254.Our evidence highlighted the fact that discrimination is a part of daily life for trans people—a reality which many feel they have no alternative but to accept. In this chapter we look at various aspects of this everyday transphobia and how they can be addressed.
255.Several people submitted to us harrowing accounts of their experiences of crime linked to their trans status. Ryan Hughes wrote to us about:
being harassed, spat at, run over in one instance, sexually assaulted, beaten, having dog faeces thrown at me, stones thrown at me, head-butted, even my carer was physically assaulted for associating with me because I am transgendered.
256.The damaging effect of transphobic hate-crime on survivors can go far beyond the immediate impact. The Sussex Hate Crime Project at the University of Sussex told us:
Anti-LGBT hate crime has significant impacts upon trans* people’s emotions (fear, anxiety and anger) and behaviours (avoidance and proaction) [...] other studies have shown that trans* people’s experiences of hate crime are marked by high levels of psychological trauma. Our study concurred with much of the current literature on this.
257.Our evidence makes clear that there are significant problems relating to the reporting and prosecution of hate crime against trans people.
258.Police records show that in England and Wales there were 310 transphobic hate crimes reported in 2011–12; 361 in 2012–13; 555 in 2013–14; and 605 in 2014–15. This amounts to around one per cent of the total number of recorded hate crimes in each of those years. But further evidence suggests that transphobic hate crimes are massively underreported. Confidential surveys of trans people suggest experience of hate crime is pervasive and everyday. The EHRC told us:
[one] study found that 40 per cent of transgender respondents had experienced verbal abuse, 30 per cent had experienced threatening behaviour, 25 per cent had experienced physical abuse and 4 per cent had experienced sexual abuse. While victims of transphobia can be targeted up to 50 times in one year, only three in 10 report the incident. A Fundamental Rights Agency study into LGBT hate crime found that transgender respondents reported the highest levels of victimisation, with almost 1 in 3 being attacked or threatened more than 3 times in the preceding 12 months.
259.Witnesses explained why survivors were reluctant to engage with the criminal justice system. Helen Belcher, of Trans Media Watch, told us that fear of exposure was a major barrier. A lot of people kept their trans identity a secret and “The moment they get the criminal justice system involved suddenly all of that secret is out and huge emotional upheaval and turmoil could then ensue.”
260.Low levels of confidence in the outcome were also an issue. Professor Neil Chakraborti, Director of the Leicester Centre for Hate Studies, told us that trans people:
felt that frontline practitioners often overlooked the everyday challenges of what it is like to be trans and how much courage and resilience you need to report your experiences to a third party. Many of the victims we spoke to just normalised their everyday victimisation; they thought, “Do you know what? This is just something I have to put up with. What is the point of telling anybody because they are not going to do anything about it?”
261.Police initiatives have been taken to encourage reporting of hate crime generally, such as the police-funded website True Vision. Chief Constable Jane Sawyers, National Policing Lead on Transgender for the National Police Chiefs’ Council, told us that national transphobic hate crime training for police officers was essential:
most […] do not know anybody who is trans and have not dealt with anybody who is trans. Therefore, talking to members of the trans community, being able to hear life experiences or something as simple as understanding what language is correct to use actually helps officers.
262.Crown Prosecution Service data on hate-crime convictions shows that during 2014–15 there were 37 completed prosecutions which were flagged as relating to transphobic crime. Of these, 28 had successful outcomes, meaning that the conviction rate was 75.7 per cent; the equivalent figure in 2013–14 was just below 74 per cent. Across all strands of monitored hate crime, the conviction rate was 84.7 per cent in 2013–14 and 82.9 per cent in 2014–15.
263.Professor Chakraborti told us that, if the large number of unreported hate crimes of all types is taken into account, the conviction rate is extremely low—amounting to only 2–3 per cent a year.
264.The Coalition government published the Hate crime action plan: Challenge it, Report it, Stop it in March 2012; this was followed by a progress report in May 2014. On 12 October 2015 Home Office Minister Karen Bradley MP announced that the Government would be developing a “new hate crime action plan”, linked to plans to tackle extremism. She told us in evidence that reporting of hate crime overall was increasing, but conceded that more needed to be done. The new plan, she said, would “really drill down into the issue”, including by trying to tackle fear of exposure in the press, through innovative community partnership work and by working with the police and other law enforcement to increase victims’ confidence in being taken seriously.
265.The MoJ Minister Ms Dinenage later clarified in writing to us that “The Cross-Government Hate Crime Programme is led from the MoJ”, with involvement from the Home Office and the Department for Communities and Local Government.
267.The Ministry of Justice must ensure that it consults fully with the trans community in developing the Government’s new hate-crime action plan, so that the proposals are well-targeted and likely to be effective in increasing levels of reporting. This plan must include mandatory national transphobic hate-crime training for police officers and the promotion of third-party reporting.
268.Trans hate crimes do not currently have parity in the law with other hate crimes. There is no provision for separate transphobic “aggravated offences”, equivalent to those that now exist under the Crime and Disorder Act 1998 in respect of racist and faith-hate crimes. There are also no offences relating to “stirring up hatred” against trans people, as there are for race, religion or sexual orientation under the Public Order Act 1986.
269.Professor Chakraborti told us that this created “hierarchies of victims”. Ms Belcher also drew attention to practical issues with intersectionality:
trans people are not just trans in isolation. You might have trans women of colour or Muslim trans women, and so if they are subject to a hate crime and you start apportioning out, “Is it a transphobic hate crime or is it motivated by religion?”, which box are you going to tick? There are issues if you start segregating [the] reason [for the offence].
270.We asked Professor Chakraborti why legislation had been drafted in that way. He told us that legislation had “followed tragedy”, with “piecemeal” responses, rather than there being systematic law-making:
What we do have is a set of legal provisions that is far better than in most countries, to be honest. We have laws and we have protection in this country. That is very, very important, but I am sure that if we could start again we would use different terminology and we would have different sets of legal provisions.
271.In its 2014 review of hate crime laws, the Law Commission concluded that aggravated offences should in principle apply equally to hostility based on race, religion, transgender identity, sexual orientation and disability, but recommended that a further, government-sponsored review be undertaken first because of concerns raised about the existing legislation’s complexity. The Commission was not persuaded of the practical need to extend the “stirring up hatred” provisions to disability and transgender identity, arguing that such offences “would rarely, if ever, be prosecuted, and their communicative or deterrent [effect] would therefore be negligible” and that “criminalisation might also inhibit discussion of disability and transgender issues and of social attitudes relating to them”.
