Unbecoming

The UK government is working to reduce or remove protection for human rights. Ministers claimed their Bill of Rights Bill would allow UK courts to ignore European Court of Human Rights precedents, though it may have been withdrawn, yet again. Victor Borloz, the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, visited the UK from 24 April to 5 May, and has given a damning preliminary statement (pdf), before a comprehensive report due before Summer 2024.

UN treaties mandate trans self-declaration

The UN says trans people should self-determine our gender. If we cannot, we cannot exercise our human rights, and this is sex discrimination against women. So Victor Madrigal-Borloz, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, wrote to the British government supporting the Gender Recognition Reform (Scotland) Bill.

Efforts to delay or dilute the Bill use falsehoods based on stigma and prejudice, he says. Passing the Bill is the government’s obligation under international human rights law. Preventing violence against women requires protection of trans people.

In 2021, the expert made a year-long inquiry into gender frameworks, considering hundreds of academic papers, 42 submissions from member states, and dozens of expert consultations. He concluded:

International human rights law says gender identity must be protected from discrimination and violence. Legal recognition of gender identity by self-determination is necessary to deconstruct institutional and social causes of discrimination and violence. But anti-trans campaigners use stigma and prejudice to artificially create moral panic and perpetuate violence.

In 2018, he considered international human rights law to dismantle systems of pathologisation, stigma and prejudice against trans people. He concluded self-determined gender is a cornerstone of a person’s identity, so protected by the human right to recognition before the law.

The UN Committee on the Elimination of Discrimination against Women said States should eliminate intersectional discrimination, including on the basis of gender identity. It said the Convention on the Elimination of Discrimination against Women applies to gender discrimination as well as sex discrimination. UNESCO says discrimination based on gender identity is unlawful. So do the UN Human Rights Committee, the UN Committee on the Rights of the Child, and other bodies. Self-determination is necessary for our mental and physical health.

The UN understands gender to include real or perceived sexual orientation, gender identity and gender expression. Gender-based analysis transcends the sex binary. UNESCO says sex discrimination covers not only physiology but also the social construction of gender stereotypes. So a State should allow citizens to change their gender markers on official documents.

The UN Working Group on Discrimination against Women and Girls says that not conforming to gender stereotypes makes people, especially trans women, vulnerable to violence and discrimination. The idea that people can be sorted at birth into either male or female “unduly restricts freedom”.

The European Court of Human Rights recognises a right to self-determination of gender as “one of the most intimate aspects of a person’s private life”.

The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence defines gender as “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.” It prohibits gender identity discrimination. Here, protection for trans is inextricably linked to protection for everyone who ever had a desire outside their assigned at birth stereotype. Because that is how it is in real life: if authoritarians want to control people by enforcing gender stereotypes, they first must drive the trans people into hiding. Where there are trans people unafraid to be ourselves, gender stereotypes are subverted.

An EU directive, 2006/54/EC, says the principle of equal treatment of men and women does not just apply to sex discrimination, but also gender reassignment discrimination.

The Organisation of American States has 35 members including the US. Its convention on eradication of violence against women 1994 initiated its approach to gender-based violence. Since 2008 its General Assembly resolutions have condemned violence and discrimination based on gender identity, and the core state obligation of non-discrimination covers gender identity.

The African Commission on Human and People’s Rights 2014 Resolution on protection against violence on the basis of sexual orientation or gender identity (SOGI) says gender identity discrimination is forbidden under the African Charter.

He quotes the Yogyakarta Principles on legal recognition of gender identity, which were not a claim of right but a recognition of rights in human rights treaties. States have an obligation to provide a simple system for gender recognition based on self-identification. It should not require abusive requirements, such as a medical report, surgery, sterilisation or divorce. It should acknowledge nonbinary identities, and include children under the Convention on the Rights of the Child.

Countries including Argentina, Belgium, Brazil, Colombia, Denmark, Iceland, Ireland, Malta, New Zealand, Norway, Portugal, Switzerland, and Uruguay have abolished the need for a medical report. For people under 18, where their parents or guardians will not consent the court can. In Norway the lower age limit is six, with parental consent.

