'Shifting sands': six legal views on the transgender debate

Lawyers examine possible consequences of the proposed reforms to the Gender Recognition Act

A year ago, Theresa May announced that the government was seeking to “streamline and demedicalise” the process of changing gender in the UK because “being trans is not an illness”.

In July this year the government opened a public consultation on proposed changes to the Gender Recognition Act 2004 that would allow people to “self-ID”, meaning that a person seeking to legally change their gender would no longer have to undergo a long legal and medical process. The consultation closes on Friday.

Here, seven lawyers examine the possible consequences to the proposed changes.

Julian Norman: ‘Shifting legal sands are poor foundation for change’

The background to the Gender Recognition Act 2004 (GRA) was the case of Christine Goodwin, a trans woman, who took the UK government to the European Court of Human Rights. She argued that the government’s failure to recognise her in law as a woman breached article 8 of the European convention on human rights, which covers respect for one’s private and family life.

The court upheld the complaint, pointing out that there was no threat of “overturning the entire system” given that there were estimated to be only 2,000-5,000 transsexuals in the UK, and that although there would be legal repercussions these were not insurmountable “if confined to the case of fully achieved and post-operative transsexuals”.

The government responded by introducing the GRA. To acquire a gender recognition certificate (GRC) an applicant must provide evidence of a diagnosis of gender dysphoria, a condition of feeling one’s gender identity to be opposite to that assigned at birth. There are, therefore, two ways to be a man or woman in law: biologically by birth or legally by acquisition of a GRC.

Six years after the GRA came the Equality Act 2010, which introduced exemptions to protect single-sex services. However, it is unclear whether the exemptions apply to those who have become legally male or female through acquisition of a GRC. The website of the UK’s Equality and Human Rights Commission stated until last Friday that it would be unlawful to exclude from female-only services someone who was legally but not biologically female. It is now unhelpfully ambiguous.

These shifting legal sands are a poor foundation for change, and the definition of transgender has expanded hugely since 2004. Stonewall’s definition describes it as anybody whose innate sense of their own gender does not correlate to the culturally determined expressions associated with their sex at birth, whether or not they intend to make permanent physical changes.

The proposals upon which the government is consulting therefore envisage that a GRC, and thereby the protected characteristic of sex, should be granted through statutory declaration to a vastly wider group than was contemplated by the original legislation, including to those who are not transsexual.

Some type of reform is clearly needed. The law must protect anyone who is within the widening transgender spectrum – from gender non-conforming at one end to transsexual at the other, and encompassing non-binary and gender-fluid identities. Everyone on that spectrum must have proper protection from victimisation, and their access to education, employment, healthcare, housing and so on must be unimpeded.

At the same time, service providers must be the ones to choose whether to provide single-sex or single-gender services, and funding must be ringfenced for a certain number to be single sex, balancing the needs of both demographics without placing them in conflict.

To alleviate the growing concerns over sexual predators identifying as women, those who have committed specified crimes of male violence against women should be barred from acquiring a new birth certificate during the rehabilitation period specified in the Rehabilitation of Offenders Act.

Fundamentally, any change to the law must be workable and coherent, its aims clearly delineated and its implementation accessible. The current interplay between the GRA and Equality Act does not meet that description. Neither service providers nor trans people should have to navigate a legal landscape littered with obstacles. Reform must provide clarity and not further ambiguity.

Julian Norman is a barrister at Drystone Chambers and the chair of FiLiA, a women’s rights charity

Prof Alex Sharpe: ‘Parliament cannot have intended such absurdity’

Reforms making it easier for trans people to have their gender identities legally recognised will have no impact on existing rights of service providers to exclude trans women from women-only spaces. Under the Equality Act, all trans people covered by the protected characteristic of “gender reassignment” are protected against discrimination, subject only to specific sex-based exceptions that permit discrimination in the context of women-only spaces where it is “a proportionate means of achieving a legitimate aim”. The government has made clear it does not intend to change these Equality Act provisions.

