Becoming women

We know that gender recognition reform will not affect anyone apart from trans people. We know that it is a minor reform, only affecting people who transition, like I did. There will be no great influx of men in women’s spaces, no threat to refuges or rape crisis centres, no false statistics showing a huge rise in violent crime by “women”. There is nothing to worry about except the authoritarians being emboldened by the confected dispute to spread hatred against trans people. However, there is a confusion in the law between the Gender Recognition Act and the Equality Act, which if interpreted in a particular way would stop trans folk with a gender recognition certificate from complaining of discrimination at all, whatever was done to us.

The problem is s9 of the Gender Recognition Act. Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman). So the law says my sex and my gender are alike Female. It goes on, Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards). So when interpreting the Equality Act, I am female.

The argument is that after I get the GRC, I am a woman. If I am a woman for the purposes of the Equality Act, then I cannot be excluded from women’s spaces. I am not a trans woman, I am simply a woman.

The Women and Equalities Committee obtained counsel’s opinion on the effects of changing the law. Read it if you like. I tried to understand it, then decided that was too much like hard work.

I can get read as trans. The sections which allow me to sue for damages if someone discriminates against me because of that protect me because I have “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”. The same definition allows me to be excluded from women’s spaces, if that is a “proportionate means of achieving a legitimate aim”. If I am simply a woman, rather than a transsexual person, I can’t be excluded from women’s spaces as a transsexual person, but because I can, without legal sanction, be discriminated against as a transsexual person I can be excluded because the person in charge of those spaces thinks I am transsexual. Even though I am not in law. Her space would be for some women and not for others, as she saw fit. I can’t then claim discrimination on the ground of sex, as I am the same sex as the people she lets in.

If I can claim to be a person who has undergone a process, etc, then she can only exclude me if it is a proportionate means of achieving a legitimate aim, which I abbreviate as PMoALA. If I am a woman by the GRA, and am no longer a “person who has undergone a process”, then she can exclude me just because she wants to.

I would rather be protected as a trans person than not. That interpretation would make sense to me.

So I don’t know what the Gender Recognition Act is for. At the time, it governed marriages, so that I could marry a man, but now I can marry a man or a woman (if I can find one willing); and it governed pensions, but now the European Court of Justice says I could get a pension on women’s rules without a GRC. Women’s rules are the same as men’s. I could claim under the equal pay laws if a man was paid more than me for the same job.

Gender recognition is a symbol, that the law calls me a woman. It does not affect my rights at all. It would be ridiculous if it stripped me of the right to claim damages for discrimination, and so it cannot mean that unless that is the plain, unavoidable meaning of the words.

5 thoughts on “Becoming women

  1. You make some very interesting comments, and it’s especially relevant as an updated Births, Deaths and Marriages Registration bill is making it’s way through Parliament. It will allow self-declaration of gender identity to be extended to birth certificates (currently self-declaration is available for passports and driver’s licences but not birth certificates). I touch on it in my recent post titled “Trans woman denied Gym membership”

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      • Our disputes seem rather tame compared to those in th UK,as I believe opposition to self-identification is not as strong here, possibly because on passports and driver’s licence (the most common forms of ID) we have been able to change gender to Male, Female or Undefined for quite a few years now simply, simply by making a statutory declaration.

        Currently the bill is going through the select committee stage so the final form of amendments isn’t known yet. I currently am on my phone so have to cope with its tiny screen and keyboard, but I think the following link will allow you to follow the bill’s progress and view all the submissions presented: http://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_74854/tab/submissionsandadvice

        I can dig into it deeper tomorrow if it doesn’t help.

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        • Thank you. I don’t need you to dig deeper. As far as I can see, the text of the Bill on line is as originally drafted. I cannot see proposed amendments. Clauses 66 et seq. deal with change of gender, still by application to the Family Court. However the NZ Human Rights Commission submitted useful evidence showing the international human rights law to the select committee. They recommend that the Bill enable an applicant to request that the DIA amend their birth certificate to record their self-declared sex or gender identity, including non-binary gender identities. This request shall be made in the form of a statutory declaration and shall not require the applicant to provide expert medical evidence, or proof of any medical or psychological intervention.

          Ensure that the process for an individual to change the nominated sex on their birth record is predicated on a rights-based model of self-determination, bodily integrity and non-discrimination.

          Exemplary stuff.

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          • The indication from those responsible for guiding the bill through Parliament is that amendments will be in line with the recommendation of the Human Rights Commission. However the reality is that they need 61 MPs to support such amendments. I believe they have the numbers, but time will tell.

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