In this post we use the word women to refer to individuals born as women (also known as ‘natal women’). The current government consultation on proposed changes to the Gender Recognition Act 2004 (GRA) has opened up space for discussions about who defines what it means to be a woman and who controls the boundaries to women’s places of association. Central to those debates are the safety, dignity, and privacy of women using sex-segregated spaces. These are significant matters, which raise complex issues for women, which is why so many feminists are adding their voices to the public debate. These are women who support trans-rights but whose genuine concerns, based on expertise and lived experience, are being silenced by accusations of ‘hate speech’ and ‘transphobia’.
We all hold certain fundamental legal rights by virtue of being born human, and individuals with protected characteristics may also require additional protection of their rights owing to the history of discrimination based on sex, race, religion, disability, age, or other factors. There has been a long history of discrimination against women, giving rise to the need for specific protections for women, including retaining safe spaces for women. In this country, women have only been allowed to vote for 100 years; there is a wide pay gap between men and women; and there is a grossly disproportionate likelihood that women will experience sexual or domestic violence perpetrated by men. While feminism has pushed society to take strides forward, there remains a great deal of work to be done. If we had no power differential between the sexes, we would not need safe spaces for women. But we do not have that.
Where conflicts of rights occur, the law seeks to ensure a balance. The current law does not declare that transgender persons are the opposite sex for all intents and purposes. The Equality Act 2010 permits service-providers to restrict services to women even if an individual has a gender recognition certificate stating that they are female, and provides a justification against any accusation of discrimination. Women’s spaces remain protected as having a special status and serving a special need, even where to do so conflicts with the rights of transgender persons.
The GRA provides specific protection for trans-persons. It sets out how a person can officially be recognised as having changed their gender. Currently, a person must demonstrate that they have accessed services relating to transitioning and have lived in their chosen gender for a minimum set period of time. Proposed reforms seek simplify and make less costly the process of securing a gender recognition certificate – albeit the current cost is £140 with reductions for low income persons.
One of the main reforms proposed is that anyone should be able to be formally recognised as a member of the other sex purely on the basis of self-identification. Therefore, the sole criterion for determining that a person is a woman would be that person’s belief (or stated belief) that they are a woman. Anyone who wants to be a woman would have to be viewed as one.
The effect of this proposal becoming law would be to erode the very concept of woman. It will erase women’s lived experiences, and undermine women’s rights. Being a woman is about sex and biology, in that our bodies determine so much of our experience, and also about the way we are constructed socially, which also helps determine our lived experiences. It is not about how a person feels or what they claim to feel.
Self-identification will allow anyone to access women’s spaces at any time, having self-proclaimed that they are a woman. This is problematic for women accessing women’s spaces and services whose lived experiences (such as surviving sexual violence) or protected characteristics (such as religion that requires sex-segregation for certain activities) make it essential that women’s spaces remain sex-segregated.
Self-identification is also open to abuse by men seeking to access women’s spaces and women’s bodies. We are already seeing people who were born and still live and present as men claiming that they are trans-women in order to gain access to women’s spaces, including convicted sex offenders demanding to be housed in women’s prisons; individuals videoing women and girls naked in women’s changing rooms; and individuals seeking to join all-women candidate lists in local or national elections. Allowing self-identification of trans people will enable and embolden these types of activities.
There is clearly a conflict of rights and interests at the heart of these discussions. This conflict needs to be aired and discussed. And there is a need to have these discussions in a respectful and open manner, without the ‘no-platforming’ or indeed the physical violence – such as the assault by 25-year-old Tara Wolf on 60-year-old Maria Mclachlan – we have seen over recent months. Silencing women and their views and dismissing their concerns, based on their lived experiences, as ‘hate speech’ and ‘transphobia’, perpetuates the structural violence that women have long faced and that human rights measures seek to alleviate. There are solutions that would uphold the rights of both women and trans-women and ensure that neither group experiences discrimination. But those solutions will only present themselves when space is opened up for discussions and debate.
Editor’s Note: The Oxford Human Rights Hub has previously published an alternative view on this issue, which can be found here.
Excellent article which neatly captures the problems. Of course, I would expect nothing else from the authors.
If most transwomen have the protected characteristic of male sex and not female (except those with GRC), why is it discrimination to them to not allow them in female spaces which no other males can access? Surely allowing some bio male people in is potentially discrimination against the other men who are excluded?
