The Scottish government has published the results of their consultation on gender recognition, which is full of good sense about how making the process easier will improve trans people’s lives. Continue reading
Millions of pounds are being raised and spent, attacking trans rights, and public bodies that have a reasonable view of trans rights, in the courts, forcing those public bodies to defend themselves. The aim is to make defending trans rights prohibitive, and to change the language, so that the word “woman” does not include trans women.
Arcane law having almost no effect on trans people in public life is attacked. That was the case in “For Women Scotland Limited” v Lord Advocate. The anti-trans hate group, with its disingenuous name, failed in its attempt to embarrass the Scottish government over the Gender Representation on Public Boards (Scotland) Act 2018. The judge, Lady Wise, in the Outer House of the Court of Session, said “This case does not form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute”. The only legal challenge concerned the powers of the Scottish Parliament, and the interpretation of the power to make that Act itself.
Nor would the case, if it had been successful, have been likely to affect the life of a single trans woman. The 2018 Act provides that where a public board in Scotland has more men than women, is recruiting new members, and interviews candidates for membership who are otherwise equally qualified, a woman candidate should be preferred to a man candidate. For the purposes of that Act, “woman” includes a trans woman who is “living as a woman” and seeks to “become female”.
I don’t know how many positions on public boards there are, or how often candidates are equally qualified. Where candidates are equally qualified, interviewers can generally justify their choice by some reason to prefer one or the other, so perhaps the Act has never resulted in a choice of candidate being altered. Nevertheless, the hate group still wanted to challenge the rule, so that trans men would be treated as women under the Act, and trans women treated as men.
The Scottish Government negotiated an extension to its powers, and specifically requested power to make this Act. The Westminster Parliament duly amended the Scotland Act 1998 to give this specific power. Power to make law on “Equal Opportunities” and discrimination is reserved to Westminster, but there is now a specific exception in Schedule 5 of the Scotland Act to permit this specific Act.
The question before the court was then what was the interpretation of the Scotland Act, which refers to “the inclusion of persons with protected characteristics” on boards. Trans people have a “protected characteristic”.
If interview panels might rarely choose a woman over a man because they found them equally qualified, how much more rare would it be for them to find a trans person equally qualified with a cis person? Trans women “living as a woman” are about 0.1% of the female population.
The Equality Network intervened for trans rights, supporting the Scottish government and trans women. The judge found their submissions “detailed and helpful”. They argued that the concepts of “sex” and “gender” and the instances of discrimination relating to them were so interrelated that they could not be kept entirely separate. Many claims for cis women focus on socially constructed gender roles, such as responsibility for childcare. The Scottish Trans Alliance, a project within the Network, did the work. Here is their press release. They were supported by the Scottish Just Law Centre.
The Equality Network is a major campaign group for LGBT rights in Scotland. It won two “Campaign of the Year” awards for its campaign for equal marriage, the first in the UK. I take heart from the support of lesbian and gay allies against the bitter, but well-funded, hate groups.
The advocate for the Scottish Government stated that government policy was that transgender women are to be treated as non-transgender women unless to do so would be prohibited by law. She said that that reflected the recommendations of the UN Convention on the Elimination of All Forms of Discrimination against Women. “Trans women are women.” Technically, a “policy” needs an Equality Impact Assessment, so this is not formally a policy, just the attitude of the Scottish Ministers.
When the hate group claimed to be supporting the interests of trans men, the judge said “such people are visually and socially male and so not operating as women”. They would not want to be treated as women, even when it was a career advantage.
This is not a binding precedent, even in Scotland, but the judge pointed out that EU law acknowledges that trans people are to be included as being of the sex to which we intend to reassign- even before reassignment. This shows the haters are unlikely to succeed. In the European Convention on Human Rights, “transgender women will for practical purposes be indistinguishable from non-transgender women”.
There may be an appeal, to the Inner House of the Court of Session then to the Supreme Court. The haters’ pockets seem limitless. I hope they will pay the Scottish Government’s court expenses, but this is not yet decided. Still, in this case so far, the wealthy haters have lost. It’s a victory for all queer people.
