What price are we paying for inclusive language about abortion?

I did a Twitter search this evening for “inclusive language abortion” and scrolled through the tweets featuring those words, posted in the last week. I found tweets from 40 different accounts, putting forward views for and against the use of “inclusive language” when discussing abortion rights.

Obviously, a twitter search is not a proper study. But it gives us a quick snapshot of who is talking about this question, what the balance of the discussion is, and what it might mean for the women at the sharp end of a new attack on abortion rights in some states of America (with the aim, as I understand it, of eventually bringing the issue back to the Supreme Court, with dangerous consequences for women in every state).

This tweet, from Fran Hutchins, is typical of the voices I found in support of the idea that it is important and desirable to discuss abortion in a more “inclusive” way:

costs you nothing

This tweet is typical for a few reasons:

  • it is written by a female person. Out of the 40 twitter users in my sample (from both ‘sides’ of the discussion), 35 were identifiable from their Twitter profiles and feeds as female – women, trans men and non-binary female people.
  • it is a “gentle reminder”. As such, it strikes perfectly the slightly condescending, didactic tone we have come to know and love from trans rights activists.
  • it positions its audience (women who are talking about an attack on their fundamental rights) as in some way privileged – you can easily afford to “include” trans men and non-binary people in your discussion, because it will apparently cost you nothing to do so.

I disagree – I think this kind of discussion is not only distracting and divisive, but inherently damaging to the cause of defending and extending abortion rights and women’s liberation in general.

Why is abortion a women’s issue?

“Female people” is a biological category. It includes all the people who are observed at (or before) birth to have female genitalia, indicating a female reproductive system.

“Women” is a social or political category. It includes all the people who are subject to oppression by structures and systems which exist to exploit their reproductive labour.

These categories contain exactly the same people, but they are not the same.

Feminists have been pointing out for decades, the myriad ways in which female infants become women. In some places, this process is nakedly violent from the start. In others it is a slower process, but no less thorough in its stripping from girls of their self-ownership. Everywhere, there are layers and layers of shame.

These processes are so ancient, and so widespread, that we all internalise them, to the extent that we hardly perceive them, even while they are happening to us.

Controlling and exploiting the reproductive labour of half the population requires women to lose control of our own sexuality, to lose connection with our bodies, and to lose our identification with each other, across generations, and across the many differences that we have allowed to divide us.

None of this is affected in the slightest by how individual people identify their gender, nor by an individual’s fertility. If you are a trans man, you have been subjected to the full force of this socialisation process, just as much as all other female people have. If you are a trans woman, you may (if you pass convincingly) experience the day-to-day effects of sexism, but you cannot know what that lifelong indoctrination into the subordinate role feels like. If you are non-binary, your relationship to the issue of abortion remains profoundly affected by your sex. If you are a woman who cannot bear children, you are no less affected by the structures of patriarchy than any other woman.

Politics is about power

“Women” is a political category. It identifies the result of our disempowerment by patriarchy. And it identifies the location of our struggle for liberation.

If we cannot talk about abortion – of all things – as an issue for women, we cannot create the solidarity we need to fight back.

Abortion affects female people, yes. But the way it affects us, in the rounded reality of our lives, is as women. Women forced to seek illegal abortions, or to carry an unwanted pregnancy to term, are doing so in the midst of lives where they are already burdened with the vast bulk of the caring and cleaning, targeted with objectification and harassment, and dismissed as airheaded, moody, slutty, bitchy, or one of the thousands of other slurs reserved only for women. And without that fundamental control over our own bodies, asserting our human dignity against these injustices is immeasurably harder.

Women’s access to abortion has been hard won, where we have it, by women engaging in political struggle. Because control of women’s fertility is the cornerstone of the whole edifice. Every woman, whether or not she ever has or ever will need an abortion, is more free in places where we have abortion rights.

Whose interests are served by women policing each other’s language?

It’s not a coincidence that the overwhelming majority of the people talking about this “inclusive language” question are female. Female people are trained from birth to be kind, to take responsibility for including everyone and looking after the feelings of male people, and to use emotional manipulation to keep each other in line.

