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Coming Inside and/or Playing Outside: The (Legal) Futures of LGBTIQ Rights in the United Kingdom

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The Queer Outside in Law

Part of the book series: Palgrave Socio-Legal Studies ((PSLS))

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Abstract

In this chapter, we draw from Davina Cooper (2019) to consider how we—as legal advocates and scholars—might “play” with(in) the state to pursue LGBTIQ rights. We do this by exploring four case studies of reform in the United Kingdom: self-determination as a means of obtaining legal gender recognition (currently proposed reform); intersex experiences with medicine and rights (subject of a recent Government Equalities Office Call for Information); the adjudication of LGBT asylum claims (under Home Office review); and LGBT Relationships and Sex Education in schools (policy to be implemented in England no later than the start of the summer term 2021). In discussing these case studies and bringing the core themes of this collection together, we address our concluding remarks to the following three questions: (I) why do LGBTIQ people seek to come inside law? (II) what has happened to LGBTIQ people who have come inside the law? and (III) what can be gained from staying or playing outside?

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Notes

  1. 1.

    Cynthia Weber, Queer International Relations (Oxford: Oxford University Press, 2016), 16; Eve Sedgwick, Tendencies (Durham: Duke University Press, 1993), 8; Mariana Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Abingdon: Routledge, 2015), 66.

  2. 2.

    In this chapter, we alternate between using “LGBTIQ”, “LGBTI”, “LGBT”, and “LGB” to be precise (without being tokenistic) about the content of statutes, cases, policies, and submissions being discussed.

  3. 3.

    Davina Cooper, Feeling Like a State: Desire, Denial, and the Recasting of Authority (Durham: Duke University Press, 2019), 24–25.

  4. 4.

    Ibid., 55.

  5. 5.

    Ibid., 116.

  6. 6.

    Department of Education, Communication to Schools on the Implementation of Relationships Education, Relationships and Sex and Health Education, 1 (June 2020).

  7. 7.

    House of Commons Select Committee on Women and Equalities, Transgender Equality (London: The Stationery Office Limited, 2016), [41] per Ashley Reed.

  8. 8.

    See generally: Peter Dunne, “Ten Years of Gender Recognition in the United Kingdom: Still a ‘Model for Reform’?”, Public Law (October 2015): 530; Alex Sharpe, “Endless Sex: The Gender Recognition Act 2004 and the Persistence of a Legal Category”, Feminist Legal Studies 15, no 1 (2007): 57; Stephen Whittle, “The Opposite of Sex Is Politics—The UK Gender Recognition Act and Why It Is Not Perfect, Just Like You and Me: FORUM”, Journal of Gender Studies 15. no 3 (2006): 267; Emily Grabham, “Governing Permanence: Trans Subjects, Time, and the Gender Recognition Act”, Social & Legal Studies 19, no 1 (2010): 107; Ralph Sandland, “Feminism and the Gender Recognition Act 2004,” Feminist Legal Studies 13, no 1 (2005): 43.

  9. 9.

    Section 1(2) of the Gender Recognition Act 2004 states that, “[i]n this Act ‘the acquired gender’, in relation to a person by whom an application under subsection (1) is or has been made, means—(a) in the case of an application under paragraph (a) of that subsection, the gender in which the person is living, or (b) in the case of an application under paragraph (b) of that subsection, the gender to which the person has changed under the law of the country or territory concerned.” Thus, when referring to a person’s self-identified gender (as opposed to their Birth Assigned Gender), the GRA 2004 specifically speaks of a person’s “acquired gender”. It is important to acknowledge that there is no universally preferred terminology when referring to gender, and that many individuals may find the idea of an “acquired” gender (i.e. an identity which the Gender Recognition Act 2004 creates, but which has no prior existence) as both offensive and as inconsistent with their lived experience.

  10. 10.

    Gender Recognition Act 2004, s. 9(1). It is important to note that sub-sections 9(2) and (3) qualify the general right set out in s. 9(1) of the GRA 2004. Section 9(2) provides that “[s]ubsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).” Furthermore, according to s. 9(3), “[s]ubsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”

  11. 11.

    Corbett v Corbett (Otherwise Ashley) (No 1) [1971] 2 All ER 33.

  12. 12.

    See Sharon Cowan, “That Woman Is a Woman!’’ the Case of Bellinger v. Bellinger and the Mysterious (Dis) appearance of Sex: Bellinger v. Bellinger [2003] 2 All ER 593; [2003] FCR 1; [2003] 2 WLR 1174; [2003] UKHL 21”, Feminist Legal Studies 12, no 1 (2004): 79; Anne Barlow, “A New Approach to Transsexualism and a Missed Opportunity?”, Child and Family Law Quarterly 13, no 2 (2001): 225; Stephen Gilmore, “Bellinger v Bellinger—Not Quite Between the Ears and Between the Legs—Transsexualism and Marriage in the Lords”, Child and Family Law Quarterly 15, no 3 (2003): 295.

