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The consensus is that the 2004 Act is outdated, and new legislation would be a fitting way to mark 50 years since the partial decriminalisation of homosexuality.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.

Little Atoms | The trouble with mermaids, or “Is life really much better down where it’s wetter?”

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This was the game. In the real world, I was lying on the sloping edge of Melton Leisure Pool sometime in the 1980s, shuffling my child body down into the water; in my imagination, I was on the sea shore and the irresistible ocean had come to take me and make me a mermaid. It was a game played entirely alone, because its object was utter and perfect passivity.

Some people never stop playing mermaids. At conventions such as Mer-Mania in North Carolina, Merfest in Florida, or Merfolk UK, hundreds of adults gather to, as the Merfolk website puts it, “transform [themselves] into a magical mythical being from the depths of the ocean” and swim with the “Mer-community”. (These gatherings are not uniformly idyllic: Mermania 2017 was reportedly riven with cyberbullying and physical confrontations between merfolk, leading to the Mail dubbing it “the DARK SIDE of the real-life mermaids”.)

Read the full essay at Little Atoms

New Statesman | Can the media focus on transgender politics reveal anything larger about identity?

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This is a review essay of four new books about trans issues: Trans Like Me by C. N. Lester, Becoming Nicole by Amy Ellis Nutt, The Secrets of My Life by Caitlyn Jenner, and Man Alive by Thomas Page McBee.

The world of transgender politics is full of big claims and bold declarations, but here is an understatement to start with: “The media is having a trans moment,” writes C N Lester in Trans Like Me. They are not wrong (“they” because Lester identifies as non-binary, and so asks to be referred to with gender-neutral pronouns). Besides the books addressed here, recent additions to the discussion include the novel This Is How It Always Is (based on the transition of the author Laurie Frankel’s own child), The Gender Games by the Glamour columnist Juno Dawson (modestly subtitled The Problem With Men and Women . . . from Someone Who Has Been Both), The New Girl by the Elle columnist Rhyannon Styles, True Colours by Caroline Paige (the first openly trans person in the British military) and Surpassing Certainty by the trans activist Janet Mock – a second volume of autobiography to follow 2014’s Redefining Realness.

These books cover memoir, popular science and manifesto. Inevitably, they are wildly variable, both in quality and in ideology. I suspect that Lester might prefer a little less ideological range. Trans Like Me opens by asking, “What does the word ‘trans’ mean to you?” which, Lester then explains, is how they begin the corporate diversity training sessions they lead. Few books have so accurately captured the experience of being detained in a conference room and forced to reckon with a whiteboard.

Read the full essay at the New Statesman

Guardian Review | Death of a She Devil by Fay Weldon

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There are two parts to Fay Weldon’s reputation: first that she is a feminist writer, and second that she is a very funny one. The “funny” is earned, the “feminist” less so, and Death of a She Devil is a credit to neither. When Weldon introduced Ruth Patchett in The Life and Loves of a She Devil, 34 years ago, she created one of literature’s greatest monsters. Deserted by callous husband Bobbo for the simpering romance novelist Mary Fisher, ugly doormat Ruth remakes herself as the She Devil and has her revenge on the adulterers. Her punisher’s progress takes her through every circle of society, from underclass to judiciary, from family to clergy, until finally she is surgically transformed into “an impossible male fantasy made flesh” – even losing six inches of leg to become desirably petite. At the close of the book, with Bobbo broken and Mary dead, Ruth’s triumph is complete.

Read the full review at the Guardian

New Statesman | It’s revealing that there is so little public debate over what makes you a “real man”

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I’ve never tried being a man, but the writer Norah Vincent did in a year-long experiment for her book Self-Made Man, and she found out two things. Firstly, that people were amazingly eager to accept her as a man on the basis of a bound chest, a flat-top haircut, masculine clothing and some ersatz stubble. Secondly, that while it was easy to get classed as a man, living in that class meant being subject to constant scrutiny: “Someone is always evaluating your manhood […] everybody is always on the lookout for your weakness or your inadequacy”. In the end, Vincent suffered what she calls a “crack-up”, attributing it to the pressure of her restrictive alter-ego.

The best way to think about gender is as a kind of hell. Men occupy the narrow centre, with various degrees of “non-men” expanding outward in concentric circles, every region bristling with demons ready to prod deviants back into line or cast recalcitrants into the outer darkness. A man who falls out of manliness can only fall so far. A woman who fails at femininity, as Glosswitch describes, has failed doubly by gender’s underworld logic: first of all to be male, and secondly to be a woman, a low enough condition on its own even before you get banished to the far fringes of the inferno.

Read the full post the New Statesman

Independent | I’m not surprised that the BBC chastised Jenni Murray over her transgender comments – this is what institutional sexism looks like

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Impartiality is the necessary fiction that allows the BBC to exist. A public service broadcaster that didn’t attempt to hold its head above bias would be untenable, and this is why the BBC’s editorial guidelines make it clear that news and current affairs presenters are not to publish their personal views on “controversial subjects”.

But what do you do when the controversy comes for you? When, however much you’d rather not be the object of dispute, you become the frontier in an ideological war? When what you are – and how you name yourself – slips from neutral to contentious, without you doing anything?

Jenni Murray has presented the BBC Radio 4’s Woman’s Hour for 30 years, and she’s been a woman for even longer than that. At the weekend, the Sunday Times published an article by her titled “Be trans, be proud — but don’t call yourself a ‘real woman’”. Under that headline, Murray criticised some claims of trans activism (and she was careful to say she was talking about the extreme of the debate): that anyone who identifies as a woman has “always been a woman” no matter the age at which they transition, and that references to the female body should be censored in the interests of inclusion.

Read the full post at the Independent

New Statesman | Why gender became the ultimate forum for self-expression

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In November, the British high-street bank Metro announced that it was expanding its gender and title options. Customers could now register as “non-binary” rather than male or female, and as “Mx” rather than Miss, Ms, Mrs or Mr. In some ways, this development parallels the rise of Ms in the 1970s, which was popularised by feminists who wanted a title that didn’t identify women by their marital status. In practice, Ms marks women by their political affiliation instead (if you’re talking to a Ms, you’re probably talking to a feminist) but, even so, its first intention was to conceal rather than reveal information.

Mx does something different. To declare yourself a Mx is to disclose something about yourself: that your identity is outside what has become known as “the gender binary”, and you are neither man nor woman but something either in between or entirely other. This is a statement about who you are, and it comes with an implicit understanding that not being able to make that statement – or not having it recognised – is damaging. As the father of one gender-non-binary teenager told BuzzFeed UK: “When . . . you don’t identify as male or female and you only see those two boxes, then you don’t see yourself there . . . You are absent. That must hurt, and that’s what makes me angry.”

Read the full article in the New Statesman

First published New Statesman, 17-23 February 2017, as part of the New Times feature