Gender Recognition, Self-Determination and Segregated Space
Peter Dunne and Tara Hewitt 16th January 2018

In July 2017, the Government announced a public consultation on legal gender recognition in the United Kingdom. In particular, it will invite opinion and advice on plans to adopt a model of self-determination (similar to that currently applied in other European jurisdictions, such as Ireland). Self-determination would allow trans persons to obtain a Gender Recognition Certificate on the basis of a statutory declaration, without oversight by a Gender Recognition Panel (s. 1 of the Gender Recognition Act 2004 (GRA 2004)), a diagnosis of gender dysphoria or having to prove real life experience (GRA 2004, s. 2).

The plans to reform the GRA 2004 have met with opposition among some politicians and trans-sceptical advocates (e.g. see here, here, and here).The primary objection is a belief that, if there is no procedure to verify that individuals genuinely self-identify with their asserted gender, dishonest men will improperly claim a female identity in order to access women-only spaces (increasing the risks of assault). In addition, opponents object that self-determination would create a right for trans women, who have no intention to medically transition, to enter locker rooms and public restrooms.

There are, however, important difficulties with abuse-focused objections to self-determination.

Such arguments are a solution to a problem that does not appear to exist. Despite the persistent invocation of assault-focused opposition to trans rights, there is little (if any) evidence that cisgender men use those rights to commit crime. Although, in the UK and around the world, many men do perpetrate assaults against women (often in women-only spaces), they are not dishonestly using trans legal protections to facilitate their crimes. Rather, these men enter segregated facilities in open violation of the law. While reforming the 2004 Act may not reduce the instance of male-pattern violence, neither would it assist nor encourage the commission of such violence.

Claims of potential abuse deny trans populations beneficial legal reforms on the basis that (cisgender) persons – over whom trans communities have no control – might subsequently misuse the law. They are not objective evidence against either the desirability or utility of self-declared gender. If there is a risk of cisgender abuse, rather than punishing trans communities, the Government should address that risk through appropriate channels, such as existing criminal laws.

Abuse-focused opposition to self-determination typically misrepresents existing UK laws. To the extent that one suggests that self-determination would create a new right for trans women, who reject medical transitions, to enter women-only spaces, this ignores current protections set out in the Equality Act 2010 (2010 Act).

Section 7 of the 2010 Act establishes that persons who have a ‘gender reassignment’ characteristic enjoy broad non-discrimination protections. It defines gender reassignment to include a “person [who] is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex” [emphasis added] (i.e. the person need not be undertaking a medical transition). Therefore, according to s. 7, there already exists a general right for trans women – irrespective of their medical status or whether they have a Gender Recognition Certificate – to access appropriate goods and services (such as single-gender hospital wards, etc.).

The 2010 Act does contain two high-profile exceptions which entitle persons providing single-gender services and communal accommodations to exclude trans persons as a “proportionate means of achieving a legitimate aim” (Schedule 3, Part 7(28); Schedule 23(3)). The prime example of such a scenario (referred to in the explanatory notes) is a counselling service for vulnerable women, where service users may refuse to attend sessions if trans women are permitted to attend.

In practice, however, Schedules 3 and 23 are (at least in certain public sectors) rarely applied. Showing a legitimate aim is a high threshold, and many service providers (and users) understand the importance of respecting trans identities (while also appreciating that trans women pose no threat in female-only spaces). Even if this was not the case (and the exceptions were more frequently relied upon), the Government’s proposals would have little impact. Schedules 3 and 23 can operate even where a person has a Gender Recognition Certificate. Thus, assuming that Parliament retains the relevant provisions of the 2010 Act (which currently appears to be the case), self-declaring one’s preferred legal gender would still (where the high bar of a “legitimate reason” is satisfied) allow exemptions for the right to access gender-specific spaces (guaranteed by the 2010 Act) to continue.

Editor’s Note: The Oxford Human Rights Hub has previously published an alternative view on this issue, which can be found here.

Author profile

Peter Dunne is a lecturer in Law at the University of Bristol, and Co-Convener for Health with the Trans Legal Equality Initiative.

Tara Hewitt is an NHS Equality, Diversity and Inclusion Lead, Diversity Consultant and Co-Convener for Health with the Trans Equality Legal Initiative.

Citations

Peter Dunne and Tara Hewitt, “Gender Recognition, Self-Determination and Segregated Space” (OxHRH Blog, 16 January 2018), <http://ohrh.law.ox.ac.uk/gender-recognition-self-determination-and-segregated-space> [date of access]

Comments

  1. Laura Miles says:

    Very good, very clear. Addresses some of the key objections posed by trans critical arguments. Unlikely to stop the transphobic nonsense though!

