1/ The government want to change the Gender Recognition Act.
The debate has been heated. I’m going to try and look at this as objectively as possible, to help people who want to respond by Friday’s deadline.
It’s a bit long so it’s in 4 parts (THREAD)
The debate has been heated. I’m going to try and look at this as objectively as possible, to help people who want to respond by Friday’s deadline.
It’s a bit long so it’s in 4 parts (THREAD)
You can read up and respond here gov.uk/government/con…
(A) INTRODUCTION
2/ I did my own mini consultation and asked people for resources and ideas. I read everything I was sent. It was really useful. Thank you.
2/ I did my own mini consultation and asked people for resources and ideas. I read everything I was sent. It was really useful. Thank you.
3/ What I’m going to try and do is explain the consultation from my perspective as a human rights lawyer. I appreciate there may be no way of writing about this without upsetting people, but I am going to try and look through a human rights lens, as that is what I know best.
4/ Where do human rights begin? In the small places, close to home. As we approach the 70th anniversary of the Universal Declaration of Human Rights on 10 Dec, Eleanor Roosevelt’s (who drove the UNDHR) quote sums up the basic idea of human rights beautifully 
5/ Those who drafted our human rights laws did so in shadow of genocide and mass murder on grounds of race, religion and sexuality. The realisation was that our tribal instincts tended to emphasise - and fear - difference, and de-emphasise what we had in common - most things.
6/ The idea of human rights rests on the idea that although we all different to each other in a kaleidoscopic variety of ways, fundamentally we *are the same*. We are *all human*. And our essential humanness rests in our basic need to live a *dignified life*.
7/ I have been thinking a lot lately about how important *listening* is to human rights. Because how can we possibly live together and understand our differences, even from a position of ‘more in common’, if we don’t truly listen to each other?
8/ The devil is in the details, but human rights laws identify a set of simple rights which we all need to live a dignified life. I strongly believe that a society based on human rights principles is the fairest, most just and most equal.
9/ In liberal societies based on human rights principles people, for the first time in history, are able to express themselves and what they need to live a dignified life. Progress isn’t a straight line but communities which were first against the wall are now able live freely.
(B) THE GENDER RECOGNITION ACT 2004
10/ So to the Gender Recognition Act (GRA). Important to understand that the GRA was the result of a human rights judgment in the case of a male>female transgender person called Christine Goodwin (hudoc.echr.coe.int/eng?i=001-60596)
10/ So to the Gender Recognition Act (GRA). Important to understand that the GRA was the result of a human rights judgment in the case of a male>female transgender person called Christine Goodwin (hudoc.echr.coe.int/eng?i=001-60596)
11/ Goodwin had already had undergone surgical gender re-assignment and was asking for her new gender/sex (the terms are used interchangeably in the judgment) to be recognised on her birth certificate and other official documents.
12/ I highly recommend this factsheet echr.coe.int/Documents/FS_G… - just updated - on history of transgender case law in the European Court. Shows how far things have changed since 80s. Shows how attitudes evolve as we get used to living together in liberal societies.
13/ You may notice from the factsheet that things haven’t stayed static since Goodwin in 2002. The last couple of cases involve the court saying that legal recognition can’t be dependent on surgery or treatment (AP Garcon) and…
14/ … that process for gender recognition shouldn’t be too rigid (S.V. v Italy) - seems important (hudoc.echr.coe.int/eng-press?i=00…) as appears to say that failing to make possible change of name and gender in official docs in a “quick, transparent and accessible way” will breach rights
15/ Nb this judgment is brand new and I haven’t read the full ruling (it’s in French!) and it may be country-specific but it does seem to have come a long way from the position in Goodwin, and may suggest our current regime is at risk of breaching human rights.
16/ So 16 tweets in I get to the Gender Recognition Act (GRA) 2004. The Act came into force in 2005 and was a direct response to the Goodwin case. It says it is an “Act to make provision for and in connection with change of gender” legislation.gov.uk/ukpga/2004/7/i… (note that for later)
17/ I am not going to describe it in detail as it’s complicated but the the govt’s consultation on the new proposals is quite good from page 10 on how it works assets.publishing.service.gov.uk/government/upl…
18/ Key to GRA is that it takes at least 2 years, money, medical diagnosis of “gender dysphoria” before you can get a Gender Recognition Certificate (GRC) and legally 'become' the gender you identify with. That is not “quick, transparent and accessible” as trans people report
(nb. in the meantime you don't need to do any of those things to change your passport, driving licence, bills etc to your new gender - so it's oddly inconsistent)
19/ So the govt’s proposal is to make it easier to change your legal gender. Rather than go through the medicalised process and the long period of “living in your chosen gender”, one proposal is to simply provide a statutory declaration that you intend to change gender for life.
20/ nb a statutory declaration isn't just signing a piece of paper - it is a legal declaration. If you lie, you can go to prison legislation.gov.uk/ukpga/Geo5/1-2…
21/ I see these changes as evolution not revolution. The revolution was post-Goodwin in 2002 and the fact that for the first time you could change your legal status to a different gender. That was revolutionary. This is about the process by which you do that, so it’s evolutionary
(C) CONCERNS
22/ In amongst this difficult debate, I sense that there is a broad (not full) agreement that the GRC process isn’t working well as it is so unnecessarily difficult and costly. So that’s a good starting point.
