Question 12: Do you think that the participation of trans people in sport, as governed by the Equality Act 2010, will be affected by changing the Gender Recognition Act?

Yes

If people are able to obtain a GRC without a diagnosis of gender dysphoria or any engagement with medical professionals, then there is every chance that an increased number of male people who have not undergone any medical transition will seek to participate in women’s sporting activities and competitions.

The government has a Public Sector Equality Duty to promote equality of opportunity. There is already a noticeable discrepancy between male and female participation in sport, and differing patterns of sporting activity between men and women.

The Active People Survey commissioned by Sport England in 2014 found that 40% of men take part in sport at least once a week, while only 31% of women do. (https://www.sportengland.org/media/3285/gowherewomenare_final_01062015final.pdf)

Research commissioned by the Department for Culture. Media and Sport in 2011 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/137986/tp-adult-participation-sport-analysis.pdf) found that women’s participation in sport is heavily concentrated in a few types of sporting activity (swimming, health & fitness at the gym, dance/exercise classes) – mainly those which take place indoors and in predominantly female groups.

The reasons for this imbalance are complex, but are likely to include the greater pressure on women’s time due to their disproportionate responsibility for domestic work and childcare, the high levels of harassment experienced by women who run or cycle in public spaces, and the social expectations placed on women to look “attractive” when in the presence of men.

Rather than exacerbating this imbalance, the government should be taking steps to enable women to feel more free to engage in sporting activity. Making it easier for male people to take part in women’s sport is likely to have the opposite effect.

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Question 11: Is there anything you want to tell us about how the current process of applying for a GRC affects those who have a protected characteristic?

Under the Equality Act 2010, the government has a Public Sector Equality Duty, which means it must have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

This consultation process should therefore consider the interests of people with protected characteristics other than gender reassignment, when making changes to the operation of the GRA.

A change to the GRC process based on a specific set of beliefs about gender identity could have an adverse effect on good relations between trans people and:

– Female survivors of sexual and domestic violence and female prisoners (protected characteristic: sex)
– People with health conditions that are specific to one sex or the other and who need specific information targeted appropriately (protected characteristic: sex)
– People from religious or cultural communities for whom single-sex spaces are important (protected characteristics: religion, race)
– People who don’t believe that gender identity is innate and immutable (protected characteristic: religion or belief)
– Lesbians and gay men who wish to assert their same-sex attraction (protected characteristic: sexual orientation)

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Question 10: If you are someone who either has, or would want to undergo legal gender transition, and you have one or more of the protected characteristics, which protected characteristics apply to you? You may tick more than one box.

I have not ticked any of the boxes, but I do plan to include this comment:

This question is not addressed to me, as I am not a person who wishes to change my legal sex.

However, my answers to this consultation are informed by the fact that my sex is female, and I think the potential conflict between the rights of transgender people and those of people who are female by birth is a key issue that must be addressed if the GRA is to be reformed. It is a problem that the consultation does not specifically address the impact of proposed reforms on all people with protected characteristics.

This question is also very badly worded. Of the nine protected characteristics, five apply to everyone; everyone has an age, race, sex, sexual orientation and religion or belief (given that this includes absence of religious belief). Asking “which of these characteristics apply to you” is therefore largely meaningless.

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Question 9: Do you think the privacy and disclosure of information provisions in section 22 of the Gender Recognition Act are adequate?

No

An issue of concern that is not mentioned here is the fact that Section 22 of the GRA presents a practical difficulty for any organisation wishing to use the exceptions outlined in paragraph 28 of Schedule 3 (Part 7) and paragraph 1 of Schedule 9 (Part 1) of the Equality Act 2010.

Paragraph 28 of Schedule 3 permits organisations to provide services for female people only (not including people who are transsexual) and paragraph 1 of Schedule 9 permits employers to specify that being female (and not being a transsexual person) is a genuine occupational requirement for a particular post. Both of these exceptions have been used in the past to provide appropriate and effective services for women and girls who have experienced sexual violence or intimate partner violence.

The Equality Act rightly permits women-only services to be provided, and some jobs to be reserved for biological women only. For some people, the presence of biologically male people in a therapeutic space or a place of refuge would make the services inaccessible.

