Brainstorming the Gender Recognition Act

Latest posts by Sarah Phillimore (see all)

What is the GRA and why does it need to change?

The Gender Recognition Act

‘Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman’.

Nicola Williams in interview with Joanna Williams:

‘So much could be resolved if we could all acknowledge that gender identity is not the same as sex;. Sex needs to be clearly defined. We need to clarify this in the law. We need to make sure that organisations that use the Equality Act know what it means when there is a clash or rights and know how to enact the law properly by finding a fair balance’

J.K. Rowling Twitter 6th June 2020

If sex isn’t real there’s no same sex attraction. If sex isn’t real the lived reality of women globally is erased. I know and love trans people, but erasing the concept of sex, removes the ability of many to meaningfully discuss their lives. It isn’t hate to speak the truth’

How did we end up here?

Back in 2004 those drafting the Gender Recognition Act thought it would apply to a very small group of transsexuals who would go through medical change. It was needed because the UK was found in violation of the ECHR in the Goodwin case. We are still members of the Council of Europe, which has nothing to do with Brexit and therefore we are still subject to the rulings of this court.

Maya Forstater describes the impact of Goodwin https://hiyamaya.net/2020/06/20/not-self-id-but-removing-red-tape-for-gender-recognition-what-are-could-that-mean/

Originally the Gender Recognition Act 2004 (GRA) was passed following a ruling of the European Court of Human Rights (ECHR) (Goodwin v UK [2002]). The ECHR found that it was a breach of a post-operative transsexual’s Article 8 rights (concerning privacy) to have to show a birth certificate revealing information about sex when applying for insurance, mortgages and pensions and thus facing potentially intrusive questions. Also their right to marry was breached by not being able to legally change sex (presuming they were initially homosexual).
The UK government ‘gold plated’ the ECHR requirement on privacy (largely because they weren’t yet ready to tackle equal marriage). The demands for self ID (and steps which loosen the bureaucratic requirements taking it towards self ID) go even further beyond what was required by the Goodwin case.
We have seen a number of cultural and legal shifts since Goodwin was decided. The Marriage (Same Sex Couples) Act 2013 finally legalised marriage for gay couples, which has positive implications for those transsexual people who prior to this could not marry https://en.wikipedia.org/wiki/Marriage_(Same_Sex_Couples)_Act_2013
The Equality Act 2010 then introduced the nine protected characteristics which included ‘sex’ and ‘gender reassignment’ – NOT ‘gender identity. This has muddied the waters further. In 2000
The Home Office report stated at para 1.5 what is probably still most people’s understanding of what ‘gender reassignment’ means:
Gender reassignment is commonly termed a sex change, but in reality it is an alteration only in
a person’s physical characteristics. The biological sex of an individual is determined by their
chromosomes, which cannot be changed. What can be achieved through the transsexual person’s own efforts, and with counselling, drugs and surgery is social, hormonal and surgical reassignment.

But what seems to have captured almost all our law and policy makers from about 2015 is the argument that ‘gender reassignment’ goes so much further than this, to reveal someone’s true ‘essence’, that gender and sex are both just ‘constructs’ and if someone says they are a woman, that’s all that should be needed to establish the state of womanhood. This is what is meant by ‘self identification’ and it is this that some activists have been pushing as fundamental reform to the GRA.

The fundamental objection to ‘Self ID’ is clear:

“it sets up a direct conflict between sex-based rights and protections and rights based upon gender identity. It paves the way for males to be able to enter female-protected spaces and access provision intended for females.”

J. Williams

And as Maya Forstater has continued to point out, https://a-question-of-consent.net this persistent focus on what ‘gender reassignment’ means to the man who wants to re-assign himself, has ignored the position of those women in single sex spaces who have not been consulted about nor have consented to give away their legal rights to such a space.
Attempts to discuss this have been batted away by some activists who will simply repeat over and over ‘transwomen are women’. Happily, this mantra, alongside its sister ‘No Debate!’ (and dubious uncle ‘suck my dick TERF’) appear to be losing its persuasive power. Many more people are challenging the idea that men can become women on declaration alone.
We ARE going to talk about it.

And where are we going?

