In the UK, institutional transphobia and anti-migrant policies are on the rise. This is creating unique struggles for trans+ migrants. For non-binary migrants specifically, there are additional barriers arising from the lack of legal recognition of non-binary people in the UK.
‘Non-binary’ is largely used either as an identity itself or an umbrella category for people whose gender does not align with a binary of either ‘man’ or ‘woman’. In different cultural contexts this may look different in terms of how people understand non-binary genders. In the context of the gender binary in the West, therefore, non-binary is broadly understood as a subsection of trans identities. As a result, many forms of transphobia will often affect non-binary people. This is particularly evident in measures to prevent the recognition of people’s self-defined gender identity (self-ID), which poses problems for trans+ (i.e. including non-binary) migrants coming to the UK.
Ultimately, one function of borders is to filter (potential) migrants into hierarchies of acceptability, which then dictates who is welcome in a country. Borders are therefore inherently transphobic because they entrench hierarchies of worth and belonging along cisheteronormative lines. In the context of worsening transphobia, it is important to understand how this functions for different groups of trans migrants, including how borders violently enforce the gender binary.
Colonial gendering
We understand the current system of gender as a Western, Christian system exported to and forced upon much of the rest of the world through colonisation. This is not to say that patriarchy did not exist prior to colonialism, but that the specific, rigid and binary understanding of gender that is seen as the norm today is one that was (re)produced through violent and coercive means.
There are many countries throughout the world that have traditionally included non-binary genders, whether that be in a gender trinary or otherwise. Often, these groups have also been particularly persecuted or marginalised under European colonial rule. This includes many Indigenous groups in North America, often referred to collectively as ‘two spirit’, although different tribes will have different names and understandings of this (e.g. in Ojibwe it is ‘niizh manidoowag’).
Other countries with third gender groups also have self-ID processes for the legal recognition of their gender(s). In Pakistan, the Transgender Person (Protection of Rights) Act 2018 enables people to self-identify as male, female, both or neither, with this reflected on their legal documents. This is not to say these processes are without criticism – across South Asia hijras have often been classified in law as a third gender, as in Nepal where they can self-identify as such, instead of as women, which hijras in India have challenged. But it is still significant that so many colonised nations have greater recognition of expansive gender structures.
We have previously explored the close links between the development of the gender binary, patriarchy and colonisation. European Enlightenment thinking developed sex as a means to gender the body into categories associated with social roles. This form of ‘naturalised’ patriarchy, using European interpretations of Christianity, was then spread across the world through colonisation, where it was violently enforced as a marker of ‘civilisation.’
Given the colonial legacy of modern transphobia that persists to this day, it is unfortunately unsurprising that trans+ migrants and migratised people consistently experience higher levels of discrimination compared to all trans+ people and all LGBTQ+ people: 56.03% experienced difficulty in making ends meet, compared to 36.79% of all LGBTQ+ people, and 14.09% reported “great difficulty”, compared to 5.15%. 40.2% of trans+ migrants and migratised people have also experienced housing struggles, including homelessness, which is significantly higher than the 25.62% of all trans+ people who have. Intersecting systems of oppression, including racism, transphobia, and bordering, have all arisen out of, or been heavily exacerbated by colonialism. This leaves trans+ migrants, including non-binary people, at the sharpest end of compounded oppressions.
Trans+ migrants and GRCs
Gender Recognition Act
The law governing legal recognition of trans people in the UK is the Gender Recognition Act (GRA) 2004. The Act has been heavily criticised over the last decade, for being outdated in relation to the exclusion of non-binary people, and the medicalisation and bureaucracy of transness that it upholds, especially due to the abandoned amendment to allow for self-ID.
Under this Act, the UK has the ability to recognise the Gender Recognition Certificates (GRCs) from other countries and territories. This has meant that those coming to the UK from countries on this list do not have to reapply for a GRC when they reach the UK: their GRC from abroad, and their gender, is legally recognised. However, the Government has recently been reducing the number of countries and territories that it accepts GRCs from, based on their argument that these countries do not meet the UK’s “robust” standards for issuing GRCs. As a result, this has disproportionately affected those coming from countries where self ID is sufficient for the issuing of a GRC, and in turn, this hampers the rights of trans+ migrants to self identification.
It is essentially impossible for non-binary migrants to have their gender legally recognised in the UK: the 2004 Gender Recognition Act defines sex and gender as legally binary. This is still the case even when someone’s country of origin recognises and legally records non-binary gender(s), such as Canada and the state of California.
Passports
The gender binary also has consequences for how the Home Office operates. An internal review conducted by the Passport Office in 2014 (which also relied on the GRA’s binary definition of gender) claimed that “gender is used as a biographical identifier to help verify the identity of the applicant” and as a visual identifier, in defence of keeping gender markers on passports. Despite this, gender expression clearly doesn’t have a clear and consistent link to gender identity. This negatively affects anyone whose gender marker doesn’t “match” their appearance, including non-binary people, who may present as androgynous, and gender non-conforming and intersex people. This can also affect trans+ people whose gender marker hasn’t been updated, as well as trans+ people who have had their gender marker updated, yet don’t consistently “pass”.