  13. 13.

    For a comparative discussion of the legal gender recognition laws post-2004, see The Legal Status of Transsexual and Transgender Persons, edited by Jens M. Scherpe (Cambridge: Intersentia, 2015). In particular, see generally: Jens M. Scherpe and Peter Dunne, “The Legal Recognition of Transsexual and Transgender Persons—Comparative Analysis and Recommendations”: 615.

  14. 14.

    Evelyn Ellis, “The Gender Recognition Bill”, Public Law (Autumn 2004): 467, who notes, when speaking about the GRA 2004 (when in Bill form) [at 467–468] that “[t]he Bill, which had Government backing, was introduced into the House of Lords. It received the approval of the Commons at a Second Reading in February this year, and completed its Commons Committee stage in mid-March. It is a detailed and carefully crafted instrument whose subject-matter was first considered by an Interdepartmental Working Group in 1999” (emphasis added). See, in particular, the important campaigning work of the organization, Press for Change, during the 1990s and the early 2000s.

  15. 15.

    Damian A. Gonzalez-Salzberg, “The Accepted Transsexual and the Absent Transgender: A Queer Reading of the Regulation of Sex/Gender by the European Court of Human Rights”, American University International Law Review 29, no 4 (2013): 797, 810–811, 814.

  16. 16.

    [2002] 35 EHRR 18.

  17. 17.

    Ibid., [93].

  18. 18.

    In Goodwin, the European Court of Human Rights observed, [76], that withholding gender recognition “has had, and continues to have, effects on the applicant’s life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the area of pensions and retirement age. For example, the applicant must continue to pay national insurance contributions until the age of 65 due to her legal status as male. However as she is employed in her gender identity as a female, she has had to obtain an exemption certificate which allows the payments from her employer to stop while she continues to make such payments herself. Though the Government submitted that this made due allowance for the difficulties of her position, the Court would note that she nonetheless has to make use of a special procedure that might in itself call attention to her status.”

  19. 19.

    Ibid., [94]–[104].

  20. 20.

    Michael Silverman, “Issues in Access to Healthcare by Transgender Individuals”, Women’s Rights Law Reporter 30, no 2 (2009): 347, 349; Jordan Aikan, “Promoting an Integrated Approach to Ensuring Access to Gender Incongruent Health Care”, Berkeley Journal of Gender, Law and Justice 31, no 1 (2016): 1, 33.

  21. 21.

    Report of the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity (May 12, 2018) UN Doc No. A/HRC/38/43, [43], where the Independent Expert observes that “[i]naccurate or inadequate identity documents may result in greater levels of violence and extortion, exclusion from school and the official labour market, housing, health…and access to other social services, and in being able to cross borders” (emphasis added).

  22. 22.

    Ibid., [43], where the Independent Expert notes that “[t]rans persons are particularly vulnerable to human rights violations when their name and sex details in official documents do not match their gender identity or expression.”

  23. 23.

    In Goodwin, Christine Goodwin argued that “[t]he lack of legal recognition of her changed gender had been the cause of numerous discriminatory and humiliating experiences in her everyday life”, [2002] 35 EHRR 18, [60].

  24. 24.

    Gender Recognition Act 2004, s. 2(1).

  25. 25.

    Dunne, “Ten Years of Gender Recognition”; Alex Sharpe, “Gender Recognition in the UK: A Great Leap Forward”, Social & Legal Studies 18, no 2 (2009): 241, 244–245.

  26. 26.

    Select Committee on Women and Equalities, Transgender Equality, [44]–[45], [70]–[71].

  27. 27.

    “Reform of the Gender Recognition Act 2004”, accessed March 29, 2020, https://www.gov.uk/government/consultations/reform-of-the-gender-recognition-act-2004.

  28. 28.

    “Gender Recognition Reform (Scotland) Bill: Consultation”, accessed March 29, 2020, https://www.gov.scot/publications/gender-recognition-reform-scotland-bill-consultation-scottish-government/.

  29. 29.

    Gender Recognition Act 2004, s. 2(1) and s. 3.

  30. 30.

    The House of Commons Select Committee on Women and Equalities observed that “[t]he current process of applying for a GRC was described to us as ‘bureaucratic’, ‘expensive’ and ‘humiliating’. Witnesses told us that it required the collection and submission of substantial quantities of evidence of a type which ought to have no bearing on the granting of gender recognition.” Select Committee on Women and Equalities, Transgender Equality, [33].