I have no doubt that trans men and non-binary female people need abortion rights, as much as we all do. But insisting on “inclusive language” actually makes it harder to defend and extend those rights, by obscuring the political nature of the fight. This is not a debate about ‘people with wombs’. It is about pushing back the rights women have gained through understanding the structural nature of our own oppression. We don’t need any more “gentle reminders” to be kind and inclusive.

If you are female, or if you call yourself a feminist, these abortion laws give you no choice but to pick a side – stand with women, or step aside.

Submission to Big Lottery Fund review of proposed Mermaids grant

[edited 19/12/18 to restore links to an audio recording of a Mermaids training presentation]

To whom it may concern:

I am writing to express my concern about your proposed funding for an expansion of the work of Mermaids.

Although I support Mermaids’ aim of relieving the mental and emotional stress of people aged under 19 who are affected in any manner by gender identity issues, I have some serious concerns about whether the current activities of the organisation in fact contribute to that aim. I also have concerns about the CEO of the charity, Susie Green, and whether she is a suitable person to be entrusted with public funds.

Children and young people affected by gender identity issues are a growing and vulnerable group of people, with a wide variety of needs. Because gender identity formation is a complex process which takes place (as all psychological processes do) in a social context, there is considerable debate among scientists as to the nature of gender identity and the possible causes of distress related to it.

There is no scientific consensus supporting a single approach to gender dysphoria expressed by children. Teams of clinicians working directly with young people who experience dysphoria in 10 different countries were interviewed for a qualitative study in 2015, and several of them expressed a variety of concerns about treatment protocols that include puberty blockers. For example:

“I believe that, in adolescence, hypothalamic inhibitors should never be given, because they interfere not only with emotional development, but [also] with the integration process among the various internal and external aspects characterizing the transition to adulthood.”
-Psychiatrist

“I have met gay women who identify as women who would certainly have been diagnosed gender dysphoric as children but who, throughout adolescence, came to accept themselves. This might not have happened on puberty blockers.”
-Psychologist

“You might think that the experience of gender dysphoria is kind of a solution [for all their problems] that is culturally available for adolescents nowadays. […] I think that the culture is kind of offering or allowing this idea that all problems are stemming from the gender problem. And then they stick to this fixated idea and [they] seek for assessment and we readily see that they have numerous and relatively serious psychological and developmental problems and mental health disorders.”
-Psychiatrist

The authors of the study concluded:

“As long as there are only limited long-term data in support of the guidelines, there will be no true consensus on treatment.”

Nevertheless, Mermaids deliver training to teachers, NHS workers, police officers and other professionals which presents an affirming approach as the only ethical way to respond to a young person’s disclosure of gender dysphoria, and does not address the scientific debates at all.

Other controversies are also glossed over in the Mermaids training presentation (audio recording part 1 and part 2), in a way that I see as counterproductive to the organisation’s stated aim. For example, participants are asked, in an exercise involving jelly babies, to locate their gender identity, sexual orientation, gender expression and biological sex on a one-dimensional spectrum which spans from Barbie at one end to GI Joe at the other.

This framing of complex human attributes as points on a narrow spectrum is, in my view, damaging to the interests of young people who wish to express their individuality in ways that are entirely outside of or at odds with that model. As a lesbian, who wears clothes marketed for men and has short hair, I do not consider myself to be less of a woman than another woman who wears skirts and has long hair. I find this idea offensive and I think it is likely to be damaging to the interests of young lesbians if it is presented as factual to their teachers or their peers.

The complex legal issues surrounding the provision of separate-sex toilets and changing facilities in schools are also presented inaccurately by Mermaids.

Mermaids are presenting extreme and controversial views as if they are settled and agreed “best practice”. For a significant proportion of young people who are affected in some way by gender identity issues, this could – far from relieving their mental stress – in fact add to their distress by encouraging them to pursue medical interventions and adopt practices (such as breast-binding) which cause lasting harm. The MORF binder scheme, included on Mermaids’ web page of resources for young people, in turn recommends Mermaids as a source of support.

Mermaids rely heavily on disputed statistics about suicide among young people who identify as trans. They do not abide by the Samaritans media guidelines for reporting on suicide, and I am concerned that their approach to this issue could result in an increase in suicidal ideation among this very vulnerable group of young people.

One of the themes that can be seen in the growing number of testimonies of detransitioners is that it is possible for young people to be swept up in an overwhelming culture and that there is a need for more precise, careful and personalised therapeutic care for young people who are expressing distress or dysphoria related to gender.

