This is a project with two aims: first that we make our MPs fully aware of our views on the ‘sex/gender’ conflation and the harm it is doing. Second, that we build up a clear idea of the views of our own MPs. What follows is a suggested draft letter – please edit it or amend it as you wish, but please do include the questions to your MP.
Any comments welcome!
Please email any responses to firstname.lastname@example.org
We will discuss the responses at the meeting on September 2nd.
Suggested letter to MP
I am writing to you as your constituent and a member of the Gender Recognition Act Reform Group. We are a group of men and women who have come together to discuss publicly what we see as the problems with the way the Gender Recognition Act 2004 is written – and in particular the harm we believe is being caused by its conflation of ‘sex’ with ‘gender’.
You will note section 9 of the 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).
Our group defines sex and gender as is set out in Sex, gender and gender identity: a re-evaluation of the evidence a paper published in the BJPsych Bulletin in July 2020. This is a very helpful resource if you are not familiar with the discussion that has grown up around the Gender Recognition Act.
Humans are sexually dimorphic: there are only two viable gametes and two sexes, whose primary and secondary sexual characteristics determine what role they play in human reproduction. Sex is determined at fertilisation and revealed at birth or, increasingly, in utero. The existence of rare and well-described ‘disorders (differences) of sexual differentiation’ does not negate the fact that sex is binary.
Describes a social system that varies over time and location and involves shaping of a set of behaviours deemed appropriate for one’s sex. It operates at an unconscious level via strong social norms, yet is also rigidly enforced by coercive controls and sometimes violence. The ‘rules’ exist regardless of how individuals feel about them. Gender can thus be perceived as oppressive and potentially painful to all people of both sexes within patriarchal societies, the dominant form of social structure across most, although not all, of the globe.
Arguably, the most significant danger that comes with the conflation of ‘sex’ and ‘gender’, is to give support to the argument that one may ‘self identify’ into either sex, without the need for any bodily modifications by either surgery or medication.
This in turn has lead to a number of organisations and individuals unable or unwilling to provide any definition of what is meant by a ‘woman’. This, in turn has serious implications for the continued protection of ‘sex’ as a characteristic in the Equality Act 2010. We note in particular the very dangerous situation for women if contact sports are no longer segregated by sex.
I am writing so that you are aware, as your constituent, of my strong views on this topic and its importance to me.
I am also writing because I wish to be clear about your own views on this subject and I would be grateful if you could answer the following questions. I would be very happy to meet and discuss this in person or via remote link, if there is anything in my letter that is not clear.
Do you agree that there is a difference between sex and gender and the law should state this clearly?
Do you agree that the definition of ‘woman’ is ‘adult human female’?
Do you agree that women are entitled to access single sex spaces?
Do you agree that ‘self identification’ into one sex or the other, should not become part of the law of England and Wales?
We support the rights of all to live free from abuse and harassment and accept that there are many people who may wish to identify in many different ways. However, we do not think that validation of the wishes of others to identify in a particular way should take precedence over the recognition of an immutable and legally protected characteristic.
NEXT MEETING: 22nd July IF there is a Government announcement ZOOM LINK: https://us02web.zoom.us/j/4247888422 OTHERWISE: Wednesday 2nd September 2020 8pm
This document is a mixture of some strategy proposals made by one group member and a summary of action agreed at the meeting on 15th July. The strategy proposals are presented as a starting point; we are still at the beginning of this process so all ideas are welcome.
One key focus/purpose of this group is to have discussions as openly and publicly as possible; to reclaim discussion of this area of law as a natural and necessary part of a mature secular democracy.
The Gender Critic website: the new home for GRARG
How can we ensure The Gender Critic website becomes a trusted resource for the public and press to come to, especially if we can bring together legal views? To be taken seriously and establish a ‘go to’ reputation, the material published on the website must be legally sound. So the GRARG and website runners need to work out some form of quality assurance. We want to be as open as possible. But when we publish online, we should be clear to distinguish between unfiltered group discussions and our considered positions.
ACTION AGREED: SP will continue to add to site and resources sections; all suggestions for more content/amended content welcome.
GRARG members encouraged to sign up for discussion on the site.
Planning strategically for GRARG’s activities
GRA and EQA reform is a big subject so we need to be strategic in deciding what output is worth our spending time on and how we most efficiently achieve that. We also need to make sure that we both make best use of existing resources from sister groups (with permission) and are not unwittingly ‘doubling up’ effort by working on the same things in parallel with sister groups. So we need to make sure we stay networked with sister groups and check in with each other.
We need specialist policy makers and lawyers to be part of our process, as well as subject experts and people with lived experiences of the current problems. We’ll need help from expert equality/discrimination/ employment lawyers.
