This is an introduction to the ongoing debate about sex, gender and possible reform to the Gender Recognition Act 2004 (GRA), originally proposed in 2018 and continuing in Scotland at the moment. Warning: it’s a longer post than usual!

What is the GRA?
The GRA is a law which was introduced in 2004 which allows people to change their legal sex and acquire a new birth certificate in their new sex. It was introduced after a case in the European Court of Human Rights, where a trans woman called Christine Goodwin took the UK government to court. Goodwin had transitioned, but was outed at work as trans due to having a male legal sex, and wasn’t able to marry a male partner. The government defended the claim, arguing that it would be far too complex to issue a new legal sex - but Strasbourg disagreed, saying that the administrative problems could be overcome, as long as the system was confined to the small number (estimated 2,000 - 5,000) of “fully achieved and post operative transsexuals.” (The post-operative restriction was later removed: the law cannot compel someone to consent to invasive surgery.)

The GRA was then introduced which allows a person to obtain a change of legal sex if they have a medical diagnosis of dysphoria, have lived for two years in their new identity, and pay an admin fee of £140.

In 2018 the government consulted as to whether this process was overly bureaucratic and should be reformed.

Why are women concerned?
There are a number of issues which arise from the proposed reform.

Sex as a protected, and legally definable, characteristic
‘Sex’ is one of the protected characteristics of the Equality Act 2010. The Equality Act (EqA) took all of the existing anti-discrimination laws - on sex discrimination, equal pay, disability, race discrimination - and sought to wrap them up into one overarching law. The protected characteristics are age, disability, gender reassignment, marriage / civil partnership, pregnancy / maternity, race, religion / belief, sex and sexual orientation.

Sex, in the EqA, relates to physical sex. Gender reassignment relates to anybody who is proposing to undergo, is undergoing, or has undergone, a change of sex. Once a person has a Gender Recognition Certificate (GRC), they belong legally to their new sex, because the GRA treats ‘sex’ and ‘gender’ as the same thing. A GRC redefines someone’s sex - and thereby redefines ‘women’ as including a very small number of those born male.

This was considered a workable compromise, when looking at the small number of those who intend to make what Strasbourg called a “full transition.” However, what the government proposed through the GRA reform was to abolish the medical requirements altogether, leaving the category of ‘woman’ definable in law only as ‘a person who feels like a woman’ - which is itself problematic (see Gender Identity below).

Single sex services
ss.27 - 28 to Schedule 3 Equality Act allow women to have single sex services, in certain restricted situations - only where necessary, and only where it is a proportionate means of achieving a legitimate aim, such as a rape shelter or domestic violence refuge.

For some women in the most vulnerable situations, single sex spaces are vital for recovery. Those women will self-exclude from the services they desperately need if that service is not strictly single sex. It is neither possible nor desirable to dictate to vulnerable women how to be traumatised.

Up until October 2018, the EHRC (the body designed to oversee the EqA) said categorically that it would be unlawful to exclude trans women with a GRC from single sex services as they are legally female. This was subsequently changed, and although it remains untested, it now appears that the correct interpretation is that single sex services may exclude trans service users with or without a GRC. It is still very unclear how a service provider would navigate the exemptions, whether they would face the threat of legal action, and whether a service which had previously been able to navigate a small number of fully transitioned service users would be expected to accommodate a much larger number of those who do not intend to make a “full transition.”

This is particularly so when there have already been examples of those who are not currently eligible for a GRC, but who would be eligible under a reformed GRA, who have entered single sex spaces with no good intention. To take just a handful of examples, Karen White who attacked women in prison, Christopher Hambrook who pretended to be trans in order to attack women in shelters in Canada where self-ID is law, Katie Dolatowski who attacked children in a women’s toilet (and was subsequently placed in a women’s hostel), Tyler Porter, also in Canada, who boasted of walking around a women’s homeless shelter with “morning wood” and “tiddies out.”

A stark example appears in a UK case called Green, in which an individual who as a man had tortured his wife to death sought to be treated as a woman in prison. Green was not entitled to a GRC because of not having dysphoria, but wished to have access to wigs, prosthetic breasts and vagina, tights, and sanitary towels. It is impossible to read Green without coming to the conclusion that Green was not transsexual but was a violent wife-murdering fetishist. If a GRC were issued on self-ID, Green would have been entitled to a GRC and then in all likelihood to a move to a women’s prison following the guidance on transgender prisoners.

Obviously, these cases are outliers, as abhorrent to the mainstream trans community as to anybody else. However, it is plain that where a change of legal sex is reliant solely on a self declaration, and the law cannot distinguish between a person who has sincere motives for transition and one who does not, abusers can and do take advantage of this.

Many women feel strongly that this will need to be fully explored and concrete guidance given on single sex spaces before any changes are made to the GRA - not least because Stonewall campaigned for the abolition of single sex exemptions as part of their case for GRA reform.

