How social workers can support the struggle for trans rights
As Pride month celebrations draw to a close, Pride’s roots in protest are as relevant as ever. This month the Welsh Government updated its LGBTQ+ Action Plan that aims to promote equality and strengthen protections for LGBTQIA+ people. However, this month also saw proposals to amend the Equality Act 2010 debated in UK Parliament, with MPs making inaccurate and transphobic statements. The proposed amendments have been condemned by human rights organisations for enabling discrimination against trans and non-binary people, on a background of rapidly rising anti-LGBTQIA+ hate crime.
The struggle for LGBTQIA+ rights remains urgent and necessary. How have social workers responded so far, and what can we, as a profession centred on social justice, do about it?
Use legal literacy to counter discrimination
Legal literacy is a key social work skill and is crucial for advocacy and countering discrimination. Article 8 rights such as legal recognition and bodily autonomy for trans and non-binary people have recently become contentious issues, framed as in conflict with the rights of women and/or children. Much discourse has centred around reforms to the Gender Recognition Act 2004 (GRA) and has been based on mis- or disinformation. Social workers can challenge this through knowledge of legal frameworks and international human rights guidance.
The GRA was introduced after the ECtHR ruled in Goodwin v United Kingdom [2002] 2 FCR 577, that trans people’s inability to change the sex marker on legal documents in the UK was a breach of Art. 8 and Art. 12 rights. The GRA allows trans people over 18 to apply for a Gender Recognition Certificate (GRC). A GRC is a legal document enabling trans people to change their sex marker on certain documents, e.g. birth certificate, and with the HMRC.
The application process for a GRC is costly, pathologising and bureaucratic. It is not consistent with best practice. For example, trans people must obtain two reports from specialist psychiatrists, confirming a diagnosis of gender dysphoria. This is despite the World Health Organisation ICD11 (and AMA DSM-V) re-classifying gender identity-related health from a mental disorder to one of sexual health in 2019, replacing outdated diagnoses with Gender Incongruence. The UN and The European Commission recommend that the process of gender recognition should be based on self-determination, informed consent and should avoid pathologising psychological reports and intrusive medical requirements.
A UK-wide public consultation on gender recognition reform took place in 2019-2020, with responses from over 100,000 individuals and organisations. The majority of respondents supported reform of the GRA to improve trans people’s lives through removing requirements for psychiatric diagnosis, medical reports and permission from the trans person’s spouse. The UK Government responded by moving the application process online and reducing the application fee from £140 to £5 (although charges for psychiatrist reports remain) but stating that the GRA would not be changed as it provided the correct checks and balances.
When the Scottish Government passed the Gender Recognition Reform (Scotland) Bill 2022, which would bring the Article 8 and associated Article 14 rights of trans and non-binary people in line with European and International human rights developments, the UK Government took unprecedented action in invoking Section 35 of the Scotland Act 1998 to prevent the Bill from being submitted for Royal Assent.
The UK Government cited safety concerns and incompatibility with UK law when blocking the Bill. This is despite the Bill including safeguards against misuse of the “self-ID” system, making it a criminal offence for applicants to make a false application. This ignores the evidence from countries that already base gender recognition on self-identification reporting no increase in sex crimes against women and children. This disregards the fact that across the UK a GRC is not required to change ID documents such as passport or driving license and that Equality Act protection based on gender reassignment applies to trans people regardless of whether they have a GRC or have undertaken medical intervention.
The Welsh Government’s LGBTQ+ Action Plan sets out clear goals to advance the rights of trans people, including negotiation with the UK Government to trigger a request to devolve powers related to Gender Recognition, while also identifying ways to support current GRC applicants in Wales. This is an opportunity for social workers in Wales to lead the profession in the UK in advocating for trans and non-binary rights.
Understand the significance of proposals to change the Equality Act 2010
The Equality Act 2010 expresses Article 14 principles in domestic law. In April 2023 the Equality and Human Rights Commission wrote to Kemi Badenoch, Minister for Women and Equalities, advising that the Equality Act 2010 should be amended to offer protections based on “biological sex” rather than legal sex. The ERHC have since acknowledged that UK law does not have a definition of “biological sex”. In a meeting in May 2023 with Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, the EHRC stated that in the context of their recommendations, “biological sex” defines women as “women who are not trans”. This is in opposition to the GRA, which states that a GRC changes the person’s sex for the purpose of discrimination law.