We should not start with trying to draft a Bill. Drafting a Bill would take a long time and text which amends existing legislation is not in itself not a helpful document that the public could understand and discuss. Rather, we want our policy goals to be the focus of attention and discussion.
PROPOSALS FOR TWO PROJECTS FOR GRARG
We think it would be most worthwhile for the GRARG to work concurrently on two projects.
Project 1: A project to produce definitive guidance on how the present EQA should be applied in order to ensure single sex exceptions for women and girls
We think producing a definitive guidance on how the present EQA (Equality Act 2010) should be correctly applied would be the quickest win for us as a group, and could have the most immediate practical impact in actually improving daily life for service providers and users. So the guidance would be a staging post of clarification of existing rights to be used on our way to strengthening female sex-based rights. Plus, a definitive guidance could be used by women’s rights activists to draw attention to who is not applying the law correctly and why; which in turn would help to further expose that certain organisations and lobby groups have been giving inaccurate guidance. NB. We must first just check whether this project has been already or is underway
ACTION AGREED: None yet – this needs urgent investigation so that we do not duplicate work already done
Project 2: A project to produce a policy paper detailing: (a) what is wrong with how the GRA and EQA work presently and how they should be amended to ensure better protections for women and girls, and (b) any changes we could make to UK law which would improve life for transgender people in the UK without negatively affecting other protected groups.
Work on the policy paper could be started concurrently with producing the definitive guidance above, as the groundwork for the two projects is similar and would support each project. But writing a policy paper would be a bigger project.
Even if we do decide to work towards drafting a Bill ourselves, it is necessary to write a policy paper as both a precursor to drafting a Bill and a ‘lay person’s guide’ which would sit alongside the Bill explaining what the Bill intends to achieve.
The policy paper would detail what policy goals we want to achieve and why it is necessary to change the legislation to achieve these purposes. This is actually a much more important task than writing the Bill text itself, as Bill drafters don’t know what to write until the policy goals are completely clear.
Our starting point must be a policy paper that sets out step by step what is not working and why. Ie, what problems are already known or are at risk, BOTH in the law itself AND how the law is being applied. And our policy paper should give evidence and examples of all of this.
The policy paper would need to be written and checked by relevant experts: people working in the areas affected (eg, VAWG refuges), people whose lives have already been impacted, lawyers, data analysts, etc.
The document would need to take one by one all each real-life problem and explain: (a) what each problem is, with evidence, and (b) how we would fix the problem, with evidence. The good news is that so many pieces of work by many different people have been done over the past few years, which may already cover the whole scope of the field. We could start by drawing up a list of the problem areas and split into a working group for each area. Each group would begin work by surveying and collating all existing work and evidence, and identify any gaps in research or analysis and whether they need plugging for our purposes. We might not need to do any original research. Before we do anything else, the group must understand how the law works, including how GRA and EQA interact. This must be the foundation of any work to be done by the group, as the law is often misreported, even in good faith. It’s a complicated area of law. Happily there are already a lot of good resources written by legal specialists. The GRARG is collecting a list of resources on the website, and group members should suggest resources they know of.
ACTION AGREED: Creation of ‘sub groups’ to work in more privacy to encourage collaboration, particularly for those group members who need to be more careful about privacy. Those sub groups to report back in September. Identified so far – Police/Criminal Justice; Political contacts
What should be our policy goals?
Policy goals for ensuring sex-based rights and stronger protections for women and girls We must argue that legislation (EQA/GRA) should be amended to make ‘sex’ clearly defined. We should consider whether we can get rid of the concept and term ‘gender’ from legislation, because ‘gender’ is virtually indefinable and it is totally mutable. But if this is not possible, we need also to clearly define ‘gender’ for the purposes of the legislation and make sure it matches across everywhere gender is referred to in UK law.
It may be that we should focus primarily on amending the EQA. Our focus should be on strengthening female sex-based rights, not just ‘clarifying’ them. Because it’s clear that the EQA has not been good enough to secure our rights, so it needs to be stronger.
We should argue that it is necessary to turn around the current EQA position, ie reverse the default position. Now it is unlawful to discriminate on grounds of sex except in certain limited circumstances, and the onus is on service providers to prove that they need to provide single-sex services. Instead, the starting position in law should be that service providers must provide single-sex services for women and girls for x, y, z cases. Possibly there could be some limited exceptions allowing service providers to not be single-sex, but the onus would be on the providers to prove why they should not be single-sex, rather than the other way around, and to provide serious safeguards. So overall, single-sex would be the norm and the right of women and girls for single-sex provision would not be qualified.