Mermaids advocates instead for quicker intervention, easier access to puberty blockers, and cross-sex hormones to be prescribed to under-16s. Their website still refers visitors to the GenderGP service run by Dr Helen Webberley, who has been convicted of running an unlicensed medical clinic.

The CEO of Mermaids, Susie Green, has shown a long-term disregard for legal restrictions and regulations when making decisions about the medical treatment of her own child. Contrary to the advice of the Tavistock & Portman clinic, she took her child to the USA at age 12 to access puberty blockers. When her child was 16, she arranged sex reassignment surgery in Thailand (an operation which is now illegal in Thailand, as well as in the UK).

I hope you will be able to take these concerns into account in the course of your review of the decision to award funding to this organisation.

Truth to power?

Somebody asked me the other day, how the trans identity lobby had been so successful. It’s an interesting question.

How has it come about that all main political parties, many schools, local councils, universities and other public institutions are lined up in support of ideas which are accepted by less than 20% of the population?

 

I think the reasons are many and complicated. Here are some thoughts about three strands that I think are part of this story.

1. People are not supporting what they think they are supporting

It is perfectly possible to hold these two views simultaneously:

The Women Ask Questions poll asked questions that specified that they were about a male person who has male genitalia but who identifies as a woman. Whereas the questions asked to obtain the contrasting figures in the British Social Attitudes survey used a shortened version of this quite complicated definition:

[people who] have gone through all or part of a process (including thoughts or actions) to change the sex they were described as at birth to the gender they identify with, or intend to. This might include by changing their name, wearing different clothes, taking hormones or having gender reassignment surgery

For example, in response to this question:

Please think about a transgender woman – that is a man who has gone through all or part of a process to become a woman. How comfortable or uncomfortable would you be for a transgender woman to use female public toilets?

72% of women said they were very or quite comfortable.

I think the concept of a meaningful transition is relevant here. I suspect the difference in responses to the two polls is because most people think “has gone through all or part of a process to become a woman” is not the same thing as “has male genitalia but identifies as a woman”.

In other words, despite widespread and growing liberal attitudes towards transgender people, the trans identity lobby has not succeeded in persuading most people that identity is the sole determinant of sex.

However, one of the triumphs of the trans identity lobby has been to utterly conflate opposition to discrimination with support for an identity-based model of sex.

For example, when Stonewall approached 100 corporations and charities to support their full page ad in the Metro, the wording on the advert was essentially motherhood and apple pie:

“To all our trans family, colleagues, customers and friends, We are proud to stand alongside you in the fight for trans equality. We support your right to be yourself and you deserve to be treated with dignity and respect in all parts of daily life. We will keep on playing our part to make that happen and we send you our support and strength in the face of the hostility directed at you. We are proud to come out for trans equality.”

Who could disagree with that? I don’t.

But the advert also promoted Stonewall’s pre-filled response to the Gender Recognition Act consultation, supporting “a reformed Gender Recognition Act that:

  • Requires no medical diagnosis or presentation of evidence for trans people to get their identity legally recognised
  • Recognises non-binary identities
  • Gives all trans people, including 16 – 17-year-olds, the right to self-determination, through a much simpler and more streamlined administrative process” (Source: Stonewall)

These are much more specific proposals, which it is possible to disagree with, or wish to discuss, without being a bigot.

This kind of sleight of hand is immensely harmful to the possibility of a proper democratic discourse.

2. Lobbying the powerful doesn’t change power structures

Stonewall has always been a lobbying organisation, not a grassroots campaign. It was explicitly set up that way in 1989.

The campaign against Section 28 was a spontaneous, grassroots resistance against a law that demonised lesbians and gay men as a tool to consolidate central government power in relation to local government, and strengthen the internal Conservative Party coalition between economic liberals (like Thatcher) and the socially authoritarian Tory membership.

In many ways, we were collateral damage – Thatcher was not particularly interested in moral issues such as homosexuality. She included Section 28 in the Local Government Act 1988 as part of a deal with the Christian right in her own party because it looked like a useful way to weaken the “loony left” in Labour.