The options the Passport Office listed as alternatives were doing nothing, issuing two passports with different gender markers, removing gender markers from the visible information listed on the passport (i.e. remaining encoded on the biometric chip), removing gender markers from passports entirely, and adding a third gender marker, ‘X’. The overarching argument made by the Passport Office in favour of keeping the gender marker system on passports the same was that the alternatives were too hard, expensive, and/or would exclude non-binary people (i.e. if gender markers weren’t visible but still only had male and female as options). It also drew on an interpretation of the GRA that gender is understood to be binary.
Interestingly, the Passport Office also mentioned differential citizenship rights for British mothers versus fathers in support of denying non-binary legal recognition – they argued that because there are aspects of citizenship law that are different depending on someone’s gender, which is split along binary lines, it is impractical to recognise non-binary genders under UK law. In this sense, the gender binary is enforced as a tool to deny marginalised genders (including women, trans and cis, and non-binary people) certain rights that men are entitled to through outdated citizenship legislation that is heavily embedded in modern Britain’s bureaucracy.
Trans+ migrants without a (recognised) GRC
Trans+ migrants – misgendering at the border
For trans+ migrants who don’t have a GRC from a recognised territory, it is often harder to change their legally recognised gender compared to British trans+ citizens, as all identity and travel documents must match, including name and gender markers. This presents a barrier to many trans+ migrants, as the process of legally changing their recognised gender may be (more) inaccessible or non-existent. As a result, someone will not be able to change their gender markers on their travel documents, i.e. the documents they use in the UK, because it wouldn’t match their identity documents from their country of origin. This is the same for all sets of documents in dual citizens’ cases (where neither citizenship is British), and so is a lengthy process.
Where someone is able to change their gender markers on identity documents from their country of origin, they are able to do the same on their travel documents. There are also provisions to allow people to do this where they are unable to change documents from their country of origin because it bans legal transition. However in practice, trans+ migrants have reported being unable to do so without Indefinite Leave to Remain (ILR) or British citizenship.
Government guidance states that for trans+ people applying to the EU Settlement Scheme (EUSS) who submit gender markers that align with their gender where that is a result of self-ID – which is recognised in 11 EU countries and more than 30 worldwide – Home Office officials must override this and only put the gender someone was assigned at birth.
For non-binary people on the EUSS with their gender legally recognised on their documents, such as with an ‘X’ as their sex marker, this is recorded as ‘other’ on the Home Office case management system. However, people applying for digital status, e.g. an eVisa, which is now required for all migrants, must choose either ‘male’ or ‘female.’ Home Office guidance cites international travel standards for this, despite other countries and territories being able to make these changes.
As a result, this complicates the requirement for all travel documents to match, including with gender markers, and potentially causing more issues for non-binary migrants when travelling. Is an exception to this requirement granted specifically to misgender non-binary people due to the UK’s refusal to recognise non-binary as a legal gender category?
Non-binary people in the asylum system
Despite not legally recognising non-binary people’s gender, Arthur Britney Joestar was able to claim asylum on the grounds that they are non-binary in 2020. In the previous negative decision that they successfully appealed, they were misgendered by the judge. This is unfortunately not surprising, as Home Office officials have previously struggled to understand any identities beyond gay and straight in asylum claims.
While Arthur Britney’s judgement setting a legal precedent will make it easier for other non-binary people to seek asylum in the UK, it is troubling that they were misgendered by someone responsible for deciding their claim. The lack of avenues for recognition of their gender now that they have status is also concerning. What does meaningful protection for non-binary migrants, including people seeking asylum and refugees, in the UK look like with no legal recognition of their gender?
Dismantling transphobic borders
Transphobia is rife in the immigration system, as well as the rest of Government. This presents specific additional struggles for non-binary migrants, who are unable to even potentially have their gender recognised. Any claims to trans+ inclusiveness are therefore meaningless, and provisions for transition on gendered identity documents are questionable, given the high barriers to legal recognition and its binary limitations.
The UK’s border regime is a site that brings together multiple forms of oppression, including systems with roots in the British Empire, like how gender is seen and enforced. We cannot have liberation from one system of oppression without liberation of all systems of oppression; there is no trans liberation while trans+ migrants are harmed by the violent and dehumanising system of borders.
Borders cannot be redeemed through diversification: we do not call for greater inclusion of non-binary people, or other marginalised groups, into harmful systems, as this merely maintains and legitimises these systems. We call instead for border abolition: for measures that bring about the dissolution of all harmful systems, including the immigration system. Only then can we have trans liberation, and liberation for all marginalised groups.
If you are interested in finding out more about the intersection of gender, queerness and migration, check out our dedicated sub-campaign.
Further reading
- Maria Lugones, ‘The Coloniality of Gender’