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Gender dysphoria and PIP
Is anyone aware of any caselaw that addresses whether a diagnosis of gender dysphoria would be considered a ‘mental condition’ for PIP purposes?
Gender dysphoria or incongruence is a recognised medical condition per both the DSM-5 and ICD-11 (code HA60 & HA61) so I don’t see on what basis the contrary could be argued.
There is caselaw in R(DLA) 6/06 and DE v SSWP (PIP) [2021] UKUT 226 (AAC) on the extent and circumstances in which alcohol use disorder is considered to be a medical condition, which is obviously not directly applicable but gives some indication as to the approach to be taken in determining whether something is or is not a medical condition.
My view is that being trans is not a disability.
However, for many people transphobia and lack of access to gender affirmation etc can cause a mental health condition.
Perhaps that’s where points may be scored for PIP?
Don’t forget that it’s not that long ago that being gay stopped being listed as a medical condition.
My view is that being trans is not a disability.
I agree.
However, the reason why a person experiences a particular sort of mental health problem is no more relevant to the PIP assessment than the reason why they have a physical disability - if I’ve had my left leg amputated, it’s irrelevant whether that was because of a car accident or because of an infection that resulted from my intravenous drug misuse. And just as with physical health problems, it also does not really matter what particular diagnosis health professionals have made (or even if there is, as yet, no diagnosis) so long as there is evidence that particular symptoms actually exist. As always, it is how a person is actually affected by their health problems that matters.
I mention this not just because it’s the correct position legally, but because there is sometimes so much bile and intransigence around how trans issues are discussed there is potential for the claimant to encounter some that (albeit not necessarily overtly) along the decision making journey - which can be a hard enough process anyway.
And for the avoidance of doubt, the above should not be taken as a suggestion that a trans person should not explain the impact of being trans and of others’ prejudice on their mental health if that is what they wish to do.
This is exactly where I have got stuck - if as Elliott says gender dysphoria is a health condition, then a PIP award could be made for associated distress if its affecting the person’s ability to carry out PIP activities.
If however gender dysphoria / being trans is not in itself a health condition, then presumably its necessary to indicate some other health condition which is affecting the person before PIP could be applicable. In some cases, a person might be experiencing distress that affects ability to carry out PIP activities, but might be certain that this distress is all the result of their gender dysphoria and that they have no mental health condition at all.
And the question of whether or not gender dysphoria is a health condition is so heavily contested and politicised!
Remember that you don’t need a diagnosis to claim PIP. If the client is clear that their only diagnosis is gender dysphoria, then you’ll have to go with that. I would focus on what in particular affects their ability to carry out activities, eg I can’t cook a meal due to lack of motivation vs I can’t cook a meal due to gender dysphoria.
Why are we equating gender dysphoria to being trans? Is it the same?
Quick google results in this from NHS website:-
Gender dysphoria is a condition where a person experiences discomfort or distress because there’s a mismatch between their biological sex and gender identity. It’s sometimes known as gender identity disorder (GID), gender incongruence or transgenderism.
NHS website also says: Gender dysphoria is not a mental illness, but some people may develop mental health problems because of gender dysphoria.
This is exactly where I have got stuck - if as Elliott says gender dysphoria is a health condition, then a PIP award could be made for associated distress if its affecting the person’s ability to carry out PIP activities.
Why are we equating gender dysphoria to being trans? Is it the same?
These are things I was trying to get at in my post - it’s wood for the trees here.
Yes, gender dysphoria is a health condition - “it is refers to psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” It does strike me the use of the phrase ‘that results from….’ in that WHO definition is a little unfortunate as it does suggest that psychological distress is the inevitable result of that incongruence. And it may not be inevitable…..
Be that as it may, the key thing in the WHO definition for the purposes of PIP is ‘psychological distress’ and the diagnostic reason why a person experiences that distress is of secondary importance at best. What are the effects of the psychological distress? How does it impact the claimant? Specifically, how does it impact their ability to carry out the activities that make up the PIP assessment? What help do they reasonably require to carry out those activities safely, to a reasonable standard, repeatedly and within a reasonable timescale?
Why are we equating gender dysphoria to being trans? Is it the same?
We aren’t. Both Jo-Smith and I have cited the WHO definition of gender dysphoria. Being trans is something different and has different meanings for different individuals. I am not an expert, but as a 60 year old straight white bloke, I try to do my best. To the best of my understanding…...
You can be trans if you identify as a different gender
You can be trans if you sometimes/in part identify as a different gender
You can be trans if you intend to transition
You can be trans if you do transition
You can be trans if you never intend to transition
Gender dysphoria may (or may not) be experienced by any of the above.
A person who experiences gender dysphoria may find their symptoms alleviated if they transition - or they may not.
For all of the above reasons (and the because it is the way the law works) we need to concentrate on what the effects of the person’s health condition are on their ability to carry out the activities that make up the PIP assessment.
Why are we equating gender dysphoria to being trans? Is it the same?
We aren’t. Both Jo-Smith and I have cited the WHO definition of gender dysphoria. Being trans is something different and has different meanings for different individuals. I am not an expert, but as a 60 year old straight white bloke, I try to do my best. To the best of my understanding…...
You can be trans if you identify as a different gender
You can be trans if you sometimes/in part identify as a different gender
You can be trans if you intend to transition
You can be trans if you do transition
You can be trans if you never intend to transitionGender dysphoria may (or may not) be experienced by any of the above.
A person who experiences gender dysphoria may find their symptoms alleviated if they transition - or they may not.For all of the above reasons (and the because it is the way the law works) we need to concentrate on what the effects of the person’s health condition are on their ability to carry out the activities that make up the PIP assessment.
I am glad we are NOT equating. This is what made me uncomfortable. I asked because some previous posts made that impression. Like it was the same thing.
And although it was not me who quoted WHO , I learned a lot from this thread.
“the diagnostic reason why a person experiences that distress is of secondary importance at best.”
Yes, sorry, it was Helen Rogers who quoted….bit rushed in replying.
Actually I quoted the NHS, but it doesn’t matter.
I think we all broadly agree, but I wanted to clarify my position. I’m not an expert and I can’t claim to speak for trans people, but I do try to be a trans ally. If a trans person thinks I’m getting it wrong, I’m happy to be told.
For me, it’s disrespectful to refer to a trans person as having gender dysphoria, but if a client wants to use that diagnosis, then of course I will. I think part of the problem that we’re coming up against is the disconnect between self identification and the medical model that can be a barrier to gender affirmation and legal recognition. Many trans people are proud to be trans. Many of them will have been given a diagnosis of gender dysphoria at some point. I think we’re all in agreement that it’s the psychological/mental distress that constitutes the health condition, not the gender identity. And I’m not underestimating the distress that can be caused by not being cis.
I can recall two clients who are trans and have mental health conditions that I have helped with PIP. I don’t know what the causes of their mental health conditions were. With one client, you wouldn’t know from reading her PIP 2 that she was trans. She didn’t wish to put her hormone treatment down as medication that she was on. With the other, gender dysphoria was mentioned in the medical evidence. I only referred to the issue when I explained in my appeal submission that the client uses “they” as a pronoun.