272.Several of our witnesses felt the Law Commission’s report was a “missed opportunity”. Chief Constable Sawyers told us:
if you are either transgender or disabled, how on earth can you ever believe that the law is fair in relation to you?
Professor Chakraborti was disappointed at the Law Commission “parking” the idea of extending aggravated offences and challenged the conclusion that there was no practical need for stirring-up offences. Ms Belcher, who had made a submission to the Law Commission’s review on behalf of Trans Media Watch, argued that it was “very odd” to decide against parity on grounds of the likelihood of few convictions and that relevant legislation would send out a “powerful symbolic message”.
273.Ms Dinenage told us that the Government was open to the idea of further reform:
the Ministry of Justice is really keen to hear the input of this Committee and this inquiry to see where you feel changes might be considered. We already have one of the strongest legal frameworks to combat hate crime, but the Government should never rest on their laurels and never think that they cannot improve the situation.
274.She further wrote to us that the Government will be responding to the Law Commission’s report when the new hate-crime action plan is in place.
275.We welcome the Government’s willingness to further strengthen hate crime legislation. We believe the case is overwhelming for protecting all groups concerned, including trans people, on an equal basis. The Government should introduce new hate-crime legislation which extends the existing provisions on aggravated offences and stirring up hatred so that they apply to all protected characteristics, as defined for the purposes of the Equality Act 2010.
276.Trans people in the UK are, like anyone else, entitled under common law to be known by any name they choose (from the age of 16), provided that there is no fraudulent intent. This includes the right to use more than one name (as many people do for professional purposes, such as acting under a “stage name”, or for various personal reasons) There is no such thing in UK law as a “legal name” to which one is required to prove one’s entitlement.
277.As we have noted (see Chapter Three), there does exist in UK law the concept of “legal gender”. However, the circumstances in which it is relevant are limited. These include situations where:
278.There is thus no legal requirement to produce a GRC (or a new birth certificate issued after the granting of a GRC) in order to have a change of name and gender recorded in an organisation’s records. Nor is there any requirement to have undergone any form of gender-reassignment / confirmation treatment for this purpose.
279.Further, under the Equality Act 2010, all organisations (including employers and public bodies, such as the NHS) must respect a trans person’s acquired / affirmed gender and any associated change of name. Failure to change pronouns, names and gender markers (including honorifics and pronouns) on records in respect of a trans person would (with a few exceptions) constitute unlawful direct discrimination under the Act.
280.Despite these clear legal principles governing records in respect of trans people, we heard significant evidence that trans people encounter problems with “misgendering” (failure to acknowledge a person’s acquired / affirmed gender) and “deadnaming” (failure to acknowledge a person’s change of name) in many situations. It appears to be commonly assumed that there is such a thing in UK law as a “legal name”, when there clearly is not. It also appears to be assumed that legal gender must be proved in many situations when this is in fact neither required nor appropriate.
281.Jane Fae pointed out to us that many common practices regarding the recording of changes in name and gender:
constitute indirect discrimination: the putting in place of rules or arrangements that apply to everyone, but that result in particular disadvantage to trans persons. For such policies to be lawful, they must be a reasonable means of achieving a necessary end. Security alone cannot excuse discrimination: it must be proven that the policy adopted was the best / only policy available to ensure a particular security outcome, and no reasonable alternatives existed.
282.We were told that the GEO had worked with the trans community on guidelines for employers regarding the recording of data relating to trans employees and customers, but this had still yet to be published.
283.Many organisations, including HM Passport Office, still require a declaration of name-change and a doctor’s letter confirming a change of gender which is meant to be permanent. Home Office Minister Karen Bradley told us that the Home Office was looking to:
provide the customer with a greater choice on what evidence and from what source that they wish to confirm that the change of gender is likely to be permanent. This may include, for example, employers or government agencies. We plan to discuss further with representative agencies how best we can extend customer choice.
284.Some trans people report that they encounter problems when trying to use a passport showing their acquired / affirmed gender (with, for instance, accusations that such a passport is a forgery).
285.A UK passport cannot be issued without the holder’s gender being recorded as either “male” or “female”. In Australia, by contrast, provision exists for passports to be issued with the holder’s gender recorded as “X” (meaning indeterminate, unspecified or intersex). Bangladesh and New Zealand are reported to have similar arrangements. Several witnesses argued that UK law should be changed in this respect as part of recognising non-binary identities. Dr Ari Gust wrote to us:
If passports were to have an “other” or “x” category, it would offer official recognition of my gender identity and help me to be confirmed by others in my gender identity. This would radically relieve the everyday anxiety of living a non-binary gender.
286.Karen Bradley told us:
The gender identifiers are important in making sure that somebody can be identified, and they can assist with border and law-enforcement matters, but we will look carefully at the evidence of the inquiry.
It was also pointed out that there was some doubt as to whether certain jurisdictions (e.g. the USA) would accept such a passport.
287.As we have noted (see Chapter Three), the DWP records changes in legal gender and retains on a long-term basis information about trans people’s birth names and birth genders. Some trans people strongly resent this “Retention Policy”, arguing that their previous identity should simply be erased from the records.
288.The DWP seeks to provide an extra layer of security for trans customers whose records show the issuing of a GRC. This is done by designating such records using a “Special Customer Record” (SCR) marker, with a high security rating. A “sensitive account” marker is applied to these records so that details of people’s trans status are kept confidential. (This is dealt with in Special Section D of HMRC.) However, some trans people report that the DWP fails to keep their trans status confidential.
289.We also heard that the increasing use of National Insurance records to verify identities for the purpose of matters such as electoral registration, driver and vehicle licensing, and vehicle hire caused significant problems for trans people. The special status of trans people’s records caused delays in the processing of identity checks; and in some cases trans people had their identities doubted after National Insurance records were checked.
290.In 2014 a case was taken to the High Court in which it was argued that the DWP’s Retention Policy was in contravention of Article 8 of the ECHR and of the Equality Act 2010. The Court held that, although the policies about retaining information on a person’s legal gender had a proper foundation, they lacked clarity and precision, were not readily accessible and would need to be kept under review.
