News has been leaked that the government intends to abandon proposed reforms to the Gender Recognition Act (GRA). Understandably, large numbers of people are up in arms and are demanding that the reforms be implemented. Certainly it is outrageous that the government choose to simply ignore the 70% of consultation respondents who were in favour of reform, and side with the 30% who were against. However, the best way to get reform may not be to campaign for it, but to resist the changes that the government will have to introduce instead; changes which will have implications far beyond the arena of trans rights.
To understand why we need to look at the reasons the GRA reforms were proposed in the first place. They are not something that the trans community was hugely concerned about. While there could have been real steps forward in reform, such as legal recognition for non-binary people, and for people under 18, the government has made it clear that such things would never be seriously considered. The primary beneficiaries of GRA reform would not have been the trans community, but the Home Office.
Legal gender recognition is the end point of a long process that trans people go through once they have sought medical assistance with transition. The government requires that anyone wishing to change their legal gender can show that they can live peacefully and effectively in the gender to which they are transitioning. The GRA requires that each applicant complete a 2-year “Real Life Test”, and obtain approval for their application from two doctors, to show that they are “really trans”.
The medical approval side is something of a formality, once you can get accepted for treatment. The medical profession has long since understood that the best way to find out if someone is “really trans” is to let them transition and see if they like it. If they do, then they must be “really trans”. That is, of course, a form of self-identification.
The government, however, wants an orderly society. They want to know, to steal some talking points from the anti-trans lobby, that trans women will not be peeping under toilet doors in the Ladies, or “waving their willies about” in communal changing rooms. We know that this doesn’t actually happen, because it would be all over the newspapers if it did, but the government wants to be sure before allowing a legal gender change.
However, in order for a trans person to be able to complete this test, it is essential that they be able to live their lives fully in their correct gender for those two years. That means they need to be able to change some paperwork. They might change their name, they’ll almost certainly need a new driving license, they may need a new passport as well. In other words, they need to change all the things that they need for day-to-day living.
Changing your birth certificate and legal gender are not necessary for day-to-day life. They are supposedly the cherry on the cake that you get at the end of the process. But you only need them in certain specific cases: if you want to get married, if you get send to prison, or if you die.
A combination of ever-increasing waiting times at NHS gender clinics, and the expense and humiliation of the GRA process, has meant that most trans people have simply not bothered to seek legal gender recognition. They have almost everything they legally need to live their new lives already. As a result of this, there are thousands of trans people in the UK who have changed all of their other ID, but have not changed their legal gender. And that is where the Home Office comes in.
If you are a Home Office bureaucrat, you want everyone to have their papers in order. What is happening with trans people simply will not do, from a bureaucracy point of view. It horrifies the Home Office that so many citizens have driving licences and passports in one gender, but are legally a different gender. The obvious thing to do was to make changing your legal gender easier and cheaper. After all, many other countries around the world, including Ireland, Portugal and Belgium, have done the same thing, and there have been no unpleasant consequences. This is why the likes of Theresa May and Amber Rudd were so keen on GRA reform.
The current government, however, has been seduced by the complaints of the anti-trans lobby, and by the supposed benefits of making persecution of the trans community a central plank of a “culture war”. They have scrapped GRA reform. That has not solved the problem for the Home Office, so something else must be done instead.
Quite simply, if you are not going to make it easier for trans people to change their legal gender, the only other solution is to make life harder for trans people and hope that they all go away.
What Liz Truss appears to have signalled via the leak to the Sunday Times is a new set of draconian curbs on the ability of trans people to live happily without a legal gender change. It will be made harder for them to access spaces appropriate for a person of their gender. So they will have no choice but to apply for a legal gender change or to detransition.
It should go without saying that forcing people to detransition is abominably cruel and is likely to lead to an epidemic of mental health crises within the trans community.
There are other problems with this approach too. How is a trans person to complete their “Real Life Test” if the government itself is making it impossible for them to do so? In effect this would be a ban on anyone beginning transition.
In addition, the anti-trans lobby is unlikely to be satisfied with this approach. They want nothing less than the complete repeal of the GRA, and will not be satisfied until they get it. Their friends in the media will support them in pushing the government to a retrograde step that would see the UK ranked alongside Hungary as one of the most transphobic nations on Earth.
However, all this pales into insignificance beside the danger to equality law posed by the anti-trans lobby. The basis of their argument is that (a small minority of) cisgender women are frightened of trans women (there is no evidence that we are an actual danger), and that because of this the “sex-based rights” of cis women must always trump those of trans women. This strikes at the very heart of equalities legislation, because once it is established in law that the rights of one (probably majority) group are more important than those of another (probably minority) group, there is no stopping the dominoes from falling. Everyone’s rights will be at risk. One obvious end point of this type of argument is that the “sex-based rights” of men be allowed to trump those of women.
The US Supreme Court recently argued that the rights of trans people, and indeed those of LGB people, are all protected by “sex-based rights”. That is because as a society our concept of “sex” is intimately bound up with how we perform gender, including our sexual preferences. Sadly, the UK is not subject to the rulings of the SCOTUS, but the same logic should guide us here. In any case, any attempt to argue that the civil rights of one group of citizens should include the right to oppress another group should be strongly resisted by everyone, not just trans people.
Ultimately this is what will usher in GRA reform. The Home Office still has a problem. If we do everything we can to prevent the government wielding its proposed stick, then the problem of trans people with mis-matched paperwork remains, and the government will have no choice but to go back to the carrot.