We should definitely find a way to add to law specific protections for children and youth (minors). Some ideas: -(1) make it unlawful for the medical and counselling professions to have a practice of ‘affirming’ a feeling of being transgender and instead require them to assess a minor’s whole mental health; -(2) make it unlawful to prescribe drugs or surgery for minors; -(3) make special service provision youth aged 18 to 25, in recognition that although they are adults in law, they are vulnerable and their brains, bodies and social intelligence are still developing; and -(4) make laws to protect educational institutions from lobbying against sex-based rights and gay/lesbian/bisexual rights – eg, the present trend for advice and training for schools and universities on ‘gender identity’ from political groups and ‘charities’.
Ideas for policy goals for improving the lives of transgender people in the UK, without endangering sex-based rights or other protected groups’ rights We could consider the law on birth certificate privacy for people who have GRCs, in regards to privacy required by ECHR law on Article 8 (the Goodwin judgment). For example, how could it be enabled that birth sex need only be disclosed when it is really necessary for the person with the GRC or for other people?
We should consider whether we can do anything to strengthen protections for transgender people from victimisation, harassment and general discrimination, especially in the workplace. We think the EQA is already very strong on this, but also perhaps it’s not clear enough who can come within the protected characteristic of ‘gender reassignment’. Early days thinking.
We could argue for a legal guarantee of free, comprehensive counselling and support for any child or adult with symptoms of gender dysphoria or body dysmorphia, and that the counselling must be from a neutral point of view rather than affirming or not affirming whether people feel they are transgender.
We can consider whether we could improve the lives of people who don’t conform to sex-role stereotypes by strengthening sex discrimination legislation or guidance. Eg, protecting both women’s and men’s right to wear what they want in the workplace. We think there are real possibilities for taking a feminist approach by protecting women’s and men’s rights to free expression in their appearance or behaviour, without any reference to whether it is necessary to identify as the opposite sex in order to behave in atypical ways.
We can perhaps explore whether the law is working to protect transgender people against acts of physical violence. However, this would be a matter for the criminal law and mostly outside the scope of considering GRA/EQA reform
ACTION AGREED: SP to produce first draft of ‘standard letter’ to MPS – setting out precis of concerns and asking MP to clarify their position. Suggestion that GRARG members also fix face to face meetings with MPS.
A note on ‘belief’, for discussion
We should not describe ourselves as having ‘beliefs’, for example a ‘belief’ in biology or a ‘belief’ that gender is a social construct. Rather, we should describe ourselves as taking positions based on proven material and social science. The reality is that we do not ‘believe’ that there are two biological sexes; rather, it is simply a fact that there are two biological sexes. On the other hand, we can describe trans ideology as being about belief, akin to religious belief. We can consider that people are entitled to hold a belief in trans ideology or any other belief (as required by UK law) but that beliefs should not be given equal weight to facts as evidence, or be forced onto other people. What we are not is one set of ‘believers’ against another and we should avoid any attempts to position us as such.
Open Right of Reply to the readers of the Morning Star, from political cartoonist Stella Perrett, and to the people who unthinkingly trashed her as ‘transphobic’ on twitter.
In view of my case being featured prominently in the Mail on Sunday’s article “What it feels like to be cancelled” on 12 July, I feel it’s now time I published what I would like to say to the readers of the Morning Star (MS), the newspaper who cancelled me back in February. The paper are unable to publish it, because their hands are tied by the big trade unions who fund them. Notably the GMB and Unison, who pressurised them to apologise for printing my cartoon, called ” Endgame”. Although other unions were braver, and assured the paper they would not join in with the censorship – a shout out here to the CWU, and USDAW.
This cartoon was a literal comment on the very real, physical, fear women and girls feel at the prospect of entire men being allowed into ‘Women-only’ spaces, which in the UK, have been protected since the Equality Act 2010. A fear which has been borne out by the ever increasing list of male criminals ‘self-identifying’ as women, committing crimes against women, which are then reported in court transcripts and the media, as BY women. (Have a look at the Youtube film “These are not our crimes“). And the ever increasing number of men, self-identifying as women, who are being allowed into women’s hostels, rape crisis centres, prisons, hospital wards, both as inmates and staff, as well as public places like changing rooms.
In February I read news stories about the potential reform of the Gender Recognition Act 2004 which might loosen up women’s protection. The newly elected Tory government was making noises that it would stand firm on Women’s Rights.
At the same time, the Labour Party were holding a Leadership election. Three of the candidates signed a pledge that members must use preferred pronouns, and respect other people’s, or be expelled from the party. (This was immediately ridiculed by thousands of Labour members who started tweeting ‘#ExpelMeToo‘)!
The party had even labelled the new LGB Alliance and Women’s Place UK (WPUK) as ‘hate groups’. So the trans topic was a real hot potato as a news story, and this was how I operate as a political cartoonist, by reading about, then addressing, the current issues of the day.