  31. 31.

    This is a general phenomenon that many scholars, across jurisdictions, have noted—in relation to physical and mental health gender affirmative care. See e.g. Sana Loue, “Transsexualism in Medicolegal Limine: An Examination and a Proposal for Change”, Journal of Psychiatry and Law 24, no 1 (1996): 27, 34; Dean Spade, “Documenting Gender”, Hastings Law Journal 59 (2007): 731, 756.

  32. 32.

    Scherpe and Dunne, “The Legal Recognition of Transsexual and Transgender Persons”, 653–654. Pieter Canoot writes that it is “striking that the Court continues to allow the requirement of providing evidence of the existence of the ‘syndrome of transsexuality’, sex reassignment therapy, and the possibility for the State to order the performance of a medical expert examination, considering its recognition that the psycho-pathologisation of gender identity reinforces stigmatization of trans* persons”, see Pieter Canoot, “The pathologisation of Trans* Persons in the ECtHR’s Case Law on Legal Gender Recognition”, Netherlands Quarterly of Human Rights 37, no 1 (2019): 14, 23.

  33. 33.

    Ibid.

  34. 34.

    Dean Spade, “Resisting Medicine, Re/modelling Gender”, Berkeley Women’s Law Journal 18 (2003): 15, 34.

  35. 35.

    Select Committee on Women and Equalities, Transgender Equality, [31] and [64]–[71].

  36. 36.

    Gender Recognition Act 2004, s. 1(1). See Peter Dunne, “Transgender Children and the Law”, Family Law 47 (January 2017): 123.

  37. 37.

    Janice Turner, “Cult of Gender Identity Is Harming Children”, The Sunday Times, September 21, 2019, https://www.thetimes.co.uk/article/cult-of-gender-identity-is-harming-children-pjvbkjzxq; Leyla Sanai, “The Danger of Letting Children Transition Too Early”, The Spectator, May 13, 2019, https://www.spectator.co.uk/article/the-danger-of-letting-children-transition-gender-too-early; Vic Parsons, “Trans Kids Are as Sure of Their Gender as cis Kids at a Young Age, According to Science”, Pink News, December 27, 2019, https://www.pinknews.co.uk/2019/12/27/transgender-children-study-gender-identity-cis-children-washington-university/; Julian Norman, “‘Shifting Sands’ Six Legal Views on the Transgender Debate”, The Guardian, October 19, 2018, https://www.theguardian.com/society/2018/oct/19/gender-recognition-act-reforms-six-legal-views-transgender-debate.

  38. 38.

    See e.g. Heather Brunskell-Evans, “The Medico-Legal ‘Making’ of the Transgender Child”, Medical Law Review 27, no 4 (2019): 640.

  39. 39.

    Keira Bell, who is acting as an applicant in a judicial review of the gender affirmative care protocols adopted by the NHS Gender Identity Development Service (Gids), located within the Tavistock and Portman NHS Trust, states that: “I have become a claimant in this case because I do not believe that children and young people can consent to the use of powerful and experimental hormone drugs like I did. I believe that the current affirmative system put in place by the Tavistock is inadequate as it does not allow for exploration of these gender dysphoric feelings nor does it seek to find the underlying causes of this condition. Hormone changing drugs and surgery does not work for everyone and it certainly should not be offered to someone under the age of 18 when they are emotionally and mentally vulnerable. The treatment urgently needs to change so that it does not put young people, like me, on a torturous and unnecessary path that is permanent and life changing.” Mrs A, who is also an applicant in the judicial review, states: “I have deep concerns that the current clinical approach at GIDS means that my daughter will be subjected to an experimental treatment path that is not adequately regulated, where there are insufficient safeguards, where her autism will not be properly accounted for and where no-one (let alone my daughter) understands the risks and therefore cannot ensure informed consent is obtained.” See “Legal Case to Protect Children from Experimental Medical Treatment”, Crowd Justice, accessed March 29, 2020, https://www.crowdjustice.com/case/protect-children/.

  40. 40.

    Emma Hartley, “Why Do So Many Teenage Girls Want to Change Gender?”, Prospect, March 3, 2020, https://www.prospectmagazine.co.uk/magazine/tavistock-transgender-transition-teenage-girls-female-to-male.

  41. 41.