Yes, you’ve highlighted a huge potential problem. We also need to be clear & keep shouting from the rooftops that there is no such thing as the rather benign, cosy sounding ‘gender neutral’ when it comes to public facilities – if men are allowed access to women’s facilities, regardless of how they identity, those facilities become mixed sex. Doesn’t sound quite so benign said like that does it?
Thank you so much for writing this blog. I am so relieved that this issue is finally being debated in the legal academy. It has huge ramifications for women and ignoring these in the interests of being inclusive will cause untold harm to women and girls.
There are undeniable and fundamental differences between male and female biology. This is entirely separate from any issue of identity and is a scientific fact. ‘Gender identity’ is not ‘assigned at birth’; sex is observed as a matter of biological fact. A very small number of people have a recognised condition called intersex, but for almost every single human, their biological sex is not in doubt.
Throughout history, women’s biology has been used as a reason to oppress us. Marital rape exemptions, the recent abortion referendum in Ireland, and maternity laws are recent examples. Back in 1914, women had to fight to even become lawyers in the first place, forced to make a ridiculous argument that they were in fact ‘people’. All of this had nothing to do with an identity or feeling and everything to do with our biology. What unites us as women is not an innate femininity, but our female biology and the experience of living in a female body in a patriarchal world.
To argue that being a woman is merely a question of identity raises questions that trans activists have been unable to answer. What is a ‘female identity’? What does it mean to ‘live as a woman’? What makes it appropriate for a male bodied person with a female identity to be in female spaces, but inappropriate for a male bodied person with a male identity to be there? How can a woman using those spaces distinguish between a male body with a ‘female mind’ and a male body with a male mind? Can we define a female identity without resorting to oppressive stereotypes of femininity? Is being a trans woman about ‘looking female’? If so, does that not reinforce stereotypes about how a woman ‘should’ look? Would we accept that a male-born person who took no steps whatsoever to ‘transition’ physically and retained a fully male appearance, yet claimed to be female, should be accepted into female spaces?
These questions require very serious consideration and it is crucial that legal feminist academics engage with it. Thank you so much again Rosa and Rosemary.
Thank you for this – we need more people to speak up publicly otherwise the government will only hear the voices of the trans activists & their allies
I think that our discussions on this topic need to pan back to show the wider issue over and above this theological notion of “gender identity” and to centre the critique within the whole “transhumanism” drive because tying humans into technology and the like requires that we’ve severed the link between mind and body. We also need to start talking about fantasy forums in culture, like anime, where people get to pretend to be all measure of made up people.
The women in the Equalities Committee need to start to understand that “trans rights” are not just incompatible with protection for women, they are incompatible with tangible humanity.
On a purely practical level we also need to start writing letters of complaint to anywhere that has so-called “gender neutral” toilets, pretended to be imposed to tackle trans upset but are really just a way of reducing the cost of building by removing the need to duplicate facilities. I’m not sitting on a toilet seat wee-ed on my a man so that a rich property developer gets higher profits.
Thank you so much for this piece which is a beacon of sanity in an increasingly rabid environment which shuts down any attempts to discuss the safety of women and girls with accusations of transphobia. Trans rights are equally as important as women’s rights, but trans rights do not exist in isolation. Women and trans people should be natural allies, yet the rampant misogyny evident in the current debate and the ideology which is pushing for blanket access to safe and currently restricted spaces shows little to no regard for natal women: their opinions, their feelings; their fears — let alone their human rights to safety. I’ll say it again: trans people deserve respect, recognition and the right to live safely as they want — but not at the expense and erasure of natal women as a sex class.
I fundamentally disagree with much of this article mainly due to the fact that the central arguments it advances have been discredited, not just in alot of the literature on this subject, but specifically in a previous OxHRH article which is linked at the conclusion of this piece. Suffice for me to repeat the two central points of that article here:
1) The Equality act 2010 already protects the rights of trans-women who self-declaire as women to access appropriate goods and services. service providers looking to exclude them from such spaces have to clear an almost insurmountably high bar of excluding trans-persons based on “proportionate means of achieving a legitimate aim”. As such a hurdle is rarely cleared, little would be changed through the proposed changes in the GRA.
