The quest to legalise gender identity: academia, activism and the law

Introduction

Liz Truss’s inbox must be overflowing. Leaks to the press that the reform of the Gender Recognition Act 2004 (GRA) might not include a lowering of age for legal transition nor enable legal transition on the basis of self-declaration has galvanised the trans activist lobby into action. It has some might behind it, including Google which promoted a ready to send letter to Liz Truss, demanding the right to Self ID. On the other side thousands of women, unfunded or self funded, have written to her to say please, no to self ID and yes, please protect children. The announcement is expected next week.

In another recent development, it would be hard to have missed the furore surrounding JK Rowling’s posting of her essay and the online abuse she received from so many for it and the column inches this has caused. In it she quite reasonably explained why she believed some of the demands of trans activists impinged on the sex based rights of women and girls. But it seems that making a biological distinction between men and women is now synonymous with hate. And it is not just trans activists that feel this way. This has become the ‘only’ view to take if you are progressive and liberal as witnessed daily on social media and by letters and actions of ‘trans’ allies.

As with many ideologies there is a required mantra and this one goes ‘transwomen are women’ and repeated in response to any requests for explanation. Our eyes do not lie so that this only makes sense if something other than biology determines your sex. And believers think there is something else and it is called gender identity. To give this indefinable concept permanent legitimacy would require enshrining it in UK law and perhaps this is what the fight for the repeal of the GRA is really about.

A long term campaign to legitimise gender identity and prioritise it over biological sex

A campaign to legitimise gender identity and prioritise it over biological sex has been going on for many years, mostly under the radar – until the announcement about the proposed GRA reform in 2018 made by Conservative MP Maria Miller woke some people up. But gender identity had made its entrance onto the global stage more than fifteen years before via the human rights movement and influenced by a powerful global lobby. This is just the final push here in the UK. Adoption of it into individual countries’ legal systems and the approach taken has always been one of stealth, as advised in a report “Only Adults? Good Practices in Legal Gender Recognition for Youth”, which was sponsored by global law firm Dentons and Reuters Thompson

To better understand this ‘under the radar’ campaign’ I returned both to the 2003 Hansard debates on the original GRA bill and then to a 2007 paper which discusses the consequences of the said GRA. The paper,”Sex Changes’? Paradigm Shifts in ‘Sex’ and ‘Gender’ Following the Gender Recognition Act?’ was jointly written by veteran trans activist and now retired academic, Professor Stephen Whittle * and Dr Lewis Turner, academic and recently appointed Chair of Press for Change, a UK trans lobby group.

The original Hansard debates plus this extraordinary article gives us an insight into how interconnected academic theory, trans activism, law and policy really are. The trans lobby influenced politicians which resulted in the confusing use of the words sex and gender both in the debates of the GRA and the Act itself as well as the decision not to make medical transitioning a compulsory condition.

This confusion was then taken by the authors of the article as signalling a major change in thinking about biological sex and gender identity and they extrapolated consequences which were warned about during the debate but dismissed by the majority. That is that gender identity has priority over biological sex.

The Gender Recognition Act 2004

In a case brought by UK resident Christine Goodwin in 2002 the European Court of Human Rights  found that the UK had breached the Convention rights of Goodwin, a transsexual born a man, under Articles 8 (the right to respect for private life) and 12 (the right to marry). That ruling said that transsexuals were entitled to full legal recognition in their adopted sex, including the right to marry. This case was the culmination of a long battle by transsexuals and they welcomed the ruling.

The UK was then obliged to pass legislation that complied with this European judgement. It did so with the passing of Gender Recognition Act 2004 which enabled transsexuals to get a Gender Recognition Certificate and then a birth certificate in their newly acquired sex, if certain conditions were met. Transsexuals would be treated for all purposes as if they had been born with their acquired sex – including the right to marry and the age they qualify to draw a state pension. In short they created a legal fiction, a phrase actually used during the debate. There were four exemptions to this. At the time it received little media criticism as it didn’t seem to be momentous apart from changing the lives of perhaps 5000 estimated transsexuals. However this Act has already contributed to far-reaching social consequences way beyond its intended remit. The perhaps naïve assumptions by politicians led to careless wording, which I suggest was both encouraged by and then seized upon by activists.