The judgment is available here.
The SNP’s transphobia definition allows it to claim it opposes transphobia, but not to act against dangerous transphobia. Should the SNP discipline Joanna Cherry MP for transphobia? Yes. Does the SNP’s new definition of transphobia allow it to?
Cherry wrote a transphobic article for The National. I don’t know if the subs were deliberately satirising it with the headline “Joanna Cherry: How it’s possible to support rights of trans people AND women”. I don’t know if anyone is fooled by her claim to be a trans ally who has never said or done anything against equal rights for trans people, or thinks that such words allow her to be transphobic elsewhere.
Cherry is slippery. She is an advocate. She can be transphobic and leave herself a weasel denial. Cherry has received rape threats, and she implies though does not state straight out that these are from trans women. Her phrase is “young men who seek to deny biology”. She could, I suppose, claim that she is referring to cis men attempting to be trans allies, though I repudiate the allyship of any man who tweets a rape threat. But I infer she means trans women.
I have no problem condemning trans women who make rape threats, or any threats of violence. We are not a club, and I am not responsible for their wrongdoing- as the SNP definition states. “Accusing wider trans people [I think they mean the wider trans community, not fat trans] of being responsible for real or imagined wrongdoing committed by a single trans person or group” is transphobia.
The definition gives eight examples of transphobia, though it says transphobia is not limited to these examples. Also it does not say what should be done about transphobia. For that, you need to consider the SNP conduct standards, which I found in this document. It’s not an official SNP site.
Anent discrimination, the standards say,
5. No member may make racist statements in any context.
6. Every member has a responsibility not to discriminate in his or her conduct on the ground of race, colour, gender, religious belief or non-belief or sexual orientation.
The disciplinary committee can admonish, suspend or expel a member found to have breached the rules. It is up to them to decide what penalty is appropriate. There are no sentencing guidelines, as these are political decisions.
So, racist statements are specifically barred, which appears to indicate that sexist or homophobic statements are absolutely fine. Discrimination is barred, though is not defined. The Equality Act 2010 takes hundreds of sections and 28 schedules to define unlawful discrimination, and provide excuse for acts which would otherwise be discrimination, such as excluding a trans woman from women’s space in particular circumstances.
The first six examples are acts against an individual rather than acts against trans people as a group. They include assault, discrimination, bullying, outing, misgendering and deadnaming. I hear this is a step forward: trans people in the party report that the party did not challenge members who were publicly degrading, harassing and misgendering trans members. Probably, under the rule on gender discrimination, the Party could have acted against bullying of a trans individual in these ways. Everyone knows these things are transphobic, even if they deny it.
The seventh is transphobia against the community:
“Using dehumanising language about trans people or expecting trans people to participate in “debates” about their right to exist.”
There are two parts to this: first, dehumanising language about trans people. It should cover Cherry’s use of the term “male-bodied individuals” because of the purpose of that phrase, to instil fear of trans women and opposition to trans women in women’s spaces.
The second part concerns “debates about [our] right to exist”. It does not cover assertions about “sex-based rights”, or argument that trans women should all be excluded from women’s spaces. Such argument is clearly transphobic, because it intends to foment fear of and anger against trans people, as well as lesbophobic because it encourages misgendering of lesbians, hostility to them in women’s loos, and policing their feminine expression. It is not included in the definition. And if Cherry does not invite trans people to respond to her debating points, then her wild assertions are not included because of that.
What about falsehoods about erasing women’s experience? In the National article, Cherry wrote, “Recently advice was issued to midwives in Brighton that they must refer to “chestfeeding” rather than “breastfeeding”.
That is misleading. Brighton has “gender inclusion midwives” trained to support trans men and nonbinary people, but also gives information on breastfeeding. Chestfeeding only refers to trans men and nonbinary people.
Taking Cherry’s article at face value, you would think cis nursing mothers would be told about chestfeeding. That was never going to happen. She misleads in order to create the false impression that women are under threat, and that the reader is directly affected.
