Never mind reforming the Gender Recognition Act, there’s no need for Gender Recognition Certificates at all

The GRA was not intended to change a person’s biological sex, but rather to change the way a person was viewed and treated by the law. Today, these issues have been addressed, so why the push to extend the Act?

 

In response to the increasingly-fraught debate about proposed changes to the Gender Recognition Act (GRA), women have been placing stickers throughout the UK that read, “Women don’t have penises.” Many trans rights activists are calling this statement “hate speech.” The debate around transgenderism and gender identity legislation has shone a light on the increasing abuse and silencing of feminists by trans activists, including no-platforming, shutting down feminist meetings, violent attacks, and campaigns seeking to have those who question or challenge gender identity ideology and legislation fired from their jobs.

The proposed changes to the GRA would allow individuals to have legal recognition of their gender identity through self-identification. But the reality is that there is no longer a need for Gender Recognition Certificates (GRC) in law at all. While repealing the Act entirely might be problematic at this moment, extending it is not the way forward. Rather, the way forward is to challenge social norms about gender itself so that it ceases to be necessary.

Under international human rights law, all individuals have rights by virtue of being human. Some of those rights relate to their identity. For example, all persons have the right to a nationality, and therefore not to be stateless. Individuals have the right to freedom of religion or belief, and minority rights to language and culture, all of which relate to identity. But there is not currently a human right to “gender identity.” Rather, there is a human right to non-discrimination that includes people being protected from discrimination based on their gender identity. In various countries, there is now specific legislation that gives effect to that human right by explicitly protecting individuals from discrimination based on their “gender identity.”

Although the UK has long been party to the European Convention on Human Rights, it was only in 1998 that those rights were incorporated into domestic law through a specific piece of legislation: the Human Rights Act. Parliamentary sovereignty means that we live in a dualist system whereby international laws cannot be directly referred to, and instead require an Act of Parliament to give them effect in national law.

Before the passing of the Gender Recognition Act 2004, the law did not recognize the concept of gender or gender identity. Transsexual individuals, even if they had genital surgery, continued to be viewed in law as the biological sex that they were born with. The Gender Recognition Act 2004 was passed after the European Court of Human Rights ruled that the UK was in breach of its human rights obligations towards transsexuals. In the case of Goodwin v UK (2002) the Court ruled that the UK was in breach of Article 8 of the European Convention on Human Rights, the right to private and family life. Christine Goodwin, a post-operative male-to-female transsexual, had complained of discrimination, embarrassment, and humiliation at her employer’s refusal to recognize her in her acquired gender. The GRA was passed to rectify that breach by, on the one hand, providing a remedy for transsexuals who suffered under the current law, particularly in relation to the right to marry and access to pensions, and, on the other, preserving the binary status quo of “male” and “female” (as opposed to, for example, adding a third “X” category), by requiring applicants to be diagnosed by a medical practitioner as suffering from “gender dysphoria” and living for two years as a member of the sex they aspired to be. In that way, the Act created a legal loophole to allow the law to treat someone who met very defined criteria as the opposite gender to their biological sex.

Essentially the GRA created a legal fiction, wherein a person with a GRC is treated as a member of the opposite “gender” for most legal purposes, even though they remain biologically the sex that they were born. A transsexual who had fulfilled specific criteria could receive a GRC, enabling them to apply for a new birth certificate that would reflect their preferred gender rather than their biological sex, and therefore change the way in which they and their sex were viewed and treated by the law.

Legal personhood does not always reflect reality, as we see when countries, organizations, and companies are granted legal personality and treated as though they are individuals for the purposes of law. The GRA was not intended to change a person’s biological sex, but rather to change the way a person was viewed and treated by the law. Discussions in Parliament about the Act make it clear that the intention was to uphold and protect the rights of a very small number of transsexual individuals, estimated to number approximately 5,000 in 2004.

To receive a GRC under the current law, a person must satisfy the following conditions:

1) They have or have had gender dysphoria,

2) They have lived in the acquired gender throughout the period of two years

3) They intend to continue to live in the acquired gender until death, and

4) They have provided evidence by a report made by a registered medical practitioner or registered psychologist practicing in the field of gender dysphoria AND a report made by another registered medical practitioner (who may, but need not, practice in that field)

As predicted by Parliament and many of the experts with whom they consulted, only a very small number of people have applied for a GRC. To date, there are approximately 4,500 individuals who have received such a certificate.

Since 2003, it has been unlawful for employers to discriminate on the basis of certain protected characteristics, one of which is gender reassignment or proposed gender reassignment. Pension ages have been equalized for men and women, and same-sex couples have been able to marry since the passing of the Marriage (Same Sex Couples) Act 2013. All the areas of discrimination identified by the European Court of Human Rights in Goodwin and in the parliamentary debates leading up to the Gender Recognition Act 2004 have been removed.

