The Gender Recognition Act consultation proves women are not full human beings (unless they are men)

After spending many depressing hours considering my response to the recent consultation into proposed changes to the Gender Recognition Act (GRA), I have come to the conclusion that the consultation itself and the way it was developed and handled shows that in this country women are still second class citizens and have not yet attained full human rights in practice.

The GRA enables someone to acquire a gender recognition certificate (GRC). This changes their legal sex, so a male becomes legally female, and vice versa. The consultation sought people’s views on making the process for getting a GRC easier.

Others have written eloquently about the inherent bias within the consultation itself, the biased way it was framed, and the bias of the Women and & Equalities committee inquiry that preceded it, so I will try and restrict myself to aspects that I haven’t already seen covered.

The pre-consultation equality impact assessment

The consultation included an equality impact assessment document. (I’ve uploaded a copy to this blog, just in case they remove it after the consultation closes.) It shows that the Government had given no serious consideration to the impact of changing the GRA on the rights of women.

The Introduction claims it was “not possible to conduct a full impact assessment on what the changes to the Act will be, as they have not yet been decided.” But when the Prime Minister, Theresa May, announced the consultation, she said the Government wanted to “streamline and de-medicalise” the process for acquiring a GRC, and a number of the consultation questions asked for opinions on the impact of changing the GRA.

So clearly a general approach, if not the detail, had already been decided. The point of the consultation was to see what people think about that approach. Why should the general public be asked to comment on the impact of the proposed changes when the Government claimed it was impossible to consider the impact?

But it gets even murkier, because page 2 says, in contradiction to the claim in the Introduction: “This document provides an initial assessment of the likely impact on people with protected characteristics of both the consultation and the potential for removing the medical evidence requirements and streamlining the other requirements for obtaining a GRC.” So the Government did think it could provide an initial assessment of the proposed changes at least.

But then on page 4, where it covers the protected characteristic of sex, there is no consideration whatsoever of the impact of the proposed changes. It mentions that there has been public debate about the possible impacts, but there is absolutely no explanation of what they might be.

In total there is just over half a page on the impact of the protected characteristic of sex, but there is no consideration of what the proposed changes might mean for women. The protected characteristic of age, on the other hand runs to nearly four pages and considers the impact of the proposed changes on children and young people in some depth (but still manages to omit any consideration of the impacts on safeguarding systems).

The protected characteristic of disability gets just over a page, but quotes discredited suicide statistics and does not compare the suicide data on trans youth with that on young people affected by other mental health issues, such as anorexia or those who have been sexually abused, for example. A comparison with other troubled young people would have helped put the trans suicide data in context.

The impact assessment rightly mentions that the Public Sector Equality Duty (PSED) places an obligation on public bodies to foster good relations between those who are affected by the various protected characteristics and those who aren’t. However, its consideration is completely one-sided. Having noted that women’s groups have expressed concerns, page 3 goes on to say:

“It is expected that due to the increased profile and discussion of trans issues, partially brought about by this consultation, will help [sic] to foster greater knowledge and understanding of the issues faced by trans people. By providing opportunities for everyone to voice their views and concerns, it is envisaged that the consultation process will help to reduce misunderstanding and misconceptions about trans people and foster good relations between trans people and others.”

This implicitly frames any problems between trans people and everyone else as due to people’s “misunderstandings and misconceptions about trans people” and it completely ignores women’s justified anger at seeing rapists locked up with vulnerable women and babies in female prisons, transwomen winning “women of the year” awards and taking gold medals in women’s sports, and so on, and how when they try to speak out about such things they are labelled transphobic (or worse) which can threaten their livelihoods. The authors seem to be suggesting that all will be well after those irrational and emotional women have had a chance to vent.

Fostering good relations requires evening out power imbalances. Any measure that gives one group more power, and crucially impunity, than the other invariably leads to worsening relations between those groups. And unsurprisingly in the circumstances, that is exactly what we have seen.

On October 7 The Sunday Times reported:

“Sunday Times research shows that at least 15 public meetings held by feminist groups opposed to the proposals have been invaded, threatened, picketed, closed down or forced to move venue by transgender activists.

“There have been at least six incidents of violence or intimidation against opponents of the reforms, with one trans activist convicted of assault. At least 11 opponents of the change have been targeted through their jobs.

“Trans campaigners are bringing private criminal prosecutions against three opponents after the authorities refused to prosecute them.”

The absence of any meaningful Government recognition of the impact on women; the absence of input into the consultation from anyone with a different view; the framing of women’s concerns as ‘hatred,’ ‘transphobia’ and ‘questioning the existence of trans people,’ and the suggestion that this is worse than the actual violence and intimidation trans rights activists (TRAs) have inflicted on women, have all emboldened the TRAs, so it seems that they are inviolable.

That such an unbalanced and one-sided consultation process would lead to worsening relations between the groups affected was entirely predictable. Many people are afraid that it will get even worse – possibly much worse – whether the Government backtracks in any way on what appears to have been promises or whether they steam ahead.

The pre-consultation equality impact assessment document makes it clear that there was no good faith attempt to understand the potential conflicts of rights between people with the various different protected characteristics, particularly women. This is a serious dereliction of duty on the part of the Government.

Why were there no simple direct questions about the key issues ordinary people are most concerned about?