The Women’s Resource Centre report, “Hearing Women’s Voices: Why women 2018” brings together powerful testimony from users of four different women’s organisations, illustrating the many reasons why women need the choice to access women-only services. (https://thewomensresourcecentre.org.uk/wp-content/uploads/WRC-Report-2018-Full-Report-FINAL-4th-June.pdf)

The report describes how “Across all of the focus groups, participants talked about how much women-only organisations matter. They said women-only services and spaces are ‘essential’, they are ‘crucial’, they are ‘vital’, they are ‘necessary’. They all spoke from their own experience of accessing women-only services or groups. In women-only organisations women felt safe, they felt more confident to be able to be themselves, felt they would not be judged, not be silenced, and that they could
share difficult experiences.” (page 29)

The government has an opportunity to affirm the importance of women-only services as an option for those who need them, by including the provision of single-sex services or employment as one of the circumstances in which it is justified to disclose information about an individual’s gender reassignment.

As things stand, Section 22 of the GRA makes the exceptions in the Equality Act difficult to apply in practice, and a move towards a self-declaration model for obtaining a GRC would only intensify this problem. If that approach is taken, it is all the more important to permit disclosure where it is necessary for service providers or employers to use the Equality Act exceptions.

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Question 8: (A) Do you think the fee should be removed from the process of applying for legal gender recognition?

No

(I have no knowledge about what a reasonable fee would be, so I don’t intend to answer this question any further.)

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Question 7: The Government is keen to understand more about the spousal consent provisions for married persons in the Gender Recognition Act. Do you agree with the current provisions?

No

I don’t think married people should be able to prevent their spouses from acquiring a GRC, nor should they be able to compel their spouses to remain married to someone whose legal sex has changed.

A mandatory period of reflection of two years between applying for a GRC and the certificate being granted would give married applicants time to discuss and agree a way forward with their spouse. It should be required for a married applicant to inform their spouse that they have applied for a GRC.

I support the government’s proposal (https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/) to introduce a no fault divorce procedure. This would greatly ameliorate the situation of people who wish to end their marriage as a result of their spouse applying for a GRC.

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Question 6: (A) Do you think this requirement should be retained, regardless of what other changes are made to the gender recognition system?

Yes

A statutory declaration should be retained, because there are penalties for making a false declaration. It may therefore act as a deterrent for people who are tempted to make false declarations for frivolous or malicious purposes.

However, it is difficult to see how these penalties could ever be applied in the case of a declaration that someone intends to live in the acquired gender until death.

As stated earlier, I don’t believe that living “in a gender” is something that should be imposed on individuals by the law. Both the GRA and the Equality Act use the words “sex” and “gender” in muddled and confusing ways. I would like to see this clarified.

I think the statutory declaration should state that the person sincerely believes the reasons given in their application for a change of legal sex, that their application is not being made for an improper purpose, and that they meet all the conditions required for a change of legal sex (diagnosis of gender dysphoria, medical report, additional safeguards as outlined below).

There should be a process in place for people to rescind a GRC. There is a growing number of people who find that they need to detransition. These people should be able to revert to their original sex in law, if they have acquired a GRC.

(B) If you answered yes to (A), do you think that the statutory declaration should state that the applicant intends to ‘live permanently in the acquired gender until death’?

No

(C) If you answered no to (A), do you think there should be any other type of safeguard to show seriousness of intent?

I think additional safeguards are needed in addition to a statutory declaration. For the reasons given above, I do not think a statutory declaration alone is sufficient.

People who have been convicted of violent or sexual offences should not be eligible to obtain a GRC.

People who use their altered legal sex for improper purposes (for example to gain easier access to children in order to harm them, or to gain easier access to vulnerable women using single-sex services) should have their GRC rescinded and should not be eligible to reapply.

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Question 5: (A) Do you agree that an applicant should have to provide evidence that they have lived in their acquired gender for a period of time before applying?

No

I don’t think “living in a gender” is something the government should be requiring of its citizens. I don’t agree with such a concept being enshrined in law.

If a person has a need to change their legal sex because it will ease their dysphoria, or as part of a course of medical treatment, or for some other reason which satisfies the GRP, there is no need to investigate the way they live their life. Women can live in all kinds of ways and so can men.

Question 5: (D) If you answered no to (A), should there be a period of reflection between making the application and being awarded a Gender Recognition Certificate?