The government consultation on reforming the GRA focuses on whether individuals should be able to self-declare their preferred gender identity and receive a GRC without having lived in their preferred gender, having a diagnosis of gender dysphoria, or having a medical or psychological statement. It is understandable that transsexuals do not want their choices to be pathologized or dependent on medical endorsement, but, at the same time, it cannot be said that their rights are violated by their legal sex matching their biological sex. Today, the reality is that the purposes for which the Gender Recognition Act was passed in 2004 no longer exist — no one needs to self-identify as the other sex in order to access any of the human rights available to UK citizens, such as the right to marry.

The GRA is a good illustration of the rationale for laws — to provide solutions for practical legal problems, including (these days) issues of equality, discrimination, and access to human rights. Since gender identity no longer has any impact on the ways in which individuals are treated in law, the Act no longer serves any useful legal purpose. It does, however, provide a mechanism for trans-identified people to navigate social hurdles, for example in having their passports and driving licences match their preferred gender identity.

There are clear parallels between the fight for the rights of those who identify as transgender or “non-binary,” and the women’s rights movement. Historically, feminists fought every inch of the way to expand the boundaries of how women could be, partly by gaining access to education, all forms of work, and civil rights, but partly by establishing the right to live and dress as we wanted. Women from many backgrounds, irrespective of sexuality, religion, political persuasion, and other characteristics, came together to change the possibilities for women; and it must be a similarly broad cross-section of men who widen the possibilities for men. In an ideal world — one which we want to work to help create — the GRA would not be needed socially, just as it is no longer need legally. But during the creation of those societies, the law as it currently stands works well enough as a compromise measure, setting up a reasonably high bar for people who want to transition. The goal should not be to lower that bar, by allowing anyone at any time to self-declare that their gender identity does not match their biological sex, but rather to create societies where men can do or be anything they like without needing to be viewed a “woman” in order to do so.

Professor Rosa Freedman is Professor of Law, Conflict, and Global Development at the University of Reading. She specializes in international human rights law.

Rosemary Auchmuty is a Professor at Reading Law School, specializing in Gender, Sexuality, Property Law, and Legal History.

Guest Writer
Guest Writer

One of Feminist Current's amazing guest writers.

Like this article? Tip Feminist Current!

$
Personal Info

Donation Total: $1

  • oneclickboedicea

    great article

  • lawasculturalwork

    Glad to see a feminist who specializes in international human rights law addressing gender identity. There are precious few of us speaking out in that framework. I agree with your argument both about the historical context for enactment of the GRA and also that human rights of transgender persons do not equate to, or depend on, acceptance of their gender identity as a legally valid change of sex.

    On identity – what would you say about the Yogyakarta Principles? Though they are not in any sense binding, they are used as a template or reference point by NGOs and human rights mechanisms on this issue. Human rights mechanisms including CEDAW, which should be the one to hold the line for women as a female sex, are accepting that males who identify as women have the right to be legally recognized as such.

    I have been thinking that women as a female sex have a right to our unique collective identity as such, including our political identity as a liberation movement and our right to define ourselves as part of political, social, cultural, economic and sexual self-determination. It is precisely on the question of identity that the transgender movement has attacked feminism, thereby depriving us of political subjectivity as well as the identification of our situation of material oppression.

    Do you see any particular pitfalls in making this argument in an international human rights context?

    Surely ethnicity and religion are collective identities as well; although CERD accepts that self-identification is generally dispositive of race/ethnicity, it can be questioned. Gender identity as proxy/trump of sex is the only identity that has been put out of reach of challenge, showing that it is a political move to deprive the female sex of its collective identity as such.

    Interested in your thoughts on this if it’s something you care to comment on.

    • martindufresne

      In response, Sheila Jeffreys has addressed in detail the influence of the Yogyakarta Principles in this address: http://drradfem.org/enforcing-mens-sexual-rights-in-international-human-rights-law/

      • will

        Thanks for that link. Excellent essay and resource.

    • acommentator

      “are accepting that males who identify as women have the right to be legally recognized as such.”
      Males who identify as women are males. Period. It is nonsense to say that they should be “legally recognized” as women.

  • Ashley Braman

    But a bunch of males will vote it in against our will anyways. Bc they see womxxn as secondclass. And that we are a costume they can put on to mock us with womxxn face… And its like no one cares that saying womxxn have penises is an insult to actual womxxn. They dont care about our feelings. I wonder why they think we should care about theres.

  • Meghan Murphy

    lol you can be a feminist and also care about men.

