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Today (10 August 2022), Suella Braverman QC MP, the Attorney General, made a speech for the Policy Exchange think tank on the affirmation of trans, non-binary and gender diverse children in school.

The contents of Braverman’s speech do not reflect our understanding of the Equality Act 2010 or the realities of being a trans child in schools. Her speech is not legally binding on schools and does not mark a change in school’s duties toward trans children in their care. 

What does the Equality Act say?

Under the Equality Act 2010, people with the characteristic of “gender reassignment” are protected from discrimination, harassment and victimisation. This captures anyone who is trans, regardless of medical intervention.

Schools may also be subject to a Public Sector Equality Duty under the Equality Act 2010, which requires them to advance equality of opportunity, foster good relations and have due regard to the need to minimise disadvantages suffered by persons who share a relevant protected characteristic.

As we understand it, this means that it is contrary to the Equality Act if schools refuse to allow a child to wear the uniform that matches their gender identity or use a single-sex facility that matches their gender identity.

There is a high bar for the exclusion of trans children from sports where their inclusion may undermine safety or fairness. We believe that access to sport is a fundamental part of childhood, teaching young people important life lessons about teamwork, navigating new environments, building confidence and making friends, and has numerous physical and emotional benefits that make us who we are. To exclude trans, non-binary and gender-diverse young people from such experiences is to deny them a childhood. 

The benefits of inclusion

Using the correct pronouns (e.g. he, she, they) of a child can be an important and simple way to create an inclusive, respectful school environment. Studies show the real impact this can have on a trans or gender-diverse person, including, for example, a 71% reduction of symptoms of depression (Russell et al, Journal of Adolescent Health 63 (2018): “Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth”).

A child being trans does not make them a safeguarding risk to other children and affirming and supporting trans children does not hurt other children in their peer group. Furthermore, the Equality Act makes clear that medical intervention or diagnosis is not required for a child to use the name or pronouns of their choice.

Our view

We do not believe that providing a supportive and inclusive environment disadvantages anyone. Trans rights are not to the exclusion of others’ rights but in addition to the benefits and freedoms enjoyed by the majority.

Education is a fundamental human right and trans children need support and protection to ensure the same standard of education as everyone else, rather than additional barriers proposed by some. We urge schools to be agile and supportive and take extra measures to ensure that trans children can enjoy the same opportunities as everyone else. 

If something happens at your school and you need support, contact [email protected]. We also work with schools to help them strive to be as inclusive as possible. If you’re interested in speaking to our training team, please email [email protected].

The Tribunal has agreed to hear our arguments as to why the LGB so-called Alliance (LGBA) should not have been given charitable status. This means we, as the main claimant in the case, will have the opportunity to present the full facts as to why LGBA’s activities are not those of a charity. The hearing will take place in May 2022.

The LGBA wanted a separate hearing to determine whether or not we had what’s called “legal standing” – whether we could bring the claim at all. We believe they wanted to close the conversation without having to properly explain themselves. We said that this would only have duplicated work in the long-run, and the Tribunal agreed. The LGBA will still get to argue that our claim lacks standing, but only as part of the wider hearing. 

To be registered as a charity, an organisation must be established exclusively for purposes which the law recognises as charitable, and it must pursue them in a way which gives rise to tangible benefits that outweigh any associated harms. We don’t believe that the legal threshold has been met. 

We welcome a full hearing. A spokesperson for Mermaids said: “We are pleased that the Tribunal has made the decision that there will be one hearing that deals with everything. We look forward to the hearing where the LGB Alliance will have to explain themselves. 

“To be registered as a charity, an organisation must be established exclusively for charitable purposes. LGB Alliance does not stand for LGB rights, but exists to divide our community and denigrate trans people and those who support them.”

In addition to our grounds of appeal, we have now submitted two replies, one to the Charity Commission and now one to LGB Alliance

We are hugely grateful for your support so far. If you are able to make a donation to the CrowdJustice fundraiser backing our appeal, you can do so here.

