After a long battle, the Gender Recognition Act should finally see the transsexual community enjoy the same legal rights as the rest of society. Peter Madigan investigates
On 4 April 2005 the introduction of the Gender Recognition Act (GRA) will bring to an end a decade-long campaign by the transsexual community to gain legal recognition for acquired gender. The new law will go some way towards ending the legal limbo in which transgender people have previously found themselves.
Gender dysphoria, the condition in which a person feels they have been born into the wrong sex, has been a recognised medical disorder for almost 50 years. The prescribed treatment for the condition is gender reassignment surgery, a procedure freely available on the NHS. Yet despite this, trans-sexual people have so far found themselves in a legal no-mans-land.
The GRA will allow members of the transsexual community to apply for a Gender Recognition Certificate (GRC) allowing them to obtain a new birth certificate in their new sex. More significantly, certificate holders will thereafter be considered as their acquired gender for all purposes, legal and otherwise.
Inconsistency
The new law should also put an end to the embarrassing situation that transsexual people find themselves in when applying for life and protection products. Until now, in the majority of cases, transgender clients have had to suffer the indignity of being insured under their birth sex rather than their acquired gender. Although some clients have secured acquired gender rates, treatment varies between providers.
This inconsistency is hardly surprising given that successive governments have refused to take the initiative and specify to insurers how such clients should be treated. In April 2000, as the campaign for transsexual rights was gathering pace, the Interdepartmental Working Group on Transsexual People declared: "Issues of specific concern to transsexual people such as to whom an [insurance] company should offer a policy and on what terms, are commercial matters for the industry itself. It would not be appropriate for the Government to seek to regulate these matters."
In February 2003, the Association of British Insurers (ABI) issued its own guidelines on how providers should treat transsexual clients. This guidance, the Response to the Lord Chancellor's Department Consultation on Transsexual People, urged insurers: "Where gender reassignment takes place prior to policy inception, underwriting would be on the basis of acquired gender, subject to the proviso that full disclosure of medical history takes place."
Although this statement at least established a benchmark, its terms were vague and recommendations soon made obsolete with the introduction of the GRA to Parliament. The transsexual community were left understandably confused as to where they stood and whether such guidance was even binding. Two years later they remain confused.
"We will underwrite a gender recognition certificate holder in their acquired gender," says Tony Jupp, chief underwriter at Norwich Union. "We would also consider writing a policy for a non-certificate holder in their acquired gender," he adds. While most providers have ruled out arbitrarily refusing to underwrite non-GRC holders in their chosen sex, some strictly underwrite on birth certification to avoid any ambiguities. "We will always underwrite a person based on the gender shown on their birth certificate," says Nick Kirwan, protection marketing director at Scottish Widows.
A further complication arises for GRC holders who already have a policy in place, as existing customers are not able to change the details of the policy mid-term. While name and salutation can be changed it is not possible for the gender on a policy to be altered. "You simply cannot change the sex on a policy because the sex itself is a factor in calculating that policy. The only alternative is to establish a new policy, but you run the risk of higher premiums and greater exclusions," says Simon Gadd, director of protection products at Legal & General.
Further complication
Last month, the ABI released a circular updating the guidelines on transgender clients. Although unavailable at the time of going to press, an ABI spokesperson said the circular: "Will state that the GRA enables transsexuals 'to gain legal recognition' in their acquired gender, and that for insurers, this means that customers should be given the gender rating appropriate to their acquired gender." It appears the ABI may have once again dodged the question of whether a GRC is obligatory to secure acquired gender underwriting.
While in general the response to the GRA from the transsexual community has been positive, some feel it does not go far enough. Emma Martin has been a woman for several years but only underwent reassignment surgery in 2000. Now in her 50s, she has had life cover in place for the last 30 years along with a private pension scheme and an endowment. She has also been happily married to her wife for 27 years.
