We say we are women and have always been women, even before transition. Don’t deadname me. Apart from a vociferous minority, most on the Left, or anyone with respect for human rights or common politeness, will call us “women”. What does the law say?
In Corbett v Corbett, a case for nullity of marriage where a cis man married a trans woman, Mr Justice Ormrod said to establish whether someone was a man or a woman you should consider psychological factors as well as chromosomes, gonads and sex organs. A doctor said, We do not determine sex- in medicine we determine the sex in which it is best for the individual to live. Doctors are not concerned only with objective facts, but helping people to function as best we can. However the judge was deciding the case in a marriage, which he said required straight sex, and there can be no straight sex with a woman whose chromosomes and pre-operative gonads and sex organs were male. I am not concerned to determine the ’legal sex’ of the respondent at large, said the judge. April Ashley was paying national insurance, then different for men and women, as a woman. The judge saw no objection to that. So we could not marry, but we could be treated as women for all other purposes.
Then came the Gender Recognition Act, in 2004. At the time there were Civil Partnerships for gay people, which were not called “marriage” but were more or less similar. Equal marriage came in 2013. The GRA provided that a marriage must end before a gender recognition certificate was granted, which implies that was because two people of the same sex cannot be married. Now, a civil partnership must be converted into a marriage before a GRC is issued, apparently because two people of the opposite sex cannot be in a civil partnership.
Before the GRA, we could get our passports changed, to indicate we were female. Even married people could. We can get that change before getting a GRC. When a full GRC is issued, (s.9) the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender… is the female gender, the person’s sex becomes that of a woman). My sex is female. My gender is female. Sex offences legislation in Scotland says that it is rape if a penis enters a vagina without consent, whether those are surgically created or not. But the GRA says a GRC does not prevent a woman with an unreconstructed penis from being found guilty of rape.
Before my GRC I was treated as a woman, with the clear exception of marriage and possibly other exceptions. After my GRC I am a woman for all legal purposes; but the father of a child is still the “father”.
We need to be treated as women when dressed as women, even when for most of the time we are still presenting male. My psychiatrist gave me a card to show people if I were challenged in a woman’s loo. The Equality Act protects us from the moment we propose to undergo… a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Physiological is clear- hormones and surgery. Other attributes include social relations: if I intend without hormones or surgery to express myself female, then I seek to be reassigned.
I am protected from being treated less favourably because I am seeking gender reassignment- in employment, services, public services, premises, education, and clubs and associations. I would be treated less favourably if I were made to use a man’s loo. There is no law preventing people being treated less favourably because they are cis.
There is an exception (sch. 9, para 1(3)(a)) if it is shown to be a proportionate means of achieving a legitimate aim to require a worker not to be a “transsexual person”. That applies whether or not I have a GRC.
In some cases, services can be provided only to people of one sex. Women’s refuges might argue that. It is not discrimination on the grounds of gender reassignment (sch 3, para 28) to exclude someone from a single sex service if that is a proportionate means of achieving a legitimate aim. So a women’s refuge might treat me as a man even after I get my GRC: they are discriminating on the ground of gender reassignment, but that is lawful.
Law only matters when there is a dispute. A man can go to a woman’s toilet if no-one challenges him, They tend not to, as they anticipate a challenge, fear mockery for lacking manhood or accusations of being a sex predator, or feel it would not be right. So first what matters is what society considers reasonable: if I, before transition, dare go into a woman’s toilet, dare anyone challenge me? If, after transition, I seek help from a women’s refuge, do they think it reasonable to exclude me? If there is an all-woman shortlist, do we go along with it using the normal definition of “woman”, which includes trans women?
Before I went full time, I went into women’s loos when dressed female. The Labour Party can decide that I can join the women’s forum, and if it is not clear from their rules I can go along, and no-one has objected to my face. Many people say that is right. The State has been giving us passports saying F and driving licences saying we are female long before the GRA. Even before I transitioned, I had a credit card with the title “Miss”.
The Scottish parliament has just enacted a “gender representation objective” for a public board [which] is that it has 50% of non-executive members who are women. The Act specifies, that “woman” includes trans women if we are living as a woman. That would apply immediately we went full time. Other matters may be disputed on a case by case basis.