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.

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.

Living as a woman

To get gender recognition, you must swear that you intend to live in the acquired gender until death. How? The range of tolerated gender expression for cis women is wide. If I never wear makeup or skirts, is it enough? There are cis women who don’t. I am thinking about what I say rather than how I present, and my voice pitch drops- do I have always to mind my voice? Or if I always wear skirts, high heels and make-up I may be called “a ridiculous caricature of a woman”- “No-one is as feminine as that”. What a performance gender is, writes a cross-dresser in The Guardian, with pictures from the 1880s to the 1980s.

Do I have to wear my wig all the time? A friend wore one, even in bed, as she could not bear to look at herself in the mirror in the morning with her bald head. Either you lie very still while asleep, or that quickly ruins a wig.

I live as a woman. My clothes are from women’s clothes shops, I pay some attention to my voice, I use a woman’s name. And, I cycle in a helmet but no wig, and go into the small shop in Marsby in that helmet. It’s pink, with a floral pattern.

I never try to pass as a man, though I am seen as one. That must be part of it- I am in good faith. Certainly at the time I affirmed the statutory declaration I had that intention. Fair minded people who imagined the phrase was not impossibly constraining would probably give me a pass mark. That is, anyone might deny it if they wished.

Yet I use a woman’s name, a female gender-marker- the title “Miss”. I use women’s spaces. Requiring anything further means specifying what clothes, or even perhaps jobs, are sufficiently feminine, so the law cannot do it. However, to maintain sufficient public acceptance, I must appear sufficiently feminine in the eyes of enough beholders.

“A man,” she said. “A middle-aged man“. “A married man“. “He“. She looked at me for a reaction, but I am not going to object. I sold the pass the first time I tolerated this, I knew it was not a mistake then. And I sympathise with her, I feel she has been wronged by this trans woman. We are women because we are accepted as women, and we are never accepted as women by everyone. I can’t force anyone to use particular pronouns, and the best I can do is to not overreact or get too upset about it. It is not news to me that I am seen as a man.

Withdrawing acceptance because someone has done something you object to is an easy trick. Calling her a “man” is a way of showing contempt, but also a way of controlling us: good trans will be tolerated, bad trans, who do anything someone objects to, will not. Then almost everything I do can be unacceptable, calling down the threat of rejection implicit in “he”.

And tolerating me in women’s toilets because I have had the operation- that gives people the incentive to have the operation, hoping to be tolerated; yet arguing that trans is wrong because it involves mutilation and lifelong dependence on synthetic hormones-

together, those leave no space for us. You are a Man. A man. He. I am not going to let it get to me, I insist, but it is wearing.

What do you think it means, to “live as a woman”?

Self ID

Who should have their gender recognised? The Scottish government proposes,

3.31. A requirement to submit a statutory declaration would demonstrate that applicants intend to permanently live in their acquired gender. Therefore, the Scottish Government considers that applicants under the proposed system of legal gender recognition should have to provide a statutory declaration stating that they:

  • are applying of their own free will;
  • understand the consequences of obtaining legal gender recognition; and
  • intend to live in their acquired gender until death.

3.32. The Scottish Government’s research into countries using self-declaration systems of legal gender recognition has not identified evidence of false or frivolous statements being made by applicants. However, under the proposed self-declaration system for legal gender recognition, if an applicant were to make a statement in a statutory declaration that is false in a material particular, this would be an offence.

Now, you can change your passport without a gender recognition certificate, if you provide a letter from your doctor or medical consultant confirming that your change of gender is likely to be permanent, and evidence of your change of name such as a deed poll. You need a similar letter to change the gender marker on your driving licence, which is encoded in the driver number.

I changed my bank account fairly easily, after showing my change of name document, but could not find how to do this with my bank on line even now. Googling produced a report of the bank apologising when staff demanded a GRC. Ignorant prejudice, and an unwillingness to research sometimes liberal policies, makes our lives difficult.

It is a big thing for a man to declare they are a woman. It was intensely important for me. I could not move on with my life without doing it. It was what I wanted more than anything else in the world. I do not do it frivolously. I might be able to pass as a normal man, except that I would find the attempt too distressing. We change our presentation, and make ourselves vulnerable to transphobic violence from strangers, casual prejudice on the street, and discrimination in work and all aspects of life. We do not do this flippantly. We do not do it to get access to women’s loos.

So there are sufficient safeguards in the Scottish proposal. You promise to live in your acquired gender. When I transitioned, I thought I might revert, either because I decided transition had been wrong or because I found it too difficult, but I had to try. I express myself female, and while there might be questions about someone expressing androgynously it is a question like, how many hairs make a beard. You can’t produce a number which is a beard, but one less is not a beard; but you can make a decision fairly easily in most cases that someone is presenting in the acquired gender, and take a bit more care on more difficult cases.

Perhaps someone will do this frivolously, but I hope they will be frightened off. A JP swearing a stat dec could reasonably object if they did not think a person was presenting in the allegedly acquired gender. There are taboos against cross-dressing in public, and someone who is not trans will not like to do it. In 2016/17, 318 GRCs were granted in Britain. Fifteen were refused, and two applications were withdrawn. 4506 were issued to March 2017, and a further 206 in April to September.

The change to be made is that we will not need a specialist psychiatrist’s diagnosis. Having put myself at risk in this way, I want to be able to say I am Clare without the need for a psychiatrist backing me up. In any event, a psychiatrist using DSM V would diagnose me with Gender Dysphoria if I exhibited “a strong desire to be of the other gender” and “a strong desire to be treated as the other gender”. I show that by transitioning.

