TRAVERSING NO-ONE'S LAND by ROSA FREEDMAN

Thank you to the organisers for this this excellent conference. I feel privileged and honoured to have been invited to share a platform with these outstanding feminists to discuss this topic.

There are so many legal issues to discuss, and many things have already been said, particularly about the national law on the GRA and Equality Act. I want to take a step back and think about this issue from an international human rights law perspective.

We are seeing the use of human rights discourse to promote the objectives of the transgender lobby even where doing so undermines the human rights of women.

I want to explain a little bit about international human rights law, the specific protections that women have under those laws, and why that discourse is being used by the trans lobby.

International human rights law sprang from the ashes of Nazi Germany. Up until then under international law a government could treat its own citizens any way that it liked. The Universal Declaration of Human Rights in 1948 was designed to address that gap. To give all individuals protections of their fundamental rights. To require all governments to uphold those rights for all individuals within their jurisdiction.

When the Universal Declaration was being drafted, there was a discussion about whether to have specific protections for women. But they decided not to do so, because the whole point was that every individual has every right by virtue of being born human. And it was felt that having specific protections for particular groups would undermine the universality of the human rights project.

It is important to note that in international human rights law the word ‘woman’ refers to sex, not to gender.

Ultimately, trying to mainstream women’s rights into human rights left significant and deeply problematic gaps in terms of women’s rights. At that time, one third of UN member states did not grant political rights to women, and women remained subjugated in a myriad of ways often in the name of ‘religion’ or ‘culture’.

In 1967 the UN Commission on the Status of Women took the ground-breaking step of adopting the Declaration on the Elimination of Discrimination against Women. That was followed in 1979 by the Convention on the Elimination of All Forms of Discrimination against Women. And an accountability mechanism was created – CEDAW -- to review and implement that Convention in States that signed up to it.

The advancement of women’s rights has continued with further ground-breaking moments. At the same time, despite much focus on ending discrimination and advancing women’s equality, and the increasing focus on gender-based violence, we remain in a world where women are subjugated in many parts of the world, and denied their fundamental rights both in law and in practice.

The fight for women to have specific protections has paved the way for other vulnerable groups to do the same.

The very idea of having specific protections for groups who face particular risk is no longer viewed as undermining the very nature of human rights. Since the creation of specific instruments and mechanisms for women similar steps have been taken for children, persons with disabilities, racial minorities, migrant workers, and others.

There is now clear understanding that the risks faced by members of such groups means that they require specific protection in law and practice. Although of course just because such an understanding exists, and just because States formally accept obligations by ratifying treaties, does not mean that changes on the ground are forthcoming.  But it gives those groups tools for lobbying for effective change, which is at the heart of human rights advocacy and work.

 

Coming back to the topic in hand – the Gender Recognition Act and proposed changes. This brief background and overview was to help to unpack why the trans lobby is framing self-identification and all-gender spaces as ‘human rights’ matters.

Of course, all individuals have fundamental rights by virtue of being born human. And those rights include non-discrimination and dignity, as well as the rights to private and family life.

The idea that self-identifying one’s gender – note that it is gender and not sex – has some support in international human rights law. The European Court of Human Rights has stated that the right to a private and family life includes something called the right to self-determine one’s gender, although there is little explanation of what that means.

There are also the Yogyakarta Principles created by a group of international human rights law experts, that talk also about self-identification of gender – not sex – as being key to trans people’s ability to realise their fundamental rights.

But when the trans lobby frames access of trans women to sex-segregated spaces as a human right, what it seems is that they want to create specific additional protections for trans people that go beyond fundamental rights that all people have by virtue of being born human. To do so, there would need to be a formal legal human rights recognition of ‘gender identity’ as a protected characteristic or a vulnerable group.

Of course, in the international arena that is near-impossible. There is very little likelihood of creating specific mechanisms to protect sexual orientation or gender identity minorities given that more than 77 countries out of 193 UN members criminalise LGBT persons.

The Yogyakarta Principles from 2006 have hardly been discussed by UN member states despite being signed then and again in 2017 by leading human rights experts.

And the recent steps forward in terms of UN human rights bodies seeking to protect sexual orientation minorities from violence and discrimination by states shows just how far we have to go in this regard.

I say all this to give some background as to why the trans lobby is seeking to make changes on the ground in terms of human rights law, rather than trying to gain specific protections in international human rights law that could then be used to make those changes on the ground. And to some extents that makes sense given how many countries torture, imprison, forcibly sterilise, or turn a blind eye to discrimination against LGBT persons.

However, the proposed changes in this country are in direct conflict with women’s rights already established and protected in law.

So, let’s turn to those changes and how they are being framed in terms of human rights. In particular I want to focus on why other countries have changed their laws, and what they do in terms of any conflict of rights.

Six years ago, the UK was one of a small minority of EU countries that did not require transgender people to undergo forced sterilisation in order to gain legal recognition of their preferred gender. Those countries included Denmark, France, Italy, the Netherlands, Norway, Portugal, and Sweden. Even last year, when the European Court of Human Rights ruled that forced sterilisation of transgender persons is a human rights violation, EU countries including Belgium, Croatia, Czech Republic, Finland, Greece, Switzerland still had those laws in place.

It is against that backdrop that we need to understand the many changes in the laws on legal recognition of transgender persons across EU countries.

We keep being told that many countries have self-identification without any problems. So I want to go through a few of those countries’ laws, to understand how the conflict of rights is addressed.

Let’s start with Ireland. Until 2015 Ireland did not recognise transgenderism, and no individual could receive legal recognition of their preferred gender. Ireland now has laws that allow for self-identification of gender, including for young people, without any requirements of having had a ‘meaningful’ transition or having lived for a length of time in that gender.

Ireland has retained sex-based exemptions for a large number of areas including schools and prisons. So, the self-identification of gender will have less impact upon women’s rights and sex-segregated spaces than the proposed reforms to the GRA.

In 2014 Denmark changed its laws as to how a person can change their gendered social security number. That change went from requiring medical treatment including forced sterilisation to now being able to self-identify after a six month waiting period between registering to change and having the legal change implemented. Those six months are called a period of reflection.

Denmark also has the option for an X gender on passports, which means that many people who identify under the broad banner of ‘non-binary’ including Julian’s favourite phrase ‘gender-fuck’, would be able to register in that way.

It is important to note that there are only six million people in Denmark.

Indeed, that is a key issue in terms of the UK. All of the other countries we are talking about that have brought in self-identification have relatively small populations compared with the UK, and so it will take significantly more time before cases are brought to test and understand the law.

I could talk about other countries. About the Netherlands which also allows for an X gender, or about Malta where transgender prisoners are provided with separate facilities for sleeping, showering and so on. Or Norway where self-identification allows access to sex-segregated spaces and in cases have already been brought against predators using self-identification to access women’s spaces for nefarious purposes. But I am running out of time and I want to talk about one more thing in conclusion.

We have heard that in the UK the relationship between the Gender Recognition Act and the Equality Act is such that it is unclear how sex-segregated exemptions might be retained. Indeed, we already know that many of those exemptions are being ignored in practice despite this violating human rights of women.

What we need is clarity. Clarity in terms of the law. Clarity in terms of definitions. We need proposals for solutions that will uphold the rights of all individuals, including the specific protections afforded in human rights law to vulnerable groups.

 

Professor Rosa Freedman, Law School, University of Reading, r.a.freedman@reading.ac.uk