Notes to editors

2. Mermaids is a UK-wide charity (registered charity number 1160575) working to support transgender, non-binary and gender-diverse children, young people, their families and the professionals who support them. Our goal is to create a world where gender-diverse children and young people can be themselves and thrive. Services include a helpline, web chat and online forums for parents and young people, as well as face-to-face meet-ups for peer support. We also provide training into organisations and advocate for a fairer society for trans young people.

3. The appeal is being supported by a number of leading organisations, including Good Law Project, the LGBT+ Consortium, LGBT Foundation, Gendered Intelligence and TransActual.

4. This appeal is being crowdfunded.

5. Any media enquiries should be directed to [email protected].

Analysis from Mermaids’ legal and policy team into a new report by the Women and Equalities Select Committee into proposed changes to UK Gender Recognition legislation

We welcome the Women and Equalities Select Committee’s (WESC) report released today (Tuesday 21 December 2021) that reviews the Government response to proposed reforms to Gender Recognition legislation in the UK. 

You’ll see that the WESC examined the Government’s proposals, gathering evidence on whether the Government’s proposed changes are the right ones and whether they went far enough.

The Commission were exploring what changes, if any, should be made to existing legislation, in order for current legislation to improve transgender equality. 

The Committee’s report is not a short document and we have done our best to pull out some of the key recommendations of the Committee.

Key recommendations

  1. The report recommends a few changes to Gender Recognition legislation, including removing the requirement to live in an affirmed gender for a period of two years, removing the requirement of a diagnosis of gender dysphoria and removal of the spousal veto. 
  2. The report calls for a review to be conducted of whether the Gender Recognition Panel could be removed and replaced with the Registrar General for England and Wales, and for interim plans to improve transparency around the Panel’s operation be made.
  3. The report calls for better guidance on the single-sex and separate-sex exceptions and urges the GEO and EHRC to publish such guidance “immediately”. 
  4. The report calls on the Government to set out and commit to placing the application process online in the next six months, alongside providing a non-digitised route for those who do not have access or do not wish to apply online.
  5. The report found that the length of time the Government took to respond to it’s own consultation (in 2018) is “unacceptable”. It concludes that this delay exacerbate tensions between an already polarises group of stakeholders and also caused real distress to many within the transgender community. 
  6. The report acknowledged that the GEO’s mention of “new clinics’ within their GRA reform” announcement last year “served only as a distraction from the lack of any real change to the gender recognition process”. 
  7. The report recommends that the requirement for “spousal veto” should be removed insofar that spouses should be given the option to remain married/in a civil partnership or have it annulled. 
  8. The report that the minimum age for those able to access legal gender recognition should remain at 18. 
  9. The report has also recommended that section 22 of the GRA be amended to only apply when the disclosure of a person’s GRC status has been disclosed in a “deliberate and knowing” manner. 
  10. The report calls for improved healthcare provision for transgender, non-binary and gender diverse people. 
  11. The report calls for the Government to respond to clarify within 12 weeks on its intentions around legal identification for non-binary people and for the EHRC to conduct research to provide for legal recognition within this parliament. 
  12. The report asks for the Government and EHRC to provide worked examples of exemptions to Equality Act protection for trans* people to ensure clarity regarding single-sex spaces, employment and sports. 
  13. The report calls for a distinction to be made between sex and gender when collecting data and to ensure that distress for trans* people is minimised when such data is collected. 
  14. The report calls for the Government to immediately sign up to the LGBT Action Plan and reinstate the LGBT Advisory Panel. 

“Welcome and needed”: An analysis by Lui Asquith (they/them), Director of Legal and Policy

After years of difficulty that arose from the public consultation on GRA reform within which the law was confused and rights were erroneously put at odds with one another, we have a report from the Women and Equalities Select Committee that brings us hope and a request for action from this Government. 

It’s a document that isn’t perfect, but what we are seeing here is movement and a willingness from the WESC to say the Government has not got it right and that it needs to do better for trans people. The Committee hasn’t gone lightly on the Government and this is a very much needed nod to a future where trans people can be. 

LGBTQIA+ rights have always been difficult to acquire (that’s a reality, not an excuse to further reject our civil liberties) and what we see within this report is a committee that is willing and ready to hold our Government to account on trans equality matters, which is both welcome and needed.