The Labour leadership at the time were not particularly interested in defending us, or their own left-wing councils. The campaign groups that sprang up around the country were not proxies in a political game, and we didn’t expect or count on support from any establishment parties.

Stonewall was a concrete expression of one aspect of the movement against Section 28, but it was not the only one. There were (at least) two broad approaches, crudely summed up by a series of oppositional binaries:

  • Lobbying vs Direct action
  • Respectable vs Confrontational
  • Born this way vs Glad to be gay
  • Equal rights vs Liberation

I was on the direct action/liberation wing of the movement. I remember being horrified when I heard that Stonewall had been established with a salaried CEO on £20,000 a year. Imagine what we could have done with all that money! We were running our campaign on hours and hours of voluntary input, sales of badges, donations and proceeds of fundraising discos and jumble sales. (In 2016-17, Stonewall spent £311,842 on employing a senior management team of four people, the highest paid of whom has a salary in the range of £90,000 to £99,000.)

My view was, and still is, that equal rights (to marry, serve in the military etc) are not the end goal of a liberation movement. That the different ways of living developed by lesbian and gay people, outside of and to some extent in opposition to traditional family life were a positive contribution to a possible future where women and young people would not be squashed into narrow patriarchal boxes. Like the radical feminists and gay liberationists of the 1970s, I still think marriage is a trap for women, and for lesbian & gay people.

Stonewall’s approach has been hugely successful. Laws have been changed and equal rights for lesbian & gay people are uncontroversial across the whole political establishment.

And yet, patriarchy persists; sex role stereotypes in children’s toys, books and clothes are as strong as ever; women continue to do the bulk of domestic labour, childcare and care work generally; women are objectified, harassed, assaulted and murdered by men who view us as less than human.

Lobbying the powerful doesn’t alter the structures that underpin their power. In fact, it reinforces those structures and that power.

Thanks, in part, to the successful lobbying of Stonewall for marriage equality, the naturalness and inevitability of marriage has been strengthened. The logical conclusion of arguing that we should be treated equally because we are just “normal” inside is that “normality” expands slightly to include us, but is in no other way disrupted.

3. Gender identity is a neoliberal ideology

Stonewall is a symbol of the victory of lobbying over direct action, top-down law change over grassroots movements, individualism over collective struggle. This is a shift that has happened across all aspects of politics and society, alongside the decline of trade unionism and the growth of economic inequality and insecurity.

Far from being a liberatory project, the idea that a person’s internal gender identity determines their sex is absolutely in line with this general atomising tendency in the western world. The only thing which counts is a person’s autonomous and isolated sense of themselves as a man, woman or non-binary person. There is no recognition of gender as a social relation between each individual and all others in society.

Theresa May’s Conservative government at first perceived no real danger in backing the call for self-determined legal sex. They had no investment in the gains of the collectively organised women’s movement. They do not recognise the structural nature of oppression.

At root, they are uninterested in this issue. Just as with Thatcher’s government, they were content for lesbians (and, in this case, all women) to suffer the collateral damage from an agreement that seemed expedient to them.

For that reason, I do not think they will now pursue the changes to the GRA demanded by Stonewall. The controversy over the proposals has surprised them and I think they will back away.

I may be wrong on this. In any case, things are currently looking very worrying in the Labour Party. The challenge for feminists in the labour movement over the next few years will be to find ways to expose the essentialism and individualism at the heart of transgender ideology, and point out the inherent contradiction with the aims of a movement based on solidarity and interdependence.

Whatever happens with the GRA reform, the issue is now very much out in the open, and we are not anywhere near the end of this story.

GRA consultation question 20

Question 20: Do you think that there need to be changes to the Gender Recognition Act to accommodate individuals who identify as non-binary?

No

The purpose of the Gender Recognition Act was to permit transsexual people to marry without legalising same-sex marriage in general, and to protect the privacy of transsexual people. Both of these aims were in response to rulings at the European Court of Human Rights.

Now that same-sex marriage has been legalised, this aspect of the Act is entirely redundant.

I think a person who identifies as non-binary cannot have the same expectation of privacy as a person who seeks to be recognised legally and socially as a member of the opposite sex. Identifying as non-binary is a fundamentally different proposition from seeking to join an existing grouping that is widely understood and recognised in society. It is the creation of an entirely new concept of gender, which is unrelated to a person’s biological sex.

