What reforms of the gender recognition regime could work?

Liz Truss, the Minister for Women and Equalities has set out three key principles for any reform of the gender recognition regime:

1. The protection of single-sex spaces.

2. Making sure transgender adults are free to live their lives as they wish without fear of persecution, whilst maintaining the proper checks and balances in the system.

3. Making sure under 18s are protected from decisions that they could make, that are irreversible in the future

The government says it intends to publish its response to the Gender Recognition Act consultation before the beginning of the summer recess on 21 July 2020.

Marsha Cordova, Shadow Minister for Women and Equalities has said that she is seeking consensus on trans rights:

“This is a nuanced and fraught debate…We will be working closely with others, from all sides of the debate, in scrutinising the Government’s proposals once they are finally published.”

In Scotland there are separate plans to go ahead with self-ID reforms.

The question of how to protect everybody’s rights is unlikely to be wrapped up by the end of July, but the debate has been opened up.

This paper sets out four complementary proposals for reforming the gender recognition regime (both the GRA and how it relates to the Equality Act 2010), to protect everyone’s human rights. It is focused on addressing Liz Truss’s first two principles (See others such as Transgender Trend and Safe Schools Alliance for discussion in relation to children).

Reforming the gender recognition regime to protect everyone’s rights

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To meet the Minister’s criteria, an effective set of reforms must:

  1. Continue to keep the UK within the margin of appreciation of transsexuals’ Article 8 rights in relation to information privacy, as established by the Christine Goodwin case.
  2. Protect single sex spaces and services by simplifying and clarifying the interaction of the GRA and the Equality Act 2010. (This applies to both specialist women’s services and everyday separate sex facilities.)

Given arguments that have been made that some transgender people would prefer a simpler system for obtaining a copy of their their birth certificate which does not show their biological sex, cutting administrative red tape is also a consideration (although the onerousness of the current system should not be exaggerated).

The paper sets out two sets of reforms — for providing clarity about the existing law, and simplifying the law. The aim is to provide a framework which promotes tolerance and offers reasonable information privacy for transgender adults so they are free to live their lives as they wish without intrusion, while not undermining other people’s rights to bodily privacy and consent, or the state’s ability undertake its functions effectively (such as in healthcare, collection of statistics and child safeguarding).

PROVIDE CLARITY ABOUT THE EXISTING LAW

Much can be achieved by clarifying current law:

  1. GEO and EHRC should urgently review national guidance

They should clarify how the existing Equality Act functions in regards to single sex exceptions; that it does not give individuals the right to use services provided for the privacy or needs of members of the opposite sex, but protects transgender people’s rights against general discrimination.

Organisations providing single or separate sex services should have unambiguous policies and should be able to expect people to follow them. Single sex spaces will not suit everyone; mixed sex/unisex alternatives are usually possible.

2. Public bodies should be instructed to withdraw misleading guidance in circulation as this is likely to be unlawful.

Local authorities and other public and state funded bodies should review existing policies on single sex service services to ensure they are compliant with their duties under the Equality Act. Guidance, policies or training suggesting that expecting bodily privacy from the opposite sex is ‘bigotry,’ or encouraging unlawful behaviour — by telling people they are entitled to share spaces which are designated for the opposite sex — should not be promoted.

SIMPLIFY SEX AND THE LAW

A second set of proposals would provide further clarity and simplicity. The first option is a simple clarification of the law that would go a long way to improve the situation. However the Gender Recognition Act remains problematic both for transgender people (some of whom feel it is overly bureaucratic) and for others because of the anomalies it creates. A further option would be to replace the current GRC regime with a simpler system for securing transgender people’s information privacy.

3. Amend the GRA 2004 to exclude any effect of s.9 (which changes a person’s sex “for all purposes”) and the Equality Act 2010,

This would mean that for the purposes of the 2010 Act, “sex” always means biological sex. The reason for this is that the law in its present form is confusing. There are single-sex exceptions that make it lawful to exclude trans women from female-only spaces and services, but the rules include subtle differences depending on whether those trans women have a GRC or not (although in most cases a service provider could not know whether someone has or hasn’t).Those differences are difficult to interpret, and consequently a source of debate among lawyers creating jeopardy for service providers. The single-sex exceptions are only necessary when biology matters; but when biology matters, it will always matter: the certificate make no difference.

4. A final suggested reform is to simplify the system for trans people to obtain birth certificate privacy.

Provide a simple administrative system to enable anyone who wants one to obtain a copy of their short-form birth certificate with the ‘sex’ field left blank. Sex would remain recorded at birth and kept in the register and individuals could also have a copy of their long-form or short- form birth certificate showing their sex. Combined with guidance on the Data Protection Act this would meet the data privacy need as established by Goodwin, since people would only be required to declare their sex where it matters (for example for their health or to access single sex services). It would meet the demands for a low cost, accessible and demedicalised process. This would make the issuing of GRCs redundant and so this system should be ended. People who have already established their lives on the basis of a changed birth certificate should not be forced to change it back, but a measure for simple legal detransition should be established for those who have already transitioned with a GRC and wish to return to having their sex recorded accurately.

For more details of the policy proposals read the paper.

Thanks to everyone who has contributed to the development of these proposals. Keep talking!

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