    For example, Transgender Trend is a UK-based organisation, which has recently emerged as an opponent of reforms to the GRA 2004. Here is their recent submission on the Gender Recognition Reform (Scotland) Bill; Transgender Trend, “Transgender Trend Submission to the Gender Recognition Reform (Scotland) Bill Consultation”, accessed March 29, 2020, https://www.transgendertrend.com/transgender-trend-submission-gender-recognition-reform-scotland-bill/.

  42. 42.

    R(ota) Mrs A, and Sue Evans v. Tavistock and Portman NHS Foundation Trust (due for full hearing in late 2020).

  43. 43.

    Herbert J. Bonifacio and Stephen M. Rosenthal, “Gender Variance and Dysphoria in Children and Adolescents”, Paediatric Clinics of North America 62, no 4 (2015): 1001, 1004; Stephen Rosenthal, “Approach to the Patient: Transgender Youth: Endocrine Considerations”, The Journal of Clinical Endocrinology and Metabolism 99, no 12 (2014): 4379, 4384.

  44. 44.

    Kristina Olson, “Prepubescent Transgender Children: What We Know and What We Do Not Know”, Journal of the American Academy of Child and Adolescent Psychiatry 55, no 3  (2016): 155, 155; “Statement on Gender Affirmative Approach to Care from the Paediatric Endocrine Society Special Interest Group on Transgender Health”, accessed March 29, 2020, https://www.pedsendo.org/members/members_only/PDF/TG_SIG_Position%20Statement_10_20_16.pdf; Randall D. Ehrbar et al., “Clinician Judgment in the Diagnosis of Gender Identity Disorder in Children”, Journal of Sex and Marital Therapy 34(5) (2008): 385, 388; Brynn Tannehill, “The End of the Desistence Myth”, Huffington Post, January 1 2016, http://www.huffingtonpost.com/brynn-tannehill/the-end-of-the-desistance_b_8903690.html.

  45. 45.

    Annelou de Vries et al., “Young Adult Psychological Outcome After Puberty Suppression and Gender Reassignment”, Paediatrics 134, no 4 (2014): 696; Kristina R. Olson et al., “Mental Health of Transgender Children Who Are Supported in Their Identities”, Paediatrics 137, no 3 (2016): 1.

  46. 46.

    Such an approach appears to be possible in a number of other European jurisdictions, such as Malta, Norway and Ireland (although Ireland and Norway do have lower age limits under which a child cannot be formally acknowledged in their self-identified gender), see Peter Dunne and Marjolein van den Brink, Trans and Intersex Equality Rights in Europe: A Comparative Analysis (Luxembourg: Publications Office of the European Union, 2018), 65–66.

  47. 47.

    Elan-Cane v Home Secretary [2020] EWCA Civ 363 (currently on appeal to the United Kingdom Supreme Court).

  48. 48.

    Dunne and van den Brink, Trans and Intersex Equality Rights in Europe,  66–67.

  49. 49.

    Peter Dunne, “Acknowledging or Erasing Intersex Experiences? Gender ‘Diversity’ in German Law”, Northern Ireland Legal Quarterly 70, no 1 (2019): 163.

  50. 50.

    Government Equalities Office, National LGBT Survey: Summary Report (June 2018), 8, accessed March 29, 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722314/GEO-LGBT-Survey-Report.pdf.

  51. 51.

    Elan-Cane v Home Secretary [2020] EWCA Civ 363 (Court of Appeal Decision); [2018] EWHC 1530 (Admin) (High Court Decision).

  52. 52.

    See Select Committee on Women and Equalities, Transgender Equality, where the Committee recommends, at [299], that “[t]he 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.”

  53. 53.

    The option of an “X” passport is available in Malta, see Peter Dunne and Stephen Clark, Comparative Legal Overview of Gender Recognition Laws across the Commonwealth (London: Equality and Justice Alliance, 2019), 40.

  54. 54.

    Dunne and van den Brink, Trans and Intersex Equality Rights in Europe, 59.

  55. 55.

    Pieter Canoot offers an interesting discussion relating to self-determination in “The pathologisation of Trans*”. Jens T. Theilen has also discussed the depathologisation of legal gender recognition in “Depathologisation of Transgenderism and International Human Rights Law” Human Rights Law Review 14 (2014): 327.

  56. 56.

    Chris Dietz, “Governing Legal Embodiment: On the Limits of Self-Declaration”, Feminist Legal Studies 26 (2018): 185.

  57. 57.

    “Gender Recognition Reform (Scotland) Bill: Consultation”, accessed March 29, 2020, https://www.gov.scot/publications/gender-recognition-reform-scotland-bill-consultation-scottish-government/; UK Government, “Reform of the Gender Recognition Act 2004”, accessed March 29, 2020, https://www.gov.uk/government/consultations/reform-of-the-gender-recognition-act-2004.

