Gender Recognition and the Rights of Transgender People

MPs and others knowing little about trans people, but wanting an in depth briefing, might turn to the House of Commons Briefing paper. It gives undue weight to transphobic falsehoods. It follows a previous paper on gender recognition.

It quotes “Fair Play for Women”, a transphobic, trans-excluding and anti-trans campaigning organisation, as saying “ordinary, everyday women. Any woman.” can be attacked as transphobic for “asking questions or voicing concerns”. This is a direct echo of Enoch Powell‘s “decent, ordinary working man”. It then quotes the Westminster Hall debate. At the end, it quotes the Minister:

Domestic abuse services, including refuges, have robust risk assessment procedures and may exclude anyone who might threaten a safe environment for victims and their children, as well as signposting sources of support for those people whose needs they might not be able to meet.

This is clear and obvious. Even if there were no specific rule for excluding trans women, they could exclude anyone dangerous. So why quote David Davies’ fearmongering?

It gives links to articles about the issues. Some attempt to appear balanced, some are for trans rights, but some are ridiculously phobic. After Rachel Bowyer refutes Rosa Freedman, why link to Freedman’s discredited blog post?

Many readers may not get beyond the summary, which says,

Those against self-identification are concerned, for example, about creating a system which might be abused, and about the potentially negative impact for safe single-sex spaces.

That is refuted in the paper itself, but the summary leaves it there.

I don’t have the law memorised, and could not fault the account of it, but was surprised to see a reference to “Genuine occupational requirements” in Equality law. That’s outdated by more than ten years. The word “genuine” is superfluous, and no longer used.

The summary defines gender dysphoria as “a sense of unease”. That minimises our distress, and the relief transition brings.

The results of the Scottish consultation have been published, but they have not even been summarised in the paper. They would show that people who took the time to respond were strongly pro-trans, despite the desperate campaigning of transphobes to get people to answer. Many of the responders were in England.

The summary says trans people object to the requirement for a diagnosis, as being trans is not an illness. However “the removal of the requirement for a medical diagnosis was one option on which views were sought,” rather than a recommendation. The section on the Equality Act clarifies that there is no need for us to undergo a medical process to be protected: that should have been made clear in the summary. We have our rights, and gender recognition will not affect them: it is only a symbolic legal acknowledgment of our value- or something to campaign against or withhold, to show we are despised.

The account of the background starts with useful quotes. “Being trans is not a mental illness. Despite this, and despite the progress that we have made in recent years, trans people continue to face significant barriers to full participation in society,” said the 2018 consultation paper. Exactly.

I learned useful things about hate crime, which is

Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s … transgender identity or perceived transgender identity.

This means a stronger punishment. However hate crime based on race or religion is an aggravated offence: that is the offence, not just the penalty, is greater. And stirring up hatred based on race, religion or sexual orientation is a crime, but not hatred based on gender identity, or some of those “everyday women” might be liable to prosecution.

The paper then covers the background, including Christine Goodwin’s case, and the Joint Committee on Human Rights considering the Gender Recognition Bill in 2003: “They advance the aims of certainty and help to ensure that the Government’s flexible approach to the stage at which an acquired gender should be recognized will not degenerate into giving legal recognition to lifestyle changes.” We know that a change of name and gender expression is a huge change, whether or not you have diagnosis or medical treatment, and deserves gender recognition. The committee was concerned about effects on other people. Our rights come last.

The section headed “Gender Dysphoria” goes into detail on NHS treatment of children and adults, but not diagnostic criteria, which reveal we have self-declaration already.

The section on the Equality Act quotes a legal textbook, saying the guidance on the Act makes it appear too easy to exclude trans women from women’s spaces:

It would be inadequate for a provider of services to assume female victims of sexual assault would necessarily object to a trans-woman attending group counselling sessions. A degree of canvassing of opinion would surely be required… There are very real concerns that such guidance is too categorical and fails to emphasize the lengths an employer … would need to go to in order to demonstrate proportionality as an adequate defence to discrimination.

The chapter on young people says the government did not plan to reduce the age below 18, though as the minister said,

Social transition, such as changing the name you are known by, and the pronouns you use, can be done by anyone at any age, and is often subject to a discussion between a child and their parents if it happens before age 18.

Legal gender recognition is the icing on the cake, with only symbolic significance. My bank card establishes I am female, and I have only shown my GRC to friends. I am glad I have it, but I don’t use it.

Chapter 6 at last addresses gender recognition reform. The criticisms of the current regime are listed: it is medicalised, intrusive, burdensome and expensive. There is the spousal veto: there are things I had not considered, such as “Spousal consent may not be possible, for example if the spouse cannot be contacted or lacks mental capacity”.

In Scotland, a married person applies to the Sheriff Court for gender recognition, and gets a GRC, but the court informs the spouse, and “That gives the spouse the grounds, at any time in the future, to seek a divorce.” Though, no-fault divorce will start in England in Autumn 2021. In Scotland, parties have to be separated for two years before one can get a divorce without the other’s consent.

Most people who take an interest in gender recognition reform will pick up things they did not know from this briefing paper. It has a dry style, and attempts to appear dispassionate. However it gives far too much weight and prominence to the anti-trans campaigners, and is not appropriate to inform anyone who does not know about the issues.

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