22/ In amongst this difficult debate, I sense that there is a broad (not full) agreement that the GRC process isn’t working well as it is so unnecessarily difficult and costly. So that’s a good starting point.
23/ The arguments against changing the rules seem to be this, and I hope I’m being fair to them. Basically, the Equality Act (EA) 2010 protects people against discrimination on grounds of various ‘protected characteristics’, two of which are sex and gender reassignment.
24/ The EA has some exceptions in Schedule 3, Part 7 (legislation.gov.uk/ukpga/2010/15/…) which allow for discrimination on grounds of gender reassignment in three circumstances relating to separate services
25/ The example used in the explanatory notes (which are important as they are basically part of the Act) is a counselling service for female victims of sexual assault which doesn’t allow transsexual people to attend
26/ The argument is that if sex changes as well as gender, then it’s not clear when and how the exemptions to the EA apply. The issue has never been directly addressed by a court as far as I can tell.
27/ But. I agree with @k21fem that the EA is basically clear on what the exemptions mean (Sch 3 para 28 wouldn’t make any sense otherwise) but even if it’s not, these proposed changes are not to the EA anyway
28/ That said, if there are misconceptions about the exemptions on the ground (clearly there are if the @EHRC had to hastily change it’s guidance last week ) then that should be looked at as well by EHRC/govt.
29/ Nb a lot of this difficulty comes from the evolution in our understanding of gender and sex. I am not going to get into that as there are a million people better qualified to do it but I will make one point…
30/ The govt’s consultation document is a lot clearer about the distinction between sex (physical characteristics from birth) and gender (refers to socially constructed characteristics) than the GRA 2004 is.
31/ It may be that s.9 of the GRA will have to be looked at when the govt is deciding what to do about the GRA as a whole, but I don’t think changing the ‘gatekeeping’ requirements of GRA will in and of itself make any difference to that issue.
32/ There are concerns relating to physical safety of women. Those are clearly real concerns e.g. transgender prisoners in women’s prisons. I have a bit of experience here as I regularly deal with cases involving prisoner-on-prisoner assaults.
33/ I don’t want to be glib about this but I do think the answer isn’t in maintaining a restricted regime for people obtaining a GRC. I think it is in individual risk assessment, as it always is with safety in prisons.
34/ The MoJ has a Prison Service Instruction dedicated to this (google.com/url?sa=t&rct=j…) and there is no *requirement* that male-to-female transgender prisoners are transferred to the female estate, though it is possible if they can be managed
35/ It’s prison service’s responsibility to manage safety. Clearly there is a balance to be struck here as transgender prisoners are themselves subject to bullying and violence. These are real issues and have to be dealt with sensitivity with reference to human rights.
36/ But I don’t think that liberalising the regime for obtaining a GRC is going to fundamentally change that. It may lead to more cases of transgender prisoners requesting transfer, but since a GRC hasn’t been a requirement of a request to now that may not be the case.
(D) CONCLUSION
37/ Human rights begin in the small places, in the dignity and personal development of each and every one of us. Ideas of gender (and sex) are changing and society has changed with them. That is a good thing in my view.
37/ Human rights begin in the small places, in the dignity and personal development of each and every one of us. Ideas of gender (and sex) are changing and society has changed with them. That is a good thing in my view.
38/ Listening is a two-way street and I do despair slightly that some people’s legitimate concerns about the muddled language over sex and gender (muddled language in law is a bad thing) and safety are being labeled as transphobic.
39/ Ultimately, I see the GRA changes as a necessary evolution not revolution, very much in line with the human rights cases I mentioned above. I also think the issues raised over the EA should be considered sensitively and properly.
40/ Perhaps @k21fem is right that we should be considering updating the EA too e.g. to add more ‘positive discrimination’ options, but I don’t think the changes to the GRA need to be dependent on that.
41/ Anyway, this is necessarily only a summary and will no doubt be incomplete and potentially inaccurate, so please do feel free to comment. I hope it has been helpful at least in helping people make up their own minds.
42/ You can respond to the consultation here: deadline THIS FRIDAY gov.uk/government/con…
As you can probably tell from the above, I will be responding that I think the regime for obtaining a GRC should be liberalised.
As you can probably tell from the above, I will be responding that I think the regime for obtaining a GRC should be liberalised.
43/ I know how important language is over this issue and if I have used the wrong language then please let me know. And this has taken me most of the morning to do so I'm going back to work now and please forgive me if it takes a while to respond to queries/comments!
44/ One more thing I wanted to say. There has been a lot of talk of whether human rights are a 'pie' where if you take a piece there is less for others. Clearly they are not - but that's not to say that we don't sometimes have to balance rights.
45/ The mistake is when you think of it as 'groups' vs other 'groups'. Because every one of us has different parts and in order to flourish we need each of them to be allowed to sing. I'm a man, a father, a son, Jewish etc. Those bits of myself don't conflict with each other!
46/ Human rights is not about balancing groups against each other - it's about recognising that individuals are complicated, multifaceted and what 'dignity' means for everyone is different but in also fundamentally *similar*. So it's not a pie - it's a feast!!!
47/ Food aside (nearly lunchtime!) human rights laws have long recognised that sometimes a balancing exercise has to be done - and that is what the idea of proportionality is about. Lots to be said about that but it's a pretty good way of approaching sensitive balancing exercises