2) There are few examples of cis-gendered men using trans-rights to invade women’s spaces. the instances of men unlawfully gaining access to women’s spaces are usually of an egregious nature, men are not clandestinely claiming to be trans to carry out these offences. For cases in which these flagrant violations of female spaces do occur , the law needs to focus more on the punishment of cis-gendered men, not respond by denying trans people the benefit of vital reforms that inure to their benefit.
Additionally, I take issue with the statement, “being a woman is about sex and biology, in that our bodies determine so much of our experience”. This argument seems to presume that all natal-women have the same or similar bodies; By this logic, are women born without reproductive organs or who suffer from amenorrhea (absent periods) not to considered women because they have not been able to garner a particular type of experience from their different bodies?
Apologies, please ignore my point 1) above what I rather meant to say was that the Equality Act already protects the right of people who self-declare to access services. It also provides exceptions that service providers can avail themselves of if the measure is proportionate and pursuing a legitimate interest. If the RCA was changed in line with proposals, nothing would change – service providers would still be able to exclude trans people access to certain services (those alluded to in this post) based on the legitimate interest test so what precisely is the issue? No-one is proposing changes to the Equality Act just the GRA.
Couple of things, Tiana. I disagree with what you are saying there:
First of all, there have been proposals to abolish the exemptions in the Equality Act, and in fact the Equality Act is currently under review. Furthermore, as this article points out, the EA simply provides an excuse to a charge of discrimination on the basis of gender reassignment. It does not mandate any service providers to provide safe women-only spaces. Women are already being denied single-sex spaces, because many service-providers are choosing to open these up to anyone who identifies as female. There are already trans women taking places on all female shortlists, accessing refuges, and accessing the female estate in prison. It is untrue that the EA is not under threat, but even if it was not, it does not go far enough to protect vulnerable women and it needs to be debated how it could be strengthened to protect natal women as a sex class.
The second point you make is a bit confused. You talk about ‘cis-men’ invading women’s spaces under the guise of being transgender. This seems to assume that the very nature of identifying as the opposite sex makes it appropriate for a male-bodied person to be in female spaces and that the only threat to women comes from cis men pretending to be trans, rather than from trans women themselves. This is a completely unsubstantiated assertion. There is evidence of trans women (not cis men) assaulting women in prisons (recently at a prison in Wakefield, there were four sexual assaults by one inmate), and in refuges (there are documented reports from Canada on this, including the rape of a blind woman). There is no evidence that the mere act of identifying as trans removes risk in any way. The majority of trans women retain fully intact male genitalia. Their bodies, even if they take hormones (which not all do) appear male and are fully functioning in that sense. There needs to be clear empirical evidence that having a female gender-identity lowers a person’s risk of offending from that of a male to a female. The current evidence suggests it does not. There are a number of trans women in English prisons, including 27 who are serving a sentence for rape. There is evidence that trans women serving sentences for sexual and violent offences are already being placed in the female estate, with unfortunate consequences. Even if trans women posed no threat, there is still an issue of privacy and dignity. After all, most natal men pose no threat, yet it is fully accepted that spaces should be segregated. Trans activists will need to demonstrate very clearly the difference made by having a female gender-identity; one that a natal woman would be unaware of unless she spoke to the trans woman in question (which does not tend to happen in changing-rooms etc).
It is not in any way transphobic to point this out. Those supporting trans women’s rights to access female spaces maintain that it would be unsafe and a violation of privacy and dignity to require trans women to use male facilities. Yet, when women make the exact same argument regarding their spaces, they are accused of bigotry and hatred. It would be good to know why trans women should have those rights while natal women should not.
One final thing, Tiana. You say “Additionally, I take issue with the statement, “being a woman is about sex and biology, in that our bodies determine so much of our experience”. This argument seems to presume that all natal-women have the same or similar bodies; By this logic, are women born without reproductive organs or who suffer from amenorrhea (absent periods) not to considered women because they have not been able to garner a particular type of experience from their different bodies?”
This is a strange analogy to draw. The shared experience is living in a female body in a patriarchal society. Having amennorhea is part of this experience of female biology, albeit that in this case, the female biology malfunctions in some way. There are very very few women born without any reproductive organs, yet this is often trotted out as if it were commonplace. Feminism does not presume all female bodies are the same, but it does recognise that we are oppressed because of our biology- whether we have periods, whether we give birth, whether we suffer uterine cancer, or effects of the menopause. Malfunctioning bodies and diverse experiences do not make one less of a woman, in the same way that being born without legs does not make one not human (with the observation that humans have two legs).