291.The DWP told us in written evidence that it was unable to comment on the court case, as the verdict was being appealed, with a hearing set for early December 2015. On the other matters raised regarding the department’s recording of trans identities, it advised us that SCR markers are applied automatically to accounts, but customers are given the opportunity to opt out. While the extra security arrangement can cause delays (as an SCR record can only be accessed by someone with appropriate access privileges), any delay can be mitigated by ensuring “that the higher User access is already available for when the SCR claimant arrives at the office”.
292.Further, the CIS “no longer automatically display the presence of GRC data on a customer’s record. This ensures that only specialist staff are aware of, or have access to, GRC information for customers”. Similar safeguards were being applied to new services and systems as they were developed and introduced.
293.The DWP denied that any problems with electoral registration could be laid at its door and said that in such cases the individuals concerned were referred to the relevant local authority officer. Also, the department had no knowledge of any problems relating to the hire of motor vehicles resulting from SCR markers on DWP records.
294.We heard that it is open to doubt how far it is actually necessary to record people’s genders at all. Michael Toze pointed out that the limited application of legal gender was actually diminishing as a result of pension reforms:
With pensions equalisation, gender is irrelevant for pension and tax purposes for most people born after the 1960s. The government should be planning for a future situation where gender will be treated as an equality characteristic to be monitored (similar to ethnicity or religion) rather than a piece of personal information which makes a functional difference to legal or other processes.
295.We discussed this issue with Ms Morgan:
When and why do we need to know about people’s genders? That is a big debate to be had. Thinking about exam certificates and exam entrance, in one way, what does it matter what someone’s sex is? It is their paper, it gets marked and they get a grade. On the other hand, I would like to know which subjects girls are not doing and boys are not doing and which ones they are not doing well in. For research purposes and knowledge, I would like that information.
296.There is a need for greater awareness of trans people’s legal right in most contexts to have their name and gender recorded as they wish without precondition. It is commonly assumed that there is such a thing in UK law as a “legal name”, when there is not; and that legal gender must be proved in many situations when this is in fact neither required nor appropriate.
297.The Government must take the lead by ensuring public services have clear and appropriate policies regarding the recording of individuals’ names and genders. The requirement for trans people to produce a doctor’s letter in order to change the gender shown in their passport inappropriately medicalises what should be simply an administrative matter. This requirement must be dropped.
298.The UK must follow Australia’s lead in introducing an option to record gender as “X” on a passport. If Australia is able to implement such a policy there is no reason why the UK cannot do the same. In the longer term, consideration should be given to the removal of gender from passports.
299.The Government should be moving towards “non-gendering” official records as a general principle and only recording gender where it is a relevant piece of information. Where information on gender is required for monitoring purposes, it should be recorded separately from individuals’ personal records and only subject to the consent of those concerned.
300.During this inquiry the deaths in custody of Vicky Thompson and Joanne Latham underlined the overwhelming challenges faced by trans prisoners and the prison service itself. The case of Tara Hudson, who was moved from a men’s prison to a women’s prison only after a national campaign, demonstrates the confusion within the prison system.
301.There is no reliable data about the numbers of trans people in the criminal justice system. We heard an estimate that there are 100 trans prisoners, but the Prison Service does not currently capture such information.
302.The Prisons and Probation Ombudsman, whose role is to investigate deaths in detention and complaints by people in detention, told us that the lack of data was a significant problem. The Ombudsman’s:
own equality and diversity monitoring is stymied by this lack of information. […] Clearly, more needs to be done by NOMS [the National Offender Management Service], to enable their own monitoring and to facilitate scrutiny bodies such as this office to identify complaints from transgender prisoners. Without this, neither NOMS nor ourselves can be assured that the specific protections afforded to this group under equality legalisation are provided to them while they are in custody or that broader lessons from our investigations are being learned across the prison system.
303.Trans prisoners are protected by the Equality Act. At the same time, the provisions on single-sex services (see Chapter Three) apply to prisons: carceral facilities can be provided on a single-sex basis, as this is a proportionate means of achieving a legitimate aim; and trans prisoners can be excluded from facilities relating to their acquired / affirmed gender where this is a proportionate means of achieving a legitimate aim.
304.Related issues arise in relation to the placement of trans people in appropriate settings when under the supervision of the National Probation Service (NPS) or Community Rehabilitation Companies (CRCs).
305.The NOMS Prison Service Instruction on Care and Management of Transsexual Prisoners (PSI 07/2011) sets out clear standards, including that:
306.The Prison Reform Trust described the Instruction as “a significant achievement”, which “went a long way towards protecting the needs and treatment of transgender people in prison”. However, we heard that there has been significant inconsistency in the actual application of the Instruction. The Bent Bars Project, an LGBT prisoner advocacy group, told us:
Prisoners in some establishments report being supported and recognised and being allowed to express their identities in line with PSI 07/2011. Others are systematically denied the right to wear appropriate clothing, misinformed or lied to about their rights and not given access to appropriate medical treatment. In at least one case, a prisoner was led to believe that the prison had been trying to make appointments with the NHS Gender Identity Clinic, only to discover on release that no contact whatsoever had been made by the prison at all.
The situation could be even worse for those prisoners who began their transition while in custody.
307.The Prison Reform Trust also expressed concern about un-convicted prisoners usually having to wait for treatment for gender dysphoria, arguing that this appeared to “undermine” the principle of prisoners having equivalent access to healthcare.
308.Julia Gamble, a prison Equalities and Diversity Officer, expressed her view that there was ambiguity in the Instruction, which led certain prison establishments to think that a diagnosis of gender dysphoria needed to be confirmed before a prison-based care plan could be established.
309.More significantly, it appeared that all too often the Instruction was simply being ignored. The Prison Reform Trust had received complaints about inaction after inappropriate comments from other prisoners or staff, and about lack of access to outside support or specialist organisations. The Trust had also had its letters returned and been told by prison staff that it had to misgender a prisoner. (We ourselves discovered that a prisoner had been told that they could not telephone us about our inquiry. The prison authorities concerned only allowed this after the MoJ intervened, having been directly contacted by the prisoner.)
310.Witnesses told us that there was sometimes scepticism among prison staff about individuals’ motivations for wishing to live in-role in their acquired / affirmed gender. The press have reported cis-gendered males claiming to be trans in order to obtain privileges; and Dr Barrett, of BAGIS, suggested that there might also be other more varied, and sometimes sinister, motives. The Prison Reform Trust, however, felt that the numbers of prisoners in this situation, and the challenges they posed, might have been “exaggerated”.