    1. Jeanne Smith says:

      Human beings can’t actually change their sex. They can make superficial cosmetic changes to their appearance but these do not change chromosomes or cancel out male socialization. Chemicals, surgeries or “feelings” do not change biological reality. Men are socialized to feel that they are privileged and entitled to special treatment by and deference from all females. This socialization is not erased by taking hormones or feeling that you would prefer to act out the sexist social role that is demanded from females. Trans identified men have committed many horrendous crimes against women and trans identified men have the same predilection to violence against women as men who are not pretending to be women. Stop the gaslighting. Stop the eugenic horror that is being fomented against kids who don’t conform to their expected gender role.

  2. Nicola Williams says:

    This article fails to mention the most obvious scenario where a self identification process will be abused; namely in prison. GRA reforms would mean any prisoner could legally change sex to female and become eligible for transfer into a woman’s prison. There are examples of this already being abused. Its obvious to anyone why removing all gate keeping must not be allowed.

    1. Robin Edwards says:

      Can you please share examples of where men in prison have pretended to be trans women in order to commit offenses?

      1. Patricia says:

        “Using publicly available prison inspection reports, we searched for all references to transgender inmates and were able to identify at least 113 trans-identifying male inmates (people born male who identify as transgender). There were no references to trans-identifying females in any report. One hundred trans-identifying males are housed in male prisons, of whom 13 have been transferred to women’s prisons. Forty-six trans-identifying males are located in eight male prisons known to almost exclusively house sex offenders. A further 10 trans-identifying males are held in maximum-security category A prisons. We therefore conclude that approximately half of the known transgender population in prison are either sex offenders and/or highly dangerous prisoners.”

        https://fairplayforwomen.com/transgender-prisoners/

        1. Simon says:

          So what you’re saying is, no you can’t provide any examples. Cool.

        2. Helen says:

          Fraudulent, debunked studies conducted by fringe pressure groups do not constitute ‘evidence’ Patricia.

      2. Gala Richardson says:

        Look up Karen white. Ian Huntley is claiming womanhood to be transferred to a woman’s prison.

    2. H says:

      I know of several prisoners who have had their security category downgraded by the parole board, for example, but are still languishing in high-security prisons. I know of several trans women prisoners who have been through medical transition, who have updated their legal documents to match their gender, and yet are still in the men’s prison estate. Prisoners do not get treated as well as you seem to imagine, their wishes and even (as per my examples) their legal and human rights are frequently ignored. Perhaps spend some time educating yourself about current conditions and practices in prisons in England and Wales before you try to use prisoner suffering to score cheap transphobic points. Maybe you’ll then be motivated to take some real action to defend and protect women in prison from the things that really threaten them. Things like lack of access to proper healthcare, wrongful and/or inappropriate/unnecessary imprisonment, mental health and/or addiction issues, lack of access to education and/or work opportunities, understaffing, and so on. These are the real risks. Put your concern into action, where it is really needed.

    3. G says:

      Even if a prisoner in that position were to be legally regarded as female, surely their exclusion from shared spaces with other women could be justified if doing so is a “proportionate means of achieving a legitimate aim” (Schedule 3, Part 7(28); Schedule 23(3)). And they could be segregation from other prisoners within a single sex facility on the basis of a risk assessment; whether the risk is to themselves, other prisoners, or both.

    4. Melanie says:

      On the contrary it is not “obvious to anyone why removing all gate keeping must not be allowed.”
      In fact, to many people — and almost all of those who have allowed their thinking to be dominated by facts and reason — it seems obvious that the existing gate-keeping should be removed.

      What is obvious from your comment, however, is that you have not read either the existing Gender Recognition Act or the Parliamentary Select Committee report that suggested changing it, or the Equality Act. Your objection seems to relate to the Equality Act (rather than the Gender Recognition Act) and seems to ignore the existing exemptions which allow the prison authorities to determine which estate (male or female) trans prisoners should be housed in based on an individual risk assessment.

      No changes to the Equality Act are being proposed.

    5. Helen says:

      Hi Nicola, the proposed reforms do not mention prison, and will not affect how prisoners are categorised. Prisoners are housed on a case by case basis and that is not being changed.

  3. Gisele says:

    “while also appreciating that trans women pose no threat in female-only spaces)”…According to the 2015 International Encyclopedia of the Social & Behavioral Sciences, sex differences in aggression is one of the most robust and oldest findings in psychology.[23]Past meta-analyses in the encyclopedia found males regardless of age engaged in more physical and verbal aggression while small effect for females engaging in more indirect aggression such as rumor spreading or gossiping.[23] It also found males tend to engage in more unprovoked aggression at higher frequency than females.[23] This replicated another 2007 meta-analysis of 148 studies in the journal Child Development which found greater male aggression in childhood and adolescence.[24] This analysis also conforms with the Oxford Handbook of Evolutionary Psychology which reviewed past analysis and found greater male use in verbal and physical aggression with the difference being greater in the physical type.[25] A meta-analysis of 122 studies published in the journal of Aggressive Behavior found males are more likely to cyberbully than females.[26] Difference also showed that females reported more cyberbullying behavior during mid-adolescence while males showed more cyberbullying behavior at late adolescence.[26]????

    1. H says:

      I’m not clear what your point is here, perhaps you could clarify? In your own words?

