal practices, such as university students sleeping in single-sex dorms, or use of public single-sex changing rooms.
“It’s important to remember that until the mid 1990s in the UK, it was illegal to change your gender in Britain,” says Madeleine Rees, a discrimination lawyer who helped secure a landmark 1996 ruling by the European Court of Human Rights confirming it was unlawful to dismiss a person from a job because they had undergone gender reassignment. “I knew if we won, it would start to change everything.” (Since 2000, the number of gender reassignment operations carried out yearly on the NHS has tripled. Eighty per cent of those undergoing the treatment were assigned as boys at birth.)
But who should decide whether someone can change gender? Even those most sympathetic to the cause might acknowledge problems if someone could decide—whenever he or she wanted—to change gender. So what kind of formal requirements should the state impose for the change to be legal?
In the UK, where the trans community is estimated at 300-500,000, someone needs to have lived as his or her chosen sex for at least two years and be in the process of considering or undergoing gender reassignment surgery. But in September, Denmark became the first European nation to remove the need for a medical certificate or surgical procedure in order to change gender legally, a precedent welcomed by trans campaigners, who argue that demanding that the genital organs be surgically changed is a crude and unfair “test” of the person’s seriousness; some suffering from “gender dysphoria” might want it but others not.
Even the UK’s 2013 Equal Marriage Act doesn’t deliver all that trans people ask. While it removes the requirement for marriages to be annulled if one partner seeks to change gender, there is now the need in England and Wales for the spouse to provide written consent for the marriage to continue, giving them an effective veto (the Scottish parliament passed an amendment removing this clause).
