Gender recognition is the ultimate political hot potato. Three years after Justine Greening — the then Equalities Minister — announced a public consultation on changes to the 2004 Gender Recognition Act, and two years after the public were finally asked for their views, we are still far from resolution. As the months passed, many assumed that the Government had kicked it into the long grass, if not the primeval forest.
The consultation itself came and went a year later in 2018 amid fervent campaigns by transgender activists eager to allow legal gender changes on demand, and women’s groups concerned that their boundaries would be rendered meaningless as a result. If men can identify as women — for whatever reason they might choose — how can they be kept out? It is naïve to rely on the argument that “men wouldn’t do that, would they?” Spaces such as changing rooms are most often cited, but also at risk are prisons, hospital wards, reserved places on committees and boards, scholarships and, indeed, every sex-based protection.
For the past two years, the hot potato never went cold — on the contrary, it ignited a social media inferno. The furore surrounding JK Rowling — condemned as a transphobe for reclaiming the word woman to describe her sex — is remarkable only because she is a public figure.
The plans leaked to The Sunday Times, and splashed across yesterday’s front page, sparked uproar. Many transgender rights campaigners were horrified. These were not the plans they were looking for. Nancy Kelly, CEO of Stonewall UK described them as “another blow to our community during a difficult time”, citing the huge amount of abuse they believe trans people suffer in their daily lives.
As a trans person, I take issue with that statement. I very rarely suffer hostility in the UK — there seems to be no a causal link between gender recognition legislation and social attitudes at large. When I am out and about, people couldn’t appear to care less that I am trans, if they even notice, and few would know anything about the rather obscure law under debate.
The plans were not even unexpected. On 22 April, Liz Truss — the minister for Women and Equalities — set out her priorities for the Government Equalities Office. As she closed her statement, she remarked,
“We’ve been doing a lot of work internally, making sure we’re in a position to respond to that consultation and launch what we propose to do on the future of the Gender Recognition Act. We will be in a position to do that by the summer, and there are three very important principles that I will be putting place.
First of all, the protection of single-sex spaces, which is extremely important.
Secondly making sure that transgender adults are free to live their lives as they wish without fear of persecution, whilst maintaining the proper checks and balances in the system.
Finally, which is not a direct issue concerning the Gender Recognition Act, but is relevant, making sure that the under-18s are protected from decisions that they could make, that are irreversible in the future. I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions.”
The Sunday Times report suggests that the Government plans to adopt these priorities, and move them forward through guidance rather than fresh legislation.
First, there seems to be no appetite to change the mechanism for legal gender recognition. Anyone wishing to change their legal gender will still need to produce two medical reports to support their application. But a proposed crackdown on “quack” doctors would close the loophole by which disreputable medics could write what the patient wanted them to write. Otherwise gender recognition would still be on demand, albeit on payment of an extra fee for sympathetic medical reports.
Second, women’s “safe spaces” will be safeguarded. Existing legislation — the Equality Act 2010 — was cited, so no change there either. What has been lacking is clear and unambiguous guidance over when women can maintain spaces and services according to their sex. Hitherto, there has been rather too much assumption and too little clarity. The current jargon — “a proportionate means of achieving a legitimate aim” — is easier said than applied. In July 2018, the Equality and Human Rights Commission set out to clarify the interplay between different pieces of legislation, but acknowledged that it was a complex area of law, and highlighted the need for further conversation.
The specific mention of toilets has been the lightning rod for concerns. It will never be workable to rigidly police who uses which toilet, but clearer guidelines are needed to empower women to challenge people who they think should not be in the women’s. Though rather than argue over who can have access and who should be excluded, let’s be truly progressive and campaign for additional unisex facilities for anyone who does not want to share communal facilities with their own sex. Good practice there is good practice for all, and not just those who might identify as non-binary. Long before I transitioned, I found them a godsend when out with my young daughter.
Third — almost as an afterthought — came a proposed ban on gay conversion therapy, mentioning “some church groups”.
Where does this leave transgender people? Some of my fellow transgender campaigners are in no doubt. Helen Belcher, the Liberal Democrat candidate for Chippenham in 2017 and 2019 urged us all to write to our MPs:
“Start writing today, and don’t stop until they drop this awful, discriminatory position”
while the journalist Paris Lees suggested that
“trans people are scared and upset about our rights being rolled back.”
But I think differently. The problems we face as trans people are not based on a lack of rights, but a lack of confidence. Proceeding, as we have been, on assumption rather than statute, trans people have been taking and women have been yielding. That cannot go on indefinitely. Tensions have been rising — witness the toxicity of social media — and emotions are running ever higher.
We desperately need clarity, and these proposals are only a start. While self-identification of gender is off the table at Westminster, it remains a policy objective in Scotland. Dr Kath Murray of the policy collective MurrayBlackburnMackenzie tells me:
“The draft Scottish Bill would also allow people living elsewhere in the UK but born in Scotland to apply for a GRC under Scottish law, which means that change here has a potential impact outside Scotland.”
But across society organisations and institutions have already been captured. In an apparent rush to get ahead of the law, Marks and Spencer allow shoppers to use whichever changing rooms they wish, while Girlguiding UK allow male children to share tents and showers with female children. In business, Pips Bunce — a cross-dressing “gender fluid” man — won a place on the FT list of Top 100 Women in Business. While we should defend Bunce’s right of gender expression, it’s not progressive to displace a woman from a scheme to promote women. This all needs to stop. It is an affront to women and children.
It was notable that Truss referred to children in her statement, citing the dangers of inappropriate choices being offered. The Sunday Times did not elaborate on the proposed ban on gay conversion therapy. However, clinicians at the Gender Identity Development Service (Gids) — England’s only NHS gender clinic for children — have previously expressed concerns that “some openly homophobic parents sought transition for their children because they were gay”. If dogmatic churches might try to “pray away the gay”, this surely is an abhorrent attempt to “trans away the gay”.
In the short term, the future looks uncertain for trans people. Until the Government publishes its plans — reportedly at the end of July — speculation will be rife. But this is a debate we need to enter. Belcher is right: we should write to our MPs. But not to complain; we need to engage constructively with other groups, and campaign for long-term solutions that accommodate us in society without compromising the rights of women and children. Then we really will be able to live our best lives with confidence and security.
Debbie Hayton is a teacher and a transgender campaigner.