Those opposing reform of the GRA argue that trans women holding a gender recognition certificate, and who bring a discrimination claim on the basis of gender reassignment, are not covered by the exceptions relating to this protected characteristic because they are, by virtue of the GRA, legally female. Therefore, they argue, expanding the number of people capable of acquiring a GRC will necessarily reduce, if not extinguish, occasions where the sex-based exceptions might be invoked.

The legal correctness of this argument is dubious. Furthermore, if it is correct, it has next to no practical significance because the exceptions are more or less unenforceable outside the prison context, where provision already exists to exclude (cis and trans) women from the female estate where their security profile renders them a danger to other inmates. This is because circumstances where a court might be satisfied exclusion from women-only spaces meets a threshold of proportionality and legitimacy is vanishingly small.

If parliament intended to remove GRC holders from the scope of permitted discrimination, it could have drafted the Equality Act accordingly and in clear terms. Yet there is nothing in the act, its explanatory notes or the parliamentary debates preceding its enactment to suggest the exceptions do not apply to GRC holders. Trans people covered by the protected characteristic of gender reassignment enjoy a set of benefits and detriments under the act. There is no reason to think GRC holders were intended to bear a different relationship to other trans people in the context of this balancing of rights.

Opponents of reform claim that under the Equality Act trans women who do not hold a GRC should legally be considered male when pursuing a discrimination claim. If this is legally correct, which I dispute here, the effect would be to doom practically all trans women’s discrimination claims to failure. Yet they also claim the exceptions do not apply to trans women with a GRC because they are sex-based. If both these claims are correct, the Equality Act exceptions excluding trans women from women-only spaces would be rendered meaningless, as they would apply to no one. Parliament cannot have intended such absurdity.

Finally, the GRA, while stating that a GRC recognises a successful applicant’s gender identity “for all legal purposes”, qualifies the scope of this recognition. Crucially, it does so not only in relation to matters of competitive sport and parental status in the context of existing children, but because recognition is subject to “any other enactment or any subordinate legislation”. In other words, if there is conflict between the GRA and subsequent legislation, as opponents of reform contend, the Equality Act trumps the GRA to the extent of conflict.

Alex Sharpe is a law professor at Keele University and a barrister at Garden Court Chambers in London

Rosa Freedman and Rosemary Auchmuty: ‘Reforms must take into account the needs of all people affected’

Sex and gender are different, and the law treats them as categories distinct from one another. Sex is a protected characteristic in law, whereas gender identity currently is not. Although trans advocates conflate sex and gender or use them interchangeably, we insist that only by maintaining them as separate categories will we be able to reconcile the concerns of both those who identify as transgender and those who are women as defined and protected by the Equality Act.

Self-identification would remove the pathologisation of transgender – in line with the World Health Organization view – and the long, demoralising process of obtaining a GRC. Our proposal is that the self-identification process should be a sworn affidavit in which a person declares whether they identify their gender as male, female or non-binary, with the affidavit leading to a certificate explaining why your gender is different to the sex on your birth certificate. Such a process would be similar to naturalisation.

It should meet the concerns of all transgender individuals including the sizeable and growing group of people who do not want to be labelled as either gender, by creating an X gender as they have done in the Netherlands.

The effect of this process would be to allow people to choose what gender they are legally recognised as, while also maintaining sex as a separate category protected by law. That would ensure the protection of (biological) women’s rights in relation to sex-segregated spaces and services, as protected by the Equality Act where necessary and proportionate. We set out some areas where it is crucial to maintain sex-segregation, many of which already exist as exemptions in the Equalities Act, but where a conflation of gender identity and biological sex is already undermining their existence in reality.

Medical treatment and research is concerned with biology, and there are some treatments that are sex-specific. Sex-segregated spaces would also remain where women need protection from male bodies, such as in prisons, refuges and rape crisis centres, regardless of a person’s gender identity.

Statistics gathered would ask about both sex and gender, enabling the data to continue to be useful for the purposes of planning and understanding populations and demographics. To enable women to continue to participate in competitive sports, sex-segregation would be maintained. Protections would continue for religion, a protected characteristic under the Equality Act, taking into account the needs of religious people to have sex-segregated spaces.