I was an unpaid contributor to the MS, as are all their contributors, the small circulation daily paper only survives by donations. It is a co-operative which acts as the mouthpiece of Britain’s Communist Party. So my cartoons were normally following their agenda – anti-monarchist, anti-austerity, anti-gig economy, even gently lampooning the Labour party.
And the paper has a history of standing up for Women’s Rights, proved by their regular publishing of articles by WPUK and writers like Jo Bartosch – or so I thought.
My cartoon “Endgame” was the first cartoon I had ever sent them on the subject of the GRA in my 5 years as their regular cartoonist. At various points in those 5 years, they had called me their ‘Star’ cartoonist, ‘one of the country’s best political cartoonists,’and ‘one of this country’s most incisive political cartoonists’. In their advert for one of my one – woman shows in 2015, they said: “She frequently subverts the mundanity of the everyday with barbed commentaries on the political scene.” They even said they were ‘deeply honoured’ when I visited their offices to give them the framed originals of two of my Jeremy Corbyn cartoons. (You can see the photo in the Free Speech Union’s blog, 3 June).
I had also been an active member of the local ‘Morning Star Readers and Supporters Group’ and assisted at fund raising events, and sold my drawings to raise money for their fighting fund.
None of this was enough for them to stand up for their editorial decision, which in a newspaper should be collective; or to protect me as their contributor from the social media shit-storm which exploded over them, organised by transactivists within the trade unions.
They publicly apologised for the cartoon, and cancelled me, with no communication or explanation.
I turned to the new Free Speech Union for help, and they wrote a letter of complaint to the editor on my behalf.
This has resulted in a partial resolution of my dispute with the paper. I have accepted a personal apology from the editor, and am grateful for the support I have had from other staff there, and also from readers, who have copied me in to their own complaints to the MS on my behalf.
When I sent in “Endgame” I sent with it a short explanation. I did not think it was offensive, it was a specific depiction of a women’s -only space :single sex swimming sessions, which do (or did) take place at sports centres. (The newts in the pond).
It was a legitimate comment on a news item of interest to the MS readers, the potential expansion of trans rights in the GRA, which would impede, or even reverse, womens hard-won rights, fought for over the last 50 years. I called it Endgame, because I genuinely believe this is the last battle for Feminism – if women lose this one, it is game over.
You can listen to a discussion on this with myself and Meghan Murphy, on feministcurrent.com – see podcasts in May. I explained to the MS that the issue was close to my heart, since when I was young I had felt like this (body dysphoria) – like many, if not a majority of young women, as we now know, with the disproportionate numbers of girls to boys going through transing drug, hormone, and surgery. And that had the drugs- hormone -surgery route been so readily available in the early 70s, and had my parents known about it, I might have gone down that route myself. However, the MS did not see fit to print the cartoon with either its title, or my explanation. Had they done so, at least people would have taken it in context, and at least some would have thought twice about trashing my reputation (an unknown amateur artist !) as collateral damage in their enthusiasm to give the MS a kicking, in the Left’s never-ending turf-war. That’s turf, not ‘Terf’ – a new word to me, applied to myself, which I had not heard before. I had to take a rapid crash-course in modern feminism! Until this point I had never heard the names, Owen Jones, Dr Adrian Harrop, or on the women’s movement side, Magdalen Berns, Posie Parker, Meghan Murphy.
I have had tremendous support from feminist-friendly journalists, websites, and platforms, especially spinster.xyz the ‘women centred’ version of Twitter, a community of thousands of women who have been cancelled and no platformed – most recently by the Reddit take-down of women’s sub groups.
In the 5 months since this happened, I have become a radical feminist, revisiting the feminism of my 20s, when I was one of the few female apprentices on Lambeth Borough Council, and in my spare time went to early Spare Rib meetings,and campaigned for Gay Rights; this at the time of their existential crisis, the AIDS epidemic.
As I said to the editor of the MS in a recent phone call (the Free Speech Union pressure helped me to re-establish contact) they now face a threat that could wipe Gay men and Lesbians out of society (by transing non-hetero-conforming boys and girls) and from their own history (by falsely labelling known Gays and Lesbians as trans – such as Alan Turing).
I asked him, do you think I would give them less support now, than we gave back in the 70s? Now, when they need everyone’s support the most? I was astonished when he told me the unions had not allowed him to print anything on Women’s Rights since February, until he prints a long article by a trans activist to ‘prove’ that the paper supports trans rights.
The MS is of course, not a proper newspaper. It is the voice of a political party, and it is not a member of IPSO or IMPRESS, the Industry’s regulatory bodies. So it’s journalists are under restrictions on free speech, not just on this issue. For example, they cannot criticise communist regimes abroad, even to talk about atrocities like the forcible sterilisation of Uighar women in China. Nevertheless, it has in the past stood up for Women’s, Gay and Lesbian Rights.
