The GRA does not rely on a legal fiction, according to the judge in the Maya Forstater case. But he doesn't really justify this.
We need to keep in mind that a Gender Recognition Certificate (GRC) can change a person’s sex legally, but not materially. Their...
@MForstater
We need to keep in mind that a Gender Recognition Certificate (GRC) can change a person’s sex legally, but not materially. Their...
@MForstater
...biology remains, regardless of medical interventions or gender presentation. Once the state hands over a piece of paper (the GRC) there is no magical transformation of biology, there is only a change of legal status...
It is characteristic of legal fictions that we are treating an X ‘as if’ it were a Y. The ‘as if’ aspect is important here. We change the sex on the birth certificate – which was NOT issued in error – to the other sex...
...and treat that person (say, a man), in law, ‘as if’ they had been born a girl. Judge Taylor ignores the legal fiction underlying the GRA. The legislation itself reveals the legal fiction in several places. Peerages and other titles (legislation.gov.uk/ukpga/2004/7/s…), for example...
...will continue to go to male-born heirs only and are not affected by the GRA: a transman cannot inherit the title, presumably, because they are biologically female. If you could really change your sex, there wouldn’t be such exemptions...
Subsequent legislation confirms that the 2004 GRA created a legal fiction. The rights of transwomen are constrained by the UK 2010 Equality Act. At present the ‘exemption clause’ in the Equality Act protects sex-based rights: it permits female-only spaces....
This means that ‘discrimination’ (i.e. drawing a distinction) can be lawful when it has a legitimate aim – here, to protect someone on the grounds of their sex. For example, it would be lawful to exclude a transwoman from a group counselling session for female victims...
...of sexual assault (Explanatory Notes to the Equality Act 2010: 157). This illustrates that the makers of the Equality Act acknowledge (implicitly) that the GRA relies on a legal fiction. If transwomen were literally (i.e. biologically) women...
..., if there were no difference between them, then the exemption clause wouldn’t make any sense.
Such an exemption also holds for sports which use male and female categories. Transpeople may be excluded from competing in their newly acquired gender...
Such an exemption also holds for sports which use male and female categories. Transpeople may be excluded from competing in their newly acquired gender...
...in order to insure ‘fair competition’ or to guarantee ‘the safety of competitors’. This again is an acknowledgement of the legal fiction created in the GRA. For some mysterious reason the judge in the Forstater case does not accept that the GRA relies on a legal fiction...
More on legal fictions here: theelectricagora.com/2019/10/14/leg…