Anti-trans campaigners say that restriction on trans people is necessary to protect cis people. But the Expert states obstacles to legal gender recognition do not protect women. We should be judged as individuals, not as a group. Any restriction on an individual trans person must not be based on stigma or prejudice, but on evidence that it is the only way to achieve reasonable aims.

The Expert states there is no evidence that current restrictions on gender recognition in Scotland, which are the same as those which will be in England indefinitely, are remotely connected to protection from sexual violence. Trans women are not “predatory males”.

The expert says “gender critical” ideology mimics patriarchal reduction of women to reproductive functions, and ignores feminist scholarship. A fraudulent or predatory person might pretend to be part of any minority in order to find victims, and that should not restrict the rights of any minority.

250m people live in countries which have self-declaration of trans people. 100m more live in regions within countries which have self-id by regional law, including Kansas, Nevada, Quebec, Baja California, Catalonia, and Tasmania. Nepal and Pakistan allow official self-id as nonbinary. The expert has no information that predatory men have used the self-id process for the purpose of perpetrating sexual violence. Where trans women are criminals, they have sought gender recognition because they are trans, not to enter segregated spaces.

So he calls on Scotland to enact the Bill. The implication is that England and Wales should do the same.

Sex, gender recognition, and the Equality Act

Could my sex be “that of a woman” without me being a woman? Could I be a woman, but not a woman according to the definition of “woman” in the Equality Act? Or does the Scottish Public Boards legislation only affect Scottish Public Boards (SPB)? The Outer House of the Court of Session considered that legislation again. The case may be appealed to the Inner House, which previously decided that the definition of “woman” did not include a trans woman without a Gender Recognition Certificate (GRC), for the purposes of the Scottish Parliament’s devolved powers to enact legislation on SPBs. But I have a GRC.

s9 of the Gender Recognition Act (GRA) says my “sex [became] that of a woman” when I got my GRC, and that my acquired gender for all purposes is female. Note “female” not “feminine”- sex and gender are conflated. The Scottish gender recognition Bill leaves this section unchanged.

But s212 of the Equality Act says “’woman’ means a female of any age”. The purpose of s212 was to protect girls: your parents can make a claim under the Equality Act for you before you become adult.

The petitioners in the case, FWS, claim to campaign for women’s rights and children’s rights. However they only campaign against trans rights. This time, they couched it as a loss of rights: a trans man with a GRC would no longer be preferred for appointment to an SPB. They demanded a “rigid biological definition of sex” so that a GRC would change nothing.

To enact the SPB legislation, the Scottish government had obtained specific devolved powers from Westminster. The Scottish government argued that the first FWS case only concerned the extent of those powers, and decided they did not include the right to prefer trans women without a GRC for appointment to SPBs. So the case did not affect any other matter defining “woman”, “man”, “gender” or “sex”. FWS had won almost nothing. My GRC says I am female, so I am female according to the SPB legislation. This does not affect the operation of the Equality Act, which is yet to be decided.

The EHRC intervened, as the public body which supports Equality law. It confirmed the value of a GRC- the GRA shows there is no irreconcilable difference between gender and sex. It is not possible to have an acquired gender without an acquired sex. It agreed with counsel for the Scottish government.

The LGB Alliance intervened to say that trans rights are opposed to gay and lesbian rights. The Equality Network, a real LGB rights campaign group, said the opposite.

The judge looked at the first SPB case, and concluded (para 44) that its basis is that “sex” and “gender reassignment” are separate protected characteristics, not that “sex” in the Equality Act always and only means “biological” sex. The case is authority only on SPBs, not wider discrimination law or the interpretation of the Equality Act.

Then the judge considered whether a trans woman with a GRC recognising her gender as female is a “woman” as defined by the Equality Act. She considered the meaning of the GRA. It says my sex is female. A trans man with a GRC, his sex is male, “for all purposes”. The language is plain.