This also raises another issue. If it will be as easy to change gender (and get a new birth certificate) as clicking on a mouse and paying a fee, what is the point of the state recording ‘gender’ at all? What is its basis when we say that biological facts are unimportant? No trans activist has been able to define what it means to have a female identity. Should it not be necessary to at least define the meaning of female identity if we are using this as a basis for determining access to women’s spaces? What is the justification for segregating on the basis of gender identity? This needs to be clarified. There is a good reason for segregating on the basis of biological sex due to the strength/power difference in male and female bodies and the fact that male-bodied people commit the vast majority of sexual and violent crime.
GCA I disagreed with much of what you wrote but I’ll touch on two main points.
Firstly, in relation to your first point there is no evidence the EA is “currently under review” or ever was in relation to the Schedule 3 exemptions. Infact, The Government Equalities Office put out a statement this June stating “Any GRA reform will not change the protected characteristics in the Equality Act nor the exceptions under the Equality Act that allow provision for single and separate sex spaces”. Some activist groups, such as Stonewall, have called for the abolition of the Schedule 3 exemptions as unjustifiably discriminatory, but these proposals have not emanated from, or been taken up by the government, which has made its position abundantly clear. In a conversation about whether the GRA should be changed to allow self-identification, I’m not quite sure that I see the significance of your view that the law currently “does not mandate any service providers to provide safe women-only spaces”. The law doesn’t currently force service providers who don’t see the need to discriminate against against transgender women that is correct, how would this change by disallowing these amendments to the Gender Recognition Act?
Further, my second point is not confused at all, the article states “self-identification is also open to abuse by men seeking to access women’s spaces”. The article was clearly referring to cis-gendered men who “still live and present as men claiming that they are trans-women” and so I addressed this point by saying that there are few (if any) examples of cis-gendered men using trans-rights to invade women’s spaces. You raise an altogether different point which is that there is a threat to women “from transwomen themselves” i.e not cis-gendered men as referred to in the article being in cis-gender spaces. In relation to that point, I don’t think your supporting evidence is sufficient; there have been 2 widely reported cases of trans-women attacking cis-gendered women in female prisons. These cases have been seized on by the media and used to draw far-reaching conclusions about the dangers of allowing trans-women in cis-gendered spaces when in reality examples of two attacks in England in and Wales is hardly substantial evidence of these dangers. Furthermore, in order to guard against any potential risks, the National Offenders Management Service is currently required to undertake a careful risk assessment before placing any women, whether trans or cis-gendered in with other female inmates so even if there was a significant threat to cis women from trans-gender women which there is no evidence to suggest there is, such an assessment is likely to identify that and obviate these risks. I think there is something injurious in raising the spectre of the marauding trans-women attacking cis-women in prisons; the lack of evidence for such claims, in addition to the safeguards in place to prevent such scenarios point to its absurdity and it portrays trans-women as an entity to be feared and therefore denied rights, conveniently ignoring the large body of evidence pointing to the rape, assault and victimisation of trans-women when left to languish in male-only prisons.
There is a difference between being a woman and a desperate desire to be a woman. Trans-women are feminine, they may have female-typical psychological makeup, but besides that they are still men. The difference between trans-women and so-called “cisgender women” is that “cisgender women” are full-fledged members of the female sex. Trans-women are not. They are a sub group of women and access to female-only spaces is not their basic right. Women and trans-women are fundamentally different – biologically, anatomically, sexually, psychologically and your personal choice to deny reality will not change that.
Fun fact: Studies show that trans-women retained a male pattern regarding criminality: https://t.co/MboGIbrh4c
Actually that’s not true. That study explicitly says that trans women in the earlier cohort show higher criminality, likely due to similar structural oppressions as other groups that seem to show higher criminality, as well as poor mental healthcare. The younger cohort shows no such pattern, the criminality is just not there.
It should also be noted that the study does not say *what* the crimes are; hence the likelihood many are crimes of necessity such as theft of food, which disappear in the later cohort as mentioned.
“Female-to-males, but not male-to-females, had a higher risk for criminal convictions than their respective birth sex controls.”
