Liz Truss originally planned to remove the requirement of a gender dysphoria diagnosis. (Getty)
Tory equalities chief Liz Truss was planning proper reforms to the Gender Recognition Act (GRA) and had Boris Johnson’s support – but changed her mind and scrapped reforms after input from the NHS’s National Advisor for LGBT Health.
The revelation is contained in evidence submitted by the Government Equalities Office (GEO) about the behind-the-scenes wrangling over GRA reform in the first half of 2020 to a judicial review at the Northern Ireland High Court into the need for medical evidence in legal gender recognition.
In the written judgment from the High Court judicial review, it has been revealed that Liz Truss was “minded to remove the requirement for a gender dysphoria diagnosis” from the Gender Recognition Act (GRA) as of 11 June, 2020.
The GRA provides the mechanism by which adult trans men and women can change their legal gender, by applying for a Gender Recognition Certificate that can be used to obtain a new birth certificate in the correct sex.
Applicants must have a diagnosis of gender dysphoria, be able to prove they’ve lived in their “acquired gender” for at least two years and intend to live as such for the rest of their lives.
Two separate medical reports must also be obtained by applicants: one containing details of the person’s gender dysphoria diagnosis – which is a psychiatric diagnosis, meaning it can’t be made by a GP and has to come from a gender specialist – and one containing details of any medical transition the person has gone through or is planning.
Given the lengthy waiting lists for an NHS gender clinic, it can take as long as five or six years to get a gender dysphoria diagnosis on the NHS. The process of having to get a psychiatric diagnosis before being able to access legal gender recognition was described by human rights groups as “dehumanising” and reinforced the view that trans people are mentally ill. LGBT+ groups called for this requirement to be removed from the Gender Recognition Act in the 2018 consultation.
But the GEO’s court documents show Truss was told that Dr Michael Brady, National Advisor for LGBT Health, said there wasn’t “any stigma attached” to including a gender dysphoria requirement in legal gender recognition .
Dr Brady – who is also medical director at the Terrence Higgins Trust and a sexual health and HIV consultant for Kings College Hospital – had earlier provided “helpful insight”, in May 2020, that “removing the diagnosis of gender dysphoria… would be an impractical step”.
“It has become clear from our discussions with the Department of Health and Social Care (DHSC) and the helpful insight provided by the National Advisor on LGBT Health, Dr Michael Brady, that removing the diagnosis of gender dysphoria while maintaining a medical aspect to this process would be an impractical step,” officials said.
“For those seeking medical support to change their gender, the NHS would continue to provide a diagnosis of gender dysphoria or gender incongruence even if we removed this requirement from the GRA process.
“The view of the DHSC and NHS England officials and advisors was that such a change would create confusion and uncertainty among clinicians and so they do not currently support such a change.”
According to the High Court judgment, it was the view of DHSC that the decision to remove the diagnosis of gender dysphoria from the GRA should be “clinician-led”.
There was “no evidence” submitted to the court to suggest that the views of clinicians were considered other than Dr Brady.
Gender dysphoria and stigma
Documents were submitted to the court which refer to a meeting between GEO officials, DHSC officials and Dr Brady on 12 May 2020.
The meeting notes quote Dr Brady as saying that: “Gender dysphoria is the accepted terminology (although there is a move towards using gender incongruence)” and adds that “he had not been advised by trans people that the diagnosis or label was stigmatising; but felt that the process overall was stigmatising and that the issue of stigma should be seen in that context.”
In May 2019, the World Health Organization stopped classifying being trans as a disorder by moving from a diagnosis of “gender identity disorder” under its mental health disorders chapter to a description of “gender incongruence” under its sexual health chapter.
WHO officials said at the time that this change was made to “reduce stigma”. The Human Rights Watch said governments should “move swiftly” to reform “laws that require this now officially outdated diagnosis”.
But Brady’s view, as per meeting documents submitted to the court, was that it didn’t matter “where the diagnosis was categorised (whether under mental health or sexual health): it remained a diagnosis but was not perpetuating a mental health stigma”.
According to the meeting notes involving Dr Brady: “The National Advisor on LGBT Health did not appear keen on assessing psychological readiness or ‘fitness to proceed’, the additions of which he considered would further medicalise the process and more intrinsically link gender recognition to medical treatment.
“Ultimately, [Brady] recommended ‘using the terminology that is used in the medical community, and that is gender dysphoria’.
“However, it is also recorded that he ‘wondered how the LGBT sector would receive this; thought there would also be kick back from clinicians’.”
Liz Truss originally planned full reform, including a Gender Recognition Act Reform Bill
Liz Truss had been planning on reforming the Gender Recognition Act and scrapping the gender dysphoria diagnosis requirement since at least 3 March 2020.
At this time, GEO officials had prepared a draft statement for Truss on the government’s response to the Gender Recognition Act consultation “on the basis of ‘Option A’ (a GRA Reform Bill accompanied by non-legislative reforms) ‘given your previous steers on this issue'”.
“It is clear from the content of this submission, that [Liz Truss] had discussed the issue generally with ‘Number 10′,” Mr Justice Scoffield said in the High Court judicial review judgment. “The then current lead option was to take forward reforms to the 2004 Act, accompanied by some wider non-legislative reforms.
“The [GEO] officials understood that one of the key legislative reforms that both the Secretary of State and the Prime Minister’s Office wanted to include in a Bill related to the need for medical reports and the required diagnosis of gender dysphoria.”
Both Truss and Johnson were “keen to move away from the diagnosis of gender dysphoria required by the current legislation” while retaining the need for trans people to provide some supporting medical evidence in their application for legal gender recognition as an “important safeguard” that would “deter vexatious applications”.
“It is clear that there was an eagerness to move away from a diagnosis of gender dysphoria being required,” Scoffield said.
On 29 May 2020, GEO officials wrote to Truss letting her know that they’d encountered some difficulties in their communications with the Department of Health and Social Care around removing the requirement for a gender dysphoria diagnosis – specifically, Dr Brady had said it would be “impractical”.
After this, Truss’ “previous enthusiasm for removal of the requirement for a diagnosis of gender dysphoria hung in the balance”, the High Court said, “in light of concerns expressed by […] the government’s National Advisor on LGBT Health [Dr Brady]”.
As of 22 June, Truss had changed her mind – she now wanted to “amend the existing legislation to remove reference to the diagnosis of gender dysphoria and replace it with a diagnosis of gender incongruence”.
“The ‘final’ draft government response to the consultation which was attached to the 22 June 2020 submission now, again, proposed removal of the requirement for applicants to provide a diagnosis of gender dysphoria and replacing it with gender incongruence,” the documents say. “GEO’s position was that this reform should still be taken forward.”
But by 2 July, Truss and Johnson had agreed to “keep the current legislation as it stands” and make an oral statement about Gender Recognition Act reform – scrapping their original plan from just months before to publish a GRA Reform Bill.
In September 2020, Truss announced that she wouldn’t reform the Gender Recognition Act. Instead, the process of legal gender recognition would be moved online and the application fee reduced. LGBT+ groups condemned her decision as a “shocking failure of leadership” by not bringing about more meaningful reforms for trans people.
Last month, the fee was reduced from £140 to £5.
A Government Equality Hub spokesperson said: “The current legislative system allows people to change their legal sex in a safe and fair way.
“Following the consultation on the Gender Recognition Act, we are delivering on our promise to modernise the process of applying for a Gender Recognition Certificate and make it fairer and kinder by reducing the cost to £5 and moving the application online.”
NHS England, on behalf of Dr Michael Brady, declined to comment.