Gender Recognition – Not as Scary as You Think

A great deal of newsprint and air time has been spent recently on scaring British women over the proposed changes to the Gender Recognition Act. Sadly much of the information that has been given out is wrong, but many people have understandable concerns as a result. I want to address the issues here.

The first thing to note is that legal gender recognition doesn’t protect people from discrimination. It is the Equality Act that does that. A women’s refuge providing services to victims of sexual assault or domestic violence can legally bar various sorts of women from using their services if it is reasonable to do so. It might, for example, exclude a woman who has a highly contagious disease, and possibly even one who is a smoker. I am legally female, but I and other trans women can be legally barred from a women’s refuge now thanks to a special provision in the Equality Act.

Making it easier to change your legal gender will not change the law on whether or not trans women can use refuges.

The whole idea of “making it easier” is complicated as well. The media is suggesting that men will be able to become legally female simply by saying “I am a woman”. That is not how self-declaration works in any of the many countries that use it, and it is not how the Scottish government has proposed the system would work there.

What we will probably get is a system based on a Statutory Declaration. You will have to find a lawyer, pay a small fee, and sign a form that says you intend to adopt a new legal gender for all purposes. I’m sure there will be sanctions available if people use the system in a frivolous manner.

Back now to toilets, changing rooms in clothing stores, and so on. The suggestion has been made that changing the GRA will make it impossible to keep men out of these spaces. But, as I noted above, the GRA is not about discrimination, it is only about legal gender. The only women’s spaces that would be affected are places like prisons which specifically use legal gender to determine who goes where.

For all other spaces it is the Equality Act we should look at. This bars discrimination on the grounds of gender reassignment. That is, it specifically protects people who have the characteristic of gender reassignment from discrimination (except in the special case of refuges as noted above). How does one gain this characteristic? Simply by starting on the process of medical gender transition.

To become protected by the Equality Act, all you have to do is visit your GP and ask for a referral to a gender clinic. That is much easier than making a Statutory Declaration. And of course it is a form of self-declaration.

The Equality Act was passed in 2010, so all of these things that we are being told will result from changes to the Gender Recognition Act are in fact already enshrined in law, and have been for over seven years. (Except for access to refuges, which you can bar trans women from and will still be able to bar us from if the GRA changes.)

In all of that time, I cannot recall a single case of a cis man abusing the system to gain access to women-only spaces. I’m sure such an incident would have been all over the newspapers if it had occurred.

Ireland adopted a system of self-declaration similar to what is being proposed by the UK in 2015. They have had no problems with the system. Other countries have been using similar systems for longer.

We should, of course, ask ourselves why a particularly right-wing Tory government is making these changes. Theresa May and Amber Rudd are not exactly big fans of civil rights, after all.

The answer is that the current Gender Recognition Act is manifestly not working. It has made it so complicated, expensive and humiliating to obtain legal gender recognition that most British trans people have not bothered to do so. You can change your passport, driving licence, bank account and so on without changing your legal gender. To the likes of May and Rudd – current and former Home Secretaries – it must be anathema to have thousands of people living a gender different from that in which they are legally recognised. They want to fix that, and they will probably add some means of encouraging trans people to get their legal genders changed so that all of their documents line up. Watch out for the stick that will accompany the carrot.

Much has been made of the issue of people with penises in woman-only-spaces. However, this cannot be avoided without completely undermining the medical process of gender reassignment. Under the current rules, anyone wishing to have genital surgery must have lived full time in their acquired gender for at least 1.5 years. If a trans woman doesn’t do things like using women’s toilets, and changing rooms in women’s clothing stores, the doctors will probably assume that she’s not serious about her transition and deny her surgery.

I can assure you that for many trans women the very idea of someone seeing that we have a penis is horrifying. We certainly don’t want to be waving the damn thing about in public, as it has been suggested we would do if the GRA is reformed. Many of us are glad to be rid of them, and those who don’t opt for surgery have very good reasons for doing so.

Of course there is a small possibility that some man will abuse the system and pretend to be trans. No law is totally bulletproof, and the widespread publicity being given to the possibility of such abuse can only encourage people to try. Someone will doubtless do it just to discredit trans women. But you can’t make laws on the assumption that they must be perfect. The world doesn’t work that way.

Here’s a related example. It is ridiculously hard to get a rape conviction here in the UK. I would like the laws tightened to make it easier. But every time a feminist group suggests this someone in the media will start going on about, “oh, but what if the woman is lying about being raped?”

You can’t have a rape law that is 100% proof against false accusations, and yet we have one because it is needed to protect the vast majority of women who report honestly. With trans women it isn’t even us who are accused of dishonesty, it is that someone else might pretend to be one of us. Is that any reason to deny us fair treatment?

The fact is that men do assault women all of the time. They don’t need to pretend to be trans women to do that. It is just too easy for them the way the world is now. Making it easier for trans people to get legal gender recognition won’t change that. It will help many trans people, and make the bureaucracy involved in gender switching easier and less confusing. That’s nothing to be scared about.

[Note: the above does not address the issue of legal recognition for non-binary people. That’s an entirely different matter, but no threat to women because non-binary people don’t want to be recognised as women.]