  58. 58.

    See e.g. Kathleen Stock, “Why Self-Identification Should Not Legally Make You a Woman”, The Conversation, October 1, 2018, https://theconversation.com/why-self-identification-should-not-legally-make-you-a-woman-103372.

  59. 59.

    See generally: Alex Sharpe, “Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?”, Modern Law Review 83, no 3 (2020): 539.

  60. 60.

    Davina Cooper, “A Very Binary Drama: The Conceptual Struggle for Gender’s Future”, feminists@law 9, no 1 (2019): 1.

  61. 61.

    Peter Dunne and Jule Mulder, “Beyond the Binary: Towards a Third Sex Category in Germany?”, German Law Journal 19, no 3 (2018): 627, 645–646.

  62. 62.

    See e.g. Iina Sofia Korkiamäki, “Legal Gender Recognition and (Lack of) Equality in the European Court of Human Rights”, The Equal Rights Review 13 (2014): 20.

  63. 63.

    Dunne and van den Brink, Trans and Intersex Equality Rights in Europe, 46–47, where the authors talk about the potential benefit of the language of “gender identity” rather than relying upon “sex” or “gender reassignment”. Under s. 7 of the Equality Act 2010, “gender reassignment” is currently the specific protected characteristic in UK law. This reflects EU case law, such as P v S and Cornwall Case C-13/94 [1996] ECR I-2143, and secondary legislation, such as Directive 2006/54.

  64. 64.

    Council of Europe Commissioner for Human Rights, Human Rights and Intersex (Strasbourg: Council of Europe, 2015), 14.

  65. 65.

    Government Equalities Office, “Variations in Sex Characteristics Call for Evidence”, accessed March 29, 2020, https://www.gov.uk/government/consultations/variations-in-sex-characteristics-call-for-evidence.

  66. 66.

    Ibid.

  67. 67.

    Fae Garland and Mitchell Travis, “Legislating Intersex Equality: Building the Resilience of Intersex People through Law”, Legal Studies 38, no 4 (2018): 587, 598–599.

  68. 68.

    See e.g. the high-profile report of the UN High Commissioner for Human Rights on “Discrimination and violence against individuals based on their sexual orientation and gender identity” which consistently refers to “intersex” throughout even though nominally relating to only to sexual orientation and gender identity concerns, United Nations High Commissioner for Human Rights (UNHCHR), “Discrimination and Violence Against Individuals Based on Their Sexual Orientation and Gender Identity” (4 May 2015) UN Doc No. A/HRC/29/23.

  69. 69.

    See e.g. ILGA-Europe, “Intersex”, accessed March 29, 2020, https://www.ilga-europe.org/what-we-do/our-advocacy-work/trans-and-intersex/intersex.

  70. 70.

    Garland and Travis, “Legislating Intersex Equality”. The UK approach is largely reflective of the legislative approach throughout Europe, see generally: Dunne and van den Brink, Trans and Intersex Equality Rights in Europe.

  71. 71.

    See e.g. Germany and Austria.

  72. 72.

    Lena Holzer, “Sexually Dimorphic Bodies: A Production of Birth Certificates”, Australian Feminist Law Journal 45, no 1 (2019): 91, 100, who writes that “the majority of intersex persons identify with a binary gender/sex, mostly with the one assigned at birth, and only a minority identifies with a category other than female or male.”

  73. 73.

    Garland and Travis, “Legislating Intersex Equality”, 598.

  74. 74.

    ILGA Europe‚ “Public Statement by the Third International Intersex Forum”, accessed March 29, 2020, https://www.ilga-europe.org/what-we-do/our-advocacy-work/trans-and-intersex/intersex/events/3rd-international-intersex-forum.

  75. 75.

    Holzer, “Sexually Dimorphic Bodies”, 100.

  76. 76.

    In the Australian context, see Morgan Carpenter, “The Normalization of Intersex Bodies and Othering of Intersex Identities in Australia”, Bioethical Inquiry 15 (2018): 487, 492.

  77. 77.

    Intersex NGO Coalition UK, “NGO Report (for PSWG) to the 8th Report of the United Kingdom on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)”, accessed March 29, 2020, https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/GBR/INT_CEDAW_ICO_GBR_31475_E.pdf. The Coalition writes (page 4) that “[t]he United Kingdom is in breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women to (a) take effective legislative, administrative, judicial or other measures to prevent involuntary, non-urgent surgery and other medical treatment and harmful practices of intersex persons based on prejudice, and (b) to ensure access to redress, and the right to fair and adequate compensation and rehabilitation for victims (CEDAW Arts. 1 and 5(a), General Recommendations No. 19 and 31).”

