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


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.

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