Cherry’s article is objectionable throughout. Trans people and our allies object to transphobia and for Cherry this is an “out of control” “backlash” against “scientific reality”. Cherry angrily rants against people opposing transphobia or seeking reasonable treatment for trans people.
I hope trans people and allies are combing Cherry’s tweets and articles to build a case that she is transphobic, and should be disciplined under SNP rules. But the rules themselves, and this new definition, do not make that easy. Perhaps that is the point of it. Sara Ahmed points out many diversity policies are written to claim the organisation is doing something, rather than to achieve change.
Why should the SNP discipline one of its MPs? Because she is a raging transphobe, spreading hate. But, she’s an MP, and disciplining her would make them look bad. These decisions are political, not moral.
Is there any place where a cis woman should be able to insist there is no trans woman, or is that transphobic? What about a medical examination of a victim of sexual assault or rape?
The medical examiner might have to take a semen sample from inside a woman’s vagina, or examine her internally for injury. The woman has been violated, and so is in a vulnerable state, possibly disconnected from her body, or flinching from touch. Should she be able to insist that the examiner is a cis woman?
In Scots law generally there is no distinction made between gender and sex. Both the Equality Act and the Gender Recognition Act use the words interchangeably, and after my GRC the GRA confirms that both my gender and my sex are female. The Victims and Witnesses (Scotland) Act 2014 allowed a woman to choose that the forensic medical examiner should be a woman, by saying the victim could choose the “gender” of the examiner.
Transphobes campaigning against trans rights have sought to create a distinction, saying that transgender people change our gender, that is, our presentation and our conformity to stereotypes, but not our sex, which is based on genes, gonads and genitals. I still have a Y chromosome, so they say my sex is male. Then they say I should be expelled from women’s spaces. This would change my life. I have been in women’s spaces for decades.
The purpose of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, which came into force on 20 January, is to allow victims to seek a forensic medical examination from the NHS without needing to report the crime to the police. I would have hoped such a change could be made administratively, by changes to police, NHS and court procedures, but it was a Bill, taking months to get through Parliament.
Johann Lamont MSP introduced an amendment into the draft Bill, to change the word “gender” in the Victims and Witnesses (Scotland) Act 2014 to “sex”. She imagines that now, victims can specify that they want a cis woman, not just a woman.
I am not sure what practical effect that has. I want a woman to be able to get an examination where she is, in Ullapool or Lerwick as well as Edinburgh, ideally without an examiner being flown out from the city. But then, the examiner has to be able to stand as an expert witness in the High Court of Justiciary. I have no idea how many people are qualified to perform such an examination, and whether any of them are trans women.
Johann Lamont, that is, used a Bill designed to benefit victims of sexual abuse to enshrine discrimination against trans women in Scots law, and form a basis for an argument that there is a legal distinction between “gender” and “sex”, so that there could be further discrimination in future.
I have fought all my life along with my sisters in the Labour and trade union movement to ensure that women’s voices are heard, that our needs and rights are addressed, to end the inequality women face and to change women’s lives. The progress made by women has come from women organising together and refusing to be silenced. That is as necessary now as it ever was.
To characterise demands to exclude trans women as “addressing women’s needs” is deeply transphobic.
When the amendment went before Parliament, there was a disgustingly transphobic article in The Scotsman. The delusional transphobe hack who wrote it claimed that “women are fighting for the very right to exist”. That’s paranoid. She wrote, “Women and girls the world over are mutilated and murdered because of their sex, not because of gender stereotypes such as lipstick and high-heels”. Trans women are assaulted and murdered because we are trans women. She diminishes our very nature to the fetishist whim of wearing high heels. She sets cis women against trans women. It is one of the most transphobic rants I have seen. She quotes Lamont saying,
Women should be able to choose the sex of the person who conducts the investigation. This is a key test for the Parliament, which is committed to rooting action in the understanding of experience. Women courageously and powerfully spoke up so that others might fare better than them. The amendment is tiny but would be a huge step in listening to survivors. The committee was convinced. The Parliament should be too.
“Listening to survivors” means excluding trans women. Speaking up courageously means demanding that trans women be excluded. It is a horrifying paean in praise of hate.