The debate on the Gender Recognition Bill in the House of Lords 2003

So far as I know, there is no law nor any known medical procedure that can change the sex of a human being. The Bill purports to do so. It is therefore an objectionable farce.” (Lord Tebbit, Gender Recognition Bill, House of Lords Second Reading, 18/12/03, Hansard: Column 1304).

The case for the Bill was argued on humane grounds that human beings had a right to marry (Article 8 and 12 of the Human Rights Act) and at that time same sex marriage was illegal. However the arguments were tortuous, much of it focusing on supporting the sanctity of heterosexual marriage and not wanting to sanction same sex marriage in any way.

Despite the small number to whom this Act would apply there were two serious consequences of it, both of which were foreseen by some of the members of the committee. And both of which combined resulted in a victory for trans lobby.

First consequence: Sex and gender used interchangeably, without definitions, leading to assertions that gender (then gender identity) precedes sex.

In some ways some members of the House of Lords Committee on the GRA, like Lord Tebbitt had a greater understanding of the consequences of confusing the words sex and gender than many people have today.

Birth certificates use the word sex. The population category in question was described as transsexual and their transition was described as sex change. This was the language at the time. But the Act itself also refers to gender, a word that was familiar and being used to mean men and women in common discourse. (They had to make a leap from gender to changing sex because sex is on birth certificates so that changing gender becomes synonymous with changing sex) During the readings there was much debate about the use of the words gender and sex with some in the House of Lords wanting sex to be used throughout. But they used both and the result is a linguistic mess.

 Lord Tebbitt summed up what he thought the dilemma was, when he tried to put down some amendments:

The great mass of the amendments are very similar in that they replace the word “gender” with the word “sex”. That is because, apart from anything else, my concern is to smoke out in some way the Government’s view of the distinction between those words or to ascertain whether they believe that there is a distinction between them.

I notice that, according to the Oxford English Dictionary, “sex” is defined as either of the two divisions of organic beings distinguished as male and female respectively or the distinction between male and female in general. It states that the sum of those differences is in the structure and function of the reproductive organs on the grounds of which beings are distinguished as male and female and the other physiological differences consequent on those.​

Turning to the issue of gender, we find a slightly different story. “Gender” is defined as:

“In modern (esp. feminist) use a euphemism for the sex of a human being often intended to emphasise the social and cultural as opposed to the biological distinctions between the sexes”.

It seems to me that, even from reading those definitions, the issue arises of whether the Government believe that the Bill is about social matters or about the biological matter of the distinction between males and females. I believe that upon that rests, to a great extent, how the rest of the Bill will be dealt with. I shall say no more about those amendments because they are tabled merely for the sake of tidiness, listing many, as opposed to just one, of the places where the word would be replaced.

His amendments were that:

They would leave out the words, “in the acquired gender” and insert,”as a person of the other sex”.

That, he said ” makes it much clearer what the Bill is about and does not hide behind the euphemism of gender when it is really talking about sex.”

However his concerns were overruled.  Lord Filkin later on in the debate states that, ‘the Bill is about legal recognition and it will define a person’s sex in law. We consider the arguments about the meaning of the words sex and gender to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words sex and gender has changed over time and no doubt will do so in the future. While the meaning of the word sex is not the same as that of gender, the word sex is increasingly in use in ways that go beyond a narrow biological definition (House of Lords Report Stage, Hansard 29-01-04, col. 366).’

Basically we don’t want to get into the semantics of what it all means!!Lord Filkin would surely not have known that his reluctance to grapple with the meanings enabled his wording to be quoted by academics as legitimating the demotion of biological sex as a category.

In their 2007 article Professor Whittle and his colleague Dr Turner reflect not on the practical outcomes for trans people following the Act but on the consequences of the wording of the Act. This itself illustrates how important changing language has been to trans activists, particularly language used in the law. The struggle between many feminists and trans activists is in some ways about language… who has the right to name and define sex, gender, woman and man, male and female? Because if the meaning of woman is changed to include some men where on earth does that leave feminism and sex based rights which are founded on the universal category of woman.