She then considered the Equality Act. She decided it did not define “woman” as “biological woman”. The word “biological” does not appear in the Act. It did not amend s9 of the GRA which says my sex is female. So, my sex is female. So, para 53, “sex” in the Equality Act includes someone whose sex is recognised by a GRC.

The petition was dismissed.

This may affect the vote later this month on the Scottish gender recognition Bill. A GRC is shown to be important. But I would argue that trans women can still be excluded from women’s services if it is “a proportionate means of achieving a legitimate aim”, because of the Equality Act sch 3 para 28. So the Bill does not, as the fearmongers would have you believe, let men in women’s toilets. It lets women in women’s toilets.

And, once again, the Scottish Public Boards legislation affects the jobs on Scottish Public Boards. A few hundred jobs at most. If there are more men on a board than women, and recruiting a new member a man and woman applicant are equally qualified, the woman should be preferred. The Scottish government wanted that to include all trans women, but the first FWS case decided it did not. Then they wrote guidance saying it included trans women with a GRC, and the second FWS case decided that, yes, it does. But there may never be a Scottish Public Board where a trans woman, with or without a GRC, applies for membership, a man applies at the same time, and they are equally qualified. All that litigation, over years, and it may not affect a single person. The hate campaigners seem to have a bottomless fountain of money for pointless court actions.

Abolishing sex

What would happen if the law no longer certified whether a person was male or female? Now, birth certificates and GRCs say what our sex is, and everyone has one or the other, even nonbinary people, or people with variations of sex characteristics. There are rules on changing classification. What if that was ended? Would it help create a world where children were not socialised into gender, and people could live without gender-based expectations or constraints? The Future of Legal Gender project has published its final report, together with several articles, to answer these questions.

They refer to reform as decertification. It is a proposal made to see what it might mean, rather than to solve a specific problem. They interviewed experts, campaigners and ordinary people. Possible benefits include subverting the basis of discrimination, supporting self-expression, and removing the legal burden of gender change. They asked about possible problems, and clearly anti-trans campaigners have been at them, saying sex-specific services, data gathering, and positive action against discrimination could all have difficulties.

Possibly, law could decertify sex as part of a neoliberal project to stop law and government tackling social inequality. The project wants decertification to be part of a social justice movement to support diverse ways of flourishing. It would need to involve greater public provision, not continuing austerity.

Law could still prevent sex discrimination as it does race discrimination. Most people would object to having a race legally assigned to them. Many service providers recognise nonbinary people, and law is increasingly gender neutral.

People consulted spoke of the need to dismantle male domination, violence, and gender based roles and stereotypes. Trans people could back these goals and still advance their aim for recognition of diversity. The Project says gender is institutionalised, rather than being an identity. It is a set of institutional processes rather than personal qualities. It affects people’s values, patterns of wealth and power, and ways of interacting. They say understanding of sex is interpreted through a gendered environment. I say sex as in reproduction only matters if you want to reproduce, or have a physical health condition. Everything else is cultural. Most people agreed our lives should not be defined by the bodies we are born with.

A leisure centre manager said it was important not to assume someone’s gender. When asked where the changing rooms were, they would say the men’s is there, the women’s is there, and the accessible room is there, and leave it to the customer to make the choice. However, when at the cinema I asked where the loos were, I was sent to the men’s.

Sex inequality in the 19th century involved voting, property ownership, inheritance and employment. These legal inequalities have lessened. We need sociology to recognise and research inequality that remains, relating to poverty, work, violence, exclusion and social stereotyping.

Gender is a complex social phenomenon that produces the categories of women and men to shape people’s lives. Decertification might make that shaping less rigid. It would undermine the assumption that gender divisions in roles or behaviour are natural, lawful or desirable, and support diversity. It might counter early gender socialisation of children.

Would it prevent “single sex” spaces? Many women’s organisations rely on self-identification, not asking for legal documents or assuming that a person’s sex or gender could be known from their appearance. They use risk assessments to manage potential problems, rather than expecting biological status as female to safeguard users. Single sex spaces can imply that the risk to women is from strangers, but most violence has perpetrators the victim knows.

