I write to you because I am extremely concerned about recent ministerial statements about gender recognition. The ministers show a lack of understanding of the law and of medical understanding of gender dysphoria. In particular, gender recognition on the basis of the trans person’s self-declaration will pose no threat to women’s single-sex services, as English law already recognises trans people in our chosen gender for most purposes. I am concerned that the ministers’ misunderstanding threatens a restriction of my rights in law as a trans woman. The ministers propose to restrict medical treatment for trans children, and so do not show proper respect for medical expertise or children’s needs.
On 3 March 2020, in response to a written question, Elizabeth Berridge said in the House of Lords,
Those seeking to rely on the protections and exemptions contained in the Equality Act 2020 [sic] must be able to do so with confidence and clarity. The Equality and Human Rights Commission’s statutory codes of practice on the Equality Act 2010 explain the provisions of the Act and the EHRC is responsible for updating these codes as necessary.
This Government has been clear that we must take the right steps to protect safe single-sex spaces for women and girls; their access should not be jeopardised. Some women’s organisations have expressed concern that predatory men may abuse the gender recognition system, intended to support transgender adults. We have heard these concerns and are considering carefully our next steps.
On 22 April, in a speech to the Women and Equalities Select Committee, Liz Truss said,
The final point I’d like to make, Madam Chairman, in this initial part, is on the issue of the Gender Recognition Act. We’ve been doing a lot of work internally, making sure we’re in a position to respond to that consultation and launch what we propose to do on the future of the Gender Recognition Act. We will be in a position to do that by the summer, and there are three very important principles that I will be putting place.
First of all, the protection of single-sex spaces, which is extremely important.
Secondly making sure that transgender adults are free to live their lives as they wish without fear of persecution, whilst maintaining the proper checks and balances in the system.
Finally, which is not a direct issue concerning the Gender Recognition Act, but is relevant, making sure that the under 18s are protected from decisions that they could make, that are irreversible in the future. I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions. Of course some of these policies have been delayed, Chair, by the specific issues around Covid but I can assure you that alongside the Covid work, our officials continue to do those things to make them happen.
Both ministers refer to the protection of single-sex spaces, and Elizabeth Berridge specifically states “concern that predatory men may abuse the gender recognition system”. This misunderstands the way the Gender Recognition Act 2004 and the Equality Act 2010 work, and how psychiatrists understand gender dysphoria. For almost all purposes, we have self-declaration of trans people already.
The International Classification of Diseases provides a definition of gender identity disorders including transsexualism, which is defined as,
A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomic sex, and a wish to have surgery and hormonal treatment to make one’s body as congruent as possible with one’s preferred sex.
The Diagnostic and Statistical Manual of the American Psychiatric Association defines gender dysphoria as follows:
A marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months duration, as manifested by at least two of the following:
1. a marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or, in young adolescents, the anticipated secondary sex characteristics).
2. a strong desire to be rid of one’s primary and/or secondary sex characteristics because of a marked incongruence with one’s experienced/expressed gender (or, in young adolescents, a desire to prevent the development of the anticipated secondary sex characteristics).
3. a strong desire for the primary and/or secondary sex characteristics of the other gender.
4. a strong desire to be of the other gender (or some alternative gender different from one’s assigned gender).
5. a strong desire to be treated as the other gender (or some alternative gender different from one’s assigned gender).
6. a strong conviction that one has the typical feelings and reactions of the other gender (or some alternative gender different from one’s assigned gender).
In both definitions, the patient’s desire or belief is paramount. I am a trans woman because I believe I am. There is no other way of diagnosing: only what the person says and does. We transition, because we cannot avoid it, because we want it more than anything else in the world.