311.The Prisons and Probation Ombudsman told us:
one theme that does appear to emerge from complaints from transgender prisoners was access to, or restrictions on, make-up or clothing which would help the prisoner to live in their acquired gender […] [I]n two of the three cases [investigated] the prison was required to ensure that their local policy was compliant with the [Prison Service Instruction] or that staff be reminded of the requirements of both local and national policy regarding transgender prisoners. […] [I]t is not unusual for us to make recommendations that prisons should ensure that their staff are aware of, and feel confident in implementing, Prison Service Instructions, but perhaps this is all the more pertinent in the context of transgender issues about which many prison staff may lack awareness and training.
312.The issues with implementation of the Instruction do appear to be largely down to a lack of understanding, reflecting unacceptable and discriminatory attitudes towards trans people in society. Ms Gamble told us that prison staff reaction:
has in the past ranged from disbelief (“He’s just trying to get attention”) through concern (“How are we going to put a care plan in place in a sex offenders prison?”) to disengagement (“I’m going to transfer him!”) at no stage is this regarded as a positive change in the life of the prisoners and one that might lead them to have better self perception, increased self confidence and an improvement in their state of mental health.
313.Megan Key, the lead on trans issues in the NPS, explained that NOMS was currently revising the Instruction on trans prisoners, looking at how it “could be more flexible”, with less emphasis on legal gender status. Ms Key also told us that the revised guidance would cover prisoners on remand. We were told by the Government that the revised Instruction will in addition extend to the NPS and the 21 CRCs.
314.The Government further explained to us that in 2014 it had carried out a series of interviews with transgender offenders to inform revision of the Instruction. This had, it said, “provided important insights” which would “enrich” the quality of care provided.
315.The current Instruction has an “Expiry Date” of March 2015, meaning that the new version is now significantly overdue. This has undoubtedly created some very damaging confusion. During our inquiry we were contacted by a prisoner who had been told that the existing guidance no longer applied and that prisons were now free to set their own rules in this regard. The Justice Minister Ms Dinenage, however, categorically assured us that the original Instruction was “still valid”, pending the new version. We were also told the same by the Prisons and Probation Ombudsman.
316.The Minister told us that the new Instruction would be issued “hopefully, before Christmas ”. She subsequently told the House that “The intention is to implement the guidance early in the New Year .”
317.Later, in response to Ms Thompson’s death, Andrew Selous, Parliamentary Under Secretary of State for Prisons, told the House that:
A review of the current policy began earlier this year, and revised policy guidance will be issued to reflect NOMS’ responsibilities to transgender offenders in the community, as well as in custody. The intention is to implement the guidance in due course. The management and care of trans people in prison is a complex issue, and the review is using the expertise developed by NOMS practitioners, as well as engaging with relevant stakeholders, including those from the trans community, to ensure that we provide prison staff with the best possible guidance.
Ms Dinenage subsequently wrote to us that “The revised guidance will be implemented in due course.”
318.Regarding the Probation Service, Ms Dinenage told us:
There are very good examples […] of programmes that have been put in place by individual CRCs particularly with the trans community in mind.
The Minister did subsequently write to us, but only told us in general terms about the requirement in CRCs’ contracts for them to “comply with relevant Human Rights and Equalities legislation”.
319.Ms Dinenage also told us that a new equality information form would be introduced “very shortly” allowing trans people to voluntarily disclose their status in order to help judges when making decisions, as well as prison governors and staff.
320.While the safety and welfare of all offenders is paramount, caring for and managing trans offenders appropriately is crucial. There is a clear risk of harm (including violence, sexual assault, self-harming and suicide) where trans prisoners are not located in a prison or other setting appropriate to their acquired / affirmed gender. Neither is it fair or appropriate for them to end up in solitary confinement solely as a result of their trans status.
321.We welcome the revision of the Prison Service Instruction on Care and Management of Transsexual Prisoners to make it more flexible and to extend it to prisoners on remand and offenders in statutory contact with the National Probation Service. The Ministry of Justice, National Offender Management Service and National Probation Service must urgently clarify what the situation is pending the publication of the new Instruction. When the new Instruction is published, they must ensure that staff are trained on it and that its implementation is monitored.
322.Witnesses told us that there had been “a positive shift” in the portrayal of trans people in the media. The death in 2013 of a trans primary-school teacher who had been outed by newspapers, and the resulting public outcry, was a turning point. In recent months, the press has covered the transitions of celebrities such as Stephanie Hirst, Jack Monroe and Kellie Maloney in a largely sympathetic and supportive manner. The portrayal of trans people on television and radio also appears to be more thoughtful and better informed than previously. “Boy Meets Girl”, the first UK sitcom with a major role for a trans character played by a trans actor, Rebecca Root, launched on the BBC as we began taking evidence for our inquiry and was described by one of our witnesses as an “”utterly superb, sensitive programme”. Trans actors playing trans characters now feature in “Eastenders” (Riley Carter Millington) and “Hollyoaks” (Annie Wallace), and both have been welcomed by viewers.
323.However, there was still significant room for improvement. Trans Media Watch reported that some comedy programmes continued to present a problem. Ms Belcher explained why this was difficult to address:
A line of defence very often is comedy. If we encounter something that is hateful, the response is almost always, “Oh, it was just a laugh. It was a bit of a joke; we did not mean it seriously” […] How do you then prove a malicious intent when they are saying it was only a joke?
BBC Radio 4’s Woman’s Hour was also highlighted as having “a history of treating trans people with “incredulity”. Christie Elan-Cane also referred to the “freak show element […] where trans people are essentially just brought there to air their dirty linen for public ridicule”.
324.Trans Media Watch also told us that tabloids were still outing individuals with no regard to the impact of unwanted attention, hiding behind the defence of “positive” stories. Christie Elan-Cane helped us to understand why this could be so difficult:
as someone who was outed in the media years ago, I did not know what I was letting myself in for, which sounds a bit naïve now, but I had no idea about the impact that would have on my life. You think that you are in control, but you very quickly lose control and they will portray you any way they want until you do not recognise that person.