They suggest that sports could be classified as in the Paralympics, which assesses functional capacity. What of positive discrimination, such as all-women shortlists to select political candidates? Applicants could be asked to explain why they fit.

We need data to show the inequalities and needs of different groups of people. People’s experiences differ by social class, disability, beliefs and race as well as gender. Why is the data needed? More precise questions, such as “do you menstruate?” could produce more useful data. Any data collection is intrusive for people- the intrusion is justified if the data is used for their benefit.

Trans people can use a GRC to assert our gender, and that protection would be lost. However, I do not want to provide documentary evidence: I want my word to be accepted. I am a woman.

The project says legal reform can be part of a wider programme of change, one policy tool. It is a creative way of thinking big. The aims would be to end legally registered sex or gender, to help dismantle gender hierarchies, to support people whose gender leads us to be excluded or disadvantages, and to undo broader social injustice and inequality. For discrimination and the public sector equality duty there would be a new ground of gender. Employers and service providers could not impose gender stereotypes. Services could still exclude people based on sex or gender if this was done to address unfairness or safety.

The Telegraph report was merely mocking. “The census could ask ‘do you menstruate?’ instead of ‘are you female?’ to be inclusive of transgender people, a taxpayer funded study has suggested.” Including trans people is not the only reason for the project’s proposals, but they wanted to wind up anti-trans campaigners to hate the study as well as their usual anti-woke, anti-tax readers. A trans woman shared the Telegraph’s hate screed on facebook, so I learned about the report. I am so glad I did.

Reform is unlikely to happen soon, but I am glad people are thinking about the possibility.

Sex, gender, and the EHRC

Has the Equality and Human Rights Commission kept its promise to tell businesses they can exclude trans women from women’s services? It’s doing its best.

The Core Guidance for businesses is not yet changed, and the Statutory code of practice still applies, but the note on Gyms, health clubs, and changing rooms claims a difference between Sex and Gender, and could affect us in changing rooms. It was last changed on 13 July 2020, and was still visible- see web archive- on 6 April 2022, after the new, trans-exclusionary, guidance came out.

For anti-trans campaigners, trans women change gender, but not sex. Sex-based rights are for cis women. Therefore No Transwomen in Women’s Spaces! It’s a simple syllogism. But that’s not the difference between sex and gender.

Sex is physical and gender is cultural. If you want to reproduce without medical help, you need a couple with a functioning womb and functioning testicles. If any trans person has a genital operation, or takes hormones, that’s a matter of sex- their fertility is affected. But whether people wear high heels, skirts or makeup is cultural.

If a trans man needs a cervical smear test, that’s sex, and if he has bristles on his chin that’s sex too. But his choice to shave them is a matter of culture- gender, not sex. And who are the victims of violence, and whose violence is condoned, is cultural. Who needs, and who deserves protection from violence, and whose protection matters less? Culture decides.

The Equality Act says we have the protected characteristic of “gender reassignment” once we decide to transition, and calls us “transsexual persons”. It makes no distinction between sex and gender.

So, what about changing rooms? Last year, the EHRC was confused about the difference between sex and gender, and this year they are confused in a different way. Before, they wrote we should be treated as belonging “to the sex in which the transsexual person presents”. But I “present” or express my sex with my feminine hairstyle, clothes, and perhaps makeup. That’s culture. I don’t have to prove my fertility or infertility.

Now they say we should be treated as belonging to “the gender they identify with”. But, I’m wearing high heels, a skirt, and makeup. If gender is cultural rather than physical, that’s my gender. It’s not a matter of “identifying with”, it’s just who I am. Or, I’m in jeans and a T-shirt, but my breasts (sex) change my visible shape, and I use the name Clare. My sex is ambiguous, if you really want to do a chromosome test, but my gender is female.

There’s another change, and it relates to those “visually indistinguishable” trans women which we should all, apparently, aspire to be. Do you pass, girls? No? Work harder!! Deportment and voice are so important, and if your frame is too masculine you should probably not transition at all.