As such, a non-binary person will necessarily have to state their gender identity in every situation. They cannot (and do not) expect people to assume a non-binary identity by looking at the way they dress or wear their hair. This is the whole point of identifying as non-binary.

The GRA is therefore not an appropriate mechanism for recognising non-binary identities, even if this were desirable. As outlined in my answer to question 19, I do not think the law should codify a philosophy about sex and gender which is far from widely accepted.

I would support the removal of mandatory title fields on many official forms. I think this would benefit people of both sexes. Where relevant, I think people’s sex should be recorded, but there is often no need to ask about someone’s “gender identity” at all.

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GRA consultation question 19

Question 19: Do you think that changes to the Gender Recognition Act will impact on areas of law and public services other than the Equality Act 2010?

[third draft, 14/10/18]

Yes

I think there will be an impact on all aspects of law and public services, if the law enshrines an identity-based model of sex, rather than a factual, biological model.

The belief that each person has an innate “gender identity”, that this is immutable, and that “gender identity” determines sex is by no means universally held in society at large. Many (perhaps most) people continue to accept the fact that biological sex is immutable and determined at conception.

In the absence of a specific definition, words in law must be taken to have their ordinary meaning. In any case, it was clearly not the intention of Parliament when the Equality Act was passed, that the meaning of “sex” should be taken to be something defined solely by a person’s internal sense of identity. If this had been the case, then none of the exceptions which permit discrimination against people with the protected characteristic of gender reassignment when providing single-sex or separate-sex services would have been included in the Act.

The Gender Recognition Act is a compromise between these two conflicting views. It permits a limited category of people to alter their legal sex, while recognising that in some circumstances the fact that they have done this (and therefore their biological sex) remains relevant.

A change to the criteria, so as to permit a change of legal sex on the basis of self-declaration alone would shift the balance of this law towards the belief that “gender identity” is the main determinant of sex.

I think this does not reflect the current prevailing view of most reasonable people. Case law is often decided with the use of the concept of a ‘reasonable person’. To have a belief written into statute which is not shared by a large proportion of the population could therefore lead to difficult, costly and painful court cases in which the conflict between law and fact is tested. I do not think this is necessary or desirable.

If there is to be a shift in this direction, then the rights of those people who sincerely hold a materialist view about the nature of sex and gender must be strongly protected. This is a sincerely held philosophical belief, and is therefore a protected characteristic under the Equality Act.

In order to assess the impact on women of any changes to the Gender Recognition Act, it will be important to continue to gather accurate statistics based on biological sex, as this is the basis on which they have been gathered up to now. Without accurate statistics, the government will be in dereliction of its public sector equality duty under the Equality Act, to promote good relationships between people with different protected characteristics. Sex remains a protected characteristic.

 

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GRA consultation question 17

Question 17: Do you think that the operation of the marriage exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

Yes

This exception exists to protect the rights of people not to contravene their own sincerely held religious beliefs by solemnising marriages which they reasonably believe to be, in effect, same-sex marriages.

While I do not share these religious beliefs, I think the right of people to hold them and act in accordance with their own beliefs should be upheld. A change to the procedure for acquiring a GRA is likely to increase the usage of this exception.

The mechanism which is used for this exception (‘reasonable belief’) should be extended to employers and service providers who wish to provide single-sex services or restrict particular posts to members of a single sex. This would resolve the difficulties which currently exist as a result of Section 22 of the Gender Recognition Act.

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GRA Consultation question 15

Question 15: Do you think that the operation of the communal accommodation exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

Yes

As I understand the law, it is already lawful to exclude people of a particular sex from communal sleeping accommodation. So unless a transsexual person has changed their legal sex, they cannot expect to be accommodated in (for example) a dormitory for the opposite sex in a youth hostel. The hostel should make reasonable provision for such a person (for example, by offering them a single room, if there is one available).

It is also currently lawful for an organisation to exclude people from communal accommodation who have changed their legal sex, if this is a proportionate means to achieve a legitimate aim. Different organisations will be making different judgments about what is the appropriate policy in their case.

As with questions 13 and 14, a change to the criteria for obtaining a GRC may cause organisations which have previously considered it disproportionate to discriminate against transsexual people with a GRC, to change their policy. They may feel that discriminating against transsexual people is now the only way to ensure that their customers are guaranteed privacy from members of the opposite sex while they are undressing and sleeping.