Sex then is beyond a biological definition as held by the ECtHR and the ECJ and Lord Filkin appears to echo Hausman’s 1995 claim that gender has come to mean sex” ( Whittle and Turner 2007)

Lord Tebbitt’s concerns were well founded. Inserting gender in this Act at times as being synonymous with sex, was a victory for trans activists as it paved the way for a looser way of ‘being’ either a man or a ‘woman’ and relied less on biology or (as we shall see below) the need for any surgical or medical transitioning and more on the cultural and social manifestions of sex. From there it has been a short step to legitimate gender identity, a wholly subjective and unverifiable concept. And this is exactly what the activists did as explained by Whittle and Turner:

“The sex/gender distinction,(where sex normatively refers to the sexed body, and gender, to social identity) is demobilised both literally and legally. Firstly, in the terminology of the Gender Recognition Act, gender identity becomes and defines legal sex: if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman [S. 9 (1)]. Gender then, now determines sex.”  ( Whittle and Turner 2007)

The confused wording of the Act here is taken by Whittle and Lewis to be not only evidence that gender and sex are interchangeable, but that gender is prioritised over sex, replacing it as the legal signifier of men and women. Although they go further and suggest it is gender identity not gender. The very confusion of language Lord Tebbitt had warned against enabled this radical interpretation: 

 “Firstly, the sex/gender distinction is demobilised with both terms in the wording of the act. Indeed, in the sex/gender distinction, female usually refers to sex, the sexed body, and woman usually refers to gender; the cultural meaning of female sex. In the terms of the Act the referents change round; gender refers to female and sex refers to woman. This suggests that the terms are interchangeable. Secondly, in the wording of the Act, gender precedes sex. Normatively in the sex gender distinction sex precedes gender; gender is culture written onto the sexed body. In the terms of the Gender Recognition Act, one’s gender precedes one’s sex.

“As the Gender Recognition Act states that one’s acquired gender becomes one’s legal sex then there is little difference between sex and gender. Indeed sex is preceded and exceeded by gender by the terms of the Gender Recognition Act. Sex in this sense is determined by gender identity, the social role that one chooses to take.

The concept of ‘gender identity’ was scarcely used in the debate neither does it feature in the GRA itself. However Whittle and Turner use the terms gender and gender identity interchangeably here.

Gender identity did not become part of the public discourse overnight. Originally it was used very specifically in relation to transsexuals as a way of making their condition more psychological – the mismatch between their body and the opposite sex that they really felt they were (Money 1975). Whittle and Turner describe it above “ the social role that one chooses to take.’  Today it is described by Stonewall as “a person’s deeply held internal sense of their own gender”, a very different concept.

It is only in recent years, we are told that, that everyone has an innate feeling as to whether they are male and female, it is just that most people are lucky and theirs matches with their biological sex. The only way that trans people are different is that theirs does not.  Recently we have seen a much more concerted effort for gender identity to be recognised as a category in public discourse and to actually be more important in the categorisation of people than biological sex. Stonewall, the prominent LGBT lobby group, which has been focusing on trans in its LGBT campaigning since 2015, has stated that it wants gender identity to replace gender reassignment as a protected characteristic in the Equality Act 2010 as well as wanting to get rid of sex protected spaces. There is plenty of evidence that it is already using the term, not sex when it refers to equality characteristics and other organisations advised by Stonewall are following suit.

Second consequence:  Biology demoted as no medical transition required

Even today most people regard transitioning as involving some kind of medical change to the anatomy in order for the person to take on the appearance of the opposite sex. This comes in the form of hormones (lifelong) and/or surgery. Many trans people have hormones, and the removal of breasts or construction of breast and face feminization, but the vast majority of trans people do not have genital surgery. There was considerable debate in the Committee about what conditions should be met in order for a person to be granted a GRC and thereby legally change their sex.

The assumption made by the Select Committee was that transsexuals would indeed transition medically but they decided (or were persuaded) that it should not be a pre-condition of getting a Gender Recognition Certificate as this was too harsh, potentially excluding some people for whom full medical transition would be detrimental to their health.