(Irony alert)

Possibly none of us are visually indistinguishable. Justice Ormrod thought April Ashley looked like a “female impersonator”. Before, the EHRC wrote about these paragons’ “preferred gender” and “acquired gender”. Gender, cultural, even though having breasts- physical, a matter of secondary sexual characteristics- is part of passing.

Now, the EHRC refers to “the gender they identify with” and their “gender identity”. Are you “visually and for all practical purposes indistinguishable from someone of the gender [you] identify with”? That makes no sense. I and a cis woman are both glammed up, make-up, evening gown with a slit up to here, “fuck me” shoes, very different from the second wave feminist in her DMs and crew cut.

If gender is cultural, the feminine woman and the second wave feminist exhibit different gender. And allowing trans people to go out into the world and thrive shows that we can express our true gender, so increases freedom for that second wave feminist, and everyone else.

Claiming gender is cultural does not help the trans-excluders make sense.

I am worried about the EHRC. It has been captured by Tory appointees, several of whom are trans excluders: Akua Reindorf, Lady Falkner. But this page, last updated 22 December 2021, is unobjectionable- it says trans women should use women’s services except “in very restricted circumstances”. The EHRC still has a lot of employees supporting trans rights, despite their board.

A Complaint to the Equality and Human Rights Commission

Will trans women be excluded from women’s toilets in Britain?

Kishwer Falkner, Chair of the EHRC, has announced that they will issue new guidance claiming that businesses and organisations can exclude trans women from services including toilets and changing rooms. Before such guidance is issued, it is worthwhile complaining to them about Falkner’s comments, referring to the Code of Practice and existing Guidance.

The Equality Act code of practice

Trans women are entitled to enter women’s services by self-identification. Under the Equality Act s7, we are treated as trans women- “transsexual persons”- from the moment we decide to transition, and entitled to use services according to the gender we present. That decision is before we see psychiatrists- years before, with the current waiting lists. So we self-identify. We have been entitled to do this since regulations in 2008. Self-ID is no new threat, but the ordinary law.

The EHRC introduced guidance in April 2022 contradicting the Code, but the Code still takes precedence. The code of practice on Services, public functions and associations reads as from a different time. It says, “The Equality Act 2010 sets a new expectation that public services must treat everyone with dignity and respect.”

EHRC guidance on trans exclusion in 2021

Getting Equality enacted was not an end in itself. What matters is that businesses and public services should act and plan more thoughtfully and responsibly, that people will be treated fairly as they go about their everyday lives. The EHRC would advise and model this fairness, and enforce the law where necessary.

The EHRC excluding trans women from women’s services

The Equality and Human Rights Commission has the power to make trans women’s lives unbearable by permitting women’s services to exclude us. Kishwer Falkner, chair of the EHRC, has indicated they will do this in January.

Excluding trans women without mentioning us

“We want to expel every last trans woman from every single women’s service, and guarantee that none will ever enter again. We want to control language, so that no-one can acknowledge that trans men are men, so oppose any and all language that refers to trans male obstetrics or reproductive health.”

If only the “gender-critical feminists” would say what they wanted clearly, there could be a debate. We could ask, who would this change in the law harm, and would it benefit anyone? Can we balance different people’s needs? Are there conflicting rights? Unfortunately, expressing their desires so clearly would show how paltry they are, how little conceivable benefit they would produce, what harm they would do.

So they often couch their demands for exclusion in terms of “belief”. No-one is sacked for “believing sex is real”. They are, rarely, sacked for demanding trans exclusion or being rude to trans people, but more often the trans employee or customer will be driven away. I don’t care about their beliefs, I care about their oppressive actions. Unfortunately they seem to have persuaded themselves that “trans woman” is a meaningless term, not distinguishing us from men. So they talk of mixed sex and single sex spaces, and women losing rights or access, as if women’s loos were full of men.

