If anyone can change their legal sex – just because they want to – then what it means to be a woman becomes no more than a feeling in a man’s head. No wonder that a growing number of women are concerned about the Scottish Government’s proposed reform of the Gender Recognition Act.
The GRA was once an obscure piece of legislation that protects the privacy of around 6,000 transsexuals across the UK. We can – if we wish – apply for a Gender Recognition Certificate and use it to change the sex recorded on our birth certificate.
I have never bothered. Not because it is, “demeaning, lengthy, stressful and expensive” (to quote the Scottish Government). It was never any of those things; I didn’t apply because I had no need for one. The UK is a tolerant and liberal society, and transsexuals like me enjoy robust protections. I certainly didn’t need to change the past to live in the present.
But, as the law stands, should I want a GRC, I need to produce medical evidence to show that I need one. That makes the process credible. Society would not be impressed if blue badges were issued to every driver who merely “identified” as disabled. Why should gender recognition be any different?
But the Scottish Government seems to know better, and it appears determined to sweep aside the need for evidence and introduce a system of “self-identification” of legal gender. In effect, reduce what it means to be a man or a woman to a tick-box exercise.
With this prospect looming, women have every right to worry. What is the point of locking the door to women’s spaces if any man can cut his own key? I ask this question often. Invariably I am reassured that, men wouldn’t do that, would they? I was a man – arguably I am still a man – and I reckon that some men might. Probably not many, but those that would try their luck are precisely the sort of men that women are concerned about.
The male-to-female transsexuals among the 6,000 already have keys, of course, and more are handed out every year. But at least there was a medical case for issuing them.
That said, I have coped rather well without a key. The Equality Act 2010 still protects me from discrimination and harassment on the grounds of gender reassignment. But, without a GRC, I am legally male as well as biologically male. If a provider of single sex services asks to see my birth certificate, I am demonstrably male. That matters because I am protected from sex discrimination on the basis of my legal sex. The Equality and Human Rights Commission clarified that point in 2018:
This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.
Equality and Human Rights Commission
So, while other campaigners might trivialise the impact of a GRC on everyone else, it underpins our relationship to the law – and to each other – when the sexes need to be treated differently. As a legal male, I can be lawfully excluded from women’s single-sex services if that is a “proportionate means of achieving a legitimate aim.” But should I acquire a GRC, my gender would become “for all purposes the acquired gender.” If women wanted to exclude me, how could they prove that I was not biologically female? Even my birth certificate would record the fiction that I had been born a girl.
Most women’s spaces though are protected not by the law, but by custom and practice. We do not have “bathroom bills” in the UK, for example. But even so, the repercussions of self-identification would be felt throughout society. It would be much harder for women to challenge a man if they thought he might respond, I am a woman. Whether he is a legal woman – or not – is immaterial. The balance of power shifts from women to the man, and in the very spaces where women should feel secure.
Blue badges for all who want them? We can all foresee the consequences of that policy. Why should keys for all be different? This is not “anti-trans rhetoric”, it is reality. But if it is the future that the government envisages for Scotland, women should not only worry – they need to woman the barricades.
Debbie Hayton
*This article was first published Holyrood magazine on 2 February 2022: Comment: Women are right to worry about reform of the Gender Recognition Act
Debbie Hayton 
5 replies on “Women are right to worry about reform of the Gender Recognition Act”
I have supported you on this subject, but I have a niggle, and it’s about the reinforcement this position gives to the sexual stereotype of males as dangerous and predatory. If we accept that a small minority of men might be dangerous in women’s spaces, which we must, we ought to acknowledge that a small minority of women are dangerous in women’s spaces, and indeed in men’s spaces. A small minority of people are dangerous to other people.
It is not that I support sex assignment by subjective choice, which is patently ridiculous. It is more that the issue brings into sharper focus for me the ridiculousness of identity politics, including sexual identity politics. Why do we put so much weight on what kind of bits we have, instead of finding ways to reduce damaging behaviours – by persons, irrespective of sex or other characteristic? Why do we have laws protecting people from harm or discrimination on the basis of a list of such characteristics, which seems to keep on increasing in length? And do these, in fact, not represent a kind of intrinsic discrimination against some other group?
This niggle is highlighted by the telling comparison with blue badges. There is an obvious need for blue badges, for such things as reserving parking spaces near to amenities that might be difficult for someone with limited mobility to get to. People with such disabilities are clearly vulnerable, in that sense – to losing access to things they need access to. But the comparison emphasises the identification of women as vulnerable, by definition, by reason of their sex, which – to my eyes – is a fundamentally flawed kind of “feminism”, or no feminism at all. By the same attribution, it also defines non-females (males) as not vulnerable and the source of danger (and it’s important to notice those are two separate things).