Maintaining the legal distinction between gender identity and sex will also ensure that women-only spaces – women’s centres, the Girl Guides, ladies’ swimming ponds – that were set up to compensate for women’s longstanding political, social and economic disadvantage are sex-segregated. Those spaces also include women-only shortlists, schemes to boost women’s representation on company boards and as directors, and woman of the year awards in business and Stem (science, technology engineering and maths) sectors overwhelmingly dominated by men.

Reforms to the process of obtaining legal recognition must take into account the needs of all people affected and ensure that rights are protected for all concerned. We propose that maintaining the distinction between sex and gender in law will allow for self-identification while also protecting women’s rights.

Professor Rosa Freedman is Global Development Division director at the University of Reading’s School of Law. Rosemary Auchmuty is a professor at the University of Reading’s School of Law, specialising in gender, sexuality, property law, and legal history

Stephen Whittle: ‘Gender recognition only provides a limited legal recognition’

Currently, UK law only allows trans people with a prior diagnosis of gender dysphoria to legally change their gender. This puts the GRA at odds with the World Health Organization, which no longer classifies gender dysphoria as a mental illness, reflecting that trans people’s understanding of their own gender identities are sound and, accordingly, should be respected as valid.

However, some feminists claim a proposal to reform the GRA to let people change their legal gender by self-declaration will allow “male-bodied people” access to refuges for abused women. They argue that making it easier for trans people to change their gender on their birth certificate, or as they put it “on demand … with no … changes to his body”, is “dangerous and irrational” and will put “women, girls and the future of female-only services at risk”.

Some women’s groups claim their beef is not with trans people but with men who will obtain a new birth certificate so as to gain entry into women’s spaces. Others argue this is about trans women, as it will allow them to retain their penis while gaining legal entry into women’s spaces. Another group argue that trans women can never become women, they are always (dangerous) men.

These arguments are entirely unfounded. Gender recognition only provides a limited legal recognition of a person’s acquired gender, primarily for medical privacy, marriage and pension access.

Ireland, Argentina, Belgium, California, Columbia, Portugal, Denmark, Norway and Malta all allow self-determination for legal gender recognition. As yet unpublished research by the trans rights group Press for Change, for the gender recognition consultation, shows that in these countries there has not been the feminist backlash to this legal change that we have seen here in the UK. The difference appears to be that in the UK we have the Equality Act providing employment protection and access to gender reassignment treatment on the NHS.

Women fear the impact of any change of the GRA on single-sex services. The Equality Act does, however, provide single-sex services with the ability to exclude trans people if that is a legitimate and proportionate response to the service needs. This is a fair balance that has worked well and it will not change, even if the Gender Recognition Act 2004 is modernised.

Stephen Whittle is professor of equalities law at Manchester Law School and a founder of the trans campaign group Press for Change

Maureen O’Hara: ‘Wishful thinking is not a good foundation for law’

Enabling individuals to change their gender in law by a process of self-declaration would have profound implications for the safeguarding of children, women and vulnerable adults. This is not because transgender people as such represent a safeguarding threat. It is because empirical evidence shows that the overwhelming majority of sex offenders are male, and that persistent sex offenders are often skilled manipulators who go to great lengths to gain access to those they wish to abuse. One way they can do this is by claiming to identify as women, either to gain access to single-sex spaces or to take up roles which are normally reserved to women for safeguarding reasons.

In their submissions to the parliamentary inquiry into transgender equality both the British Association of Gender Identity Specialists and the British Psychological Society stated that some male sex offenders claim to identify as women as a means of making it easier to commit sexual offences against women and children. The British Psychological Society warned of the need to be “extremely cautious of setting law and policy such that some of the most dangerous people in society have greater latitude”.

Ministry of Justice figures suggest there are 60 sex offenders among an estimated 125 known transgender offenders in the prison estate in England and Wales. Of these 60, 29 have convictions for sexual offences relating to children. These figures do not include the number of transgender prisoners who have not made the authorities aware of their gender status.