  78. 78.

    Jameson Garland and Santa Slokenberga, “Protecting the Rights of Children with Intersex Conditions from Non-consensual Gender-Conforming Medical Interventions: The View from Europe”, Medical Law Review 27, no 3 (2019): 482; Mary Newbould, “When Parents Choose Gender”, Medical Law Review 24 (2016): 474.

  79. 79.

    Peter Dunne, “Towards Trans and Intersex Equality: Conflict or Complementarity?” in The Legal Status of Intersex Persons, edited by Jens Scherpe, Tobias Helms and Annatol Dutta (Cambridge: Intersentia, 2018), 229.

  80. 80.

    Jurg C. Streuli et al., “Sha** Parents: Impact of Contrasting Professional Counseling on Parents’ Decision Making for Children with Disorders of Sex Development”, Journal of Sexual Medical 10 (2013): 1953, 1958; Georgiann Davis and Erin L. Murphy, “Intersex Bodies as States of Exception: An Empirical Explanation for Unnecessary Surgical Modification”, Feminist Formations 25, no 2 (2013): 129, 144–145.

  81. 81.

    Myra Hird, “Gender’s Nature: Intersexuality, Transsexualism and the ‘Sex’/‘Gender’ Binary”, Feminist Theory 1, no 3 (2000): 347, 351.

  82. 82.

    Julie Greenberg, “Defining Male and Female: Intersexuality and the Collision Between Law and Biology”, Arizona Law Review 41, no 2 (1999): 265, 271.

  83. 83.

    Commissioner for Human Rights, Human Rights and Intersex, 33.

  84. 84.

    Anne Fausto-Sterling, Sexing the Body (New York: Basic Books, 2008), 8.

  85. 85.

    Gender Identity, Gender Expression and Sex Characteristics Act 2015. Article 15(1) of the 2015 Act provides that “[i]t shall be not be lawful for medical practitioners or other professionals to conduct any sex assignment treatment and, or surgical intervention on the sex characteristics of a minor which treatment and, or intervention can be deferred until the person to be treated can provide informed consent.” Article 15(2) goes on to clarify that “[i]n exceptional circumstances treatment may be effected once there is an agreement between the Interdisciplinary Team and the persons exercising parental authority or tutor of the minor who is still unable to provide consent: [p]rovided that medical intervention which is driven by social factors without the consent of the individual concerned will be in violation of this Act” (emphasis added).

  86. 86.

    Committee against Torture, “Concluding Observations of the Committee Against Torture” (December 12, 2011) UN Doc No. CAT/C/DEU/CO/5, [20].

  87. 87.

    Ibid.

  88. 88.

    Committee on the Rights of the Child, “Concluding Observations on the Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland” (July 12, 2016) UN Doc No. CRC/C/GBR/CO/5, [47].

  89. 89.

    UKLGIG, “Still Falling Short: The Standard of Home Office Decision-Making in Asylum Claims Based on Sexual Orientation and Gender Identity”, UKLGIG website, July 2018, 19, accessed March 28, 2020, https://uklgig.org.uk/wp-content/uploads/2018/07/Still-Falling-Short.pdf.

  90. 90.

    See ILGA, “State Sponsored Homophobia: Global Legislation Overview Update”, 9–28, accessed March 28, 2020, https://ilga.org/downloads/ILGA_World_State_Sponsored_Homophobia_report_global_legislation_overview_update_December_2019.pdf.

  91. 91.

    Islam (A.P) v Secretary of State for the Home Department of Regina v Immigration Appeal Tribunal and Another Ex Parte Shah (1999) 2 All ER 545 at 452 (Steyn LJ).

  92. 92.

    HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department (2010) UKSC 31.

  93. 93.

    Joined Cases C-199/12 to C-201/12 X (C-199/12), Y (C-200/12), Z (C-201/12) v Minister voor Immigratie en Asiel [2013] ECR I and Joined Cases C-148/13 to C-150/13 A (C-148/13), B (C-149/13), C (C-150/13) v Staatssecretaris van Veiligheid en Justitie [2014] ECR I.

  94. 94.

    Sharalyn Jordan, “Un/Convention(al) Refugees: Contextualizing the Accounts of Refugees Facing Homophobia or Transphobic Persecution”, Refuge 26 (2011): 165.

  95. 95.

    Didier Faissin, “The Precarious Truth of Asylum”, Public Culture 25, no 1 (2013): 39.

  96. 96.

    Frances Weber, “On the Creation of the UK’s ‘Hostile Environment’”, Race & Class 60, no 4 (2019): 76, 77.