"We have done well to get the Act passed but on the issue of marriage the new legislation fails miserably," says Martin. "Since same-sex marriages are not legal in the UK, I cannot apply for a full gender recognition certificate unless I divorce my wife. If I did, it would affect my entire financial situation and probably leave my wife vulnerable. And we are not alone. There are somewhere between 50-100 couples [in the UK] in the same situation as us," she adds.
Providers are quick to point out that regardless of individual circumstances, a marriage involving one transsexual partner should enjoy the same rights as any other couple. "Any existing policyholder who obtains a gender recognition certificate can keep a life policy in place on the terms they had at the start of the policy. It would be up to them to make arrangements around the identity of the beneficiaries of the policy," says Kirwan.
Another worry for the transsexual community is the prospect of receiving higher premiums due to hormone therapy. The new ABI circular will stress that "every case is dealt with on an individual basis" due to a lack of actuarial data on transsexual claim trends. Presumably a transsexual client's history may undergo greater scrutiny with particular attention paid to the possible health implications of the gender transition process.
Kristal Leigh Martin is a male to female transsexual in her early 40s. Although aware of the potential health risks that her oestrogen supplements may have on her health, she is convinced the risks are worth it. "Oestrogen can protect against heart disease but it also presents a number of health risks, particularly before surgery when you can be taking up to three times the dosage of a menopausal woman on hormone replacement therapy," says Leigh Martin. "However, it can increase the risk of liver, kidney and heart failure, several types of cancer, osteoporosis and deep vein thrombosis among other things."
Health risks
Despite the apparent dangers, the transsexual community is adamant that there is no evidence to suggest they pose a greater claims risk to insurers than anyone else.
"The differences in rates offered to men and women are based on a substantial body of actuarial data, so of course a distinction is reasonable," says Christine Burns, transgender rights campaigner with lobby group Press For Change. "When it comes to transsexual physiology there is simply no research. There certainly is not any evidence of increased mortality risk overall in the transsexual population," she adds.
With the UK transgender community numbering just 5,000, it is simply not feasible to carry out research into the claims behaviour of the population. Even if such research was undertaken it would go against the very spirit of the GRA, as rather than treating trans men and women like the general population, they would exist as a third party and still be excluded from the rest of society, precisely the kind of behaviour the GRA is designed to defeat.
While providers express the intention to ensure that transgender clients receive the same treatment that other clients take for granted, there is one area that the transsexual community are deeply unhappy about. "Many trans people are reluctant to reveal details of their medical records and would be dissuaded from seeking insurance rather than doing so," says a spokesperson for transsexual support group, The Gender Trust. "If failing to include such details in insurance risk modelling results in the overall risk for everyone being increased it must be by a miniscule amount and considered a reasonable inconvenience to enable a tiny minority to live their lives in dignity," she adds.
Providers are adamant that such allowances will never be made regardless of personal circumstances. "If a transgender person holds back details of their hormone therapy or surgery then they will almost certainly have any claim rejected for non-disclosure," says Peter Hamilton, head of protection marketing at Friends Provident. "In addition, it would open the floodgates for others to claim they withheld information for personal reasons."
Mark Locke, communications manager at Bright Grey, agrees: "What is to stop a woman who has gone through two years of cancer treatment to withhold such information and claim she did not want to revisit that distressing time in her life?"
If the objective of the GRA is to ensure that transsexual clients are treated in the same manner as other clients then insurers appear to be trying to do precisely that. In this sense at least, some kind of victory has been achieved, but this is a single battle for a section of society that faces flagrant discrimination on a daily basis. As Kristal Leigh Martin asks with a resigned smile: "What chance does the transsexual community have of being able to take out life assurance when barely any of us can even get a job?"
The law may finally have changed to offer the transgender community equal rights but it appears that culturally, our society still has a long way to go.
COVER notes
• Bright Grey, Friends Provident, Legal and General, Norwich Union and Scottish Widows will all underwrite GRC holders in the acquired gender.
• Non-GRC holders will be assessed on a case by case basis but it appears unlikely they shall secure acquired gender rates.
• Full disclosure of medical history including reassignment surgery and hormone therapy are required at policy inception.