Assessment of risk is at the heart of good preventative safeguarding practice. Under the present GRA, gender reassignment requires a medical diagnosis of gender dysphoria. However, self-declaration would remove all assessment and gatekeeping mechanisms from the reassignment process.

The Equality Act 2010 creates exemptions under which it is possible to exclude people who have undergone gender reassignment from single-sex spaces. The government has stated its intention to maintain these exemptions. However, the operation of the Equality Act and the GRA are interdependent, and the effectiveness of the exemptions will in practice depend on the clarity with which any reforms to the GRA distinguish between biological sex and gender.

The current use of de facto self-declaration by some organisation makes some of the harmful effects of introducing it into law already foreseeable. The Prison Service is housing transgender sex offenders in female prisons, many of whom do not have a GRC and are therefore legally male. One example is Karen White, formerly known as Stephen Wood, who was recently convicted of sexually assaulting two women while on remand at HMP New Hall.

Girl Guides now accept biological males who self-identify as women as guide leaders. If self-declaration is introduced without safeguards, all organisations working with children could be required to adopt similar policies. We know that child sexual abusers seek out positions that allow them greater access to children.

It is wishful thinking to assume that some would not complete a statutory declaration form to change their legal gender if they believed this would make it easier to reach children they wish to abuse. Wishful thinking is not a good foundation for law.

Maureen O’Hara is a solicitor and a senior law lecturer at Coventry University

Peter Dunne: ‘The legal invisibility of transgender youth is deeply problematic’

The GRA currently excludes transgender minors. The legislation states that only “[a] person of either gender who is aged at least 18” can apply for a GRC. In its recent consultation, the government has not proposed to extend legal recognition to children and young adults.

The legal invisibility of transgender youth is deeply problematic, particularly for those many young people who, prior to becoming legal adults, begin a process of social and medical transition to their preferred gender. These individuals find themselves in a somewhat contradictory position whereby, although public sector bodies such as the NHS are facilitating the public expression of their preferred gender, UK law refuses to legitimise their gender identity. This increases the risk that children and adolescents will have their transgender history involuntarily revealed, and that they will be exposed to transphobic abuse.

The absolute exclusion of minors from the GRA contradicts the welfare of transgender children. It is inconsistent with recent recommendations from the UN Committee on the Rights of the Child, which advocate respect for gender identity, and it fails, as proposed by the Parliamentary Assembly of the Council of Europe, to ensure “that the best interests of the child are a primary consideration”. The best interests of transgender children are not served by refusing to acknowledge the reality of their lives. On the contrary, there is a growing body of health and social science research which shows that rather than creating harm, affirming transgender children leads to better mental health outcomes.

A majority of European countries that have recently revised their gender recognition laws, including Ireland, Belgium, Malta, Norway and the Netherlands, have expressly included transgender minors. These countries have not adopted a uniform legal model, with many restricting gender recognition to adolescents. However, what is clear is that the UK’s position of continuing to exclude all persons under 18 years from the GRA is now out of step with best practice in Europe.

Consistent with the recent recommendations of the House of Commons transgender inquiry, parliament should amend the GRA to include all individuals over the age of 16 years. Like their adult peers, transgender youth of 16 and above should be able to obtain a GRC through a process of self-declaration of their preferred gender. At the same time, parliament should also make appropriate provision for younger transgender individuals for whom access to gender recognition, through parental consent or Gillick competence would best promote their welfare. Parliament should also ensure that where young persons do not yet feel ready to legally transition, there are sufficient safeguards to allow them to explore their gender identity in a safe, respectful environment.

Peter Dunne is a law lecturer at the University of Bristol

• This article was amended on 28 November 2018 to remove a statistic about offending rates pending confirmation.


Julian Norman, Alex Sharpe, Rosa Freedman, Rosemary Auchmuty, Stephen Whittle, Maureen O'Hara and Peter Dunne

The GuardianTramp

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