I hope it will one day do so again.
As the editor admitted to me, the political landscape on the trans issue is changing.
Too damn right it is…
Where you can find analysis of my experience with the Morning Star:
…or How Stonewall Literally Denies the Existence of Trans People
We see a lot of media coverage of ‘trans issues’, lots of sloganeering like ‘trans lives matter’ and ‘trans rights are human rights’, but what exactly is ‘trans’? What does it mean, really?
Stonewall – the UK organisation which started out campaigning for LGB rights has been at the forefront of adding the T (for trans) to make their cause about LGBT.
So they’re the experts, right? Let’s see what they say:
Trans – An umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Transpeople may describe themselves using one or more of a wide variety of terms, including but not limited to, transgender, transsexual, gender-queer, genderfluid, non-binary, gender-variant, crossdresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, transfeminine, and neutrois.
Stonewall – definition of trans
The second half of this statement covers what transpeople might describe themselves as, so if we accept that people have the right to describe themselves as they see fit, we can leave that part as uncontentious.
So, now we are left with:
An umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.
What do they mean by gender? Does everyone have a gender, or just some people?
Let’s check the dictionary:
Gender is a word used in the field of linguistics to describe pieces of grammar that are loosely associated with being masculine, feminine or neuter.
Great! That’s what we all knew, it meant.
Also, (colloquially), one’s sex.
We know that, too, right. Some people are a bit too prudish to use the word sex, so they use the word gender instead. But that is only a colloquialism, so it wouldn’t be used in any formal or academic writing.
And anyway, if it does mean sex, then Stonewall means:
An umbrella term to describe people whose sex is not the same as, or does not sit comfortably with, the sex they were assigned at birth.
Let’s try this one for size.
Is your sex ‘not the same as’ the sex you were assigned at birth?
Well if you are reading this, then you know your sex. You might well have even used it for recreation or procreation. Your sex is which one of two classes of human you belong to – the class that is equipped to produce the large gamete (egg) is female, and the class that is equipped to produce the small gamete (sperm) is male. In humans, sex is immutable – it cannot be changed.
So, now we need to know what sex you were ‘assigned’ at birth. We have conducted extensive research and have found absolutely nobody who was assigned a sex at birth. The general consensus is that sex is determined when the egg is fertilised by the sperm and identified sometime thereafter, with birth being the most common moment sex is observed. Moreover, if anybody was assigned a sex at birth that was different to their actual sex, then they could just reject any such assignment. Sex assigned at birth is not recorded anywhere, it is a made-up idea. It is your actual sex which is recorded on your birth certificate and passport (unless you get them changed, which, despite the immutability of sex, you can do in jurisdictions which have accepted the idea that gender is equivalent to sex on some, yet to be scientifically established, level).
From this analysis, it is possible to draw two hypothetical conclusions from Stonewall’s definition of trans.
Stonewall’s definition of trans is wrong
There are no transpeople
So which is it?
If Stonewall’s definition of trans is correct, then it literally denies the existence of transpeople. Note the use of the word literally here, it means ‘the exact interpretation of the words’ rather than the colloquial use as a mode of exaggeration.
Also, there are people who describe themselves as trans. So let’s accept that transpeople exist.
That leaves only one remaining conclusion. Stonewall’s definition of trans is wrong.
Maybe, they are not the experts in transpeople that they set themselves up to be.
Previously, we have accepted that people can describe themselves how they want, so why don’t we ask some transpeople what the word means to them?
Setting aside the first response ‘anyone who says they are’ – with the response that we are seeking a non-circular, unambiguous definition.
The first was a simple ‘transsexual’ – those answering in that manner had as little idea as to what transgender meant as the rest of the world. The Oxford English Dictionary defines transsexual as somebody who has the physical characteristics of one sex and the psychological characteristics of the other. Exploring the psychological characteristics of a sex sounds like it has all the potential of a long and tortuous journey through a deep and complex and dark rabbit hole. Let’s not go there. Instead we shall remind ourselves that those who write dictionaries are entomologists and lexicographers, and not psychologists; thankfully. We know the new breed of trans people do not generally refer to themselves as transsexual. What of them?
This is when we start going around in circles. A lot. Until one is thoroughly dizzy – and one suspects that could be the intention. Bamboozlement, discombobulation, and obfuscation do seem to come naturally to those promoting this new gender ideology.
The circle was always the same – the first half of this article – where we start with the Stonewall definition of trans and finish with Stonewall either erasing trans people or being wrong.
Except one. On one occasion, gender was not conflated with sex. It was said to mean ‘gender identity’.