Changing gender

Who would want a gender recognition certificate, anyway?

I did. I was more or less OK with the law calling me a “man”. I had a passport and driving licence which indicated I am a woman. I was not thinking of marriage or civil partnership. But when the law offered the chance to be declared a “woman”, I wanted it. I can’t think of any way it affects my legal rights. It makes me almost certain to go to a women’s prison if imprisoned, but I have not committed that sort of offence.

Should someone with a penis be sent to a women’s prison? It is a grey area. Whichever prison we go to, we are going to have a tough time. In the cause of protecting themselves against us, people are violent towards us. If a trans woman has committed a violent crime, she is capable of violence; and if she has transitioned before she was charged, and wants to go there, I would send her to a women’s prison. If she were violent or threatening there, I would subject her to prison discipline- though that requires a sufficient number of prison officers.

Now, under the gender recognition act, I needed to show I had lived as a woman for two years, which I proved with wage slips, and I needed to show I was likely to live as a woman for the rest of my life. The evidence required for that was letters from two doctors, one on an approved list of specialists. I am not faking this, or trying to prove a point. I am sincere. This is my life.

Under the consultation, which has not yet opened, Proposals to streamline and de-medicalise the process for changing gender will be part of a broad consultation of the legal system that underpins gender transition.

Why should I need a doctor’s diagnosis? Why should I need any written evidence beyond my bare assertion that I am a trans woman, and I intend to live as a woman for the rest of my life? To stop anyone getting a GRC insincerely, and to protect others from us, if we might harm them. Provisions on evidence and length of time have to be justified, but can be if a good case can be made that people would be harmed.

There might be policy on trans women in women’s prisons. Any restriction is subject to Human Rights challenges. I tend to feel we should be placed in women’s prisons and the system should work to prevent violence, by us or against us. That depends on having sufficient prison officers. Perhaps there could be restrictions on getting a GRC, for people who had been in prison or charged with an imprisonable offence. Prisoners seeking gender transition have psychological assessment, and also have hormones. Taking hormones would deter most men.

I feel most men would not like to sign a form saying that they are women. I doubt anyone has had a second GRC for a reversion. I would have heard of it. It would have been reported. Google would find it. People do not transition lightly.

Another suggestion was that men go to great lengths to get into women’s refuges. Well, former partners whom women have fled often try hard to track them down, and sometimes the refuge’s security fails; but I don’t see how a GRC, and the attempt to prove he needs domestic violence services, would help a man find his former partner.

So there are a lot of scare tactics about theoretically possible, highly unlikely scenarios where a determined man might lie to get a GRC then use it to attack women. There are so many other ways men can attack women, without all that effort, why bother? The advantage we gain is that we would no longer have a long drawn out, expensive, intrusive and humiliating procedure in order to get a GRC. There is no real cost to anyone in granting self-certification. None.

On the sick

Imagine a person who at their work station has a completely free choice to stand, sit or alternate between the two. When standing, they are free to move around. Yet they cannot remain at that work station for more than an hour without having to move away from it, to avoid significant discomfort or exhaustion. Imagine also that that person is both deaf and blind, so that they have difficulty understanding a simple message from a stranger, though that stranger tries to convey it by showing the person 16 point print, or a message typed in braille, or by using verbal means such as hearing or lip-reading. It is hard to imagine what job that person could do. Yet if that person did not score any other points on the “limited capacity for work” assessment, they would be refused ESA, which is allegedly the benefit for people unfit for work. Instead, they would have to sign on every two weeks, look for work, and receive a much lower rate of benefit.

Even if they are also at risk of voiding of the bladder or extensive evacuation of the bowel such as to require cleaning and a change in clothing if not able to reach a toilet quickly, they would have to participate in “work-related activity” in order to get benefit.

So when the Government estimates that the number of people on ESA fell by 20,000 between March and August, and by 67,000 since August 2011, this is not because of any improvement in condition, but the application of a test unrelated to capacity for work, designed to pay the benefit only to a very few.

The test is administered in an incompetent and draconian manner.

2,380 people died within 14 days of being found “fit for work” and not entitled to ESA, between December 2011 and February 2014. See this pdf. Found in The Guardian.

I am fascinated to see that the Ministry of Justice publishes Gender Recognition Certificate statistics with its benefits tribunal stats, in this pdf. 93 GRCs were granted in the second quarter of 2015 (73% were M-F). There were 13,502 appeals of ESA decisions in April to June 2015, and 58% of those appeals going to a hearing were granted. The mean time for these appeals to take, not including “Mandatory Reconsideration”, the internal DWP process an appellant must go through before appealing, was 19 weeks.

While appealing, a claimant must claim JSA, which involves signing on every two weeks and actively seeking work, after the ESA (Repeat Assessment and Pending Appeal Awards)(Amendment) Regulations 2015. These also abolish the rule that the DWP will accept a sick note from a GP six months after a finding that the claimant was not entitled to ESA. Now, after a finding of non-entitlement, a claimant must prove they have a significant worsening or a new medical condition making them unfit, however long after the finding the new claim is made.

Meanwhile, GPs are less likely to issue sick notes, believing that the routine involved in working is good for the mental health of their patients. It would be, if suitable work were available. Going through the claims and appeals process is very bad for mental health.

I am half sick of shadows, said the Lady of Shalott.

Waterhouse, Shalott