Gender recognition reform in an international context

In countries that have introduced self-declaration, it matters what protections are in place for single sex services and the extent to which a GRC affects a person’s access to those. The Scottish Government holds no information on that.

A number of nations which have introduced self-declaration have noticeably poor records on women’s rights in law and in practice. We note for example, that the three countries ranked highest in the IGLA Rainbow Map 2022 are Malta, Denmark, and Belgium respectively.

As detailed here, abortion remains illegal in Malta, even in cases of incest and rape, while contraception is neither free nor easily available. According to an interviewee in yesterday’s The Observer for a highly critical assessment of the state of women’s rights in Malta, “women are treated like walking incubators”. 

In 2014, the year self-declaration was brought in in Denmark, the European Agency for Fundamental Rights ranked it as the EU country with the highest occurrence of male physical violence and sexual assault against women, while having among the lowest rates of reporting to the police.  A definition of rape based on absence of consent has only recently been introduced in Denmark.  Leine, Mikkelsen and Sen (2019) state: ‘the invizibilisation of Danish male violence, as well as the projection of sexual aggression onto minority communities, produces a peculiar politics of denial and denialism in Denmark’.  

Belgium was one of the last European countries to legalise abortion in 1990, with only Ireland and Northern Ireland legalising it later.  

There appears to have been no form of systematic impact monitoring or in-depth evaluation of effects on women and girls in those countries that have introduced self-declaration. For example, no jurisdiction appears to have recorded the level of incidents of sexual or violent offending in women-only spaces, before and after changing the law.

Ireland reviewed its laws after two years, but submissions to that review raising impacts on women and girls were rejected as out of scope (see further in Part 4).

From 2015, onwards, Denmark saw a sharp rise in recorded rapes and sexual assaults, but without an appropriately detailed examination of the type of cases, it is impossible to know whether any of this increase might have been related to the introduction of self-declaration rather than, say, changes in how sexual offending was dealt with in the criminal justice system. We have not as yet found any evidence that these figures have prompted such an investigation.

The discussion in the EHRCJ Committee has implied that the only issue is evidence of abusive behaviour in women-only spaces. It has not considered the more wide-spread negative impacts on women. These are a loss of confidence that they will not meet anyone clearly male in a women-only space and/or discomfort at doing so. For some women, this risks leading to self-exclusion for reasons of dignity, privacy, or safety, in some cases for  particular personal reasons, including religious requirements. Self-exclusion means things like: avoiding seeking help from VAWG services, ceasing to attend swimming pools and gyms, discharging early from hospital wards, dropping out of sporting activities, avoiding using loos while out, avoiding travelling far from home, taking clothes home to try or buying online, leaving groups doing any activity on women-only terms. In September 2021 the CEO of Edinburgh Rape Crisis stated:

in Scotland, where you have large groups of survivors, some not using our services because they see us as trans inclusive.

Mridul Wadhwa, 14 September 2021

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 male people who identify as women. We received no response to our email.

This type of effect will be unmeasurable in practice, and slowly cumulative.

A large proportion of sexual offending is non-contact: most relevantly here, flashing and voyeurism. When male people are not allowed into women’s spaces, it is relatively straightforward to identify a male person either undressed or observing women, or both, in such a space as likely to be motivated by intention to commit a sexual offence. Once male people are normalised in these spaces, it becomes much more difficult to do so. An increase in this form of offending could easily go unreported; reporting concerns about the presence of males in women-only spaces can carry a high risk of social or formal penalties.

The ‘Wi Spa’ case in Los Angeles in 2021 illustrates the problem here. Was this an example of someone abusing policies of self-ID? How would we decide? A woman complained about a male person with a semi-erect penis in a woman’s changing room in a spa setting where nudity was normal in the changing area.  She was accused by bystanders of transphobia when she complained, as the person was understood to be trans. An international controversy followed in which the woman making the complaint was identified and widely vilified. The person she had complained about was later charged and reported to have a history of convictions for indecent exposure. There do not yet appear to be reports of later stages of the prosecution.

The under-reporting of sexual offending is a global issue. Only a minority of cases are likely to be reported, and of those that are, some may not be for years. In some situations, such as intimate medical and care settings,  we know that women can take a long time to process that contact they have experienced was abusive.  Here, fear of being accused of transphobia can be expected to add to the factors deterring women from raising a complaint. 