We could, then propose a simpler, clearer definition:
people whose gender identity is not the same as, or does not sit comfortably with, their sex
The concept of gender identity has been heavily promoted by the United Nations. The UN is an organisation which is accepted by nations across the world as being the arbiter of what is good national practice.
There is a big debate to be had as to whether it still deserves this status, but it has a noble history especially in the production of The Universal Declaration of Human Rights.
The United Nations defines gender identity thus:
Gender identity is defined as a person’s internal, deeply felt sense of being male or female or something other or in between. A person’s gender identity may or may not correspond with their sex.
UN Human Rights Commission, 2008
So, it is a feeling.
The United Nations and Stonewall and legions of other Alphabetti Spaghetti organisations are seeking to enshrine a feeling in every nation’s laws.
We are getting somewhere, though, we have now got a distilled definition of trans:
People who have an internal, deeply felt sense of being different from, or uncomfortable with, their sex.
It is impossible to change one’s sex. One can change one’s feelings. Cheer up!
Why are governments, at the behest of the United Nations, seeking to protect these feelings in law?
Why are organisations championing the largely irreversible medical alteration of secondary sex characteristics to align with something as vague and capricious as a feeling?
Why do people who have these feelings deserve extra protections in law?
I feel exasperated – where are the extra rights for the exasperated?
To sum up: statute and case law recognises a binary distinction between the sexes; that binary distinction is dependent upon biology and will usually (though not always) find reflection in gender ascriptions; the EA 2010 recognises a binary distinction between males and females and recognises gender reassignment status as a distinct characteristic. The GRA is a muddle.
On Thursday 24 September, MPs debated the Government’s response to the recent consultation on the Gender Recognition Act (GRA) 2004.The debate was prompted by an Urgent Question from Crispin Blunt MP, Chair of the All-Party Parliamentary Group (APPG) on Global LGBT+ Rights, to Equalities Minister Liz Truss MP.
R (Elan-Cane) v Secretary of State for the Home Department  EWHC 1530 (Admin) – This case concerned a challenge to the lawfulness of the current policy of Her Majesty’s Passport Office to require those who apply for the issue of a passport to declare whether their gender is either male or female, and that a passport will only be issued bearing an “M” (male) or “F” (female) indicator in the sex field, rather than an “X”, indicating an unspecified sex. The claim failed.
“Separately, and recently, she reports gender identity problems. Her history, if taken at face value, is reasonably consistent with this diagnosis but the difficulty is that other aspects of that history are rather directly at odds with the documentary records leading me to have doubts about the veracity of her whole history – which would include a reasonably consistent history of gender identity problems. This aspect might be made clearer if a source other than [Ms Jay] could be interviewed …. If collateral collaboration is elicited I would reach an additional diagnosis of some sort of gender identity disorder. Whether the intensity of gender dysphoria caused by that disorder is great enough to merit or require a change of gender role might be explored in the setting of a gender identity clinic; it might be sufficiently intense in a prison but not so outside one and in civilian life, for example. If collateral corroboration is not convincingly elicited I would have grave doubts and wonder whether [Ms Jay]’s somewhat dependent personality had caused her to unwisely latch onto a change of gender role as a seemingly universal solution to both why her life had gone wrong and how it might be rectified.”
The question which arose for the Court of Appeal in the McConnell case was whether a GRC entitled the appellant, who became pregnant and gave birth to a child after having acquired male gender under the 2004 Act, to be listed on the child’s birth certificate as its father. The Court decided it did not.
THE ANTI DISCRIMINATION TRIBUNAL Case 68/2018As long as the question regarding changing rooms for transpeople is unclear, transpeople must expect reactions by using sex segregated changing rooms. Even though it can be uncomfortable for transpeople to be subject to questions about what they’re doing in the women’s changing room, this does not qualify as harassment…
It’s been an eventful few weeks since the meeting on 24th June 2020 – I’ve been banned from Medium for the crime of posting a summary of our first meeting. But happily we have found a new home.
We’ve had the shocking spectacle of Google joining forces with Stonewall and Gendered Intelligence to send an email to Boris Johnson urging him not to ‘roll back’ on trans rights.
We have seen the attempts of Allison Bailey to raise money to take her own Chambers and Stonewall to court blocked by the fund raising platform she trusted – but watched her raise her target of £60K in breakneck speed.
We have seen J. K Rowling’s account of her experiences of sexual abuse twisted and used against her by men who apparently can’t stoop low enough to silence an uppity bitch.
We’ve watched the sobering Newsnight report on the Tavistock and seen how Sonia Appleby, now brings a legal claim as the Named Professional for Safeguarding Children and the Safeguarding Children Lead at the Tavistock and Portman NHS Foundation Trust.