  • Vicky

    Right now there is a polemic in Spain because Willy Toledo has been arrested, accused of blasphemy and ridiculing God and the Virgin. But mass-blocking and threat with violence and legal actions against women who don’t believe in “sexualized souls trapped in the wrong body”, that’s ok.

  • Meghan Murphy

    Feminists, in general, care about society and humanity. Feminism is a movement by and for women/women’s liberation. That does not mean feminists, as a whole or as individuals, don’t care about men, either ones that we know or men as a whole. It just means men are not our primary focus. Men are not the focus of the feminist movement. That is not the same as saying feminists don’t care about men.

  • Meghan Murphy

    “According radical feminist theory women are the oppressed class, men are the oppressor class.”

    Correct.

    “There’s no such thing as oppressed caring about oppressor, it would be like the working class caring about the needs of the bourgeoises.”

    As people, we can care about the needs or feelings of other people. That is not the same as caring about the ability of the bourgeoisie to become or remain rich or maintain their power/privilege.

    We aren’t specifically trying to ‘help’ men in this specific movement, we’re specifically trying to help women. That, AGAIN, is not the same as saying we don’t care about men at all, as humans.

    I suspect, again, you are being dishonest in your arguments and intentionally misinterpreting what I’m saying, but if you aren’t, you aren’t very good at logical thought/reading comprehension.

    • Robert Lindsay

      “According radical feminist theory women are the oppressed class, men are the oppressor class.”

      Correct”

      And there’s the error in your theory right there. You realize that Socialist Feminists say you all are completely wrong to substitute the class struggle for male-female conflict, right? They reject your theory in toto.

      • Meghan Murphy

        Hmm not exactly, though you are correct that I am talking particularly about radical feminist analysis, here. This is made clear in the sentence in question.

        I don’t substitute class struggle for ‘the male-female conflict’, in any case.

    • Robert Lindsay

      If helping women objectively harms men, count me out then.

      • Meghan Murphy

        You aren’t responding to anything I’ve said but ok.

  • Meghan Murphy

    Exactly, me too. All the radical feminists I know and work with here in Vancouver are socialists. I fail to see how you can be a radical feminist and pro-capitalism.

  • marv

    I have been pondering what you passionately and thoughtfully said till now, a day later. For some reason it made me think that we so called male allies are bland. Even if we did none of the crimes you stated, our acts of solidarity are usually mixed with mediocrity and acquiescence toward male power. We men talk and argue on the internet and face to face but what do we really consistently and seriously do for women’s liberation political campaigns. Are we heavily invested in the actual work of prostitution abolition, for instance? Do we donate money, as much as possible and more, to women’s shelters, activism and resistance fighters like the Feminist Current? Are we raising funds for them by calling on other men to contribute to the cause? Mostly we are doing hardly any of the on the ground nitty gritty work. We are dead wood standing in the way of women’s freedom, talking our heads off. Would women be better off if we were literally dead? IMO the answer is yes. We lack the motivation, integrity and courage to carry out the yes, or to change our ways instead. Luckily I know nine men who, against all odds, have shown that radical love can take action in the world. Thank you and others here for inspiring me to aspire.

  • Meghan Murphy

    We don’t understand what it feels like to be a man and you don’t understand what it feels like to be a woman. What is your point? That we can’t care about people who don’t share our exact experiences?

  • Meghan Murphy

    This was lovely to read <3

    P.S. Marv does donate and we are very grateful to him (and all of you)

  • Meghan Murphy

    Ok. Go for it?

    I mean, you’re asking feminists to do men’s work for them (i.e. focus on them in our movement) and simultaneously saying we can’t, and that men have to do their own work.

  • Meghan Murphy

    At least he’s being honest about being anti-feminist!

    • The funny thing is there’s no need to investigate: I’m famous for always telling the truth, in a very direct way, people have just only to ask.
      In example, among the things she cited, surrogacy comes first: that’s not a case.
      I think that total liberalization of surrogacy is a necessary step, and the final goal is the total reproductive independence of both women and men from each other. In the case of men I mean eggs made from human cells, combined with the father’s sperm, and then raised in an artificial womb. Naturally, I also support the same level of reproductive independence for women: artificial sperm made from human cells, then the right to choose between a classic pregnancy or to use an artificial womb.

      • Meghan Murphy

        Surrogacy is extremely dangerous for the surrogate. It’s a completely exploitative, dehumanizing, and harmful industry.

  • marv

    Connections are what you don’t allow yourself to see. Women’s liberation is for women but the gains for men are immense. The loss of masculinity – power and control pursuits – would breathe new life into us to become tender and humane instead of shit heads. It’s the difference between clinging to ugly oppressive identities and the joy of a full, enriching way of living. Choose life over the nothingness of the manhood class and identity.

