Some thoughts on reforms to the Gender Recognition Act

Over the weekend, the Sunday Times reported on a consultation on the gender recognition bill that will be published in the autumn.

At the moment, gender recognition certificates (GRCs) are governed by the 2004 Gender Recognition Act. This requires that those who are over 18 and wishing to change their legally recognised gender should do the following: have a diagnosis of gender dysphoria, have lived in their “acquired gender” for at least two years, and intend to live in the acquired gender for the rest of their lives. Applications cost £140 (with means-tested assistance for those on a low income or receiving certain benefits), and are assessed by the Gender Recognition Panel.

The new law would remove the two years requirement and the stipulation of a dysphoria diagnosis. Instead, applicants would only need to make a statutory declaration that they intend to live in their acquired gender until death. The aim, according to minister for women and equalities Justine Greening, is to “streamline and demedicalise” the process.

It’s worth laying out the current law in detail because I’m not convinced that even those at the vanguard of the argument necessarily know what they’re seeking to reform. Jeremy Corbyn, for example, said that the 2004 Act “forces [trans people] to undergo invasive medical tests”. It does not.

But regardless of whether politicians understand what they’re reforming, there is cross-party agreement at the highest level on the reform of GRCs, with both Corbyn and Theresa May having endorsed it (it was also a Labour manifesto commitment). There seems to me to be little appetite within Westminster for criticising the programme, and it is very likely to become law. Apart from anything else, it is – to be cynical – a cheap form of progressivism. Investing in NHS services for trans people is expensive. “Streamlining” the GRC process could even lead to a few civil service redundancies.

The consensus is that the 2004 Act is outdated, and new legislation would be a fitting way to mark 50 years since the partial decriminalisation of homosexuality. (Incidentally, the Abortion Act is also 50 this year, making it 37 years older than the Gender Recognition Act. The medical and social conditions of women’s lives have changed drastically since 1967; why the Abortion Act is not seen as similarly in urgent need of reform is one of those puzzles that perhaps only God or feminism can answer.)

I’ve written fairly extensively on the conflicts of interest I think self-declaration of gender could cause, and Helen Lewis has set them out relating to this particular reform in an excellently clear post at the Statesman. The issues break down into three sections: monitoring (how does self-identification change the way we can measure discrimination according to sex), services (how does self-identification change the way we deliver sex-segregated services), and cultural (the most nebulous category, dealing with how we collectively understand gender).

1. Monitoring

Many things are known to divide starkly along the lines of sex. For example: men are paid more for equivalent work than women (the wage gap), women do more unpaid household labour than men (wifework), and men commit the vast majority of violent crime (male violence). Will a move to self-identification injure our ability to measure sex-based discrimination?

Trans people are a small population, so their presence as outliers is unlikely to dilute large-scale effects. For example: in 2014, the highest-paid woman CEO was Martine Rothblatt, a transwoman who freely conceded that spending half her life male meant that her experience was not parallel to most women’s. But even Greenblatt’s extraordinary wealth did not amount to a blip in the overall fact of the wage gap.

More refined samples will see greater distortion: for example, sex offenders are a tiny proportion of both the female and the trans populations, but counting transwomen who commit sexual offences as female for the purposes of monitoring will significantly increase both the number of “female offenders” and the kinds of offences they commit. (See, for example, the cases of Davina Ayrton or Jasmine Hill.)

One critical question for me is whether the reformed bill will include provisions to ensure we can still capture the reality of sex discrimination and gendered violence.

2. Services

The fact of male violence is the rationale for most sex-segregated services. For example: a few weeks ago I took part in a panel on women and mental health, where a key theme that emerged was the distress caused to women previously traumatised by male violence when male practitioners are given authority over them (which authority will involve physical restraints).

The prevalence of (male) voyeurism and unwanted sexual contact (by men) means women have made the case for separate wards, prisons and refuges. But it’s not just about violence: sometimes it’s simply a question of volume, as with the conversion of toilets to “gender neutral”. Because in practice only those with penises can use urinals, “gender neutral” toilets in practice means giving male patrons access to both stalls and urinals while women only have access to stalls, which are now in even greater demand. The end result, when this was tried at the Barbican, was huge queues for women. Similarly, men physically outperform women in most sports. If male athletes identifying as women start to displace female athletes, will female elite sports be able to survive?

How will gender self-identification interact with sex-segregated services? Will prisons and refuges be able to discriminate between good-faith and bad-faith claims? As trans activists rightly point out, transwomen should not be held responsible for crimes committed by men posing as transwomen (for example, Christopher Hambrook, who claimed to be a transwoman in order to access a Toronto women’s refuge where he raped residents). Will the new law on GRCs allow providers to make that distinction?

We should also remember that for some women, a transwoman will not be an appropriate service provider: for example, a woman with severe mental health problems will not be in a situation to assess the gender identity of the person restraining her who appears to all intents and purposes to be male. Will the new law on GRCs be framed to protect the discretion currently allowed to single-sex services?

One problem with this, of course, is that we can only measure the impact on services if we have the monitoring data. If statistics cease to capture natal sex, we will lose the ability to assess the impact of the new gender recognition law on one critical axis.

3. Cultural

This is perhaps the most important part to me, but the hardest to measure and so arguably the least relevant to a question of law. But: as self-identification of gender is adopted, will politically engaged women accept the idea that gender is an identity and reject the idea of themselves as bonded by the condition of being female in a patriarchal society? Will patriarchy have any meaning when a billionaire CEO or an individual who has committed violence against women is able to reveal that they “identified as” female all along? Will we continue to question issues such as “pinkification” and other forms of socialised stereotyping, or will we become even more accepting of gender stereotypes as a natural outcrop of an inherent internal identity? Like I said: nebulous. But important.

Until the law is actually framed, we don’t know how it will approach these issues; and until it’s enacted, we don’t know how it will affect them in practice. I might be 100 per cent wrong about all of this. Part of the point of setting this down is to give myself a measure against which to check my judgement over the next two, five, ten years. (Although obviously, I’ll only know I’m wrong if agencies carry on collecting the relevant data.) Nevertheless: for politicians to dismiss feminist concerns at this stage is to leave women’s rights in an intensely precarious position.