Gender recognition reform: are women’s concerns valid?

In an interview on BBC Radio Scotland’s Good Morning Scotland on 10 September, the First Minister stated that women’s concerns about GRA reform were “not valid” and that it “does not change in any way, shape or form any legal protections that women have”. This post explains how these comments show a failure to understand the nature of GRA reform, and its implications for women and girls.

Possession of a Gender Recognition Certificate (GRC) strengthens a person’s legal rights of access to services and spaces reserved for members of the opposite sex. In practice, this means service providers have less discretion over whether to refuse admission to a person born male to services for women, once that person has a GRC. For example, the Ministry of Justice’s transgender prisoner policy states that

‘transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes…and must be placed in the women’s estate unless there are exceptional circumstances, as would be the case for biological women.’

Ministry of Justice 2020: 20

Specialist discrimination lawyers are also of the view that possession of a GRC allows transwomen to use mechanisms designed to increase female representation in parliament, such as all women’s shortlists.

Guidance issued by the Equality and Human Rights Commission (EHRC) in July 2018 also makes clear that the single sex exceptions in the Equality Act 2010 apply differently to a trans person with GRC, compared to trans person without a GRC.

‘Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.’

EHRC: Our statement on sex and gender reassignment: legal protections and language, July 2018

The removal of medical gatekeeping, as per the statutory self-declaration model significantly lowers the threshold for changing legal sex. Liberalising access in this way means that a larger and more diverse range of people born male who identify as women will acquire new legal rights to access female-only spaces and services and feel more confident seeking that access.

By dint of the short three-month ‘reflection period’ under the proposed system, applicants are more likely to be recognisable as male, having done less to alter their presentation (although it should be noted that no medical or surgical intervention is required to change legal sex.) They will be covered by the stringent privacy protections in law for GRC holders. Three years ago, one of Scotland’s largest NHS Boards, NHS Lothian, admitted that it was unable to guarantee a female healthcare practitioner to women who requested one given the privacy protections under Section 22 of the GRA.

Since the GRA was passed in 2004, only around 6,000 individuals across the UK have changed their legal sex via acquisition of a GRC. The Scottish Government estimates that by shifting to a self-declaration model, applications will increase ten-fold, although no robust data on the UK trans population currently exists. In 2018 the Government Equalities Office ‘tentatively’ estimated that there were approximately 200,000-500,000 trans people in the UK.

Dropping the cost of a GRC application from £140 to £5 – a change enacted by the Conservative government in May this year – even without shifting to a self-declaration model for legal sex change – has seen a doubling of the number of applications to change legal sex in the first three months, compared to the same period last year.

In relation to legal rights and protections, we think that the First Minister’s confidence is misplaced. While most of these rights exist on paper and in law, they are often misinterpreted or not applied. We think that a self-declaration model will aggravate a situation that is already detrimental to women and girls in the following ways:

1. Increased difficulties in using the single sex exceptions: Once a person has changed their birth certificate, organisations cannot distinguish between those who are and are not born female, as there is no documentary difference. Staff may feel worried about their right to ask if a person holds a GRC. Note also that it is not an offence for a person to make a misleading statement about their own GRC status.
   
   
2. Increased pressures on service providers: Regardless of the single sex exceptions in the Equality Act, public bodies are already responding to rising numbers of individuals declaring transgender identities by removing sex-segregated provision entirely, whether for cost reasons or fear of legal challenge. This pressure will increase under a statutory self-declaration system, resulting in the further erosion of spaces or roles where women can be confident that there are no people born male present.
   
   
3. A gradual break down of social conventions: As a matter of social convention, recognisably male people have expected to be challenged when utilising women’s services and spaces. These conventions are however increasingly vulnerable and likely to be cemented by self-declaration, as people become reluctant to challenge someone who may say they have a GRC or act assertively about their entitlement to be present in those spaces. Any historic low-key presence of a small number of transsexual males in some settings provides little precedent for this. 
   
   
4. Illegitimate access to female spaces: It is likely that some males who identify as women – who have not yet applied or may never apply for a GRC – will feel more confident seeking access to women’s spaces on the grounds they believe they would be entitled to a GRC if they took the necessary action, making it illogical to keep them out.
   
   
5. Scope for abuse: There is likely to be an increase in the number of occasions where male-born people accessing women’s spaces physically harm women, intimidate or humiliate them, act voyeuristically or generally act in ways which make them feel uncomfortable. This might be due to someone purposefully abusing the GRC process, or via the general breakdown in social conventions.
   
   Note that there is no evidence on which to base an assumption that offending patterns in the male-born population vary by self-defined gender identity. This is not to make the claim that transwomen are a high-risk demographic (as the argument is often misrepresented) – rather, that as a group, male-to-female transitioners are likely to retain the same risk of male-pattern criminality. The only counter argument to this appears to be the assertion that transwomen, however defined, are women.
   
   
6. Reduced scope for discrimination claims: To make a claim of discrimination on the basis of sex, a woman needs to demonstrate that she has experienced less favourable treatment when compared with an equivalent male. If a male changes legal sex, he cannot be cited as a comparator. As such, larger numbers of men claiming a transgender identity will potentially nullify some women’s ability to take sex discrimination cases.¹

“There are many sex-based rights, which are negatively affected and, in the case of equal pay, completely extinguished by suspending recognition of a person’s biological sex.”

Rebecca Bull, solicitor

Overall, we think it is reasonable to anticipate an increase in how frequently women are aware of evidently male-born people being present in spaces reserved for women, with negative implications for their sense of dignity, privacy, and safety. We also anticipate that a larger number of women will self-exclude from contexts where they previously felt relatively safe.²

Scotland is already experiencing a chilling effect on the use of the single-sex exceptions, with the rights of women and girls compromised across a range of policy areas, including hospital wards, prison accommodation, school facilities, and sport. Under a self-declaration model these are likely to deteriorate further, as the legal protections relied on by the First Minister are rendered increasingly unworkable.

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Notes

1. In January 2020, we wrote to the Fawcett Society to ask whether they had undertaken any analysis on the implications of a self-declaration regime with regard to the comparators for future sex discrimination cases. Then Chief Executive Sam Smethers replied to us saying: ‘We have discussed this issue with legal advisers who we work closely with, but not done any substantive research or legal work on it’.
   
   
2. In December 2019, we wrote to Scottish Women’s Aid to ask whether they were aware of any work undertaken by any of the violence against women and girls organisations in Scotland that sought to quantify the scale of potential self-exclusion by women from both specialist and mainstream services should they admit transwomen. However, we received no response to our email.