(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or

(b) treatment for that purpose has been prescribed or planned for the applicant,”

Prescribed or planned’ has been interpreted very loosely. This was also little noticed at the time and only a tiny minority undertake full surgery which many people even today do not realise. However they were clear that some quite stringent objective tests, including a diagnosis of gender dysphoria, should be taken before granting someone a Gender Recognition Certificate.

Lord Filkin ‘The appropriate test is whether a person has taken decisive steps to live fully in the acquired gender and there is clear evidence of gender dysphoria after a proper process of inspection and testing over a number of years. We do not intend to compel transsexual people to undergo surgery, even though most wish to do so.’

Back to Whittle and Turner’s article in which they refer again to Lord Tebbitt’s thoughts and spell out what they think the outcome of the Act is:

 “In his contribution to the debate in the House of Lords on the Gender Recognition Act 2004 (GRA), Lord Tebbit mobilises a discourse of sex based on chromosomes, as a somatic fact and thus immutable: sex cannot be changed by medical procedure nor by law. The Gender Recognition Act passed in 2004(achieved by relentless campaigning by Press for Change, the UK transsexual lobby group) does exactly that: it changes the legal sex of trans people in the UK and gives them full legal recognition.[1]. Moreover, the Act does not require any medical procedure (mentioned by Lord Tebbitt above), to change legal sex, as reassignment surgery is not mandatory.’”

The authors suggest that the lack of compulsion to have surgery now means that biology is no longer a pre-requisite for sex change, nor indeed is it important in determining whether someone is male or female. They continue, summing up what they believe to be the consequences of dropping the condition for medical transitioning  in the Act,

 “This reverses the usual legal gender attribution process where from the moment of birth, the presence or absence of a penis constitutes the baby as male or female the sexed body based on the genitals ascribes the gender identity and role of that person. In this scenario, sex determines gender. ““Thus when determining legal sex, the Court’s endorsement of the human rights basis for legal recognition of the new sex of post-operative transsexual people was the minimum line behind which the UK government could not retreat. The authorities had to provide legal registration which enabled trans people to enforce their rights to privacy and marriage to a member of the same natal sex under the European Convention.

However, as a minimum line, it was perfectly possible for a government to go one step further and to make legal recognition available to those who are pre- or non-treatment and thus include those trans people who for health, disability or other reason are unable or unwilling to undergo surgical intervention. This appears to be exactly what the Gender Recognition Act 2004 (GRA) has done.”

The UK government had inadvertently gone that one step further, informed no doubt by trans activists, although from my reading of the debate this was only done because of potential  health implications and not because they thought there would be an unwillingness to undergo surgical intervention as the authors suggest.

Any fears raised in the debate about the consequences of allowing male bodied people to become ‘women’ legally e.g. Lord Moynihan’s concerns about men competing in women’s sport as transwomen, were dismissed. Again and this cannot be emphasised enough, absolutely central to the wording and content of the bill was the belief that it affected only a very few people in the country

Lord Filkin ‘…we are talking about only 5,000 people in Britain. That is why this is such a unique and specific set of circumstances. This is one of the smallest minorities in our society, yet the evidence we have had prior to the Bill and during our debates shows that for that very small minority this issue is very significant. I think we have an obligation in justice to help them live their life as they believe it to be’ 

 But sixteen years on, this group has been redefined as transgender or even just trans and its meaning significantly changed with a shift away from a medical model to a social model to embrace a number estimated to be perhaps as many as 500,000. There are many definitions but Stonewall’s is perhaps the most comprehensive:

Trans is an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, cross dresser, non-binary, gender queer.”

We are now talking about a very different group of people for whom the granting of a GRC through the GRA 2004 would never have been envisaged. Indeed even in a paper in 2009 on Human Rights and Gender Identity the European Commission differentiates between transgender and transsexual:

 “It needs to be noted that many transgender people, and probably most transsexual persons among them, choose to undergo this treatment, often including the elimination of procreative organs”.

Whittle and Lewis’s summary of how they believe the GRA resulted in a paradigm shift of the meaning of sex and gender.

One of the authors, Whittle, reveals his own influence to the proceedings in this chilling summary. And in it the authors clearly reveal how the consequences of confusing language and the lack of a condition requiring medical transition has resulted in the assertion that there is no difference between sex and gender, and that sex is actually preceded by gender and concluding that sex is in fact determined by gender identity.