Tiana, here is a link to the enquiry into the Equality Act by the Government’s Women and Equality Committee:
In any event, even if the EA were not reformed, it does not offer adequate protection for women because:
-It does not ensure that single sex facilities are offered- it leaves the choice to the service provider. There are already examples of refuges and DV charities deciding to extend services to trans women, thus affecting natal women’s ability to access them if they do not want to share spaces with male people.
-It sets the bar high for arguing that an exemption applies. One would imagine that a prison would be an obvious place where it would, but this is clearly not the case. Women have no control over this- they are at the mercy of the service provider.
-If self-ID comes in, it will be much easier to identify as female and obtain a GRC. Even now, most service providers do not demand a GRC- they quite literally open their services and spaces to anyone who identifies as the opposite sex.
As for the prison reports, the ones I mentioned are part of numerous reports. There is only so long that reported cases of the implications of what is essentially mixed sex access to spaces can be written off as one-offs or anecdotes. This link to an open letter from survivors of male sexual and physical violence gives a voice to some of those who will actually be impacted by this proposal (and already are): fovas.wordpress.com/
You can choose to merely put it down to bigotry, but I would urge people to think long and hard about this. Throughout history, people with male bodies have committed the vast majority of sexual and physical violence, including against women. This has been accepted as an indisputable fact, yet now we suddenly deny it is true for some male-bodied people on the vague basis of a ‘gender identity’. Why is that?
There are no other measurable characteristics such as race or age into which an individual can merely identify. What is the logic for saying that a man is a woman if he identifies as such, but a white person cannot identify as black? The latter could have a very strong and sincerely held belief and identify strongly with aspects of the culture of a certain race and wish to access services and initiatives for that race (such as shortlists and scholarships). Why do we dismiss this as ridiculous and indeed offensive, yet openly embrace that members of a dominant group can readily identify as members of an oppressed group simply because they say so?
I think the crux comes down to trans-activists needing to define what a gender identity is and to give some justification why access to spaces should be governed on the basis of it. I have provided a justification for segregation on the basis of sex (due to men committing the overwhelming majority of violent crime and having stronger bodies and the ability to rape female bodies). You need to show why we should segregate based on an identity or inner feeling, as well as setting out clearly what that inner feeling is. How does one ‘feel like a woman’ (without resorting to stereotypes of femininity)?
GRC that’s a link to a select committee inquiry into the enforcement of the Equalities Act. Its stated aim is to determine “what more needs to be done to achieve widespread compliance with the Equality Act 2010 for all those with rights under it”. Such general inquiries into the effectiveness of legislation by the Women and Equalities Office, and other select committees for that matter, are routine (see: “inquiries” page) and it has absolutely nothing whatsoever to do with reforming the Equality Act to abolish existing exemptions to service providers seeking to provide same-sex spaces. As I stated previously, the government have made clear that any GRA reform will not change the protected characteristics in the Equality Act nor the exceptions under the Equality Act – the link you have provided is not evidence to the contrary of this.
At the risk of arguing in circles, I must once again state that it is not the role of and is infact contrary to the spirit and purpose of the EA to require service providers to discriminate against transwomen in the provision of services. The purpose of the EA is to protect vulnerable groups so it of course does not, nor should it, mandate that such groups are discriminated against by service providers who do not endorse the view, based on the scant evidence available, that transwomen pose an imminent danger to cis-women. In relation to the “numerous” reports of transgender women attacking ciswomen in prison or DV facilities, I would be interested if you could share these with me. To support this point, you have provided a link to a wordpress blog for what appears to be an unrecognised organisation, and the evidence it uses to support its claims that “women are not safe with males, however they identify” is a handful of facebook groups, news reports and other blogs. That won’t do. Assuming, arguendo, that the testimonies listed are genuine, almost all of these stories are about women experiencing sexual abuse at the hands of men. It does not provide us with significant instances of transwomen attacking ciswomen in female spaces and therefore does not substantiate fears about an increased risk to cis-women from sharing spaces with transwomen. It’s also worth noting that transwomen also suffer from male sexual violence at an alarming rate which is a large part of the reason their recognition needs urgent streamlining through a modification of the GRA.