The consultation was confusing and inaccessible and primarily addressed trans people. For example, there were several questions that were aimed at only trans people – but there were no questions directly aimed at women or religious people.

The consultation documents defined the terms ‘sex’ and ‘gender’ and then ignored those definitions and used the terms more or less interchangeably. Potential impacts on other groups were denied or obfuscated.

All of this means that the consultation was very easy to fill in if you agree with the notion of self identification of legal sex and are unaware of all the complex ramifications.

But if you disagree, it was hard to fill in. It wasn’t clear where or how to lodge one’s objections in an effective way. This means that the consultation itself was inherently biased – before even considering how it was positioned and presented.

The original GRA (2004) was justified on the basis that only a very small number (about 5,000) would use the process to get a GRC. That figure turned out to be prescient because so far just under 5,000 people have gained one. But it is clear that a much larger pool of people are likely to take advantage of the system if it’s simplified. A recent article in The Telegraph suggests numbers might be as many as 2 million.

When someone gains a GRC, their biological sex and previous history and name become hidden from the public record. The implications of a great increase in the numbers of people who hold a GRC for safeguarding children and vulnerable adults alone are therefore formidable. But this wasn’t explored or even mentioned in the consultation. And nor were many other potential issues.

If the Government had really wanted to understand what people think, it would have taken the trouble to pull out some key issues and ask questions about them in a simple and direct way. Here are some examples.

Do you think biological males who hold a GRC (meaning they are legally female) should be held in female prisons?

A – Yes, always
B – Only if they have had genital surgery
C – Never

Do you think people who have been convicted of a violent or sex offence should be eligible for a GRC?

A – Never
B – Yes, always
C – Yes, but only after the conviction has expired from the criminal record

Do you think biological males who hold a GRC (meaning they are legally female) should be allowed to participate in female sports?

A – Yes, without restriction
B – Yes, if they have testosterone levels in the female range and have had genital surgery.
C – Yes, but only for sports like snooker where being biologically male is not an advantage
D – Never

Such questions would have made the conflict of rights clear and would have given people a chance to think about the issues and express their preferred solution.

Instead the consultation obfuscated these issues and people who are not well informed and familiar with official language, would be unlikely to formulate their objections. This means the consultation results will be skewed and cannot be guaranteed to accurately reflect public opinion.

“Trans women are women, that is the starting point for this consultation”

When she launched the consultation, Penny Mordaunt, the Minister for Women and Equalities, said the consultation’s starting point was that “trans women are women.” This mantra is repeated over and over, both by individuals and by highly regarded organisations, like Stonewall and Amnesty International.

But there has been no convincing explanation of what it actually means. We all know that males are different from females and that changing sex is impossible in fact. Saying “trans women are women” is therefore equivalent to saying “some human males are human females.” But we all know this is not true. Not really.

So what does it mean when people say “trans women are women”?

In international law, membership of a disadvantaged group is determined by self-identification but can be rejected when there is objective justification to do so.[*] This means that as a white person, I cannot simply claim to be black and demand that black people accept that, because they have been subjected to structural and material disadvantages that I have not. (I am very obviously white and have no known ancestors who were anything but white Northern Europeans.)

Black people have a legitimate right under international law to reject any such claim of mine and to exclude me from schemes that have been devised to alleviate the material and historical disadvantages that they have been subjected to but which I have not.

What is different about men claiming to be women and then using schemes and facilities that have been devised to mitigate women’s disadvantages and particular needs that they, by definition, do not have?

There is no substantive difference.

That it is considered entirely acceptable for men to identify as women is absolute proof (if we need it) that women are still second-class citizens and have yet to attain full human rights in practice.

There is no other possible explanation.

Formalising “trans women are women” in legislation and law would formalise women’s second-class status and would deprive women of a term that describes their reality.

How then will women be able to discuss and fight for their specific needs as female human beings in a society that has subordinated them for many thousands of years – and in which they remain woefully under-represented in all the great bastions of power?

Will we have to call ourselves ‘natal women’? Or ‘biological women’? What is to stop the male ‘women’ laying claim to those too? Where will they draw the line? No doubt at ‘second class women.’ So that is where we’ll end up. Same old, same old. The same hierarchy with women at the bottom and men on top.

But the male ‘women’ don’t just want the word ‘woman,’ they want ‘vagina’ too. That now belongs to them and ‘second class women’ have a ‘front hole.’

An actual vagina is not a passive hole – or receptacle for a male penis. It is an active organ that is connected to a self-sustaining system whose primary functions are female pleasure and the generation of new life. No one I know who has a vagina can tolerate it being reduced to a hole.

Such terms, along with ‘chest feeding,’ ‘womxn,’ ‘menstruators’ and so on, insult and denigrate all women. Their use should be construed as a form of harassment and discrimination against all women under the Equality Act.

The Government has been duped. It needs to understand that if it continues down its current path on this issue, it will be inscribing women’s second-class status in law. Do not be surprised if women get angry.

Or perhaps they weren’t duped and this is all part of a plan to formalise women’s second-class status so it becomes easier to commodify them in the sex industry and rent-a-womb business?

Either way, women, it’s time to mobilise.

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[*] Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights: Article 2, Paragraph 2 of the Covenant, U.N. Doc. E/C.12/GC/20 (2 July 2009), para. 16.