On Woman’s Hour, Emma Barnett interviewed Kishwer Falkner, the chair of the Equality and Human Rights Commission. The website said they would consider equal pay, a feminist issue, but the whole six minute interview covered “guidance for preserving single-sex spaces”. They did not mention trans women at all. Barnett, interviewing, was concerned that businesses would not be clear when they could discriminate against us, and so discriminate less than they might. Falkner hopes to report in January. It’s clearly about trans women, to a trans woman, simply because it paints a picture of no women’s loos being available in theatres, and businesses with customer toilets not knowing there can be “separate sex-based areas”.

The problem in businesses is that the women’s toilets often have the same floor area as men’s, so that women queue while men’s cubicles go unused, but they do not mention that. Of course there are women’s loos in business premises, it’s just that they accommodate trans women too.

Explaining this to someone who really does not see it is about trans exclusion, or is disingenuously denying that, is difficult. You have to translate. Falkner says the EHRC gets complaints from “experts in the field”- trans excluders- that “organisations’ websites”- Stonewall- misinterpret the exception.

It is a non-issue for most cis people. Trans women use women’s loos. So what. But they paint it as “relating to listeners’ lives”. It is true that there are fewer public toilets, but that is because of Tory public spending cuts, not because of trans issues. There is tugging on heart strings. Falkner says in one theatre “there was no single-sex space for women but for one toilet right in the rafters”. Theatres have bars, so they need toilets. Falkner craves sympathy for “an elderly woman climbing long flights of steps”. What if I were in the Gods, queued for the loo, then found it had a sign on the door saying it was a “single-sex toilet”. But no, this imagined elderly woman climbed from the stalls because the stalls loos admit trans women.

They want to exclude us from toilets. They want to upend our lives. They want not to mention us- we should be excluded, like any other “man”. Falkner says far more businesses could exclude trans women from women’s services than do, now- except she doesn’t, she says they could “use the exemptions that exist,” an abstract phrase in an attempt to sound dispassionate. She won’t anticipate the guidance, because that could cause legal problems, but she mentions the NHS, so we could be put on men’s wards, and retail, so we could be not allowed to try clothes on before buying. All without mentioning trans women once.

“All we need to do is point out what the law says,” says Falkner, and businesses will exclude trans women. I dread the guidance.

Framing it as a “women’s rights issue” and not mentioning trans women makes them terribly self-righteous. The Guardian had an article headed “My hope for a more open discussion of women’s and trans rights is fading”. Tell me about it, I thought. But again the complaint was about the powerful trans lobby oppressing women. Kathleen Stock! The writer complained of Stonewall, Edinburgh Rape Crisis, Keir Starmer, and Carla Denyer supporting trans rights, but did not ask herself “Are we the baddies?” Her views are being silenced, she complains.

She had hoped for a “more open discussion” because of Forstater’s Employment Appeal Tribunal case. All the EAT said was that Forstater’s beliefs were not as bad as fascism, so she should not be sacked merely for holding them. She is delighted that the UK Sports Council tells sporting bodies to exclude trans women. In an article which calls for balance and an end to polarisation, she claims that “the fear of male abusers who could take advantage of self-ID rules is rooted in fact”. Her idea of a “balanced discussion” differs from mine.

“Human bodies have limits,” she says. No trans surgery! Children are under threat! And then, “My own understanding is neither fixed or complete”. She claims an open mind, though her belief in her own righteousness is unassailable. And because she is merely “asserting her beliefs”, she does not notice the people she would hurt.

She does not feel her beliefs are recognised as valid, but that is the wrong question. Should trans women be expelled from our women’s spaces? What good, or harm, would that do? Meanwhile, if anyone advertises a “single sex space” I will take refuge in the Gender Recognition Act s9, which says that as I have a gender recognition certificate my sex is female. If they mean, “No Trans Women Allowed!!” they will have to say that.

Before Falkner, we had an Equality and Human Rights Commission. It was concerned for the rights of those who suffer unjust discrimination, and those whose human rights are breached, and worked to improve their rights. Now, Falkner says her organisation is for everyone in the country. So, she will tell businesses when they might be entitled to discriminate against trans women, and exclude us, because her organisation is for their benefit as well as for the trans women’s. It will not stop there. On the same principle, she would advise those who do not pay women equally how they can challenge the evidence of that.