325.Trans Media Watch told us of a piece published by the Sun in December 2014 which revealed a prospective parliamentary candidate’s trans status and made an insulting reference to this as well as to her disability. They told us that the new self-regulatory press body, the Independent Press Standards Organisation (IPSO), had provided only limited protection. IPSO had agreed that the initial article was a breach of the Editors’ Code, and that a subsequent apology was “insincere” and a “further attempt at humour at Ms Brothers’ expense”. But Trans Media Watch told us that IPSO had not commented on whether the latter article amounted to victimisation. Ms Belcher told us that this was deterring other trans people from taking forward complaints:
a number of trans people, as people in general, will not take forward complaints because they want the story to die and so a lot goes unchallenged. Anything which then is seen to be further victimising or further unnecessary exposure will act as a major deterrent.
326.IPSO, however, wrote to us that it “would not agree with Ms Belcher that we have not engaged with the issue or that our actions might be a deterrent to complainants.”
327.We put concerns about victimisation to Mr Vaizey, who responded as follows:
I am very sorry to hear if that is the case. Many people who are transgender live with a great deal of discrimination and a great deal of bullying and victimisation. The last thing we want is for people to feel that somehow, if they raise what I would regard as legitimate complaints or concerns […] that would make things more difficult for them.
328.Another argument made to us was that the Editors’ Code does not apply to trans people as a group. Ms Belcher told us this meant that the press could use very insulting or inflammatory language against trans people in general without any redress being available. She thought that there was a worrying trend of publishing problematic articles which used that approach, yet Trans Media Watch had not seen any signs that IPSO intended to address this.
329.On this point, IPSO responded that:
contrary to Ms Belcher’s suggestion, IPSO’s rules allow for groups to complain about an article that relates to a broad class of individuals. Indeed, in the last month, IPSO worked with the charity Changing Faces to successfully mediate a resolution on a piece on the Daily Express website about facial disfigurement.
330.In general, Ms Belcher told us there was an “awful lot of ignorance” in the regulators with a “base level of understanding [that] is very low”. We asked Trans Media Watch whether they consider Ofcom (the statutory regulatory authority for the UK broadcasting industry) to be effective. They had met Ofcom in 2010 and had found trans awareness at a low level, but had not had much contact with them since. They had never received specific feedback following complaints to the BBC.
331.Mr Vaizey told us that Ofcom was planning to bring out an updated code in spring 2016, with a consultation. He subsequently wrote to us that Ofcom were updating their research on what is considered offensive language, with a view to revising Section 2 of the Broadcasting Code, concerning “harmful and / or offensive material”. The research update “includes testing audience attitudes to discriminatory language about trans people and will include a sub-group of participants from the trans community”. Ofcom considered that the existing rules themselves:
are currently sufficient to ensure that viewers and listeners are protected from offensive or harmful material involving or referring to the trans community that is discriminatory, offensive and not justified by the context in which it is presented.
332.We also heard that media coverage of trans people remains narrowly focused. Helen Belcher told us that very little was written in the press about the things that “actually affect trans lives”, like the healthcare, discrimination, employment and education issues which we covered in our inquiry. She highlighted the “butterfly syndrome”, and explained why this emphasis on transition was so objectionable to trans people:
real life is not like that […] There is a process of realisation; […] of self-acceptance; […] of coming out to those around you and interacting with the world, and it takes time. It is not an immediate switch […] terms like “sex swap” or “sex change” […] indicates an immediate or whimsical decision […] it would be incredibly unlikely that people [...] make this kind of life-changing decision on that basis.
Christie Elan-Cane echoed these comments, saying being non-gendered was “not a lifestyle choice”, adding that it was “incredibly frustrating” that being non-gendered was always portrayed as a “young person’s issue”, with the implication that it might therefore be “a phase”.
333.We also heard that fictional trans characters were likely to be “one dimensional”. Mr Vaizey told us:
I would much rather see somebody cast as a doctor, a nurse, a policeman, a lawyer, an MP, who also happens to be transgender. I do think there is something in that critique of broadcasters and I hope that, more and more, we will see people from the transgender community, as, indeed, from other communities that are underrepresented on our screens, cast in mainstream roles and their background is simply irrelevant in that respect.
334.While coverage of trans people in the media has been improving in recent years, there is no room for complacency—and confidence in regulators still appears low among the trans community. Both the Independent Press Standards Organisation and Ofcom should consider what steps they might take to encourage more trans people to come forward with complaints.
335.Trans people often face shocking abuse online. Ms Belcher gave us a dreadful example of a Tweet that encouraged trans people to kill themselves.
336.The DCMS told us that it was “absolutely clear that what is illegal off-line is also illegal on-line”, but we heard that successful prosecution of online transphobic hate crime was even less likely than hate crime generally. Chief Constable Sawyers told us:
If [online hate crimes] are committed by somebody who is thousands and thousands of miles away, it is really difficult to start to police those things happening.
337.Most offensive website content stops short of being criminal. Many of our witnesses argued that online providers needed to do more in such cases. Trans Media Watch told us, for example, that it was very difficult to get Facebook to take offensive pages down. As well as the direct effect of the abuse itself, the posting online of “very personal, possibly inaccurate data” about someone can also have an indirect impact on such matters as trying to get a job or rent a flat.
338.Mr Vaizey told us he had not found social media companies “particularly forthcoming” in producing clear codes of conduct, which he described as “a straightforward ask, not really of Government, but of society”. Trans Media Watch told us that another issue was that many social media companies were based in the US which appeared to be less aware of trans issues.
339.Since self-regulation does not appear to be working, we asked DCMS and the Minister whether formal regulation was needed. Mr Vaizey told us they had “not gone down the road of seeking formal regulation “. DCMS argued:
Regulation risks stifling the creativity and innovation that the internet enables, and could be impractical and might impair the technical dynamism of the internet.
Ms Belcher explained to us that social media companies were not regulated as broadcasters were because social media were seen as more conversations between people than a broadcast mechanism. The Minister also told us it was “important to get the balance right”, allowing people to speak freely online while also dealing with the “occasional overreaction”.
340.The Government told us that it was working with social media companies in a number of ways. Under the UK Council for Child Internet Safety (UKCCIS), the Government and OFCOM were working with companies like Twitter, Facebook, Google, Ask.FM, MindCandy and Microsoft to try to develop best practice guidance for children. We have also followed the work done on tackling revenge pornography online. We put it to the Minister that it appeared the Government could achieve more for trans people if it made it more of priority. The Minister told us this was “a very fair point”.
