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.
*This article was first published Holyrood magazine on 2 February 2022: Comment: Women are right to worry about reform of the Gender Recognition Act