Yes, there should be a period of reflection of 2 years. I do not think it is desirable for the process of changing legal sex to be made quicker and easier for young people. It should be something that is undertaken carefully and after full consideration.

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Question 4: Do you also think there should be a requirement for a report detailing treatment received?

Yes

Treatment should not be required in order for a GRC to be granted, but there should be some information given by applicants about their engagement with medical practitioners, as evidence that they are approaching their transition in a thoughtful and considered way.

Since the GRA was introduced, it has become much easier for people to access medical treatment by purchasing hormones via the internet, or crowdfunding to pay for private surgery. This means that it is possible to alter one’s appearance and physiology without ever discussing the matter with a doctor, counsellor or therapist.

While adults are of course free to alter their bodies as they wish, an application to change one’s legal sex should be on the basis of a clearly defined need, and this should be backed up by a report from a medical professional, which shows that the applicant has approached the matter thoughtfully and with respect for the impact on others in society.

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My answer to Question 3:

Do you think there should be a requirement in the future for a diagnosis of gender dysphoria?

[third draft, 22/9/18]

Yes

I think that if an individual is to be treated as having a different legal sex from their biological sex, this should be limited to cases where there is a clear need for this legal fiction to be applied.

The shift in public attitudes towards transgender people over the period since the GRA was first enacted is to be welcomed. It is now much easier for people to live their lives in a variety of ways, and there are fewer restrictions on everyone’s choices regarding clothing, grooming, and the words and names they choose to identify themselves. These freedoms can be exercised without altering a person’s legal sex. I think this is a good thing, as I do not believe that a person’s sex should prescribe or restrict their choices in any of these areas. There is no reason to alter the law to enable people to more easily change their legal sex, because of this shift in cultural attitudes.

The Gender Recognition Act was originally drafted in order to afford transsexual people the human rights to privacy and a private family life. Now that same sex marriage is legal, a large part of the original reason for introducing the law has disappeared. The fact that transsexual people are protected from discrimination by the Equality Act 2010 also means that the need for privacy is diminished.

In general, I think it is in the best interests of society as a whole if the law is based on facts and words used in the law have their ordinary meaning in English. If the GRA is to be amended, I would like to see it clarified that a change of legal sex does not alter a person’s biological sex, which remains relevant in some circumstances.

I understand that some people still feel a need to alter their legal sex, but I think they should be asked to provide some evidence for why they need to do this.

The serious implications of permitting people to change their legal sex were discussed in Parliament when the Gender Recognition Act was originally passed. The Act creates two different ways for a person to be legally “female” or “male” – via birth, or through legal “gender recognition”. This affects all other laws, where these categories are relevant. It also has an impact on statistical data, regarding health issues, crime, and many other aspects of society.

It is clear from the records of the Parliamentary debates that everyone involved recognised these implications. The Act was passed on the basis that the people affected would be limited to those with a medical diagnosis of dysphoria, who would be seeking a medical transition. This was the stated justification for blurring the definition of sex, as the number of people affected was likely to be very small (approximately 5,000 individuals).

If the government is considering opening up the possibility of changing legal sex to anyone, on the sole basis of self-declaration, then the implications for the entire system of law and the safety of women and children who use single-sex services and spaces must be carefully considered.

The current system provides an opportunity for doctors to identify and assess those individuals whose reasons for seeking gender reassignment give cause for concern. In a paper published in 2011 (https://www.cambridge.org/core/journals/the-psychiatrist/article/gender-reassignment-5-years-of-referrals-in-oxfordshire/6B5F217162ABD9B3189F2EB82787034E/core-reader#), Kate Saunders and Christopher Bass noted that out of 54 people who were assessed for suitability for gender reassignment surgery in Oxfordshire over a period of five years, two male individuals (5% of the 39 male applicants) were “seeking gender reassignment to facilitate or normalise paedophilia. This latter small group described gender reassignment as a means by which to increase their intimate contact with children, which they viewed to be more socially acceptable in a female role.”

Currently, the requirement for a diagnosis of gender dysphoria means that people who are identified by psychiatrists as having a harmful reason to seek a change of legal sex are filtered out. It means that people with a GRC are distinguished from such people, and gives confidence to other members of the public that a person with a GRC has undergone a process with some safeguarding measures in place. If this requirement were to be removed, the meaning and value of having a GRC would be diminished, and this would be to the detriment of trans people who already have a GRC.

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