The resort to wheeling out “trans-racialism” in order to stifle the attainment of rights by transgender peoples is tiring and transparent. Trans-racialism is not a thing; besides a few opportunistic “Rachel Dolezal” cases there is no scientific/psychological evidence that suggests that people can have a diagnosed condition of racial disphora. There are also not mass reports of suicides and self harm in groups of white people wanting to be black as there are with trans people, so organisations offering scholarships and benefits to people of colour would be entirely justified in rejecting white people who had sincerely held beliefs that they were black. To be clear, this is not about allowing anyone to say they are anything at the expense of women. To describe the genesis of these proposals, the Government conducted a survey and the number of people who have received legal recognition of their acquired gender was far below the number of people who responded as identifying as Trans. These people claimed that although they wanted legal recognition of their gender, they had not applied for it because they found the current process too bureaucratic, expensive and intrusive. This legislative amendment is therefore aimed at protecting the lives and rights of that small, vulnerable, identifiable class of people, not giving anyone carte blanche to say that they are anything. It’s important to retain some perspective and context and not pretend like these amendments will open the floodgates the absurdity when they plainly will not.
Your arguments, I notice from your first post, keep returning to the question of gender identity or as you put it “How does one ‘feel like a woman’ (without resorting to stereotypes of femininity)”. To answer that question it’s necessary to enlighten yourself with some literature on this topic – there are numerous articles and blogs that document the experiences of transgender persons and this would be a good place to start. Whilst trans-women will never be able to describe how it feels to be a cis-gendered woman, their experiences as transgender people are just as much part of how it feels to be a woman as the experiences of cis-gendered women and should be valued as such. They are not, as the above poster rather disdainfully put it, “a sub-group of women” but rather occupy a space equal with cis-women under the umbrella of womanhood. Trans-people have nothing to prove to cis-women and not being able to describe your experience of womanhood does not invalidate their own. So if we accept that they have the right to claim that they are women just as much as natal-women it’s clear why, with the appropriate safeguards and exemptions remaining in place, they should be permitted to occupy female spaces. Your arguments about the dangers posed specifically by Trans-women have simply not been borne out by any substantial evidence I’m afraid and irrational fears should not govern the attainment of rights by disfavoured groups.
That’s the last I’ll say on the matter but nice to debate with you.
For absolute clarity: Tiana, you are making the argument that women shall no longer be allowed to define themselves ontologically, and that this should be opened to ad-hoc redefinition by any born-male person who so wishes. How can the consequence of what you are proposing be anything else?
“There are also not mass reports of suicides and self harm in groups of white people wanting to be black as there are with trans people, so organisations offering scholarships and benefits to people of colour would be entirely justified in rejecting white people who had sincerely held beliefs that they were black.”
It sounds like you’re implying the reason we should (at least publicly) accept transwomen as women is because they might harm or kill themselves if we don’t.
“Your arguments, I notice from your first post, keep returning to the question of gender identity or as you put it “How does one ‘feel like a woman’ (without resorting to stereotypes of femininity)”. To answer that question it’s necessary to enlighten yourself with some literature on this topic – there are numerous articles and blogs that document the experiences of transgender persons and this would be a good place to start.”
Your comment above beggars belief. Natal women know they are women and have lived with the consequences of nature since their birth, through early socialisation, through puberty and into adulthood— all bear the scars to some degree of the circumstances of their sex class at birth in a patriarchal society (sorry, I should say perhaps their ‘cis privilege’ rather than ‘a societal target for abuse, rape and sexism throughout their life’). Yes, all natal women. And yet cis women need to ‘enlighten themselves’ about what it is to be a woman courtesy of accounts from adults born male-bodied and raised male?
to the above poster I was talking about enlightening oneself as to the experiences of trans-women, who also have a legitimate claim to womanhood.
‘womanhood’ is a sexist ideal of what female people ought to be… so sure, after all ‘womanhood’ is indeed a male ideal that trans women have every right to claim. This does not make them women nor does it open a legitimate claim for male access to female space.
Good to debate with you too, Tiana.
All I will say is that we are entering dangerous territory when we say womanhood is simply a feeling and a sense of identity. It will have significant consequences that I am sure those simply wanting to support trans people have not fully appreciated.
And if those born male and socialised as male are now equally as part of womanhood as natal women, then another term will have to be found for natal women, because we are a distinct group, deserving of protections and recognition and the ability to define ourselves. No other oppressed group would be denied these rights.
The point about trans-racialism is that you cannot change your race or your age. Nor can you change your biological sex. The fact that trans people feel extremely deeply that they are the opposite sex does not change material reality. The solution to help them is not to eliminate biological sex and replace it with gender identity. They can be supported in many other ways.