All of this tells me that the Gender Recognition Act and its conflation of sex and gender, has had a massive and detrimental impact on our society and our ability to conduct open, honest and civil public conversations. But there are many of us with the energy to now try and do something constructive. I have had 28 emails setting out the skill set of the group; its varied and impressive. I’ve had input from Scottish and Irish activists which hopefully we can share here to spark more discussion.
We are still waiting for any announcement from the Government as to what their reform proposals will actually look like.
I don’t want to lose momentum so I propose that we meet again on July 15th 2020 at 8pm – Zoom link is here
Meeting ID: 424 788 8422 Password: 456123
Please join the discussion on this website or contact me with any agenda items – sarahvphillimore@Gmail.com
I think the key now will be to form smaller subgroups where people can get to know and trust one another, while the over arching aim of the wider group is to have this conversation as openly and publicly as possible – we are doing nothing wrong in meeting to discuss the laws of our own country. We are exercising our protected rights of political speech and we will not be threatened, harassed or censored.
I would like us to start gathering resources and ‘explainers’, to set up a good library of accessible sources, to increase our own and others’ knowledge.
I would like to consider setting up some kind of webinar with guest speakers to help us spread awareness and interest – please let me know what topics and what speakers you would like to hear about or from.
‘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.
Originally the Gender Recognition Act 2004 (GRA) was passed following a ruling of the European Court of Human Rights (ECHR) (Goodwin v UK ). 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.”
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.
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?
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
The arguments of those who support Self ID https://lgbt.foundation/gra
Views of those who think it important to distinguish ‘sex’ and ‘gender’
Summary of the First Meeting of the Gender Recognition Act Reform Group
On 24th June 68 people ‘met’ via Zoom for the first meeting of the Gender Recognition Act Reform Group. I set out a brief agenda and some further reading in this post.I will set out here a summary of what we discussed, some particular issues of concern that were raised, and where we go from here.
The situation in Scotland
An urgent first item on the agenda was the state of play in Scotland. There was not agreement on what the direct consequences might be of the Gender Representation on Public Boards (Scotland) Act 2018 but there were clear concerns that we are rapidly heading to a position where we have a neighbouring jurisdiction, with whom we share a land border AND the Equality Act 2010, which is significantly diverging from ours. Self ID is certainly not off the table in Scotland.We pledged to support those in Scotland considering legal action and we will await further updates.
Reform or repeal?
The second issue was how was the group split between reform and repeal. 7 of the 68 said they were die hard repealers; most others expressed sympathy with the idea of repeal but did not think it would be politically achievable. This is my position — while we remain members of the of the Council of Europe I don’t think repeal is a likely option.Some repealers were forthright — Rob Jessel commented:Repeal is the only grown-up approach. A halfway house suits no one. The GRA is a bad law because it’s based on giving a legal footing to people’s fantasiesOthers favoured more more pragmatism:Jessica: I’m a repealer but a pragmatist so the first principle is putting a strong boundary around protecting women’s rights. Then allow legal fiction to TW but ensure sex still a matter of public record and not erased on passports etcA single issue campaign clearly has the benefit of simplicity and a strong message:I agree a repeal campaign is very straight-forward in its demand. The message that sex is immutable is much easier to argue than attempting to get people to understand legal recognition or the distinction between sex and gender Personally, I think we need to be really clear about whether this repeal or reform is the thing that will be effective in supporting the aims of the group, which I assume are protection of females sex based rights, safeguarding of children without damaging dignity and respect for transsexuals (apologies if that is not the right term) and people who don’t conform to gender stereotypes.Karen commented:I think it is possible to repeal, with a grandfathering clause, and something that covers the privacy issue. All the other issues that drove the GRA are now moot.We all agreed those with existing GRCs should not lose them.Should we then consider forming two separate groups, or continue to work together? The conversation continued online and in chat, the consensus being that it seemed to early to start considering separation and the repealers were willing to work with the reformers. This is likely to be an issue we need to return to if the group continues and gathers momentum.
Skill set of the group
I than asked if people could email me and give me a rough idea of their skills and areas of expertise. We agreed that we would need to harness the knowledge and talent to break the task down before us into manageable chunks — what was really brought home to me in the discussions was just how mammoth an endeavour this is going to be, how the problems with the GRA’s conflation of ‘sex’ and ‘gender’ have crept into the analysis of and approach to so much other primary legislation, most notably the Equality Act 2010.But how do you eat an elephant? One bite at a time. It is easy to become paralysed by inertia when you are faced with a mountain to climb. I hope we can continue to harness the energy and the enthusiasm of all who came to the meeting. I asked everyone what their version of success looked like. Mine would be, at the end of 12 months to have a draft Bill to present to law and policy makers. But the simple fact that so many were willing to get together and talk openly about this, in the face of so many years of harassment and threats to our employment, even our basic liberty, that I think we had already achieved a significant victory.We ended the meeting by agreeing to meet again in July once the Government had clarified their own proposals for reform to the GRA. I promised to write up the meeting and start a data base of members and their skills.I set out below some of the particular issues that were raised in the discussions.