In Norway at least two women have been pursued formally for hate crimes after objecting the presence of a male in a changing room. Robberstad and Halvorsen (2022) describe the interaction of laws on self-declaration and hate crime as an ‘unresolved legal issue’ in Norway.

Where women feel confident enough to raise a complaint, it requires someone to act on and record the complaint.

This hits a problem with data collection. To answer the question properly, police and other services need to collect data on sex at birth and self-declared gender identity separately. This is not generally the case. Instead, many countries, Scotland included, have seen the introduction of recording policies that conflate sex and gender identity in a single category.

If data is collected based only on self-declared gender identity rather than sex, any incidents where women are victims of sexual harassment or assault by a male with a transgender identity will be recorded as female-on-female.

In Norway, statistics on offending use self-declared gender identity not sex. A large increase in rapes recorded as committed by women in the year after the self-declaration was introduced (from 12 to 41) appears to be due to a number of factors, including a redefinition of rape; it is impossible from the figures to identify if any incidents involved male individuals identifying as women.

In the absence of systematic evidence, this leaves only ad hoc reports, sometimes dismissed as ‘anecdotes’. These do exist and act as a counter-balance to the ‘no evidence’ responses. But they tend to be limited to cases which have made it into the criminal justice system, and reported in the press, which we already know only catches a minority of sexual offending. These cases are of course subject to the proviso above about detailed differences between countries in the law on single sex services and self-declaration.

We have written here about problems arising in other jurisdictions, including Ireland, Denmark, and Canada.  

In Ireland, the most prominent case is that of Barbie Kardashian, a high risk offender, who has a GRC and as a result is housed in a women’s prison. Kardashian has been convicted of making violent threats towards women. The reason Kardashian, who has a very complex personal history, transitioned can only be speculated about.

At the EHRCJ Committee session on 14 June, a witness mentioned a study by academics at the University of California as an example of where research had shown “opening up laws to protect trans people” did not give rise to a problem in relation to reported violence in toilets,  changing rooms, and bathrooms. Although no reference to the research was given, we think it is this one, which is based on the analysis of data from an unspecified number of locations in Massachusetts. A detailed discussion of this paper by Dr Callie Burt argues that it should not be relied on as providing general evidence of there being no detrimental effect, due to a substantial lack of clarity about how the results were obtained and about the law in the different locations, and its findings being restricted to criminal incident reports made to the police.

In January 2021, the Californian ‘Transgender Respect, Agency and Dignity Act’ took effect, allowing prisoners to be accommodated based on self-declared gender identity. In November 2021, the LA Times reported that 261 inmates housed at male facilities had requested to be moved to female facilities. The law is now subject to a lawsuit. How would we tell whether any of these cases might be abusive in intent?

Within the UK, the Committee needs to consider the relevance of cases where a person has accessed single sex spaces based on their declared gender identity rather than their sex. An offender known as Karen White was convicted of sexual offences while held on remand (for rape) in a woman’s prison. White did not have a GRC but was placed based on a then policy of self-declaration, plus individual assessment. (Prisons policy in England has since been tightened and we understand that very few non-GRC holders are currently being transferred.)  It is widely assumed that White set out to abuse the Ministry of Justice’s policy, but again that can only be speculation: White is reported to have socially transitioned prior to being imprisoned.

Interviews with women prisoners in Scotland, where prisoners are already placed based on self-declaration, has provided evidence of sexualised behaviour by some of those transferred and, according to interviewees, some cases where a person reverted to their original male persona immediately on release.

In 2016 a man convicted of rape being held at Polmont was reported in the press to have declared a trans identity. This appears no longer to have been the case when he came to court. Was the declaration insincere and a failed attempt to exploit self-declaration policies? How would we judge?

In 2019 Katie Dolotowski, who appeared to have been living in a transitioned identity for some time, was convicted of sexually assaulting a ten year-old child in supermarket women’s toilet. Is this reasonably treated as a case of someone using self-declaration with the intention of committing abuse?