Gender identity
There is no consensus on what defines gender, outside the medical approach of a dysphoria diagnosis which is presently necessary to acquire a GRC. However, one popular belief is that each of us has an internal sense of self which is gendered. The Stonewall glossary puts it in this way:

GENDER: Often expressed in terms of masculinity and femininity, gender is largely culturally determined and is assumed from the sex assigned at birth.

GENDER IDENTITY: A person’s innate sense of their own gender, whether male, female or something else (see non binary below) which may or may not correspond to the sex assigned at birth.

The problem for women is that what is culturally determined for us is often oppressive. From the pink babygro to the pay gap to the beach body to the disproportionate caring responsibilities, culturally determined femininity has us squarely in the “paid less, raped more” category - and doing it in heels. What is culturally determined as gender varies across epochs and cultures. Men have for centuries sought to find something innate to women which explains why we should be their inferiors: our brains are smaller, our head-bumps odder, our wombs wandering, our minds ladybrained, and now our cultural role innately sensed.

There is no scientific basis to believe that women ‘innately’ feel that we should accede to what is culturally determined as feminine within patriarchy. Indeed many of us feel a strong sense of resistance to it, and many women report not having a gender identity at all. Small wonder that so many feel that we should be consulted before this particular abstract is codified into law.

Freedom of expression
Back in 2003 when the Gender Recognition Bill (as it was) was being debated, Baroness O’Cathain issued the following warning:

If the Government persist in pushing through the Bill, they must make radical amendments to protect the freedom of conscience of those who simply do not believe that the law can declare a man to be a woman or a woman to be a man. It is only common sense and a basic human right for individuals to be free to believe fact rather than fiction, otherwise we are entering a dark future of coerced totalitarian-style law making.

Baroness O’Cathain, known for her socially conservative views, also spoke at length about the undesirability of the GRA creating same sex marriage in all but name. Because of her particularly conservative approach, I have to confess that like many others, I thought this an absurdly implausible scenario, a classic reductio ad absurdum fallacy.

However.

Earlier this year Maya Forstater was sacked from her job for saying that she did not believe that the law can declare a man to be a woman or a woman to be a man - and Employment Judge Tayler not only upheld her dismissal, but declared Ms Forstater’s views (and the existing law, which he accepted agreed with them) to be incompatible with human dignity. Two social workers are facing professional disciplinary action for similar views. A woman giving evidence about an assault by an individual neither biologically nor legally female was compelled by the judge, against her oath, to describe her attacker as “she” in court. It seems that Baroness O’Cathain’s prophesy, not taken seriously in 2003, has come to pass.

At the same time, women wishing to talk about the effects of legal reform have seen physical assault, disruptions to their meetings, bomb threats, smoke bombs set off at a rally near Grenfell Tower, and an onslaught of sometimes quite violent online abuse. The justification for this is said to be that people’s existence is not up for debate - but the debate is not about anybody’s existence, but about legal reforms with potentially extensive effects.

Not a substitute for proper support
Women’s concerns are not limited to our own opposition to culturally determined gender, nor to our own desire to maintain access to single sex services. Many women (because of our culturally defined role as primary carers) are supporting children and young adults, family members including siblings or spouses, with gender identity difficulties. At a time when CAMHS is chronically underfunded and mental health services stretched to the limit, a cynic might wonder whether the intention of the government is to remove access to NHS treatment. After all, if transition is an identity, not necessarily related to dysphoria, then the government could argue that there would be no need for funding.

FiLiA recognises that the responsibility for caring for children and young people, and often for dependent adults, who struggle with gender difficulties, reverts to women when it is unavailable or inaccessible through the state, and would hope that the government will make clear that NHS support will not be withdrawn. Reform of the GRA is not a substitute for proper funding of CAMHS, adult health care services, and of support in health care, education and employment.

Interplay with other protected characteristics
If the protected characteristic of sex is broadened to include any member of the opposite sex who makes a statutory declaration, then there is an effect on other characteristics. There will be a conflict of rights which will have to be balanced to take into account those whose religious beliefs mean that they cannot believe in an innate gender identity. Stonewall has redefined homosexual to mean “someone who has a romantic and/or sexual orientation towards someone of the same gender” rather than the same sex. Lesbians and gay men who are attracted exclusively to members of their own sex must be protected from victimisation, harassment and discrimination. Homosexuality risks becoming unmentionable, setting back the rights of lesbians and gay men by nearly a century. These unintended consequences will need to be considered and adjusted for in advance of legal reform taking place.

Are concerns, or any opposition to self-ID in law, transphobic?
FiLiA considers that the issues detailed above are worthy of discussion, and that it is not transphobic for women to raise them, discuss them, or hold opinions on them. FiLiA’s priority is women’s human rights - including rights to single sex services, right to be lesbians, right to reject culturally determined gender, freedom of assembly, and freedom of conscience - and we have responded to the two consultations with those at the forefront of our minds.

Responses to consultations
You can read our response to the Scottish Government’s 2020 consultation here, and our response to the Women & Equalities Committee from 2018 here.