I am not sure whether a trans woman should heed the desire of such a victim to have a cis woman examiner. It may just be my internalised transphobia suggesting that could possibly be reasonable, that the trans woman should stand aside. But, unquestionably, the motive for the amendment is transphobic hate. Transphobic hate now has an entrée into Scots law.
There was a transphobic ad in The Scotsman. I complained. Continue reading
Gender recognition may cost people. An increase in the numbers of people obtaining legal gender recognition might increase the likelihood that a business would encounter a transitioned or transitioning employee or customer. This may require such organisations to incur costs in formulating policies. Or indeed costs in training staff.
I was black affronted at that. No-one should profit from blighted lives. If gender recognition encourages people to transition and live as ourselves, we will flourish and live better. So we will contribute more to the economy, incidentally. And if businesses encounter more transitioned people, we become familiar. People realise our eccentricity does not really matter. We might buy more from them.
This was from the business regulatory impact assessment for the Scottish Government’s gender recognition consultation. Yes, these things are dull, and occasionally they show us how others see us, as a potential problem. What if an employee says something rude? I might be liable to a court case! Oh, mercy-me…
The impact assessment on the Registrar General for Scotland, which would take over from the English-funded Gender Recognition Panel, suggests set-up costs of £300,000-£350,000, running costs of £150,000, and annual applicant numbers of around 250, extrapolated from Irish and Danish numbers. Scotland has around a twelfth of the UK population. In Great Britain there were about 2,500 applicants last year, a huge increase: in 2016 it was about 250, and there were only 4910 GRCs issued from 2004-2018. So even though we have to pay high fees and get medical certificates, and even though there was a promise of a simpler system, and even though it is purely symbolic and entitles us to nothing at all in itself, we are still seeking GRCs, and have reached the levels the Scottish government expects on a self-declaration system: this means the numbers expected all have specialist psychiatrist’s diagnoses. The idea that anyone seeking a GRC would not be a “real transsexual” is a myth.
The Scottish government is willing to spend £1000 per applicant for three years (factoring in the set-up costs) falling to £600 per applicant after that.
Under the current scheme there have been two appeals against a refusal to grant a gender recognition certificate, one in the High Court in England, which was successful. I have not found the Court of Session appeal.
Widows and widowers can get a pension from their deceased spouse’s pension scheme. When civil partnerships started in 2005, this right only applied to pension contributions made after 2005. Similarly with equal marriage: a gay marriage survivor of a deceased partner would only get a pension based on contributions since 2005. Less money if you’re gay.
However the Supreme Court reversed that in 2017. Pensions for surviving spouses are equalised.
Trans people are disadvantaged, but the Fairer Scotland Duty Assessment cannot state how many more of us are homeless or jobless than the general population. They do say that 53% of trans people, and 42% of cis people in Scotland, have an annual income less than £20,000. And among 35-44 year olds, 6% of cis people are not in education or employment, but 21% of trans people.
National Records of Scotland are proposing to include a trans status question in the 2021 census. TERF Joan McAlpine, MSP, intervened to ensure the question did not “conflate sex with gender identity” when the Bill was introduced in June, and TERFs are still huffing away about it now. The question is apparently not yet drafted, though “A binary sex question with self-identification guidance therefore supports participation for all people with the census and clarifies to data providers and data users the basis of the question.”
Having different fees for a GRC, for people with different income, could cost more in administration than the higher bands raised. If the Registrar decides to charge fees there will be yet another consultation.
There’s a Data Protection Impact Assessment on how data on gender recognition will be stored, at which point I finally glazed over.
The new draft law on gender recognition in Scotland has been published. There’s another consultation on it, which shows how far the hate campaign against trans women has come. The proposal is good enough, but the commentary and blog posts talk incessantly of “women’s rights”- the commentary says there is no threat to women’s rights, of course, because that is simply true, but raising the matter will encourage anti-trans campaigners to complain. Continue reading
One SNP women’s officer got in the Herald for disgusting transphobic abuse, and a few are now signing her transphobe “Women’s Pledge”. You can report it to Avaaz as hate speech, as I did. Question is, do people realise it is transphobic?