My understanding is that this aspect of the law is widely misunderstood and misrepresented. I think this situation could worsen if self-declaration is introduced as the sole criterion for obtaining a GRC. There is already a widely promoted myth that it is illegal to treat a trans person differently from anyone else of their declared gender. Even the EHRC’s guidance gave this impression until October 8th. This view would be strengthened by a change in the law.

I would like to see a thorough review of how all the single-sex exceptions are being applied in reality, and new, unambiguous guidance issued.

In particular, I would like the prison service to adopt a blanket policy that women’s prisons will only be used to accommodate prisoners who are biologically female. Given that:

  • over 40% of the prisoners currently identifying as trans have been convicted of sexual or violent offences
  • 53% of women in prison report having experienced emotional, physical or sexual abuse during childhood
  • 46% of women in prison report having suffered domestic violence (information on women in prison from http://www.womeninprison.org.uk/research/key-facts.php)
  • women have already been assaulted in prison by a self-declared trans woman, who had been placed in the female estate

I believe that a blanket policy of ensuring that womens prisons are a female-only environment would be a proportionate means of achieving a legitimate aim.

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Storybook revolutionaries

I filled in this survey the other day. It’s a research project looking into the idea of the abolition of legal gender. The questions are awkward – there’s a lot of confusion and conflation of sex and gender – but it was possible to make comments and present a gender-critical feminist view in my responses. I hope other feminists fill it in.

But one of the questions made me pause – it was something like “Do you agree or disagree that it is a good thing that an increasing number of people are identifying as neither male nor female?”

A few months ago, I probably would have said that it is a good thing. The young non-binary folk were the people in the trans identity movement that I had most sympathy with. They are radical, energetic, ready to shake things up and transform the world. I like that kind of thing.

And I really get the idea of rejecting gender for oneself. I did it for years. I understand the urge to be “not a girl”, to insist that your sex is irrelevant because you are simply a human being.

I was never very comfortable with the strand of radical feminism that celebrated menstruation or talked about womb-energy. And I couldn’t really do the sharing of life stories and sympathising about hopeless husbands that was so bonding for many of my female friends. I am sure I would have identified as non-binary if I had been born 30 years later than I was.

But maybe I’m missing something. Because yesterday on Twitter, I saw dozens of radical young things queuing up to correct Sophie Walker, the leader of the Womens Equality Party, when she tweeted this:

sophie

Apparently, she had misunderstood the whole concept:

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She was variously offered further tuition and instructed to behave herself

I found this puzzling, because it seemed to me that what Sophie said was very similar to statements made by Edward Lord in this article, and, most directly, this tweet. For those who (like me) are blocked by Edward Lord, here’s a screenshot of the tweet:

lord

Maybe Sophie is just too… womanly to be non-binary. Some of her uninvited advisors seemed to think so:

Although this, too, was controversial:

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What seemed to be a radical idea – reject the gender labels that trap us into social roles according to what kind of body we are born with – turns out to be something that is impossible to even discuss with any shared understanding of the terms involved. I sympathised with this twitter user, who made a valiant attempt to understand, but found herself defeated:

nonsense

Because here’s the thing. You can’t get rid of complex hierarchical social structures just by denying that they exist. It’s OK, up to a point, as a personal survival method, but it’s useless as a revolutionary strategy.

The world is full of women who know full well that they are full and whole human beings, but who still have to do the washing up because nobody else will do it. Whether you think of yourself as a girl or not, somehow you will find that you end up doing women’s work. And that’s because gender isn’t an indefinable internal essence. It’s a massive, grinding machine, which gets its teeth into all of us, way before we have started to consider dying our hair blue.

If you are born female, the rules, roles and expectations placed on you have been drumming their way into your head from babyhood. You’re going to need all your sisters with you, to overcome that. You can’t just rename yourself and think that will get you out of it. Patriarchy is not a storybook dragon that can be easily outsmarted by a brave princess.

Sooner or later, we have to confront the thorny question of power. Because the world is still run by men like Brett Kavanaugh, and bluntly, they don’t give a shit how other people identify.