    2. Melanie says:

      Gisele, why didn’t you just paste the link to the Wikipedia article that you cut and pasted this from?
      Perhaps I can help: it’s here: https://en.wikipedia.org/wiki/Sex_differences_in_psychology

      And anyway, it’s irrelevant, because it relates to cisgendered males (“men”) rather than to transwomen.

      1. Rich says:

        No, it applies to those who were born with the sex male. There is no evidence that changing one’s gender to female makes a born male less aggressive.

        1. Melanie says:

          Actually, there is — so much of it, across such wide range of species (including homo sapiens) that it is no longer regarded as something that requires proof. Why else do you imagine that vets carry out so many routine castrations of domestic animals? Why do so many countries still use castration/”chemical castration”/female hormone treatment as a means of preventing serial sex-offenders from re-offending?
          To pretend that you believe otherwise is like pretending that you believe the Earth is flat (or maybe you believe that, too?)

          1. Kati says:

            You show your lack of knowledge here. Most MTF trans people don’t have genital surgery. There is also a large population of male people who are considered “transgender” by Stonewall and other trans lobbying groups and thus allowed to access women’s spaces who have no hormone treatment at all and there is literally no evidenced difference between them and any other male people.

          2. GCA says:

            Melanie, there is no requirement for trans people to be ‘castrated’. The vast majority retain fully intact genitalia of their birth-sex. If you want to run the argument that transition causes someone to become less dangerous, you need to provide evidence that all trans people in fact medically transition. Evidence suggests that medical or social transition has little to no impact on offending rates or violence.

      2. Dave says:

        It relates to males. Regardless of what they may or may not “feel”, they are still male. You can change your gender so to speak if we consider gender as an inner identity, but you can’t change from male to female and vice versa. And no, HRT does not achieve this either.

  4. Katherine says:

    I think you mean sex-specific spaces. That’s what the current act protects.

    1. Helen says:

      The Equality Act of 2010 protects single sex spaces and is not affected by the GRA. Additionally, under the Equality Act, trans people can already access spaces that conform to their gender identity, on a self id basis.

  5. Victoria Ruth Smart says:

    My understanding, please correct me if I am mistaken, is that the 2004 GRA includes the principle of irreversibility. The argument being that a change in birth certificate should only happen once.
    What would be the implications of self certification on irreversibility of changing gender ?
    Also, how would self certification be defined legally ?

    1. Monica says:

      You can apply to have a second GRC, to have another birth certificate in your original gender but you must go through exactly the same procedure as getting the first one. IE, provide evidence of living in that gender continuously for a minimum of two years, provide a minimum of two medical reports, at an average cost of £80 each, showing a diagnosis of gender dysphoria, and provide evidence of any medical treatment. Plus the £140 fee.
      In Eire the self identification system works by providing a sworn statutory declaration, with appropriate penalties for false declaration. The Irish system also allows people to swear a second statutory declaration to return to their original gender but you can’t do a third one.
      Of course, it’s already an offence in the UK to make a false statutory declaration for any reason

  6. Lee says:

    The issue is not only about an increased risk of crime. It’s about the right to sex segregation to ensure the privacy, safety, dignity and equality of access to public space for women and girls. Most women and girls do not want to share intimate spaces with men. You will find this out if these laws are passed and there is a backlash. It doesn’t matter how a male identifies. He is a male regardless, and in some circumstances that has implications for the rights and freedoms of girls and women. This is not about bigotry. It’s about a conflict of rights and the consequences of disregarding the rights of the female sex. I think transgender activists are their own worst enemies in this regard. It would be more useful to advocate for their own facilities. As they themselves say sex and gender are not the same thing, and sometimes sex matters.

    1. Emily says:

      All the proposed law change is going to do is make it easier for Transgender People to get a new, correct birth certificate. Please could you provide me with examples where any female only space requires the production of a birth certificate? Otherwise your points have got literally nothing to do with the consultation currently on going.

      1. Kati says:

        Two off the top of my head are prisons and jobs which are only open to female people, such as rape counsellor, to avoid causing further distress to victims. I would question the motives of any male who forced their presence on traumatised and vulnerable women in this way.

    2. Helen says:

      Under the Equality Act of 2010, single sex spaces such as rape crisis centres are protected. However they are *already* open to self identified trans people under that same act.

  7. Bronwen Davies says:

    Setting up a straw man to start this article leads me to suspect that the authors are aware that their argument in favour of altering the law to allow individuals to self-identify as part of the process of gender reassignment. The authors assert that the main argument of those who oppose self-identification is that it will lead to an increase in men abusing the system and pretending to be women in order to carry out criminal offences against women. No: we argue that men who identify as transgender are just as likely to be perpetrators of violence towards women as those men who do not so identify. That is why girls and women are entitled to the protection afforded by single-sex spaces, to preserve our dignity, privacy and safety, when we are in a state of undress, when we vulnerable due to age, illness or disability, or after suffering abuse by men.

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