Even if Self ID is shelved for the moment, this is confused and confusing law. Its relationship with the Equality Act 2010 is not clear. We need reform if we can’t get repeal. Some want an end to any kind of demand for ‘proof’ before a GRC is granted, others want clarity about the distinction between ‘sex’ and ‘gender’ and how single sex spaces can be protected.
Scotland is continuing to press for change in law to require only three months living as the ‘other’ gender and lowering age for an application for a Gender Recognition Certificate to 16.

In England and Wales, consultation on reform to the GRA was held between July and October 2018 – Stonewall pushed hard for ‘Self ID’ to end the ‘stressful, dehumanising and traumatic’ process of living in the opposite gender for two years. The Government appears to have stated a firm commitment to single sex spaces and ‘Self ID’ – for now – is off the table. Proposed reforms appear now to be limited to make the process of applying for a GRC ‘less bureaucratic’.

The Government will publish more detail about its proposed reforms before the summer recess of Parliament in July 2020.

What is the purpose of this meeting?

This is an open meeting for anyone with an interest in contributing to a discussion about reform/repeal of the existing GRA. I hope people feel they can reveal their identities, but if you can’t I understand.
What is important is that we are having this conversation at all. Probably only a few months ago many of us would have felt wary about such open expression but the tide does now seem to be turning – and particular gratitude is owed to J.K Rowling here.

We are left with legislation which is confused and confusing, given the conflation between ‘sex’ and ‘gender’.

I will set out a brief agenda below. It might all fizzle out after one meeting, it might grow into something amazing. My end goal would be to produce a suggested draft Bill to replace the GRA – I find Maya Forstater’s call for simplicity and privacy by way of short and long form birth certificates to be elegant and compelling.

But I will take simply discussion about this as a victory, and one we have been denied for far too long and at too great a cost to many women.
I am hosting this meeting but I don’t ‘own’ it. I am lawyer, but not in this field, so my knowledge is probably no greater than anyone else’s who has done a bit of reading. The closest I got to being a Parliamentary draftsperson was a year at the Law Commission in 1997. So I don’t claim any special knowledge.

No one should feel intimidated against joining in or contributing. We often forget I think that the Law is not our Master – it is our SERVANT. It exists to make our lives better. Confusing laws do no one any good. It is a vital part of our democracy that we are able to meet and discuss our laws openly and transparently.

I suggest we meet again once the Government’s actual reform proposals have been clearly set out.

AGENDA

  • Welcome! And ground rules. Anyone disruptive will be ejected from the meeting by me and I decide, as host, who falls into that category.
  • Who is here? Who is happy to have their details recorded?
  • How many of us in repeal camp? And how many in reform?
  • Identification of skills we have in the group
  • Identification of what skills we are missing
  • Who else can we approach?
  • What practical next steps can we take? Timescales? Measurement?
  • What do people want to achieve? What would ‘success’ look like?
  • What are the arguments of those who favour Self Id and how do we deal with them?

Further reading

The law and its development

Development of the law regarding gender ID in the European Court https://www.echr.coe.int/Documents/FS_Gender_identity_ENG.pdf

Home Office Report of the Interdepartmental Working Group on Transsexual People April 2000
http://www.oocities.org/transforum2000/Resources/wgtrans.pdf

Commentary

The arguments of those who support Self ID https://lgbt.foundation/gra

Views of those who think it important to distinguish ‘sex’ and ‘gender’

What is a woman? Helen Joyce June 2020 https://thehelenjoyce.com/what-is-a-woman/

Of course sex materially exists Kathleen Stock June 2020 https://kathleenstock.com/of-course-sex-exists/

In Humans, Sex is Binary and Immutable Georgi K. Marinov 2020
https://link.springer.com/epdf/10.1007/s12129-020-09877-8?sharing_token=Wju7pagbpWZw0t_qJTx1T_e4RwlQNchNByi7wbcMAY4m7bhVvT3i3HzK1MtbR0sAj3X6fKY8SAYEvIodxn7BFrNv6ieSienYmepjKKDkBglnsxWn6NeO6s4Zo5C6m_gL8phpEE2XN5aJvO10kfSpt9ram2k3vTA8YRK1yqMWOY0%3D

The Corrosive Impact of Transgender Ideology Joanna Williams Civitas June 2020

http://civitas.org.uk/content/files/2454-A-The-Corrosive-Impact-of-TI-ppi-110-WEB.pdf

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