    • You’re talking with someone who thinks that no man in the western world should identify as heterosexual/straight.
      Notice: I didn’t say that men should have sex with men, if a man isn’t attracted to men then he shouldn’t try to have sex with men.
      I said that boasting heterosexuality is the worst thing that a man living in the western world could ever do.

      • marv

        Heterosexuality is a biological sexual orientation not an identity. Masculinity is a construction put upon the male sex by patriarchal politics. Masculinity equals dominance over women and others.

        I wasn’t referring to men having sex with men either. Don’t know what your point is.

  • Meghan Murphy

    Your initial comment complained that feminists don’t care about men as a whole.

  • Meghan Murphy

    Your initial comment *in this thread* w/r/t the topic we are talking about.

  • Hekate Jayne

    Males: YOU DON’T CARE ABOUT MENZ, THO

    Also males: STOP CARING ABOUT MENZ, THO

    Males. Holding every position, since the beginning of time, so that they can insure that they are never happy while claiming that they are always right.

  • radwonka

    Omg i didnt even notice *puke*

  • radwonka

    You did a good thing. He acted as if he was naive but he is just another misogynistic flop.

  • Hekate Jayne

    I saw a cartoon on YouTube a while back that talked about how, a long time ago, males believed that an entire human was contained in their holiest of holy ball sacks, and that a woman was just a nasty incubator.

    For a short time, they tried to bypass having sex with nasty women by masturbating into a jar, and then burying it in warm horse shit. They actually thought that horse shit was similar enough to a human woman that their “homunculus” would be just fine. In a jar. In horse shit.

    I have no idea how accurate the story is. But it made me laugh. Here we are, centuries later, and dudes are still desperately trying to find a way to reproduce without women, and either throwing tantrums or forcing our exploitation when they find it impossible.

    If they didn’t have a use for us, they would eradicate us. In fact, they are slowly eradicating us, anyway, out of anger and violence. They project their murderous attitudes onto us, believing that if we ever found out that we don’t actually need them, that we would dispose of them. They can’t understand that we don’t think like they do, we don’t dispose of things solely because we can’t use, mine, profit from, or dominate things or living beings. It’s a pathetic and miserable existence for them. But they choose it.

    • Sharpie

      “I have no idea how accurate the story is. But it made me laugh. Here we are, centuries later, and dudes are still desperately trying to find a way to reproduce without women, and either throwing tantrums or forcing our exploitation when they find it impossible.”

      Noticed how the research for the Kaguya method stopped completely while the research for artificial wombs keeps going on? Guess who they’re trying to cater to.

      “They can’t understand that we don’t think like they do, we don’t dispose of things solely because we can’t use, mine, profit from, or dominate things or living beings. It’s a pathetic and miserable existence for them. But they choose it.”

      They really don’t. They exploit everything they consider weaker than them. I’m not just talking about people and animals but whole countries too. First world countries exploit second world and third world countries and this is because men want it that way. It’s a miserable thing for those of us with humanity but for them? Nah.

  • marv
    • marv

      Meant for Lauder.

  • Meghan Murphy

    Give it a rest

  • Meghan Murphy

    Your attempts at backpedaling aren’t working. Your are incapable of rational argument.

  • Meghan Murphy

    You aren’t a ‘volunteer’ if you’re getting paid! How old are you anyway??

  • Sharpie

    Surrogacy reproduction is not a primary need. I knew you would come back with a ignorant take. You write it down as a primary need because it suits your agenda.

    I don’t care how open minded you are about surrogacy, it’s exploitation no matter how you think about it.

    And by the way, exploitation of animals is necessary for our survival unlike surrogacy. Not because I like eating meat and dairy but because they’re crucial to physical development. As for plants, killing them, really? I have no words.

  • Ada

    Really, dude??!! Who do you think you are talking to here? 5-year olds?
    I don’t care what that picture means to you, to anyone who can put 2 and 2 together it cleary spells PORNSICK MISOGYNISTIC PERVERT.

    You have MRA troll written all over your profile, it’s not just the avatar and comments it’s also a site you apparently run, which focuses on
    false rape accusations by women, because that is such a huuuuuuuge problem, right? More than 90% of rapists never go to jail, but let’s focus on that tiny number of malicious women.

    But you think your answer is just so smart and nuanced and artsy, LOL. We already figured you out here, you are so transparent, the only question remains what excatly are you doing on radfem site.

  • Ada

    Who do you think you are talking to? 5 year-olds? I know excatly what this misogynistic picture represents and I saw your little site which is supposedly ” saving sanity and in some cases lives of men (and the women who love them)”, LOL, too.

    No need to embarace yourself further, everybody here already figured out your MRA trolling game.

    ( I hope this version is nice enough to go through moderation.)

  • Meghan Murphy

    You don’t seem very intellectually advanced…