Men and women rushed to sign the Women’s Pledge.
Um. A few thousand, from a Scottish population of five million.
… The pledge affirms women’s single sex protections in the Equality Act 2019 which we believe must be upheld.
There is no Equality Act 2019. I am happy with the Equality Act 2010, the Act which includes me. And- trans women are women! I have no problem with single sex women’s services which include me.
Women have the right to discuss policies which affect them, such as the proposed self identification of sex, without being abused or silenced.
A facile lie. Gender recognition reform only affects trans people. No one will declare themselves the opposite sex without transitioning, even if the law permitted it, which is unlikely.
And the press and internet are full of transphobic hatred. Some women discuss nothing else. But when they say we are dangerous, we object.
Women have the right to maintain their sex based protections as set out in the Equality Act 2010. These include female only spaces such as changing rooms, hospital wards, sanitary and sleeping accommodation, refuges, hostels and prisons.
We know what she means, of course. No Trans Women!! But the Equality Act includes trans women in these spaces. She cannot have it both ways- you can’t exclude all trans women, and support the Equality Act.
Women have the right to refuse consent to males in single sex spaces or males delivering intimate services to females such as washing, dressing or counselling.
So any woman could object to a trans woman. I would go to the loo, some transphobe would stop me, “refuse consent” and I would be excluded. Or in a work place one worker would “refuse consent” and there would thereafter be a sign on the door, No Trans Women. Rather than law accommodating a few mostly harmless eccentrics, the might of the law would police where I went to the toilet.
It would make transition impossible, and thereby make other gender nonconformity more difficult.
Women have the right to single sex sport to ensure fairness and safety at all levels of competition.
And human rights law would need rewritten. Instead of recognising that some people transition, and that is harmless, it would exclude us.
Women have the right to organise themselves according to their sex class across a range of cultural, leisure, educational and political activities.
Women could have women only clubs, even political parties. That would involve tearing up the Equality Act too: sex discrimination law works both ways.
Nicola Sturgeon said, “As an ardent, passionate feminist, and have been all of my life, I don’t see the greater recognition of transgender rights as a threat to me as a woman or to my feminism.” Though some MSPs disagree, the SNP “supports trans rights and women’s rights as part of our commitment to human rights and equality”.
But some people want to divide the SNP and turn it into an organisation to eradicate transsexual transition: because such people have no interest in any other political issue, but all is subordinated to excluding trans women.
The most significant transphobe to crawl out of the darkness where some hide their hate is the MSP Joan McAlpine, who has organised a hate-fest at the Scottish Parliament on TDoR. It was later rescheduled for January, possibly because the organisers are incompetent, possibly to eke out the notoriety.
There’s also Joanna Cherry MP, calling someone misogynist for holding up a B with the T sign. That article has an excellent explanation of what a “TERF” is. I have collected several examples of Cherry’s extreme transphobia here. She couldn’t be prosecuted, but has probably caused violence against trans people.
23 February 2021: The SNP’s new transphobia policy is better than nothing I suppose.
The consultation in Scotland has produced powerful arguments for gender recognition reform. Trans people should have our true gender recognised with the minimum of bureaucracy. There were over fifteen thousand responses, from Scotland and around the world.
The terfs had got their publicity machine going in England by the close of the consultation in March. In England, nearly half of respondents said trans people should not be allowed to declare our gender. But of people in Scotland, who are most affected, 65% agreed that the law should recognise the gender we officially declare. Why? Because no-one makes such a declaration without thought and commitment, and because the existing procedure is expensive and demeaning, deterring people from applying. We should not need to provide medical reports, because we are not ill, and we have to wait too long to see the particular specialists. A rape crisis centre reported that they work by self-declaration already, and never demand to see anyone’s birth certificate.