Mr Madrigal-Borloz is the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, in the Office of the United Nations High Commissioner for Human Rights (OHCHR). Mr Madrigal-Borloz strongly advocates for replacing sex with gender identity in law and policy and opposes using sex as the basis for access to those services, roles and activities designated as being for women or for men. He appears to regard it as impossible to hold any other position in good faith and denies any potential for tension with women’s rights. Typical recent statements made on social media include:

States must urgently enact legislation establishing transphobia as an aggravating factor in hate crimes & banning hate speech on the same grounds. They must also prosecute perpetrators & firmly curb anti-trans discourse propagated by State authorities.
(23 April 2021)

Anti-trans narratives are being used to energize political bases and counter human rights protections around the globe  (16 December 2021)

The work to eradicate violence & discrimination based on sexual orientation & gender identity is not in opposition to the human rights of women (15 December 2021)

Anti-gender movements heavily rely on digital platforms to coalesce supporters & funders. They tend to use vigorous social media messaging, often with simple and catchy slogans, ensuring the content is adaptable to local contexts. (23 December 2021)

In this video Mr Madrigal-Borloz states that most children have a stable sense of gender identity by age six, and that children should be affirmed in their chosen gender identity.

The panel also includes three witnesses from the SHRC. SHRC evidence to the EHRCJ Committee quotes what it terms ‘a range of international standards outline best practice and provide balanced guidance on this matter’: all of these were drawn up by advocates of self-declaration. These include the Yogyakarta Plus10 principles: the SHRC quotes this section:

Ensure that no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a prerequisite to change one’s name, legal sex or gender. 

[Note: the SHRC does not however argue in its submission for reducing the age below 16.]

It is worth noting that the SHRC‘s summary of findings of the recent decision the High Court in Northern Ireland stated the ruling ‘found that the requirement for a diagnosis of gender dysphoria breached the right to private and family life’ under the ECHR (p7). This is not well-phrased, although its subsequent fuller account is somewhat clearer. In fact the NI High Court rejected the claimant’s argument that requiring a medical diagnosis breached the European Convention on Human Rights (ECHR) but did agree that the use of the term ‘disorder’ in the definition of gender dysphoria in the interpretation section of Act (s25) should be removed. As described in Scottish Legal News:

…the court held that a fair balance had been struck by Parliament in requiring a relevant diagnosis in support of a GRC application… The court held that the 2004 Act struck a fair balance between the rights of the individual and the community as a whole. The requirement for medical reports provided appropriate safeguards for applicants and their interests.

Scottish Legal News, 21 May 2021

The UK Government has since signalled its intention to remove the reference to ‘disorder’ from the GRA 2004 (see para. 20).

Dr Dunne is a Senior Lecturer in the University of Bristol Law School and associate member of Garden Court Chambers. He researches the intersections of law, gender and sexuality (see here). He is a former board member of Transgender Equality Network Ireland (TENI) and a current member of the Scottish Government’s Non-Binary Working Group.  He has argued that:

A legal bottleneck has arisen in terms of how feelings of discomfort should influence policies surrounding access to segregated space.

van den Brink and Dunne, 2018: 11

Dunne is quoted as a source of evidence in the Scottish Government’s 2019 Equality Impact Assessment on the draft Bill, including a paper in which he argues against sex as the criterion for regulating access to women’s spaces, contending that male people who identify as women should not be excluded from these spaces based on discomfort caused by them having ‘non-normative’ bodies, drawing a parallel with ‘a cisgender woman [who had]… had a double mastectomy’.

In January 2020, following press coverage of this article, the then Cabinet Secretary told Parliament that the use of this analogy was “not something that the Government would support”, and that the article was “included because of a reference within the work to show that there is no increased risk of women being attacked in single-sex spaces by trans women.” Responding to a follow-up parliamentary question, the Cabinet Secretary was however unable to specify the specific reference. We could not find any substantive empirical evidence cited in the paper to support this claim. The article states ‘there is no peer-reviewed scholarship which proves, or even suggests, that trans individuals, as a class, pose a threat of sexual violence to cisgender populations’, however the reference for this statement (Yoshino, 2006) is an assertion made in the online magazine ‘Slate’.

Mr Dunne’s framing misrepresents the concern, which relates to sex, specifically males, not to trans status. In line with earlier witnesses, Dr Dunne appears to take at face value that absence of evidence of harms to women implies evidence of absence. The Scottish Government’s EQIA on the Bill as presented to Parliament in March continues to cite this research as supporting its case

Dr Dietz is a lecturer in law and social justice at the University of Leeds whose research addresses the regulation of gender, with a specific focus upon how gender recognition law affects trans embodiment. He has undertaken empirical research in Denmark with those who have or might plan to make use of self-declaration of gender. The findings raise an interesting question about separating the systems for legal recognition and access to physical treatment: more detail here.