Unfortunately the Committee didn’t go so far as to recommend a lowering of age around legal gender recognition, which we know to exist around the world already. What I would say to that is, it’s not surprising given the scaremongering that’s happened around trans youth particularly within the UK, but I do believe that this report is a step towards one day achieving self-ID for trans children and young people. 

I do believe that this report is a step towards one day achieving self-ID for trans children and young people”

The decision around a refusal to support under 18s to self-determine their own identity is both a by-product of how we approach the child voice more generally within the UK together with a imposing a cis-normative expectation on youth, which many have to carry with them for the rest of their life. 

Young trans people are people over and above anything else and they deserve the right to make their own decisions once they have the capacity to do so, just as any other person does. We can already see in other areas of law that being under 18 doesn’t mean you don’t have that capacity to make decisions for yourself – we should be allowing all young people to enjoy these human liberties. LGBTQIA+ rights and our approach to it needs to include those under 18 otherwise we are only serving one part of the population.

In a crucial move, this report says no to the pathologising of trans people and pushes the Government to consider what it can do for non-binary people. 

It also doesn’t hide away from commenting on access to healthcare and calls for: “improved support to help young people seeking to transition, especially mental health support. Young people should have access to services which work in tandem with gender identity clinics and allow them to discuss and explore their feelings about transitioning in detail. We welcome the work being undertaken in the Cass Review and look forward to reading its findings.” 

At Mermaids, we have been witnessing an ocean of distress that has been coming from a lack of healthcare provision for young trans and gender exploring people. We are relieved that this has been plainly acknowledged within this report. We have young people waiting several years before they are seen and supported and it isn’t good enough – it needs to change and this report agrees. 

Lui was quoted throughout the report, following their oral evidence session in March 2021

  • On the supposedly “new” clinics referred to by the Minister Liz Truss’ in their announcement of the “reforms” last year following the consultation:Similarly, Lui Asquith, Director of Legal and Policy at Mermaids, a charity supporting transgender, non-binary and gender-diverse children and young people, told us that ‘they are not deemed new clinics’ and that Mermaids ‘understand them to be pilot schemes’.”
  • On the spreading of misinformation around the GRA and Equality Act 2010: “Lui Asquith from Mermaids, told us: ‘The delay added fuel to the confusion, which we referred to earlier, between the Equality Act and the Gender Recognition Act. Incorrect information was put out. At the time, it added to the idea that this erroneous information was correct. That was a huge problem…’ We were repeatedly told about the negative impact of the Government’s delayed response on many transgender people. Lui Asquith told us that, during this period, there was a ‘dangerous move to questioning the existence of trans people within this country’, and that there was ‘no unequivocal message from the Government to say, ‘This is where we stand. We include trans people and we will not tolerate intolerance’. This was reiterated by Nancy Kelley from Stonewall, who said that the length of time the consultation was open for and the length of time it took for the Government to respond, ‘allowed anti-trans mobilisation to happen’”. 
  • On the lack of action taken by the Equality and Human Rights Commission in support of GRA reform: “At Mermaids, we hear about a feeling of a lack of advocacy from the commission. Obviously, the commission is commissioned to stand up for those with protected characteristics, one of which is those subject to the gender reassignment section. Quite frankly, those who are protected by that section currently do not feel as though the commission is standing up for them as much as they would like. There is huge disappointment, but there is a commitment to wanting to work with the commission and change that. I suppose the feeling around the commission, certainly from the trans population, will only change through public action. We hope to see that in  the near future.
  • On why those under 18 years old should have access to legal gender recognition: “’We believe that those who are under 18 should also have access to legal gender recognition. From a very clinical perspective, it would simply allow this system to align with other state systems, the obvious example being the passport system. If a young trans binary individual wishes to change their gender marker, there is the opportunity for them to do that. This system is currently incompatible with other state systems’. They continued by setting out what impact the lack of legal recognition can have on young trans people: ‘The indirect impact of the current system not acknowledging young people strikes to the heart of the well-being of young trans, non-binary and gender variant people. It has an impact on their everyday because it simply increases the risk of young people being outed unwantedly in their everyday life, school settings, healthcare settings and general social settings. This exposes an individual to a risk of harm, harassment and discrimination that we simply should not allow for in wider society.‘”

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