What would ‘success’ look like?
I think focus on ensuring ring fenced rights/protection for women/girls is my ultimate want, whether that’s via repeal or something else, but my tolerance for the push for self ID has evaporatedWe really need to establish a strong positive argument rather than negative argument: ie. pushing for repeal on the basis of also pushing to properly enforce the equality act & sex discrimination legislation in order to ensure gender nonconformity or ‘trans’ individuals to have the protections they already ought to have under sex-discriminationWe could argue that reform necessary because (1) Act out of date because a key reason for the GRA is no longer needed, because we now allow same sex marriage, and (2) difference between sex and gender needs making in GRA and strengthen EQA also to make single sex exemptions much clearer.The legal categories Woman and Man need to stay tied to biological reality i.e. female / male of any age. It might be good to have two legal ‘gender’ categories of Trans woman and Trans man. Gender Reassignment should allow a Man to change gender to Trans woman and a Woman to change gender to Trans man. No medical or surgical procedure necessary to switch to the Trans woman / Trans man gender. People with gender dysphoria will still need various kind of support but that can be handled separately. Trans woman and Trans man gender categories have legal recognition and protection from discrimination. But no access to single-sex rights so protection for women stays secureWhat are the red lines we want to put down to protect women including data collection/records of original sex — start from thereReally like Maya’s idea of protecting gender as a belief/religionRepeal the GRA, strengthen the EqA to protect people who do not present in stereotypical fashion by all means, but the word ‘gender’ should be removed from every statute.
Particular issues of concern
A clear theme was the dissatisfaction with the confusion around ‘sex’ and ‘gender’ and the lack of clarity about what actually was required for a man who wished to be seen as the opposite sex. There is no requirement for either medication or surgery even though it seems the framers of the GRA were clear that it was to benefit that very small number of people who would serious ‘commit’ to ‘sex reassignment’ — for e.g by modifying their bodies.What IS the protected characteristic of ‘gender re-assignment’ in the Equality Act? It does NOT require any medical or surgical intervention. Some argued that body modification ought to be a crtieria for a GRC, others were very strongly against that suggestion:As feminists we must ensure we don’t encourage physical or chemical changes to bodies — we think all bodies are perfect as they are and should not be mutilated to fit social expectationsPlease see the ECHR ruling Garçon and Nicot v France 1997 — France was found to have been in violation of Article 8. The ECHR ruled that any requirement for ‘sterilisation surgery or medical treatment entailing a very high probability of sterility — amounts to a failure by the respondent State to fulfil its positive obligation to secure their right to respect for their private lives.’ My understanding is that because of this ruling there would be no way of only allowing post-op transsexuals to be legally recognised as being the opposite sex to their actual sex.There was a degree of anger that we were being asked to accept a lie upon official documents or that original documents were being over written.I think anything that allows falsifying of a birth certificate is a safeguarding nightmare, and this is not pointed out enough.I think the crucial question is what does the GRA provide? The right to get a new birth certificate, which I think most people would say is not a right that is sensible or safe, especially in terms of safeguarding or fraud (see what has been going in Malta for example)We were told that the degree of secrecy around GRC made it easy for someone to hide their criminal past — apparently there is a ‘special phone number’ if carryng out DBS checks for someone with a GRC.Particular groups of people need protection against ‘the lie’ most notably the ‘transwidows’ who are facing coercion in to ‘same sex’ marriages.Another person mentioned concern for those with learning disabilties:One of my areas of interest is the effect on people with disabilities. I work with people with a learning disability (I’m an NHS Psychiatrist) and I’ve already had the situation of a severely disabled man becoming very anxious and distressed after one of his support workers “changed sex” i.e. had been working with him as a man, started presenting as a woman, being referred to by female name.I also work with many women with learning disability who become very distressed in the close presence of a male (for reasons of previous trauma), and would be further traumatised to be supported by a trans identified male (transwoman) but such women often have difficulty speaking up.
Can we hire MBM and a lawyer to work together to write a draft Bill? Crowdfunding costs Sub groups to work on particular tasks is a good idea We outline areas of the GRA such as cost, application, panel process, history and purpose etc — then write that up? — others have already done good work here; need to collect resources. I hope we can use the good work already done from MayaThanks to all who have emailed me with details of your skill sets; I will collect the information and circulate it before next meeting. I am not naming people, but will set out what kind of skills we have access to in this group.We need to start thinking seriously about how to divide tasks up into smaller sub groups and consider setting up a website to share resources and knowledge.See you in July!