  97. 97.

    UK Home Office, “Experimental Statistics: Asylum Claims on the Basis of Sexual Orientation: August 2019)”, accessed March 28, 2020, https://www.gov.uk/government/publications/immigration-statistics-year-ending-june-2019/experimental-statistics-asylum-claims-on-the-basis-of-sexual-orientation. The Home Office also notes that 38% of asylum appeals in relation to a negative decision are allowed.

  98. 98.

    UKLGIG, “Missing the Mark: Decision Making on Lesbian, Gay, Bisexual, Trans, and Intersex Asylum Claims”, accessed March 28, 2020, https://uklgig.org.uk/wp-content/uploads/2014/02/Missing-the-Mark.pdf; Moira Dustin, “Many Rivers to Cross: The Recognition of LGBTQI Asylum in the UK”, International Journal of Refugee Law 30, no1 (2018): 104; Jenni Millbank, “From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom”, The International Journal of Human Rights 13, no 2–3 (2009): 391; Senthorun Raj, “A/Effective Adjudications: Queer Refugees and the Law”, Journal of Intercultural Studies 3, no 4 (2017): 453.

  99. 99.

    UKLGIG, “Still Falling Short”, 18.

  100. 100.

    Ibid., 19.

  101. 101.

    Ibid., 30.

  102. 102.

    Ibid., 31.

  103. 103.

    See generally Jenni Millbank, “Fear of Persecution or a Just a Queer Feeling? Refugee Status and Sexual Orientation in Australia”, Alternative Law Journal 20, no 6 (1995): 261; Jenni Millbank, “Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia”, Melbourne University Law Review 26, no 7 (2002): 144; Jenni Millbank, “Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation”, Georgetown Immigration Law Journal 18 (2003): 71; Jenni Millbank, “A Preoccupation with Perversion: The British Response to Sexual Orientation Refugee Claims, 1989–2003”, Social & Legal Studies 14, no 1 (2005): 115; Jenni Millbank, “The Ring of Truth: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations”, International Journal of Refugee Law 21, no 1 (2009): 1; Jenni Millbank, “From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom”, The International Journal of Human Rights 13, nos 2-3 (2009): 391; See Laurie Berg and Jenni Millbank, “Develo** a Jurisprudence of Transgender Particular Social Group” in Fleeing Homophobia: Sexual Orientation, Gender Identity and Asylum, edited by Thomas Spijkerboer (Abingdon: Routledge, 2013), 121.

  104. 104.

    UKLGIG, “Still Falling Short”, 18.

  105. 105.

    Ibid., 18–10. See also S. Chelvan’s contribution in Chapter 4 of this edited collection.

  106. 106.

    UKLGIG, “Submission to the Independent Chief Inspector of Borders and Immigration Inspection of the Home Office’s Presenting Officers’ Function”, accessed March 20, 2020, https://uklgig.org.uk/wp-content/uploads/2020/02/UKLGIG-submission-to-ICIBI-inspection-of-presenting-officers-Jan-2020-FINAL.pdf.

  107. 107.

    Theresa May, while acknowledging the colonial legacy of anti-gay laws, moralised about the importance of protecting LGBT people who seek asylum from the “terrible suffering” they face elsewhere and how the UK stands as a beacon for the protection of LGBT rights. These claims were made while the Home Office continued to remove a number of LGBT people who had sought asylum. See Nick Duffy, “Prime Minister Theresa May Challenged over Deportation of LGBT Asylum Seekers”, PinkNews, October 25, 2017, https://www.pinknews.co.uk/2017/10/25/prime-minister-theresa-may-challenged-over-deportation-of-lgbt-asylum-seekers/. Jasbir Puar describes this political use of LGBT inclusion as a barometer of state progress as “homonationalism”, see Jasbir Puar, “Homonationalism as Assemblage: Viral Travels, Affective Sexualities”, **dal Global Law Review 4, no 2 (2013): 23, 24. Kay Lalor elaborates in Chapter 2 on how this rhetoric functions to promote the political “progressiveness” of the UK in relation to LGBT rights. This also relates to the way migrants are positioned in discussions about including LGBT content in sex and relationships education.

  108. 108.

    Moira Dustin and Nina Held, “In or Out: A Queer Intersectional Approach to ‘Particular Social Group’ Membership and Credibility in SOGI Asylum Claims in Germany and the UK”, Genius 2 (2018): 74, 1.

  109. 109.

    Bina Fernandez, “Queer Border Crossers: Pragmatic Complicities, Indiscretions and Subversions”, In Queering International Law: Possibilities, Alliances, Complicities, Risks, edited by Dianne Otto, (Abingdon: Routledge, 2017), 211.