Dr Duffy is a lecturer in law at the University of Bristol, who investigates the relationship between gender identity and law. She is particularly interested in the legal regulation of gender in the postcolonial context, which she studies through feminist and queer legal lenses. Her published article, Contested Subjects of Human Rights: Trans- and Gender-variant Subjects of International Human Rights Law (2021), explores the manner in which gender identities are discussed, constructed, and regulated by the international human rights law system.

The Irish Gender Recognition Act passed in 2015, with minimal public awareness or consultation: our article in the Edinburgh Law Review (2020) here noted:

Public consultations took place in Ireland and Malta but had very low response rates. In Ireland a pre-legislative consultation in 2010 secured 40 responses… The Irish Bill passed in around seven months, with an amendment to remove the original requirement for a medical report accepted in the final weeks.

A report published by legal firm Dentons advising activists on tactics for securing legal gender recognition for young people describes how the legislation went ‘under the radar’, by tying it to more popular reform.

‘In Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.’

‘In Ireland, activists have directly lobbied individual politicians and tried to keep press coverage to a minimum in order to avoid this issue.’

‘The legislation went under the radar in Ireland because marriage equality was gaining the most focus. In a way, this was helpful according to the activists, because it meant that they were able to focus on persuading politicians that the change was necessary’.

(Dentons, 2019)

Senator Regina Doherty (Leader, Seanad Éireann) oversaw a review of the Irish Gender Recognition Act in 2017/18. In November 2017, then Minister Doherty appointed a Review Group chaired by Moninne Griffith (Executive Director, BeLonG To). The Group also included the Chair of the Transgender Equality Network of Ireland (TENI) Sara Phillips, whose previous TENI biography stated that ‘she played a leading role in negotiating Gender Recognition based on self-determination in 2015’. Following concerns about TENI’s financial conduct, TENI recently removed Phillips’ biographical details from its website.  

The Review was narrowly framed, inviting submissions on:

• arrangements for children aged 16 to 17 years
• arrangements for children aged under 16 years
• arrangements for persons who identify as neither male nor female (e.g. non-binary);
• arrangements for intersex people
• any other relevant issues, including issues relating to the operation of the current legislative provisions

It did not consider the impact of reform on women.

The public consultation period lasted just 26 days and received 92 submissions. The Review Group met with three young people with transgender identities, three parents of children who are transgender and one adult law lecturer who identifies as non-binary. It also met with four representatives of the medical profession and the Special Rapporteur on Child Protection. It does not appear to have met with any women’s groups.

The ‘fears of ciswomen’ are only mentioned in passing in a table summarising the issues raised in the submissions received.

Several submissions cited concerns about the operation of the Act and unintended consequences. A psychiatrist attached to the National Gender Service, who had previously supported the 2015 Act, stated ‘unfortunately, there have been some unintended consequences which have arisen, and pose risks to transgendered patients’, including patients using an Irish GRC to access surgery in other jurisdictions:

In many European countries, a change of state documentation can only be obtained following a clinical diagnosis of Gender Dysphoria/GID. This means that the documentation is accepted as a clinical record by some surgical centres and SRS performed accordingly. Under Irish law, the change of gender in state documentation is a self-declaration requiring no clinical diagnosis. Unfortunately, this is not understood by surgical centres in Europe, who assume that the Irish documentation is as clinically valid as their own national version. Irish patients are now travelling to surgical centres in Europe and undergoing surgery without any assessment because of this anomaly.

A submission by the Royal College of Physicians of Ireland also raised concerns and questions about the proposal to lower the minimum age.

• What is the role of the Paediatrician in guiding/protecting of an individual from making such a significant legal step to apply for a Gender Recognition Certificate and whether they have a role to protect them from rushing into such a decision which may have lifelong repercussions?
• How do we assess capacity to show a “solemn intention of living in a preferred gender for the rest of one’s life”, and who can/should assess this capacity in a 16-18 year old?
• How do we assess one’s “understanding of the consequences of” such an application for the Gender Recognition Certificate, and who can/should assess this understanding in a 16-18 year old?

The Review report states:

A small number of submissions were critical of the process. They expressed concerns about to the current gender recognition provisions, and one criticised the composition of Review Group, the compatibility of gender recognition legislation with the Irish Constitution, and the lawfulness of consultation process. One submission raised questions about the nature of transgender identity, particularly for children, and cited very high regret rates for pre-pubertal children.