341.Mr Vaizey told us that this area fell within the remit of Baroness Shields, the new Minister for Internet Safety and Security. He later wrote to us reiterating that “what is illegal off-line is also illegal on-line” and stating that “robust legislation [is] in place to deal with internet trolls, cyber-stalking and harassment, and those who send messages that are grossly offensive, obscene or menacing”. He drew to our attention the Criminal Justice and Courts Act 2015, which amended offences in the Malicious Communications Act 1988, and the Communications Act 2003, to allow more time for investigations into offences, as “appropriate for modern communications and the internet”.
342.The Government’s desire to work with online service providers rather than further regulate them must not be an excuse for inaction. The Government must keep the situation under close review and work proactively with providers to ensure that they take their responsibilities seriously.
343.Gender-variant young people and their families face particular challenges at school. From witnesses we heard that schools often do not know how to deal with matters such as:
344.Gendered Intelligence explained:
There are gender divisions across the whole of our school systems […] uniform policy, Sex and Relationship Education [SRE], Physical Education, sports, toilets, seating plans in the classroom and the ways teachers ask children to line up.
Each of these situations is potentially problematic for a gender-variant pupil.
345.The EHRC told us:
Research indicates that 91% of trans boys and 66% of trans girls experience harassment or bullying at school, leading to depression, isolation and a desire to leave education as early as possible. This is a higher rate of discrimination than that faced by young lesbian and gay students. This poor treatment at school has a knock-on effect on their mental health, attendance and ability to learn. Many gender-variant children report hiding their identity, to the detriment of their self-esteem, and leaving school as soon as possible to escape the bullying and harassment that they faced.
346.Evidence we received during our inquiry suggested that the support and provision for trans school children is uneven, varying from school to school Some schools were “outstanding” and “fantastic, […] doing everything they can”. Yet, as, Susie Green, the Chair of Mermaids, told us “too many […] fell short”.
347.Ms Green gave this illustration:
We have had an incident where a child turned up after transitioning over school holidays and the school refused to allow the child entry to the building and insisted on saying that the name and the gender on the birth certificate was the one that was legal and, therefore, they could not and would not respect their gender choices or their name change choices.
348.We also heard that access to professionals, such as educational psychologists and Parent Support Advisers, was limited. Ms Green told us that some schools were adopting a “victim mentality”, seeing the transgender student as the problem and wanting to “get rid” of, rather than accommodating, them and addressing the wider issues. She told us that some schools took the view: “We do not want to be dealing with that, so let us just shuffle it off to one side” or refuse to acknowledge it.
349.Under the Equality Act 2010 (see Chapter Four), it is unlawful for schools to treat pupils less favourably on grounds of gender reassignment. However, as the EHRC pointed out to us, the Act:
does not provide protection from harassment related to gender reassignment for students in schools, unlike most other protected characteristics; although such treatment by a school may amount to direct discrimination.
350.According to the Department for Education, the lack of protection against harassment in this regard is not significant, as the provisions on direct discrimination provide adequate protection in a school setting.
351.Schools also have to take account of the protected characteristic of gender reassignment when considering their obligations under the Public Sector Equality Duty (PSED). The Department for Education has produced guidance for schools to help them understand how the Equality Act affects them and how to fulfil their duties. This guidance includes a section on gender reassignment, which explains that this definition does not mean a pupil has to be undertaking a medical procedure.
352.Mermaids argued that the EHRC’s enforcement powers under the Act were limited by a requirement to have the consent of a young person’s parents in order to pursue a complaint about discrimination:
a young person of 16 wanted their name changing at school but their parents did not consent to this. Although the Equality and Human Rights [Commission] found the school’s refusal to comply was discriminatory, they could not proceed with action against the school as the young person was under 18.
353.Schools also have to have behaviour policies which include bullying. In its written evidence to us the Government stated that:
All children and young people should be allowed to be themselves and to achieve all that they are capable of. The Government is determined to stamp out bullying in school (or in higher or further education) because of their gender identity […]
354.Many witnesses called for a “more coherent and standardised” approach for supporting gender variant people through their education. Mermaids described a “lack of even basic understanding of gender variance within many education professionals.” They called for staff training around gender identity to be widely available and mandatory for all school staff and to be included during teacher training.
355.The Women and Equalities Minister, Ms Morgan, who is also Secretary of State for Education, admitted to us that “there are clearly some areas where there is a lot of improvement needed.
356.We asked Ms Morgan what she was doing to make sure that schools were abiding by their responsibilities under the Equality Act. She replied:
we are looking at initial teacher training. At the moment, there is no curriculum as such, but Sir Andrew Carter has been doing a review for my Department on what we think should be in teacher training, without wishing to be too prescriptive, but there are areas where there is more that we could do about getting teachers to be more confident and to support pupils and other members of staff.
357.Several witnesses argued that schools should provide better education on gender identity, possibly under the SRE component of Personal, Social and Health Education (PSHE). The GEO has recently funded the PSHE Association and sector experts to draw up advice for schools on gender-variant pupils, incorporating a toolkit for schools on supporting gender variant pupils and lesson plans on gender identity for use in PSHE lessons. It also drew attention to the introduction to the new national curriculum, which states that all schools should teach PSHE, drawing on good practice.
358.Several witnesses pointed out that PSHE is not statutory. Jay Stewart, of Gendered Intelligence, told us: “I would be recommending statutory PSHE across the country [...] it is a brilliant curriculum to support students to know lots of stuff around sexual orientation and also gender identity.” Mermaids told us that they supplied resources via councils to schools across the country. However, as they were not national resources, schools often felt no obligation to refer or adhere to the guidance.
359.We asked Nicky Morgan if she felt that transgender issues should be taught in schools as part of what should be mandatory PSHE. She replied: “PSHE is hugely important […] but just because you say something is statutory [does not mean] it is going to be taught well.”
360.More needs to be done to ensure that gender-variant young people and their families get sufficient support at school. Schools must understand their responsibilities under the Equality Act. They must abide by their legal responsibility to ensure that all staff receive sufficient training to ensure they are compliant across all protected characteristics, including that which relates to trans people, especially gender-variant young people. In its review of initial teacher training, the Government should consider the inclusion of training on the protected characteristics.
362.One in three trans students experience at least one form of bullying or harassment on campus. Research by the National Union of Students (NUS) found that trans students were twice as likely as LGB students to have experienced harassment, threats or intimidations, and physical assault on campus. We also heard evidence that in further education, the learning environment for LGBT learners might be more hostile than that in higher education.