  110. 110.

    Saima Mir, “‘I Feel Caught in the Middle’: Queer Muslims on the LGBTQ Lessons Row”, The Guardian, March 27, 2019, https://www.theguardian.com/education/2019/mar/27/caught-in-middle-queer-muslims-lgbtq-lessons-schools-protests.

  111. 111.

    Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019.

  112. 112.

    Benjamin Butterworth, “MPs for LGBT Inclusive Sex and Relationship Education from Primary School”, iNews, March 28, 2019, accessed March 28, 2020, https://inews.co.uk/news/education/lgbt-sex-relationship-education-mps-support-504670.

  113. 113.

    Nazia Parveen, “Parents Complain to Manchester Schools About LGBT Lessons”, The Guardian, March 19, 2019, https://www.theguardian.com/education/2019/mar/19/fresh-complaints-about-lgbt-lessons-at-greater-manchester-primary-schools.

  114. 114.

    “Parkfield Community School: Ofsted Says LGBT Lessons Are ‘Appropriate’”, BBC News, March 2, 2019, https://www.bbc.co.uk/news/uk-england-birmingham-47536752.

  115. 115.

    Local Government Act 1988 (UK), s. 28.

  116. 116.

    UK Department for Education, “Sex and Relationship Education Guidance”.

  117. 117.

    UK Department for Education, “Relationships Education, Relationships and Sex Education (RSE) and Health Education Statutory Guidance”.

  118. 118.

    See Stonewall UK, “School Report: The Experiences of Lesbian, Gay, Bi and Trans Pupils in Britain’s Schools”, Stonewall website, November 2017, accessed March 28, 2020, https://www.stonewall.org.uk/system/files/the_school_report_2017.pdf. Stonewall was founded by activists campaigning against Section 28.

  119. 119.

    Equality Act 2010 (UK), s. 149.

  120. 120.

    Paul Johnson and Robert Vanderbeck, Law, Religion and Homosexuality (Abingdon: Routledge, 2014), 190–197; UK Department for Education, “Relationships Education, Relationships and Sex Education (RSE) and Health Education Statutory Guidance”, 15, 17–18.

  121. 121.

    Birmingham City Council v Afsar (No 3) [2019] EWHC 3217 (QB), [3]. “No Outsiders” was a programme that was taught at another school in Birmingham, where primary school pupils were taught about equalities, rights, and differences. The programme was discontinued at the school following the withdrawal of Muslim students from the school. See Nazia Parveen, “Birmingham School Stops LGBT Lessons After Parents Protest”, The Guardian, March 4, 2019, https://www.theguardian.com/education/2019/mar/04/birmingham-school-stops-lgbt-lessons-after-parent-protests.

  122. 122.

    Birmingham City Council v Afsar (No 3) [2019] EWHC 3217 (QB), [37] (Warby J).

  123. 123.

    Ibid., [40] (Warby J).

  124. 124.

    Ibid., [90]–[95] (Warby J).

  125. 125.

    Ibid., [120] (Warby J).

  126. 126.

    Cooper, Feeling Like a State, 99–100.

  127. 127.

    Mir, “‘I Feel Caught in the Middle’”.

  128. 128.

    Grietje Baars, “Queer Cases Unmake Gendered Law, Or, Fucking Law’s Gendered Function”, Australian Feminist Law Journal 45, no 1 (2019): 15, 47.

  129. 129.

    UK Department for Education, “Relationships Education, Relationships and Sex Education (RSE) and Health Education Statutory Guidance”, 27.

  130. 130.

    Ibid., 28–29.

  131. 131.

    For a discussion on same-sex relationship recognition and relationship diversity, see Alexander Maine, “The Hierarchy of Marriage and Civil Partnerships: Diversifying Relationship Recognition” in Same-Sex Relationships, Law and Social Change, edited by Frances Hamilton and Guido Noto La Diega (Abingdon: Routledge, 2020), 209.

  132. 132.

    Baars, “Queer Cases Unmake Gendered Law”, 21.

  133. 133.

    Cooper, Feeling Like a State, 31.

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  1. Keele University, Newcastle-Under-Lyme, UK

    Senthorun Raj

  2. University of Bristol, Bristol, UK

    Peter Dunne

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    Senthorun Raj

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    Peter Dunne

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Raj, S., Dunne, P. (2021). Coming Inside and/or Playing Outside: The (Legal) Futures of LGBTIQ Rights in the United Kingdom. In: Raj, S., Dunne, P. (eds) The Queer Outside in Law. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-48830-7_9

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