This post positions the problem in its appropriate context: that of law. Too often, this debate is carried out, and the participants judged, on the basis of ill-defined concepts such as ‘kindness’ which can, and will, be abused. Naturally they will not be abused by all, but the existence of laws that protect the integrity of physical persons, homes and property confirms that such abuses are common enough to justify legislation. Wishful thinking is unlikely to reverse historical patterns.
Historically, women in the UK are relatively poorly protected in law from sex-based assault, while other cultures, e.g. Scandinavia, have stringent laws protecting the safety of women that go back to the 13th century. The difference in how this particular debate is carried out in the UK and Scandinavia demonstrates all too well the legacy of history. Basing a fundamental ontological change on the presumption that “it’ll be fine, if everyone (especially ladies) is nice” is naive at best, and rooted in a system of law that historically doesn’t protect the integrity or interests of women particularly well.
This crux of this debate does lie in ontology, and the consequences for law and broader societal structures if the ontological definition of ‘woman’ is opened to legally valid redefinition based entirely on the subjective feelings of born-male persons.
Trans identifying male born persons have every right to respect and protection already granted. If they seek further protections that what is defined in the Equality Act, that should be discussed and debated on the basis of their analysis of what it is to be a trans identifying male born person, as that is the only ontological position they can justifiably occupy. If born-male persons, whether trans-identifying or not, are allowed to co-opt the ontological position of born-female persons when redefining what their nature and experiences are, then it follows that a born-white (as a social marker) person can assume the right to define what the nature and experience of a born-black (again, as a social marker) person is.
I should hope that we are beyond this by now.
This is an appalling article that would not be out of place in the Daily Mail. However, what makes it truly shocking is that it is written by two previously respected professors of law and published on a web hub, run by one of the most respected universities in the world – Oxford, with the aim of promoting human rights.
Submission guidelines for the blog state “Posts must include hyperlinks to relevant legal sources and background information, including any judgments, laws, treaties or other legal texts which are mentioned” and “Posts which are submitted must be fully proofread and must conform to good legal academic style. In particular, the Blog is not a platform for opinion pieces on the news of the day, even if related to human rights: our core focus is on legal analysis of any such developments”
One of the authors, Professor Fredman, stated on a twitter post on a thread linked to this article “I am worried about the consequences for my professional and personal reputation if I speak out”. [Hint to the editors – if an author feels her article may damage her career, you might want to take a closer look at it]
The article breaks good legal academic style in the first sentence “In this post we use the word women to refer to individuals born as women (also known as ‘natal women’)” by redefining the term woman instead of using the standard academic term, cisgender woman, where needed.
The article states “One of the main reforms proposed is that anyone should be able to be formally recognised as a member of the other sex purely on the basis of self-identification. Therefore, the sole criterion for determining that a person is a [cisgender] woman would be that person’s belief (or stated belief) that they are a [cisgender] woman”. This statement is unreferenced and incorrect. The government’s consultation refers to a “non-assessment based model” that usually has some kind of statutory declaration (Paragraph 9) and in Question 6 asks about the requirement for a statutory declaration. The current requirement for the statutory declaration is a declaration of the trans person’s intention to live in their acquired gender until death. The idea that a transgender woman would have to believe she is a cisgender woman is clearly incorrect.
The most inflammatory sentence in the article is “Self-identification will allow anyone to access [cisgender] women’s spaces at any time, having self-proclaimed that they are a [cisgender] woman.” I would have expected a carefully reasoned and nuanced legal argument. None is given, which is not surprising as there is not even a colourable legal argument to be made. The authors clearly do not refer to the female prison estate, as this is not a space that anyone can access at any time. Outside of prisons it is trite law that change of legal gender does not give trans women the right to access women’s spaces. The only legislation that gives trans women the right to bring a claim if they are denied access is the Equality Act 2010. And the government states in their consultation that “we are not proposing to amend the Equality Act 2010 and the protections contained within it”.
Sarah Archer said:
“the standard academic term, cisgender woman”
I note you did not provide a hyperlink to a relevant legal or academic source for this assertion. I would be interested to read it.
Happy to oblige. The wikipedia page https://en.wikipedia.org/wiki/Cisgender includes lots of links to peer reviewed articles that either use the term “cisgender”.