363.Such experiences impact on trans students’ studies and participation in student life more broadly. The NUS stated that students who had experienced transphobic harassment in higher education were two to three times more likely to consider leaving their course. Students who had experienced transphobia had also reported that it had put them off from participating in sport.
364.We also heard about other issues which concerned trans students, including lack of gender-neutral toilets, lack of policies to update names and genders in the student register, being repeatedly mis-named or mis-gendered by staff, problems with university security staff, and insufficiently well trained career advisers. One trans person told us they had left university after two terms due to bullying from other students and lack of support from lecturers, including frequent mis-gendering. Anna Lee, Vice President, Welfare and Community, Lancaster University Students’ Union, told us that universities were also “not being as accommodating as they should be to trans students requiring time out during their course for mental health reasons or a variety of other reasons, and students having to really fight for their ability to, say, take a degree in one year longer.”
365.When asked about the provision of gender-neutral toilets in higher education institutions Dr Jay Stewart, Director, Gendered Intelligence, told us that:
Genderneutral toilets, genderneutral spaces and genderneutral language need to flow through many of our institutes of education, right through to higher education. There is no reason to say “male” or “female” in many senses, so why should we? […] We should have more genderneutral toilets, the same for everyone. That will help lots of people, including trans and nonbinaryidentified people.
366.We put the levels or reported bullying and harassment of trans students to Nick Boles MP, Minister of State for Skills at the Department for Business, Innovation and Skills. He told us
That, in a sense, is perhaps particularly shocking. Maybe this is naïve of me, but you would rather hope that a younger age group was more aware and more open-minded. We can excuse, perhaps, people who have grown up in a different age and with a different set of attitudes. That is very troubling.
367.He continued by saying:
The higher education sector has a sectorled Equality Challenge Unit and it produces guidance. There is guidance called “Trans staff and students in higher education”, which was updated in 2010, which helps the institutions. There is a gender equality charter.
He said that what was needed was a “challenge to bad behaviour” and a “zero-tolerance regime”. He told us that he was:
very happy to take that away and have a discussion with the Universities Minister, Jo Johnson, about whether we can make sure that university vice chancellors, frankly, are taking this seriously and not just thinking, “Oh, well, I have my charter and I have my guidance”, but are doing something about it where these cases are reported.
368.The GEO, in its written submission, also told us that the Skills Funding Agency had commissioned research in 2011 into sexual orientation and gender identity equality in adult learning. A number of recommendations were made in the report aimed at further education colleges and independent training providers and a range of projects subsequently funded by the Skills Funding Agency, through the Equality and Diversity Good Practice Fund and its predecessor funds. The Institute for Employment Studies had evaluated the fund and found that it has been particularly effective in raising the status of “newer” protected characteristics such as gender identity. The GEO noted that the good practice and resources from each project were “freely available for the whole sector to use”.
369.The levels of bullying and harassment experienced by trans students in further and higher education are unacceptable. We welcome the offer of the Minister of State for Skills to raise this with university Vice Chancellors and to discuss with them whether enough is being done when complaints are made. We recommend that the Government hold similar conversations with further education providers. The Government should also take steps to ensure all further education and university staff receive gender identity awareness training. Further and higher education institutions should take proactive steps to promote trans equality, including having a Transgender Champions scheme for their non-trans staff.
370.We also heard evidence that there is a lack of appropriate training of social care staff in trans issues, raising particular issues for gender variant looked-after children or gender variant children in secure accommodation Mermaids wrote:
[our] experience of children in care or families dealing with social services has been poor. There have been many cases where, if the families support their child’s gender variance, social services have attempted to remove children from the family home by treating this as a safeguarding concern and investigating the parents accordingly. Social workers have no formal knowledge or training around gender variance, and appear to act on their own prejudices rather than researching gender issues. For children and young people in care, no provision or reasonable adjustments are made if a young person is presenting as the opposite gender to their birth gender, and in many cases staff are failing on their duty of care.
371.In oral evidence Susie Green explained that as a result of such ignorance many trans looked after children felt “very unsafe”. She told us about one individual in Mermaids’ teens’ group who had received “no support, is very frightened of consequences and has had violence against them in that setting where staff have not interceded appropriately”.
372.We asked Dr Bernadette Wren about the Tavistock Clinic’s experience of young people in care. She replied:
We do see people in care, but we see the people we see and who make their way to us. I cannot speak about all the people who are not being referred to us, and they are the people we ought to be worried about. Our experience has been […] a seachange, partly driven by the equalities legislation that enables social workers to have a degree of confidence of knowing what these children are entitled to […] I would say it is a very mixed bag. We have some exemplary cases where social care is incredibly supportive of the young people. There is good practice out there.
374.A key theme running through this chapter has been lack of sufficient understanding of trans issues by professionals in the public sector, probably reflecting society’s lack of knowledge—and sometimes prejudice. We have already recommended that the Government bring forward a new strategy to tackle issues faced by trans people. Appropriate training of public sector professionals on gender identity issues must be a key part of this new strategy.
250 Dr Saoirse Caitlin O’Shea (); Barbara Aster ()
251 Mr R Hughes ()
252 The College of Policing’s (2014) defines transphobic hate crime as “any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender”.
253 Sussex Hate Crime Project / University of Sussex ()
254 Government Equalities Office (); Home Office, , October 2015. Transphobic hate crime has been recognised as a monitored strand of hate crime by police forces in England and Wales since 2008. It has been covered by the Crime Survey for England and Wales since 2009.
255 ; Barbara Aster (
256 Equality and Human Rights Commission ()
258 ; Barbara Aster ()
260 True Vision, “” accessed 9 December 2015
262 Home Office (); Ministry of Justice (); Crown Prosecution Service,
264 HC Deb, 12 October 2015, [Commons Chamber]
265 , ,
266 Ministry of Justice ()
267 [Jane Sawyers]. Since 2012, Schedule 21 of the Criminal Justice Act 2003 has allowed enhanced sentences to be applied to offences that are aggravated by hostility on the grounds of transgender identity. This places punishment for these crimes on the same footing as punishment for those aggravated by hostility on grounds of disability or sexual orientation.
