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Written Evidence Submitted by Legal Feminist [GRA1830]

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Written Evidence Submitted by Legal Feminist [GRA1830] Written evidence submitted by Legal Feminist [GRA1830] Legal Feminist is a collective of practising solicitors and barristers who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas of law including employment, family, discrimination, immigration, public and criminal law. Our range of specialisms enables us to consider holistically the issues raised in the Call for Evidence (CFE), and our collective experience enables us to comment on the practical implications of some of those issues. We are concerned that the questions in the CFE frame a number of sensitive issues through a single perspective only - namely that of transgender individuals. However, the Government has recognised that the Gender Recognition Act (GRA), particularly as it interacts with the Equality Act 2010 (EA), impacts multiple distinct classes and we believe that the voices of all of those classes need to be heard. The impact of any reform of the GRA beyond the Government’s proposals would be felt most by some of the most vulnerable women in society, including victims of domestic violence and sexual assault and women in prison. The purpose of our response is to seek to amplify those women’s voices. We formed our collective as we became increasingly concerned by the way in which women’s rights were being side-lined and as we recognised a reluctance on the part of human rights organisations and some established feminist institutions to acknowledge or examine the human rights conflicts affecting women. We are also aware of female lawyers who share our concerns within many well-known human rights organisations who are too intimidated to even raise the suggestion that their institution address this issue. Our submission includes both evidence and detailed legal analysis. A summary of our response to each question is set out below. SUMMARY RESPONSE 1. Will the Government’s proposed changes meet its aim of making the process “kinder and more straight forward”? Yes. 2. Should a fee for obtaining a Gender Recognition Certificate be removed or retained? Are there other financial burdens on applicants that could be removed or retained? Yes it should be retained. Many Government administered processes require fees. In 12 years only one member of the Gender Recognition Panel User Group has raised concerns about costs. 3. Should the requirement for a diagnosis of gender dysphoria be removed? No. This would lead to de facto gender self-identification. Robust gatekeeping is required for protection of women’s rights; a gender dysphoria diagnosis should be required as a minimum in order to fulfil this need. 4. Should there be changes to the requirement for individuals to have lived in their acquired gender for at least two years? An individual should only be granted a Gender Recognition Certificate (GRC) following a medical diagnosis of gender dysphoria which has an adverse effect on the individual and is sustained over a substantial period of at least two years (whether or not the individual has in fact adopted clothing etc. stereotypically associated with the opposite sex). A standalone test based on “living in the acquired Written evidence submitted by Legal Feminist [GRA1830] gender” is unworkable since it is not objective. Any attempt to create objectivity based on such a criterion relies on retrogressive sexist stereotypes. 5. What is your view of the statutory declaration and should any changes have been made to it? Despite being a criminal offence under the Perjury Act 1911, no prosecution has ever been brought for making a false statement in a statutory declaration made for the purposes of obtaining a GRC. As noted in response to question 4, there is no objective standard to judge whether someone intended to “live permanently in the acquired gender”. We consider that a more effective assessment should be considered to establish eligibility for a GRC (and that the sanction for perjury that currently exists should be replaced by a more effective sanction for any false application). 6. Does the spousal consent provision in the Act need reforming? If so, how? If it needs reforming or removal, is anything else needed to protect any rights of the spouse or civil partner? The spousal consent provision should remain. It is not a long term veto on the grant of a GRC; it is merely a short term protection for a spouse who could, against their will, find themselves in a fundamentally different marriage to the one they entered into. 7. Should the age limit at which people can apply for a Gender Recognition Certificate (GRC) be lowered? No. The grant of a GRC involves important legal consequences and a decision should only be taken when the individual is legally adult. 8. What impact will these proposed changes have on those people applying for a Gender Recognition Certificate, and on trans people more generally? Legal Feminist has no comment. 9. What else should the Government have included in its proposals, if anything? ● An Equality Impact Assessment; ● Guidance to assist employers and service providers wishing to rely on the single sex exemptions and clear confirmation that women placed at a particular disadvantage by the failure to apply such exemptions may claim indirect discrimination; ● Guidance on when sex and gender must be treated differently; ● A bar to applicants with unspent conviction for VAWG offences (i.e. offences involving violence against women and girls); ● Consideration of the interaction with documentation for non-British nationals and specifically guidance on transgender asylum applicants. 10. Does the Scottish Government’s proposed Bill offer a more suitable alternative to reforming the Gender Recognition Act 2004? The proposed Bill is not a suitable alternative, although it raises some issues which bear deeper scrutiny regarding capacity, the age at which a citizen could be considered to have capacity, whether a panel should be retained and circumstances under which a GRC might be revoked. 11. Why is the number of people applying for GRCs so low compared to the number of people identifying as transgender? The Gender Recognition Act 2004 was only ever intended to apply to a very small group of people suffering from gender dysphoria and who Written evidence submitted by Legal Feminist [GRA1830] underwent the process of gender reassignment. The transgender “umbrella” is much wider and includes people who have not transitioned, people who have no intention of transitioning, people who cross dress part time, people with autogynephilia, and people who identify as non-binary or gender fluid. The GRC process was never intended to be used by this wider group. 12. Are there challenges in the way the Gender Recognition Act 2004 and the Equality Act 2010 interact? For example, in terms of the different language and terminology used across both pieces of legislation. Yes. The EA also contains important exceptions for the provision of single sex services and facilities in appropriate circumstances. It is unclear how these are intended to operate where an individual has been granted a GRC. Greater clarity should be provided in order to ensure that the rights of women and girls are protected. It is also unclear whether a woman can rely on a transwoman as a comparator under the EA, e.g. for the purposes of equal pay. 13. Are the provisions in the Equality Act for the provision of single-sex and separate- sex spaces and facilities in some circumstances clear and useable for service providers and service users? If not, is reform or further guidance needed? These are important protections. Clarity as to how the provisions apply to GRC holders is required. Given that the rationale for these exceptions is based on biology (safety, security, privacy and fairness), it would be appropriate to suspend the impact of a GRC for the purposes of the single sex exceptions. More broadly, the proportionality requirements are difficult for individuals and organisations to interpret. They could be codified to create clarity and aid understanding, as they are elsewhere in statute. 14. Does the Equality Act adequately protect trans people? If not, what reforms, if any, are needed? Yes. The EA provides appropriate protection from discrimination and harassment. The rights of trans people are appropriately balanced with those of others in respect of the application of single sex exceptions (although guidance would be welcomed to assist individuals and organisations). The rights of trans people must also be balanced with the rights of others to freedom of speech. Trans people are entitled to dignity and respect; any restriction on the right of others to express their experience of the trans person’s sex or its impact would nonetheless be an unreasonable encroachment on the rights of others. Similarly, the desire of trans people not to be offended should not be elevated above the rights of others to hold a belief in the scientific fact that biological sex is binary. 15. What issues do trans people have in accessing support services, including health and social care services, domestic violence and sexual violence services? All the above services are woefully underfunded generally, including for women. Appropriate provision of both single sex services and services for trans people are needed to ensure that women and girls have access to single sex services (where required), and trans people also have access to the services tailored to their specific needs. 16. Are legal reforms needed to better support the rights of gender-fluid and non- binary people? If so, how? No. Legislating to “recognise” non-binary gender identities, that is people’s belief about themselves, in law, and to have this replace their actual / legal sex or take precedence over it, would impose unacceptable burdens on others to pretend not to Written evidence submitted by Legal Feminist [GRA1830] see someone’s sex and to pretend to share in the beliefs of others, and would undermine women’s sex-based rights and freedom of speech.
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