So, am I saying I’d be happy with same-sex (or “all-sex” if they must) toilets? Well yes. I obviously want privacy in my cubicle, but that’s as much from other men as it is from women. I’m sure women want privacy from other women. Similarly, changing rooms can have cubicles for individuals to change in, and those who don’t care can change in the communal space. I’m not sure what the problem is.
I find, generally, “women’s groups” (that aren’t specifically for women to talk about sensitive women’s issues) discriminatory and offensive. I find it discriminatory and offensive that women routinely set up clubs for all manner of activities, while men’s clubs have been hounded into near extinction (despite both being legal).
And I wonder how much progress we will make in improving males’ behaviour towards females (which undoubtedly needs improving) while society keeps reinforcing the message that men are dangerous predators by nature, enshrined in law, while women are vulnerable by nature and need protecting from them, especially when this offensive gender stereotype appears to increase some men’s resentment of and misunderstanding of feminism. How are boys going to learn to express their vulnerabilities if society identifies them as fundamentally, inexorably and problematically powerful? And is it not such unexpressed vulnerability that leads to most mens’ violence?
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Thank you. It’s good to share “niggles”
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I wonder what you make of my argument, though.
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There was a lot there! Both in terms of the nature of safeguarding (i.e., the protection against potential threats) and the human condition (are men and women different due to nature or nurture, or – if both – does nature drive nurture?) You’ve made me think. The analogy with blue badges has raised eyebrows elsewhere but I made it to compare the accommodations that society makes for diagnosable medical conditions.
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You’re right, there was a lot, and I confused the issues. I should have thought longer before commenting.
Starting at the end of your reply – I was surprised to see you clarify that the comparison with blue badges was on the basis of the “diagnosable medical condition.”
You must, I can only assume, be referring to gender dysphoria, but this is an awkward fit. It seemed to me that the argument was that certain people (blue badge holders or WOMEN) must have a key to a protected facility, which was part of my alarm, since it suggests women are in some sense “disabled”, and the sense was in relation to their inability to defend themselves if in a toilet or other space with a man.
Being a woman is not a “diagnosable condition.” Gender dysphoria may be. However, if this is the essence of the comparison, it adds no weight to the argument against trans women using women’s spaces, and might easily add weight to the contrary argument. This is precisely the kind of reasoning that leads to so many public bodies advocating it:- trans people are in some sense disadvantaged by reason of their condition (relative to our cultural provisions), may feel deeply uncomfortable or unable to use the facilities for their genetic sex, and thus we make room for them where they are comfortable, which is wherever they identify as their gender.
I wonder if one of the problems is that transitioning may or may not be associated with gender dysphoria. I conjecture that it is increasingly a dangerous fad, a lifestyle choice, and often a reaction by a young person to life’s normal struggles. And this is the point: this choice is exaggerated by the myth that there are particular personality traits that belong to each sex. It is THIS myth (a relatively small statistical skew between the ‘normal distributions’ when measured), that often makes people begin to think they’re “in the wrong body,” and against which we ought to be arguing. The bottom line should be that gender is a made-up idea. Sex is a fact.
We have barely begun to undermine the old sexual stereotypes – doctors are men, nurses are women, girls play with dolls, boys like rough-and-tumble – indeed, in popular culture, sexual dimorphism is fed to us in a daily stream of advertising and reality shows. It has been shown to be rife in classrooms, and deep in our personal responses to babies whose sex has been (wrongly) told to us. You will presumably know the studies I’m referring to.
I should leave it there, but I want to retract what I said earlier (or how it might be read) about women’s groups. It’s the comparison with men’s groups (or, rather, I was thinking of “gentlemen’s clubs”) that upsets me. On reflection, I think I support any limitation on entry to a club or group on any grounds. Again, the opposite is the identity-politics madness that is sweeping the world – everyone must be protected from being shut out of everywhere unless some long list of mitigating conditions applies.
The comparison with racial issues is telling. We might be unperturbed by seeing that a local group has been set up for “ethnic minorities,” with at least the implication that white people would be out of place entering or indeed legitimately asked to leave, but a “whites-only group” would presumably risk legal action.
Maybe people with gender dysphoria (whom I imagine are in reality a small minority of trans people) could use the “disabled” toilet, and those whose “gender” is a lifestyle choice can either use that or their sexually correct one, since their gender is just an idea in their heads? I think we’re arguing for the same thing, but the reasons are important.
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