270 Law Commission, “ ”, accessed 9 December 2015; Law Commission, Hate Crime: Should the Current Offences be Extended?, Cm 8865, May 2014
271 [Neil Chakraborti]
277 Ministry of Justice ()
278 When someone changes their name, it may be convenient to draw up a document (such as a deed poll or statutory declaration) to help establish their identity in certain circumstances. However, there is no legal obligation to do so; and no official record is kept of changes of name. The use of ordinary titles (Mr, Mrs, Ms, etc.) is also not governed by law in any way and is a matter of custom and practice. Consequently, people may use any of these titles as they choose. Only the use of inherited, appointed and merit titles (such as MP, Lord, Lady, Sir, Dr, etc.) is governed by law.
279 Jane Fae ()
280 In fact, living “in role” for two years (which entails changing one’s name and gender identity in most records) is actually a prerequisite for obtaining a GRC.
281 Criminal records may retain a reference to an offender’s birth gender and birth name in order to link a record of offending to a particular individual for the purposes of criminal justice, as well as disclosure and barring. Recent changes have allowed an offender to request a change of the gender and name on their record to reflect their change of gender if their crime is a non-sex related offence (i.e. it does not require registering on the Sex Offenders Register).
282 Jane Fae (); Stonewall ()
283 Jane Fae ()
284 LGBT Consortium (); Jane Fae ()
285 In evidence the Minister claimed that this was not necessary: , . However, it is clearly still a requirement at present: Home Office (); Sue Pascoe (); UK Government, “”, accessed 9 December 2015
286 Home Office ()
287 Ms Sarah Cooper ()
288 Dr Ari Gust (); cf. LGBT Liberal Democrats (), ,
291 ; Jane Fae ()
292 Unpublished evidence (TRA 005)
293 ; Michael Toze (); unpublished evidence (TRA 064); Jane Fae (); Helen Belcher (); Scottish Transgender Alliance ()
294 ; , July 2014; Michael Toze (); Gender Identity Research and Education Service (); LGBT Consortium ()
295 Department for Work and Pensions ()
296 Michael Toze ()
298 “”, BBC News, 19 November 2015
299 “”, BBC News, 1 December 2015
300 “”, BBC News, 27 October 2015; “”, BBC News, 30 October 2015;
301 , ; Prison Reform Trust (); Bent Bars (). The figure of 100 is apparently derived from “”, Sunday Times, 27 July 2014.
302 Prisons and Probation Ombudsman ()
303 A female-to-male trans person with a GRC may not be refused location in a male prison. A male-to-female trans person with a GRC may be refused location in a female prison only on security grounds, and would then be considered a female prisoner in the male estate and must be managed according to Prison Service Order 4800 Women Prisoners.
304 Prison Reform Trust ()
305 Bent Bars ()
306 Prison Reform Trust ()
307 Julia Gamble ()
308 Julia Gamble (); Prison Reform Trust ()
309 Prison Reform Trust ()
310 E-mail from Parliamentary Briefing Team, Department for Education, 29 October 2015
311 ; British Association of Gender Identity Specialists / Dr James Barrett (); Prison Reform Trust ()
312 “”, Sunday Times, 27 July 2014
313 British Association of Gender Identity Specialists / Dr James Barrett ()
314 Prison Reform Trust (). They told us it appeared “reasonable” to ask experts to make an assessment where there were any doubts about motivation, but these assessments should take place quickly and be centrally monitored to ensure consistency and compliance with the Equality Act.
315 Prisons and Probation Ombudsman ()
317 Julia Gamble ()
320 Government Equalities Office ()
321 Government Equalities Office ()
323 Prisons and Probation Ombudsman ()
325 Commons written answer, , 5 November 2015
326 HC Deb, 20 November 2015, [Commons Chamber]
327 Ministry of Justice (). On 8 December 2015 Ms Dinenage announced that the review would be widened in scope and would complete its work early in 2016 – Commons , 8 November 2015.
329 Ministry of Justice ()
331 Trans Media Watch (); ,
332 ; Trans Media Watch ()
338 The , enforced by Independent Press Standards Organisation, covers a wide range of guidance including proscribing prejudicial or pejorative reference to an individual’s race, colour, religion, gender, sexual orientation or to any physical or mental illness or disability.
339 ; Trans Media Watch ()
341 Independent Press Standards Organisation ()
344 Independent Press Standards Organisation ()
347 Department for Culture, Media and Sport ()
353 ; Trans Media Watch ()
355 Department for Culture, Media and Sport (). DCMS pointed to the House of Lords Communications Select Committee’s report into Social Media and Criminal Offences in July 2014, which found that the criminal law was “generally appropriate for the prosecution of offences committed using social media” – House of Lords, Report of the Select Committee on Communications, Session 2014–15, HL Paper 37, para 94.
356 . The UK Supreme Court has indicated that an offence can be committed under UK law where the person posting or controlling illegal material online is present in this country (irrespective of the physical location of the server on which the content is hosted). Home Office rules say that if the location of this individual is not known, then the police force in the area where the complainant lives is responsible for commencing enquiries.
357 Department for Culture, Media and Sport ()
358 Trans Media Watch (); [Jane Sawyers],
363 Department for Culture, Media and Sport ()
366 Department for Culture, Media and Sport ()
368 , ,
369 Department for Culture, Media and Sport ()
370 Mermaids (); Gendered Intelligence (); National Union of Students ()
371 Gendered Intelligence () para 24
372 Equality and Human Rights Commission ()
373 Gendered Intelligence () para 23
376 Unpublished evidence (TRA 030)
378 The protection of pupils against discrimination on grounds of gender reassignment (under Section 85) now matches the protection in schools in relation to sexual orientation.
379 Equality and Human Rights Commission (); cf. Trades Union Congress (). The offence of harassment as defined under Section 26 of the Equality Act 2010 does not apply in schools with regard to religion or belief, sexual orientation or gender reassignment.
381 Schools as public bodies, are required, in carrying out their functions, to have due regard to the need to achieve the objectives set out under Section 149 of the Equality Act 2010 (the Public Sector Equality Duty).
382 Department for Education, Equality Act 2010: advice for schools, February 2013; Department for Education, , May 2014
383 Government Equalities Office () para 16
384 Mermaids ()
385 Government Equalities Office () para 15
386 Gendered Intelligence ()
387 Mermaids ()
390 Government Equalities Office () para 15
392 Mermaids () pp 5-6
394 National Union of Students () para 2
395 National Union of Students () para 4
396 National Union of Students () para 6
401 Government Equalities Office () para 17
402 Mermaids () para 6
Prepared 8 January 2016