Madrigal-Borloz writes in his End of Mission Statement, “The objective of the EHRC was to offer the Government a formula through which it could carry out discriminatory distinctions currently unlawful under UK law, and that will remain so under international human rights law.”
If the EHRC recommendations are implemented this could result in trans women being actively excluded from single sex public facilities and services, and sex discrimination protections, in a potential breach of Art. 8 and Art. 14 rights. There has been no clarification about the implications for trans men’s rights. The proposals ignore the fact that under the Equality Act trans people can already be excluded from single sex services and facilities if that exclusion can be shown to be a proportionate means to achieve a legitimate aim.
The Welsh Government has been clear in the LGBTQ+ Action Plan that, “in considering provision set out in Schedule 3 of the Equality Act 2010, we are of the view that support for LGBTQ+ people and publishing this Plan will not result in the erosion of the rights of women, including cisgender and transgender women.”
Recognise that trans rights are human rights and trans rights are your rights
Promoting human rights and social justice is core to social work. It’s woven throughout our codes of ethics and professional standards. BASW UK’s 2021 position statement on social work with trans people highlights that opposing the oppression, stigma, discrimination and abuse that trans people face is in keeping with the BASW code of ethics and the social work purpose to uphold human rights.
The Social Workers Union’s February 2023 statement in support of the transgender and non-binary community states, “The central social work principles of social justice, human rights, collective responsibility, and respect for diversities compel us as social workers to stand in opposition to oppression, social exclusion, and stigmatisation of the transgender and non-binary community.”
Recognising that trans rights are human rights doesn’t just mean that trans people should have the same rights as everyone else. As a profession that champions rights-based practice, social workers should recognise that an attack on the human rights of one group is an attack on the human rights of everyone.
Anti-trans legislation and policy opens the door for restrictions on bodily autonomy. The Bell & Anor v. Tavistock & Portman NHS Foundation Trust case briefly (from initial judgement in 2020 until being overturned on appeal in 2021) set a judicial precedent that overrode Gillick Competence with potentially dire consequences for under 16s’ bodily autonomy. It’s important to note that Gillick v West Norfolk and Wisbech Area Health Authority related to access to contraception.
The Trans Safety Network recently published an open letter condemning a proposed legal action to prevent an autistic adult from accessing trans healthcare. The proposed Judicial Review apparently seeks to prevent the adult from accessing healthcare due to being autistic, which is counter to the principles of the Mental Capacity Act 2005 and risks interfering with disabled people’s right to choice and bodily autonomy.
Standing up for trans rights is standing up for human rights.
Be respectful, be curious, use your social work skills
The LGBTQ+ Action Plan recognises that trans and nonbinary people have poor experiences of accessing and receiving health and social care services. The Action Plan seeks to improve the experiences of LGBTQIA+ people. If training is available then attend it, training written and delivered by trans and/or non-binary people will be particularly beneficial. However, social workers already have many skills to support trans and non-binary people.
Relational skills are a social work strong point. Approach people with respect, curiosity and compassion. Focus on empowerment and promoting autonomy. Let the person tell you how they identify and how they would like to be addressed, if in doubt ask. Social models of understanding are another social work strength. Remember that being trans is not a mental disorder. Consider the structural transphobia that the person experiences and how that could contribute to personal difficulties. Advocate for trans and non-binary people by challenging transphobia at work, on behalf of the people you support and in social contexts. And most importantly, listen to and elevate the voices of trans and non-binary people.
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Lizzie Furber
Lizzie (they/them) is the Principal Social Worker with DCC-i, a social work training and consultancy organisation. They are also a Practice Educator and warranted Approved Mental Health Professional. Lizzie specialises in rights-based practice with people who experience multiple exclusion and marginalisation, and advocates for improved service responses for people deemed to have “complex needs”. Lizzie is passionate about improving social workers’ skills and confidence in supporting people from LGBTQIA+ communities.
Email: stopsimallies@dcc-i.co.uk