Julian Norman is a barrister specialising in Human Rights. This is the text of the talk she gave at a meeting in the House of Lords on 10th October 2018.
The background to the Gender Recognition Act (“GRA”) was the case of Christine Goodwin, who took the UK government to the European Court of Human Rights, arguing that the government’s failure to recognise her in law as a woman breached Article 8 ECHR. She had suffered discrimination, including being unable to marry her male partner, difficulties caused by an unequal pension age, and detriment caused by her birth certificate showing her as male, which outed her as trans whenever she was compelled to show it.
The government maintained that the interference with her private life was proportionate. The Court upheld the complaint, pointing out at §87 that there was no threat of “overturning the entire system” given that the number of transsexuals in the UK was estimated at only 2,000 – 5,000, and at §91 that although there would be legal repercussions these were not insuperable “if confined to the case of fully achieved and post-operative transsexuals.”
The government responded by introducing the GRA as a mechanism by which this small group could reconcile their new identity with the state. To acquire a Gender Recognition Certificate (“GRC”) an applicant must provide evidence of a diagnosis of a medical condition known as gender dysphoria and also of two years living in their chosen sex role. Once a GRC is acquired, a legal fiction is created that the person is of their new sex. A new birth certificate is provided and that person becomes “for all purposes” the sex they acquire and not the one they were born. In line with the expectations in Goodwin, about 4,500 GRCs have been issued.
Six years after the GRA came the Equality Act 2010 (EqA). This protects a number of characteristics, including sex and gender reassignment.
Sex is defined in law by s.212(1) EqA to mean that a woman is as a female of any age, while a man is a male of any age. Male and female in this context relate to biological sex classifications. Also relevant is s.9(1) GRA, which allows a biological male to be legally considered female on acquisition of a GRC. There are therefore two ways to be a man or woman in law: biologically by birth or legally by acquisition of a GRC.
The EqA introduced exemptions to protect single-sex services. Where single sex exemptions may be invoked, these are in circumstances:
- where women have experienced trauma, such as women’s refuges, rape crisis centres, domestic violence services;
- where women need safety, privacy and dignity, such as in women’s prisons;
- where women are physically at a disadvantage, such as in women’s sports; and
- where a single sex provision exists to repair the historic sidelining of women and marginalisation of girls resulting in unfairness, such as in all women’s shortlists, recognition of women in business, finance, law and other male-dominated professions.
These exemptions can be used to exclude from female-only services male people with the protected characteristic of gender reassignment. However, it is very unclear that the exemptions could be applied to exclude those who have a GRC and have become legally female, because the GRC gives the person the protected characteristic of sex, as well as of gender reassignment.
The statute provides at s.28 to Schedule 3 that:
- A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
- The matters are:
- (a) the provision of separate services for persons of each sex;
- (b) the provision of separate services differently for persons of each sex;
- (c) the provision of a service only to persons of one sex.
So it is lawful to provide a service only to persons of one sex – but does that include or not those who have acquired their sex through a GRC? It is lawful to discriminate on the basis of gender reassignment if it is a proportionate means of achieving a legitimate aim, but does that mean discrimination against males who hold the protected characteristic of gender reassignment (trans women who do not have a GRC) or against females who do (trans men who do not have a GRC and / or trans women with one)? Or both?
The perplexed service provider might turn next to the EHRC for guidance. Their website stated categorically until last Friday that it was unlawful to exclude trans women with a GRC from single sex services. It now says that “A business may have a policy about providing its service to transsexual users, but this policy must still be applied on a case-by-case basis” and that a birth certificate proves legal sex. Again, this is ambiguous as it is now silent as to the effect of a GRC. So statute could be argued either way, guidance tends towards female only space being open to biological and legal females, what about case law?
Case law on this is very limited, but support is found in the comments of HHJ Jeremy Richardson QC in R (Green) v Secretary of State for Justice  EWHC 3491 (Admin). In that case the Court was dealing with an application by a male prisoner who wished to be considered female, and to have access to tights, wigs, a prosthetic vagina and sanitary towels. Green did not have a dysphoria diagnosis (and would therefore not meet the current criteria for a GRC) but was treated by the prison and the court with the courtesy of being referred to as a woman despite being neither biologically nor legally female. At paragraph 70 HHJ Richardson QC said that
“I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.”
The significance of the GRC, then, is to bring the individual within the legal sex class of their acquired sex, including arguably for the purposes of EqA single sex exemptions. This has hitherto worked uneventfully, resting as it does on the basis envisaged in Goodwin v UK in that GRCs are issued to a small pool of individuals with a diagnosis of dysphoria.
However, we are a long way from Goodwin now. It is important to note that the definition of transgender has expanded hugely since 2004. The term “transsexual” used in Goodwin is no longer in currency, and it is understood that restricting a GRC to those who have what the ECtHR rather coyly described as “fully achieved” transition, i.e. undergone surgery, is unlawful.
The preferred term is transgender, and applying the Stonewall glossary definitions, this describes anybody whose innate sense of their own gender does not correlate to the culturally determined expressions associated with their sex at birth. In other words, anybody who does not feel affinity with the gender expectations attached to their sex can be understood as transgender. The trans umbrella now includes anybody whose sense of their own gender does not correlate to the gender stereotypes pertaining to their birth sex; it is not restricted to those who experience dysphoria and wish to make a complete transition, meaning that those who make no changes would still be entitled to be treated as a member of the opposite sex. It also presumes that everybody does have an innate gender identity.
The proposals upon which the government is consulting therefore envisage that a GRC, and thereby the protected characteristic of sex, should be granted through simple statutory declaration, to a vastly wider group than was contemplated by the original GRA, including to those who are not transsexual but may be cross dressers or gender fluid.
As the trans umbrella opens ever wider, protecting those beneath from the acid rain of gender expectations, it is worth considering whether the better way to accommodate within a human rights framework the issues in play is within the context of Article 9 (freedom of belief), rather than exclusively Article 8 (private and family life).
Many people believe that they have an innate gender identity, fixed and immutable, and that a person is a man or a woman depending on that person’s self-perception rather than on their biological sex. Many others believe equally firmly that they do not have such an innate gender identity, pointing to the temporal and cultural variations in gender, indicating that social projections of gender are neither innate nor immutable.
Freedom of belief extends beyond the right to religious practice and incorporates the right to hold and to express deeply held beliefs. The European Court has described it as “one of the most vital elements” for those it affects, and commented that “the pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.” A belief (or disbelief) in an innate gender identity would in my view certainly fall within the protected category of deeply held beliefs.
Failure to share someone’s belief is not the same as mockery or disdain for it. It cannot be beyond the wit of the legislature to protect the beliefs of those who believe they have an innate gender, protect the rights of others to agnosticism on the point, whilst also maintaining sex based protections.
My final point is this: If gender identity is innate, then the cultural norms attached to the female sex, which we call gender, and which have historically served to oppress women, are not a bug, but a design feature. A philosophy which seeks to ascribe women’s oppression globally and historically to something innate within them – whether that is wandering wombs, or phrenology, or evolutionary psychology – has never ended well for women. We should be extremely slow to codify in law such a perspective.
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