Should we have to make a “statutory declaration”, a formal oath or affirmation before a Justice of the Peace or solicitor? A bare majority said Yes, and I agree. It is a serious matter. However, a meeting with a registrar is an alternative. Should we say we will live in the acquired gender “until death”? Some fear reference after death to the previous name and gender, others say they do not know what their intentions will be. Wording like “Currently intend to live in the acquired gender permanently” would solve these problems. Any statutory declaration sets a bar for gender recognition, which might put people off. It may be contrary to the spirit of self-declaration.
There should not be a reflection period after the declaration. People have thought long and hard before we change our gender, and social transition has far more consequences than the declaration.
Should there be a limit on the number of times a person can get legal gender recognition? Some dullard, to make a point, might do a stat dec every week, and if he wants to it harms no-one, and does not make a wider point about the system as a whole. There is no evidence of frivolous behaviour or fraudulent abuse elsewhere, and a limit might show undue concern about such abuse. It might deter people from self-declaring. But for trans people, our understanding of gender can evolve over time, and we might revert because of external pressure- my friend reverted as she could not see her grandchildren otherwise.
Should the declaration only be open to people living in Scotland or whose birth was registered there? I think yes, though a majority disagreed. Other countries might not recognise a Scottish gender declaration of a person without a link to Scotland, but it would be something people could do, symbolically, if they could not get gender recognition in their own countries. It would have effect while in Scotland. It demonstrates Scottish values of liberal inclusiveness. Asylum seekers might not be considered legally resident, and should be able to change their gender. Some people might be planning to move to Scotland.
Now, only people 18 or over can change their gender. Should 16 year olds be able to? Increasingly, 16 year olds can exercise other rights in Scotland. They can get married, and vote in Scottish elections. Most people agreed they should, especially Scots. However existing Scots law presumes capacity to make choices and exercise rights from the age of 12, and younger children can demonstrate their capacity to do so. The UN convention on the rights of the child requires that children are not discriminated against on the grounds of age, gender identity or sexuality. Children can be aware from an early age that they are trans. Gender recognition could help them move into adulthood, and thrive in education or employment. They sometimes avoid applying for opportunities because it would mean showing a wrong gender birth certificate. It affects their self-esteem if their documents are questioned. A parental application or applications by capable children are other possibilities.
Should we be able to get gender recognition irrespective of a spouse’s consent? 70% said yes. Even in marriage we should have a right to personal autonomy and self-identity. Spouses refusing consent could be abusive or manipulative. Trans people are at a high risk of domestic abuse. Abusers should not be given power or control, or the ability to ridicule. You do not need spousal consent for hormone treatment or surgery. Should a civil partnership be converted to a marriage or annulled? I feel opposite-gender couples should be able to get civil partnerships, but that’s really not a trans issue: there should be an option of leaving it be. 73% agreed.
Should gender recognition be a ground of divorce? “Irretrievable breakdown of marriage” is the ground of divorce, including where a spouse has behaved in such a way that it is unreasonable to expect the other to carry on living with them. That does not mean the behaviour was wrong, just the spouse reasonably felt it broke the marriage. So there is no need for a separate ground. That’s the Scottish Government’s view. To have legal gender recognition as a standalone ground for divorce is stigmatisation. It could contravene a right to privacy.
Most people didn’t know whether there should be changes to our right to privacy, and only 15% said there should. But for those who said there should be no change, the most frequent comment was that the right to privacy should be paramount. I feel we need additional protections, but the consultation is inconclusive. We should be protected whether we have a gender recognition certificate or not.
Most people agreed that if someone’s gender is recognised by another legal system, Scotland should automatically recognise it. Of course. No-one should need to reapply. It is unwelcoming and distressing to require a second gender recognition process. There is no basis for treating a person Canadian law, say, treats as a woman, as anything else unless the person desires it. We should not have to prove our gender.
Should Scotland take action to recognise non-binary people? Yes, and 66% of Scots respondents agreed. Being non-binary is just as valid as other genders or being trans. Non-binary people are humiliated by misgendering. They deserve respect and the same rights as everyone else. Non-binary recognition subverts overly rigid gender stereotypes. 75% opted for full recognition with the existing gender recognition system.