I find it interesting to think about issues of legal gender. I am composing a detailed response to the Gender Recognition Act consultation. But the letter of the law is not the point, just as the minutiae of individual gender identities are largely irrelevant.

The point is that women are raging. With good cause. And if your priority is to belittle, insult and police the speech of women who are rising up, then you are not a feminist.

GRA consultation question 14

Question 14: Do you think that the operation of the occupational requirement exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

[third draft, 11/10/18]

Yes

As with question 13, a change to the GRA which makes it possible for a broader range of people to change their legal sex has the potential to affect this provision in two divergent ways. I think both are likely to occur in different contexts.

Organisations which employ people for whom being of a particular sex is an occupational requirement will have to reconsider how they use this exception, if there is an enlarged group of people whose legal sex has been changed but who are not necessarily undergoing a medical transition.

Some organisations will conclude that excluding all transsexuals from these posts, including those with a GRC, is the only way to ensure that their service users receive an appropriate service.

This therefore increases the likelihood that a conflict will arise between the privacy provisions in Section 22 of the GRA and the application of a genuine occupational requirement that a particular post must be held by a person who is of a particular sex and not transsexual. If an applicant for such a post has a GRC and does not disclose their trans status, then the employer has no way to confirm that they are not eligible for the post.

Other organisations will conclude that employing people of a particular sex is not a proportionate means of achieving a legitimate aim, and will drop the occupational requirement altogether.

The current highly charged nature of the political discourse around these issues means that organisations are likely to come under some pressure to take this latter course of action. The application of these exceptions is already a matter of political lobbying by organisations such as Stonewall and Gendered Intelligence, who suggested in their evidence to the Women and Equalities Select Committee Trans Inquiry that all the single-sex exceptions in the Equalities Act should be dropped (https://womansplaceuk.org/references-to-removal-of-single-sex-exemptions/).

Although the government has now stated that it will not make changes to the Equality Act at this time, this view remains very influential. A change to the procedure for obtaining a GRC would add weight to the view that gender identity is a more meaningful category than sex, and that single-sex occupational requirements are therefore not legitimate.

A third likely change is that employers who advertise posts that are available only to people of a certain sex (and not transsexual people) are more likely to be challenged in court. This is because there will be an enlarged group of people who will be (lawfully) discriminated against in this way, and among this enlarged group there are activists in a vocal movement which argues for the exceptions to be removed from the law.

Having observed the long-running and costly legal case pursued against Vancouver Rape Relief, when a transwoman was refused voluntary employment there in 1995 (https://en.wikipedia.org/wiki/Kimberly_Nixon_Rape_Relief_Case), it would not be surprising if some organisations choose not to apply an occupational requirement for their employees not to be transsexual, rather than jeopardise the operation of their whole service by risking a court challenge, or a boycott campaign.

While this is an understandable response by service providers, it would be directly harmful to those service users who need to be supported by female workers. People who have experienced rape or sexual abuse are often living with complex PTSD. If they cannot access a support service for fear of being retraumatised, this will be a grave injustice.

The government should issue new guidance which unambiguously reaffirms that use of the exceptions is lawful and advises employers to consult with their service users when deciding whether to apply a single-sex occupational requirement to a post. The crucial assessment of whether such a requirement is proportionate and legitimate should give more weight to the needs of the people directly affected (the users of the service) than the views of the public at large, or campaigners with a particular interest.

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GRA consultation question 13

Question 13: (A) Do you think that the operation of the single-sex and separate-sex service exceptions in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

Yes

I think the operation of these exceptions would be affected in two major ways by a change to the process of acquiring a GRC.

First, some organisations which currently make use of the exceptions outlined in Schedule 3, paragraph 27 (to offer single-sex services which do not exclude transsexual people) may decide that they need to use the exceptions outlined in paragraph 28 in addition to this (to exclude transsexual people).

This is because a person who identifies as transgender but does not have a GRC retains their birth sex as their legal sex. An organisation which wishes to provide services that are open to people who are female by birth and those who are female because they have a diagnosis of gender dysphoria and have satisfied the other criteria for obtaining a GRC, may do this by using the exceptions in paragraph 27. This may well be a proportionate means of achieving a legitimate aim (for example, providing an effective refuge service for women who have experienced domestic violence).