In terms of using single sex spaces, the presence of trans women was tolerated long before either Act. When I saw my psychiatrist in 2001, he gave me a card stating that I was undergoing treatment for transsexualism and it was part of the treatment to dress female and use women’s spaces. I never had to show it to someone. Before I saw the psychiatrist I spent a long time preparing to transition, because I was scared, and felt the need to check out whether I could bear the hostility and discrimination. So I expressed myself female and went out- to the supermarket as well as the gay pub, including women’s loos. People tolerated me. I only wanted to pee. I am not sure what law applied, then.
The law now protects people as soon as we decide to transition. It is in the Equality Act 2010 s 7:
A person has the protected characteristic of gender reassignment if the person 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.
So as soon as a person decides to transition they are protected, and for purposes of changing rooms and toilets we go to those of the gender we are expressing. We self-declare: I am a trans woman, because I say that I am. I should not be discriminated against as a trans woman, whether or not I have a gender recognition certificate. I express myself as a woman, and so should be treated as a woman.
But we can still be excluded from women’s spaces, under the Equality Act 2010 schedule 3 paragraphs 28-30. We can be excluded if it “is a proportionate means of achieving a legitimate aim”.
Elizabeth Berridge echoed concerns about predatory men, but Layla Moran MP answered those concerns comprehensively, in 2018. In a debate she said,
Let us assume that someone wants to go into a women-only space for nefarious purposes. That [gender recognition] would be quite a stupid thing to do because, apart from anything else, if an offence was committed it would show evidence of premeditation, which would increase the person’s sentence. Also, had the certificate been gained for the sole purpose of entering such a space to commit a crime, that would be a separate crime under the Fraud Act 2006. If someone was intent on harming women, that would be one of the stupider ways of doing it.
Gender recognition does not affect any of these matters. Section 9 of the Gender Recognition Act states the person’s gender becomes the acquired gender, as does the sex, but this is “subject to provision made by this Act or any other enactment or any subordinate legislation”. That includes the Equality Act.
Before the Gender Recognition Act, I got a passport saying that my sex was “F”, and a driving licence indicating in the driver number that I am female. The guidance now on passports is here, and on driving licences here. A transgender person only needs a letter from their doctor to change their passport, and a statutory declaration or deed poll changing their name to change their driving licence. We do not need a GRC.
So, why do people get gender recognition certificates? In 2004, a friend got one because it entitled her to claim her state retirement pension early, and at the time it affected whether people would enter a civil partnership or a marriage, but after the Marriage (Same Sex Couples) Act 2013 that no longer applies. I got my gender recognition certificate because it was there. The law could officially declare that I was a woman, so I wanted that. However the current procedure is generally recognised as intrusive and expensive.
Because the junior minister is echoing groundless fears about “predatory men” and the Secretary of State refers to “checks and balances” I fear that my rights to be treated as a woman may be reduced. The law helps mold society’s response to trans people. Discrimination law protects me, and creates a moral injunction to treat me decently. Talk of how my rights may endanger women reduces that. Because of the campaigns against trans women I have suffered personal abuse and threats on line.
I want you to express these matters to the ministers, explaining that their fears are groundless, and ask them to assure me the rights of trans people will not be curtailed. I would like you to express your personal views to me, and answer these questions: would you oppose any diminution of trans rights under law? Would you support reform of gender recognition, to dispense with the requirement of evidence beyond the trans person’s word, formally sworn or affirmed, as Theresa May promised in 2017?
I am particularly concerned about the Secretary of State’s remarks about the treatment of children. She says that she wants to protect under 18s from irreversible decisions. This shows a fundamental misunderstanding of treatment for trans children and young people.
It should not be for the law or the government to interfere in medical decisions for children. These decisions should be made by doctors, parents and the children themselves according to Gillick competence in the best interests of the children. Irreversible decisions are not made by children. The NHS can treat under 18s with puberty blocking hormones, which are reversible. For evidence of this, for example consider the Australian standards of care and treatment guidelines.
Social transition of transgender children, not necessarily involving any hormone treatment, improves their mental health.
Please may I see you about this. During the lockdown, are you holding surgeries by video conference?