This blog post is written by one of the FiLiA trustees, Julian Norman. She will be speaking about this topic on a panel discussing the law on sex and gender at the FiLiA conference 2018 where the panel will look at navigating a legal path through an increasingly tense area.

This is a response to Stephanie Hayden’s essay,  Gender Recognition Certificates: Why the Feminists and the Trans Rights Activists Have got it Wrong. It’s not intended as a rebuttal but more as a collaborative approach to understanding the law in what is a hugely misunderstood and almost entirely unlitigated area of law, the scope of the Equality Act 2010 (“EqA”) in particular the single sex exemptions and the proposed reforms of the Gender Recognition Act 2004 (“GRA”).

Stephanie starts with the premise that “The “GRA” has nothing to do with who has access to facilities provided for one sex or another.”

This isn’t accurate. Yes, it is correct to say that the GRA does not dictate use of changing rooms and toilets. However, there has never been a legal requirement that such places are single sex (other than under certain health & safety requirements which is not the subject of this essay): this has broadly been a social convention.  Where there are facilities which are single sex provisions, the GRA has an inadvertent impact. Because most of these conversations focus on women’s spaces (for obvious reasons: as a class, men have never needed protection from women for their own safety, privacy and dignity) I will follow the same pattern. However, what is said about access to women only space applies also to men only space.

The EqA appears unequivocal about sex based exemptions at ss.26 - 28 to Schedule 3. They are sex based, and not gender based. This is important, because sex is much more clearly defined than gender.

Sex is defined in law by s.212(1) EqA. A woman is a female of any age, while a man is a male of any age. A female is ordinarily understood to be a female human in the biological sense.

However, that is further informed by s.9(1) GRA, which allows a biological male to be legally considered female on acquisition of a Gender Recognition Certificate (“GRC”). To acquire a GRC an applicant must provide evidence of a diagnosis of a medical condition known as gender dysphoria and also of two years living in their chosen sex role. Once a GRC is acquired, a legal fiction is created that the person is of their new sex. A new birth certificate is provided and that person becomes “for all purposes” the sex they acquire and not the one they were born.

There are therefore two ways to be a woman in law: biologically by birth or legally by acquisition of a GRC.

It is a common misconception that the GRA has no effect on the EqA, because so many providers of single sex services are in fact – whether by accident or design – providing single gender services. Gender is understood in law to be a matter of self-perception, and is determined solely by oneself. Sex is a protected characteristic of the EqA (gender is not, although gender reassignment is) and is understood to be immutable. It is regrettable that in many jurisdictions sex and gender have been treated as coterminous when they are not.  This was discussed in R (Elan-Cane) v Secretary of State for the Home Department & Anor [2018] EWHC 1530 (Admin), as per Baker J at para 96:

“sex is now more properly understood to refer to an individual's physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual's self-perception”

Changing rooms and toilets have not, to my knowledge, generally invoked the single sex exemptions offered by ss.26 – 28 to Schedule 3 EqA 2010. They are almost all single gender provision rather than single sex. There are strong social taboos around members of one sex going into the toilets of the opposite sex, but that does not amount to a legal prohibition unless there is intent to do harm.

Where single sex exemptions are invoked, these tend to be in circumstances where women have experienced trauma such as women's refuges, rape crisis centres, domestic violence services; where women need safety, privacy and dignity such as in women's prisons; where women are physically at a disadvantage such as in women's sports; and where a single sex provision exists to repair the historic sidelining of women and marginalisation of girls resulting in unfairness such as in all women's shortlists, recognition of women in business, finance, law and other male-dominated professions and so on.

It is here where, in my view, it is wrong to argue that amendment of the GRA will have no effect on single sex exemptions.

If there are two ways to become female for the purposes of s.212(1) EqA – and therefore to meet the criteria for single sex provision – biological and legal, and it is proposed to amend the GRA to open up the legal route to many thousands more people with no oversight beyond a statutory declaration, then it is axiomatic that amendment of the GRA will have an enormous effect on the EqA. The effect would be to open up the legal status of “female” gender by way of s.9(1) GRA, and therefore “woman” for the purpose of s.212(1) EqA, to include anyone who signs a statutory declaration.

There are very few cases which deal with this, but I would suggest that this view is supported by the comments of HHJ Jeremy Richardson QC inR (Green) v Secretary of State for Justice[2013] EWHC 3491 (Admin).  In that case the Court was dealing with an application by a male prisoner who had murdered his wife and who now wished to be considered female. Green did not have a dysphoria diagnosis but was treated by the prison and the court with the courtesy of being referred to as a woman (presumably socially, given that neither biological nor legal womanhood applied).  At paragraphs 66 - 70 HHJ Richardson said that

“A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic – gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment.

It seems to me that I must approach the discrimination issues in this way:

(1)    Has the claimant been treated less favourably by the Governor than he would treat others in the exercise of his public function?

(2)    If he has so treated the claimant, was this due to the claimant's gender reassignment?

Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.

… I have no hesitation in saying the correct comparator is a male prisoner in Category B at HMP Frankland. I am utterly unconvinced that the claimant has been treated less favourably than such a prisoner – indeed the reverse. Consequently, the second question I posed does not arise.”