The Scots parliament cannot amend the Equality Act, but amendment is vital. Rather than referring to “gender reassignment” it should protect people on the ground of “gender expression and trans identity”, or of gender identity or gender expression. That would protect those terfs who find gender stereotypes particularly repugnant or oppressive. There could still be protection on sex as a separate ground.
The English consultation received over a hundred thousand responses, and the Government hopes to have a response in Spring next year, but the minister says “There will be no loss of trans people’s rights”. That’s a relief. The pdf summary of the responses to the Scottish consultation is here.
The Scottish Government proposes that a person should get gender recognition, if they make a formal declaration before a Notary Public that they intend to live in their acquired gender until death. Making a false statutory declaration is a criminal offence, and their research on other countries allowing self-declaration has not found evidence of false or frivolous statements. There is support from women’s rights organisations including Scottish Women’s Aid and Rape Crisis Scotland, whose joint statement says, We do not regard trans equality and women’s equality to be in competition or contradiction with each other. We support the Equal Recognition campaign and welcome the reform of the Gender Recognition Act.
Rape Crisis and Women’s Aid in Scotland provide trans inclusive services on the basis of self identification. We will continue to work collaboratively with Scottish Trans Alliance and other equality organisations with the aim of ensuring that new processes are appropriately designed and without unintended consequences.
Limiting the number of times one can change sex might restrict frivolous applications. Malta requires second and subsequent applications to be considered by a court. However Sam Kane has transitioned three times, male to female to male to female, and I feel each time she did it feeling distress and oppression. She reverted because of sexism and transphobia. These things are not her fault and she should not be penalised for them. Colombia only permits two changes, which must be at least ten years apart. That might make me fear an honest declaration, since I cannot correct it if I am wrong. When I transitioned, I thought it possible that I might be trying to live male five years later. It is an additional difficulty, just one more thing requiring a leap of faith. I consider my real transition to be the day I transitioned at work, or “went full time”, which required enough clarity, determination and trust, as I would have made a fool of myself to revert.
Even the suggestion that men might do this frivolously, or maliciously to get access to women’s space, is repulsive. Even three in a year might be a leap, a bad experience causing reversion, then a second leap of faith which is even more courageous. I do not want someone showing that courage and determination to be investigated in case they were frivolous. Instead, deal with actual wrongs. Women’s space is not a good place for sex crime, as the criminal is outnumbered. Women’s support groups have experience with difficult behaviour and ways of dealing with it.
The Scottish Government proposes that 16 year olds should be able to affirm their gender change, as Scots law generally gives rights as adults to people over 16, and protections as young people until 18. They are consulting on various options for younger children, such as allowing parents to affirm for them. The parent would be trusted to do this in the best interests of the child, and consider the child’s wishes. Alternatively, a child who could show they had sufficient maturity to make the decision could affirm.
Ireland and Denmark do not require the consent of a spouse before a married trans person can declare their gender. If the gender change breaks the relationship, the trans person should not have to undergo the expense of divorce before getting their gender recognised. If the relationship remains, the trans person will not make the declaration without their partner’s support. In either case they should not require the partner’s consent. Consent can be used to put improper pressure on a trans person. The other may feel betrayed, and feel that the trans person has broken the relationship, but that does not entitle them to take revenge by refusing consent.
Now, if one partner seeks gender recognition the other can use that as grounds for divorce. This should not be a separate ground for divorce. The usual ground is “unreasonable behaviour”, and a spouse should be able to argue that gender change is unreasonable behaviour. This is such a slight change; it means that gender recognition broke the marriage in the particular circumstances of this couple, rather than normally or generally.
They are also talking of increasing recognition for non-binary people, though this will require action by the UK government and additional rights in Equalities legislation.
They don’t address the question of what it means to “live in your acquired gender”. For me, does it mean always wearing wigs and at least attempting to talk in a feminine register? Does it mean anything else about clothing preferences, or particular behaviours? I think it means what the person believes it to mean. Women can wear what they like and do what they like. I feel most people who change gender will have a particular view about what it means, and attempt to resemble the assigned gender, but that is subjective too.
Consultation document pdf is here. It describes ways to respond to the consultation.