And that issues such as the impact on prisons and women’s safety fell outwith the scope of the Review:  

Other submissions highlighted related issues that are outside the scope of the Act and therefore of the review. These include difficult experiences dealing with schools, arrangements in female prisons… fears of violence against women, the risk of incorrect results in blood tests…

On publication of the Review, Minister Doherty stated:

One of the main findings of the Review Group was that the current legislation is too onerous for children aged 16 and 17 years, as it involves a court process and certification by two medical practitioners. The measures I am proposing today aim to reform this process to reflect the fact that the legal recognition of a person’s gender is separate and distinct from any question of medical intervention, and should be facilitated with parental consent and a simple revocation process

Legislation to bring this recommendation into effect is currently passing through the Oireachtas.

A poll conducted in July 2021 suggested that the organisations and individuals whose views were being positioned as unacceptable were reflecting the views of the wider population (which are similar to those found in the UK, and if anything lower for self-declaration for legal change), six years after the change was made.

• Fewer than one in five (17%) respondents agreed with the law as it currently stands that a person should be allowed to change their birth certificate as soon as they self-identify as the opposite sex.
• 34% thought it should be permitted once a person has partially or fully transitioned through hormone treatment and/or genital surgery.
• 28% of people said individuals should not be allowed to change sex on their birth certificate at all.
• More than three-quarters of respondents (77%) agreed that people should have the right to request that intimate medical examinations are carried out by a person of the same birth sex.
• 62% said public buildings such as schools and banks should have to provide single-sex toilets.
• 64% agreed that hospitals should be required to provide single-sex wards.
• 55% of respondents said males who identify as women should not be allowed to compete in women’s sports at any level, versus 21% in favour.

There are growing concerns about freedom of speech in relation to transgender issues in Ireland. Following a series of recent RTÉ radio programmes on issues around gender recognition (see here, here and here), which prompted Dublin Pride to end its relationship with the public broadcaster, the Oireachtas Committee on Tourism, Culture, Arts, Sport and Media wrote to RTÉ to attend a meeting to ‘discuss the circumstances surrounding the termination of the media partnership between Dublin Pride and RTÉ’. The letter also stated:

The Committee wishes to emphasise the importance of such an engagement occurring during Pride month, and in advance of Dublin Pride on 25th June 2022; it also wishes to afford RTÉ the opportunity to visibly stand in solidarity with the LGBTQIA+ community and provide an update to the Committee on RTÉ’s vision and strategy for diversity and inclusion as a national broadcaster.

On 17 June the Irish Examiner reported that the meeting would no longer go ahead but that a ‘renewed invite may be sent by the Oireachtas Media Committee to invite RTÉ staff in to discuss the organisation’s overall strategy after RTÉ told members that a formal statutory complaints procedure is being undertaken in relation to the programmes.’ These developments have contributed to a growing disquiet about the state of public discourse on this topic in Ireland, as expressed in this piece from the Irish Examiner yesterday.

It will be for MSPs to consider how far developments in Ireland can be considered ‘international best practice’.

Update: Irish Times, 20 June
On 20 June the Irish Times published an article entitled ‘We need to see the manufactured debate on trans rights for what it is: nonsense’, with the subheading: ‘Those who think there’s a ‘point’ to this discourse, should look at who their allies are: Putin, ethno-nationalists, fundamentalist Catholics and the Christian right.’ The Irish Times used an image of Putin to illustrate the piece. The author, a weekly contributor to the paper, stated:

Along the way, I’ve implored journalists to understand how inauthentic discourse can cascade, how right-wing fearmongering and manufactured moral panics can often take on the facade of reasonable debate, and how Irish media must utilise common sense to understand that our reality – where the Gender Recognition Act has existed in legislation for seven years – does not need to fold in on itself by importing phony discourse.

Unfortunately in recent times, several outlets have stumbled over the tripwires set by manufactured “debate”, including a rolling discussion over several days on RTÉ’s Liveline, which led to Dublin Pride ending its media partnership with RTÉ. It’s time to take a breath.

We know that one of the tactics of right-wing disinformation is to Trojan horse hate and division within a facade of reasonableness; to pretend you care about women’s freedoms, but only when it offers an opportunity to bash Muslims, or to pretend you care about children’s rights, but only as an avenue to delegitimise same-sex parents, for example.