“This (Act)  reverses the original gender attribution at birth which as based on the genitals (and strictly speaking not based on other known identifiers of biological sex such as chromosomes). For the Gender Recognition Act, the body is irrelevant, as neither bodily modification, nor the presence or lack of a penis is determinative. Moreover, the Gender Recognition Act is performative (see Butler 1990), in that as a form of speech-act, what it does is makes gender into sex in law. Indeed, as one of the authors was present at the meeting in the Department of Constitutional Affairs where the question of gender or sex was discussed, it can be verified that the decision to use gender was to bring a contemporary recognition of the complexities of the question to the Act.The decision to include sex as well as gender within the GRA was to acknowledge this and to ensure that the Act could not be challenged.”

what legally constitutes male and female has changed. We share Sandland’s (2005) view that as we can now have men with vaginas and women with penises, the act does undermine the binary of two morphologically distinct sexes.”

This was indeed what activists had been lobbying for and the Act now provided a theoretical legitimacy, which wasn’t challenged at the time, to push for further social acceptance of this view as well as influence policy.

Reform of the GRA 2004 ?

There was not a rush of trans people applying for a GRC following this 2004 Act. The total number of GRC’s given is estimated to be a total of about 5000, roughly what the lawmakers envisaged.  

However there has been sustained pressure in recent years from the trans lobby to reform the original Act. Are its conditions so onerous that thousands more people would apply for a GRC if they didn’t have to wait two years, pay £150 and get a medical diagnosis? These are side issues. The main proposal, published in 2018 was that trans people should be able to obtain a GRC purely by self declaration.

Most activists today say that trans people can do pretty much what they want without requiring a GRC. A recent article by GIRES said ” Secondly, those who have transitioned to live as women already have the right to enter women’s toilets, without a GRC and without having undergone surgery. They do, and have done so for years”.

It is true that there is very nearly self-ID in facto if not in law, thanks to an exceedingly influential lobby. The demand for GRC’s is not evident. But if successful the proposed change to the GRA would enshrine in law the concept of a self perceived gender identity and give it priority over biological sex. If you said you were a man, you were deemed legally to have been born male despite biologically being female and vice versa. After that it would be hard to reverse. After all Whittle and Turner said in their 2007 paper that “The privileges afforded by legal recognition and gendered belonging should never be underestimated’”

This then would be a fundamental re definition of men and women, certainly not the purely administrative solution for a discriminated against minority, that the lobby constantly claims. It has an obvious impact on the wider population, particularly women and girls which is why it is being challenged by women.

  Conclusion

There are of course many academic papers to be found on this topic but I chose this one because of the clear link between academic theory, trans activism and the law. The first two have developed in tandem and together they have informed government policy and law at the highest levels in countries all over the world. Both authors are veteran campaigners for trans rights.

I have attempted to illustrate how the Gender Recognition Act 2004, influenced and then interpreted by academic activists may have inadvertently enabled and even legitimated what activists were lobbying for; the prioritising of gender over sex. It is not hard to see why this is so important for a certain section of this minority- they can never biologically be female if they were born male and vice versa so the next best thing is to re define what male and female means and demote the biology. Permitting people to change sex legally on the subjective concept of gender identity would cement this process further.

Endnote

*Professor Whittle, a trans man has been a key figure in the global trans movement, and was part of the group which developed the Yogykarta Principles in November 2006. These Principles, which address key legal frameworks regarding both sexual orientation and gender identity, have been hugely influential in obtaining legitimacy for the concept of gender identity at the highest levels eg. UN, Amnesty, Human Rights Watch etc. which in turn influenced individual country laws.

He was also present as an advisor at some of the 2003 debates and was special advisor to the Women and Equalities Committee on Transgender Equality 2015-2016. Ruth Hunt, former CEO of Stonewall. specifically credits the pressure group he founded, Press for Change, with handing the baton of trans lobbying to Stonewall in 2015 – see my post on her interviews below. His book the Transgender Studies Reader which was co- edited by Susan Stryker, an influential US transwoman was published in 2006.