Another reason that the ontology of women matter in U.K. law is that rape can currently only be perpetrated by a man. It follows that if a man self-identifies as a woman and their birth certificate sex is changed to woman, they cannot be effectively tried for rape without first challenging their birth certificate identity. This is clearly preposterous, but seeing how adept proponents of self-ID are at elision of the consequences of such a change, there is no reason to assume that this legal detail isn’t included among the things that ‘aren’t up for debate’.
On the contrary, it is clear to anyone with care for the preservation of women’s rights in law that the issue very much needs careful and incisive debate.
When people say that something is “not up for debate”, they often mean there is no debate to be had as the evidence is so overwhelming. Further, constantly debating non-points exhausts people and creates a false equivalence. Examples include “anthropogenic climate change” and “did the holocaust happen?”.
Your point about rape illustrates this nicely.
You are mistaken when you say that the perpetrator of rape can only be a man (presumably you mean as a principal offender). But you are in good company as this point is made in Smith and Hogan. However, it is incorrect. The Sexual Offences Act 2003 (‘SOA’) was drafted in gender neutral terms and this includes rape (s. 1). However, the wording of s.1 indicates the offence can be carried out by anyone with a penis. The use of the pronoun “he” is of no consequence due to s.6(a) Interpretation Act 1978. And the term “penis” can include a surgically constructed penis (s. 79(3) SOA).
Trans women can retain their penis and still be legally recognised in their new gender under the Gender Recognition Act 2004 (‘GRA’). Also a trans man who has a surgically constructed penis may choose not to change his legal gender. So it is clear that people whose legal gender is female can commit the offence of rape as principals.
However, if there is any doubt about the matter it is put to rest by s.20(1) GRA which ensures that a change of legal gender under the GRA does not prevent a gender specific offence being attempted or committed.
There is a genuine debate to be had about GRA reform but this is shut out by the false debate. If the government adopts a non-assessment model, then will this create two classes of GRC – those issued under the old act and those issued under the new act? Will these classes differ in practical or legal effects. Will the government introduce an equivalent to s.14 Gender Recognition Act 2015 in Ireland whereby a GRC can be revoked by a minister? Would this power extent to existing holders of GRCs?
“The Equality Act 2010 permits service-providers to restrict services to women even if an individual has a gender recognition certificate stating that they are female, and provides a justification against any accusation of discrimination.”
This will still apply even if there are any changes to the GRA. The consultation is not on on the EA.
People have the protected characteristic of ‘gender reassignment’ even without a GRC.
Also if a man wanted to gain access to female space he could do that now by claiming to be female. You can’t legally ask to see a GRC anyway and people don’t have to carry them around with them. You would be in exactly the same situation with or without self id in that regard. I agree there is definitely more civil discussion needed.
I am so happy to find this site. Calm, intelligent and informed debate. This subject is impossible to debate in most places on the internet at the moment without being shut down, insulted, attacked and accused of being transphobic. The BBC has shut its doors to females (do I have to say cisfemales now?) who want to understand the wider issues. The only place there is any meaningful and respectful debate (apart from here) seems to be MumsNet (?!). I tried on FB and was rounded upon like a sheep who had wandered into the middle of a pack of wolves.
I stumbled across this article rather late!
But I am shocked that a site purporting to give “a global perspective on human rights” should publish an article which is so fundamentally opposed to human rights.
Vociferous anti-trans activists have used the possible simplification of the procedure for applying for a Gender Recognition Certificate as an excuse to spread malicious and misleading propaganda, with the clear intention of inciting anti-trans hatred.
Members of the trans community are already at high risk of depression, PTSD, depression, self-harm, and suicide, at least partly because of the discrimination, abuse, and violence to which they are subjected on a daily basis. It is inevitable that encouraging transphobia will lead to higher rates of self-harm and suicide.
The activities of anti-trans activists may not be as blatant as those of terrorists who drive vans into bus queues, or who set off bombs in shopping centres, but the overall body count may well be higher.
There can be no excuses: they know what they are doing, but they go on doing it because they know that they will get away with it because the protections afforded to trans people by the law are grossly inadequate.
It is high time the law was changed. We need a “Lucy’s Law” ( named after Lucy Meadows, the trans teacher who was hounded to her death by transphobic media coverage of her transition) to make it illegal to incite hatred of trans people — with effective prosecution and penalties that reflect the seriousness of the crime.