Victoria Hewson is a solicitor and Rebecca Lowe is the former director of FREER, and a former assistant editor of ConservativeHome. Together they found Radical, a campaign for truth and freedom in the gender recognition debate.
Last weekend, The Sunday Times reported that gender “self-ID” proposals originally put forward by the May government in 2018 will not be taken forward. We’ve written here many times about this topic, but it’s worth a quick reminder of the context, before we address this momentous news.
Since the introduction of the Gender Recognition Act (GRA) in 2004, people meeting certain conditions have been able to obtain a Gender Recognition Certificate (GRC). A GRC legally recognises someone’s change of gender, and allows them to have their sex on their birth certificate changed to match this gender change, for legal purposes.
Under the terms of the act, obtaining a GRC requires a medical diagnosis of gender dysphoria, and evidence of having lived in one’s “acquired gender” for two years. It is worth noting here the difference afforded to sex and gender within the process. For instance, it is often stated that a GRC “changes someone’s gender” on their birth certificate, yet this is clearly wrong, as gender is not recorded on a birth certificate – rather, sex is.
The terms “sex” and “gender” are often used interchangeably in conversation, and various relevant pieces of legislations are lax on their clarity of use of these terms. But, as the Government’s GRA consultation document notes, “gender” technically relates to “socially constructed characteristics” associated with societal notions of masculinity and femininity, whereas “sex” relates to the biological characteristics that determine whether someone is male or female. Regardless of the terms used, this distinction is crucial for many reasons.
In 2018, Penny Mordaunt, the then Minister for Women and Equalities, launched a consultation – as referred to above – on the reform of the GRA. The aim of this consultation was to determine “how best Government might make the existing process under the [act] a better service for those trans and non-binary people who wish to use it”. The consultation closed in October of 2018, and although the Government Equalities Office has stated that it received more than 100,000 responses, no responses have ever been published by the Government.
The most notable reforms discussed in the consultation were proposals that would entail that, to obtain a GRC, a person would no longer require a diagnosis of dysphoria, or need to prove that they had been living in their acquired gender. Rather, someone would be able to obtain a GRC, and change their sex for legal purposes, simply by making a statutory declaration of their intention live in the opposite gender.
This is already the case in a number of countries, cited as examples in the consultation document, and is informally known as “self-identification” or “self-ID”. These proposals for change were strongly supported by trans activist campaigners (including those within the Conservative Party), but were strongly opposed by women’s groups and people concerned about myriad practical and legal implications that seemed to have gone unnoticed in the consultation.
We have discussed many of these implications in our columns, ranging from concerns about prison safety to census data collection. We strongly believe that people who choose to act in ways traditionally associated with membership of the opposite biological sex should be treated just as respectfully as anyone else, all other things being equal.
But we also believe that acknowledging the importance of the right to free expression does not equate to believing that the law should mandate that biological men must be treated as women, or biological women as men – on their demand. The consequences of such an approach would not only include the violation of natal women’s rights to security and privacy, but also the undermining of biological truth.
This week, the Government seems finally to have clarified its position on self-ID. Although Liz Truss, the current Minister for Women and Equalities, had stated back in April that it was her intention to “[maintain] the proper checks and balances in the system”, the announcement confirming that the Government would not be going forward with self-ID did not come before the summer break, as she had implied.
In the meantime, there was, unsurprisingly, a new flurry of campaigning for the change. And opponents of reform began to fear that the powerful influence of organisations like Stonewall (whose diversity scheme most government departments subscribe to) would prevail, and that the proposed changes would be brought forward, after all.
It comes as a great relief, therefore, to learn that, aside from dropping the £140 fee, the current process will remain unchanged. A government spokesperson was quoted by The Sunday Times as saying, ”We think that the current legislation, which supports people’s rights to change their sex, is sufficient”.
This does not mean that our struggle for civil rights and truth is over, however. The battle over self-ID has shone a light on the state of law and policy concerning sex and gender. In this column, we have written many times about the confusion and misinformation that has been propagated by public authorities, often on the advice of campaigners like Stonewall.
Illegal guidance by bodies ranging from local authorities to the Crown Prosecution Service has been successfully challenged by women and children who refused to accept that girls and boys should no longer be separated in toilets, changing rooms, and dormitories.
Legal actions in respect of medical intervention on children and young people are ongoing; the NHS has already changed its official position on the “reversibility” of puberty blockers, to recognise that these powerful drugs have effects on young people that are not reversible. A challenge to the lawfulness of guidance issued by the body tasked with overseeing and enforcing equalities legislation, the Equality and Human Rights Commission (EHRC), is under way.
It is particularly notable, therefore, that the reaction of Stonewall to the news that the GRA reforms would not proceed was to state an incorrect interpretation of the Equality Act. This was rightly described by Jackie Doyle-Price, the Conservative MP, as a “wilful misrepresentation” from a body that purports to advise public- and private-sector organisations on how to comply with equalities laws.
Now that the law on gender recognition looks to be stable again, the Government Equalities Office and the EHRC should urgently attend to clarifying guidance on gender reassignment and sex under the Equality Act. Police and civil-service leadership should consider whether such close involvement with politically-driven organisations such as Stonewall and Gendered Intelligence is consistent with impartiality.
It is clear that the Gender Recognition Act is not a good law. Its key provisions are badly drafted, mixing the terms “sex” and “gender” without defining either. This both reflects and contributes to widespread confusion, which has been exploited to pursue outcomes that the MPs and peers who voted for the act in 2004 had no conception of – such as the right for male-bodied people who identify as women to use female changing rooms, be housed in female prisons, and be recorded as female in crime statistics and census data.
The GRA could certainly still be improved – but at least it now seems that it is not going to be made worse by the introduction of self-ID. Equivalent reform is still being pursued in Scotland, however. In combination with the Scottish hate speech bill, this would be dangerously authoritarian, and Conservatives across the UK should hope that opposition parties and groups will succeed in their campaigns against both pieces of legislation.