Such an organisation is not obliged to include someone who cross-dresses occasionally, or someone who identifies as gender fluid. These people retain their birth sex and are not therefore being discriminated against on grounds of gender reassignment if they are refused access to a single-sex or separate-sex service for the opposite sex. As argued by barrister Julian Norman at https://filia.org.uk/news/2018/8/23/has-everyone-really-got-it-wrong, “where a person has the protected characteristic of gender reassignment but does not have a GRC, their comparator class in looking at a discrimination claim is other members of their birth sex who are not proposing reassignment. Once they do have a GRC, their comparator class is members of their acquired sex.”

If the process for obtaining a GRC is made less restrictive, then people who have no dysphoria and who are undertaking no medical treatment may nevertheless change their legal sex and be legally entitled to access single-sex services for their acquired sex. If organisations wish to continue to achieve the legitimate aim of providing an effective service for (say) women who have experienced domestic violence, they may then feel that the only way for them to do so is to exclude all transsexual people, by applying the exceptions in paragraph 28.

Restricting women’s refuge services to women only is an integral part of making those services effective, as explained by a contributor to the Fair Play for Women report on Supporting women in domestic and sexual violence services (https://fairplayforwomen.com/wp-content/uploads/2018/09/FPFW_report_19SEPT2018.pdf):

“I have previously worked in, and run, refuges for Women’s Aid. The idea of any male who identifies as a woman having access scares me. People … speak of the assessment process to access a refuge and how this would weed out potential abusers. Firstly, this is ridiculous because it is impossible to tell someone’s intentions and many abusers are good at putting on a front (it’s the same logic that says that women should automatically know who is a rapist and who isn’t).

“Secondly, I think people who believe this have no idea how basic the assessment to actually enter the refuge can be, especially if out of hours. The over-the-phone assessment done at weekends or in the night is incredibly basic (a handful of questions) and also relies on the person replying honestly and we did not meet the person before they turned up to the refuge… In this situation a male could arrive on the doorstep of a house staffed by one female worker at three in the morning, with abused women and children in bed, and with hardly any assessment of any kind.”

This change would obviously be to the detriment of transsexual people, who have hitherto been included in some single-sex and separate-sex services.

Secondly, a change in the law may have the effect of altering the basis of the exceptions, by influencing public opinion and the opinion of powerful organisations such as local authorities and other funding organisations as to what constitutes a legitimate aim.

If the basis for a person to change their legal sex is their own self-identification, then this will tend to reinforce the philosophical belief held by some people that a person’s internal sense of gender identity is the only valid determinant of their sex.

While I do not believe that this is currently a view held by the majority of people in the country, it is already being expressed by many public bodies, including organisations which are responsible for funding and commissioning services who make use of the exceptions in the Equality Act.

An official strengthening of this philosophical belief would make it more difficult for organisations to assert the contrary belief that it is legitimate to define sex on the basis of biology and to restrict some services to biologically female people.

The result would be that although the exceptions remain unchanged in the letter of the law, they become impossible to implement in practice.

This change would be to the detriment of users of single-sex and separate-sex services (who are mainly female).

While these two changes may appear to be contradictory, I think it is possible that both would occur at the same time, as local authorities and service providers interpret the law differently in different places and circumstances.

NB I disagree with the interpretation offered in this consultation and in EHRC guidance, which states that organisations wishing to apply the exceptions in Schedule 3, paragraph 28 of the Equality Act to exclude transsexual people from single-sex or separate-sex services must make their decision about whether this is proportionate on a case by case basis. This is in no way implied by the wording in the Act, which merely states that it is lawful to do so if this is a proportionate means of achieving a legitimate aim.

There are many situations in which a general exclusion of transsexual people from a single-sex service is necessary (and therefore proportionate) in order to achieve a legitimate aim. For example (in fact, the example given in the explanatory notes for the Act: https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7/5/3), a service for female survivors of sexual abuse may legitimately decide to guarantee to potential participants that their group counselling service will be open to female people only. This is because people who need to use a service of this kind are very likely to be retraumatised by the presence of a biologically male person in their group. In order to give such a guarantee to female service users, the organisation would need to have a general policy of excluding transsexual women from that service, and not to consider each case individually.

I hope that this guidance will be revised and clarified, whether or not there are changes to the GRA.

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