In other words, where a person has the protected characteristic of gender reassignment but does not have a GRC, their comparator class in looking at a discrimination claim is other members of their birth sex who are not proposing reassignment.  Once they do have a GRC, their comparator class is members of their acquired sex.

This means that if the GRA is amended so that self-declaration is all that is needed, Green would have had the comparator class of females rather than males and would have had a good case not just for access to the tights, wigs, prosthetic vagina and sanitary towels sought, but also for removal to the women’s estate, because the comparator class would become females. Whilst Green was disqualified for want of a dysphoria diagnosis, the comparator class remained males.  

This only applies to discrimination. Clearly, harassment and victimisation (the other two prohibited behaviours under the EqA 2010) do not require a comparator class.

I would suggest, therefore, that amendment of the GRA to reduce gatekeeping and to encompass a much wider spectrum of self-perceived women will inevitably have an immediate and potentially destructive impact on the sex based exemptions provided under EqA 2010.  The guidance from the EHRC went so far until Friday 5 October 2018 as to say that "Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services."  That would certainly be the logical interpretation of s.9(1) GRA's "for all purposes," but in fact, it is legal for an organisation to exclude a trans person even with a GRC.  Whether this is possible in practice is a moot point.

For the same reasons I would agree with Stephanie’s analysis that “In so far as a transgender person holding a “GRC” is concerned this paper goes one stage further and argues that (in reality) there is unlikely to ever be a scenario when a service provider could seek to enforce the single sex exemptions of the “EA” in respect of a “GRC” holder. Arguably the “GRA” and the “EA” are in conflict.”

I would however strongly contest Stephanie’s assertions that feminist critiques of the GRA proposals are a smokescreen for transphobia.  She rests her argument here:

“They argue that reforming the “GRA” to a self-declaratory model will effectively open the floodgates to any man wishing to declare themselves a woman and thus abuse the provision to access single sex facilities such as toilets, changing rooms, and other women only areas. The argument always appears to focus on the access of transgender women to such areas. The misconception in the argument, as alluded to earlier in this paper, is the failure of the feminists to explain how the “GRA” permits access to such areas.”

It would be my strong contention that there is no misconception, and that the explanation given above demonstrates how acquisition of a legal sex under the GRA permits access to single sex spaces permitted within the EqA.  Indeed, Stephanie’s proposition (with which I agree) that “there is unlikely to ever be a scenario when a service provider could seek to enforce the single sex exemptions of the “EA” in respect of a “GRC” holder”rather contradicts her conclusion that the GRA does not permit access to such areas.

She also falls into the trap of assuming that feminists think with one mind on this topic. This is wrong; it is one of the most fragmented topics of the day.

She then makes the rather startling assertion that “hardly any of [the feminists] can cite credible research supporting their theory that humans can never change sex.”She will no doubt, as a lawyer, be familiar with the maxim “it is for he who asserts to prove.”  If one is to assert that human beings can change sex, it is for that person to provide the credible research. A GRC supporting a legal fiction no more changes a person’s biological sex than a pilot’s licence permits them to actually fly; I note by way of remark that I have never seen cited any credible research that humans cannot fly.

She suggests that caution over the belief that humans can change sex is “an example of feminists never being prepared to accept the acquired gender or self-perceived gender of transgender people.” It is perhaps understandable how such a perception arises given the tenor of the debate on social media; however, I would suggest that most feminists are quite prepared to accept the self-perceived gender of anybody, but that many have reservations over accepting that sex based exemptions should encompass that gender, which is a matter of self-perception and is therefore almost impossible to ascertain in law; see Elan-Cane cited above.

Much of Stephanie’s conclusion is sound.  The difficulty is that it is inconsistent with the rest of her piece.  She cannot simultaneously argue that the GRA will have no knock-on effect to the EqA (which is wrong, for the reasons given above) and also conclude that self-ID “will represent a fundamental change in English law as to who is classed as a ‘man’ and a ‘woman.” The two positions are incompatible.

From a legal perspective, omitting any analysis of gender as a harmful hierarchy which serves to oppress females, I would therefore suggest that

• Case law supports the contention that a GRC is fundamental to changing the comparator class in relation to discrimination claims

• If female (and indeed male) can be defined biologically or legally, and the legal route to female status is vastly increased, that will have an inevitable impact on who is considered female

• Those who are considered in law female are eligible for the EqA exemptions, and it is therefore clear that amendment of the GRA will affect the EqA exemptions

• I would support calls for existing law to be either repealed and re-drafted, or clarified properly so that it becomes accessible to a lay audience seeking to implement it.

Stephanie’s call for the administrative burden to be lifted and restricted to one medical report rather than two seems reasonable. Anybody who has worked in immigration, benefits, SEN or other public law will be alive to the administrative burden of proving a case. My own area is immigration, where obtaining permanent documents from the state requires five years’ specified documents and a crash course in law: I would never recommend this as a model. Relieving the administrative burden without removing some level of assessment where a person seeks to fundamentally alter their relationship with the state seems to be a pragmatic approach, and I would endorse it for benefits claimants, immigration applicants, PIP applications and so on as well as for the GRA application.

I would also welcome a legal discussion on what the proposals are, how the law works now, and how it would work in the future.