Why the controversy over trans rights at the moment? – A guide for allies

Currently, the procedure is intrusive and highly medicalised [2], and the government planned to allow a person to change their legally-recorded sex through a simpler process, based around a formal declaration of the gender to be recognised (often referred to as “Self ID”). Although widely supported, as evidenced by the results of the UK Government’s own consultation, this change has not yet been implemented. In Scotland, similar legislation has just been passed, but the UK Government has made an order preventing the bill from becoming law, which will likely result in the issue going to court.

The Gender Recognition Process results in a Gender Recognition Certificate (GRC) that changes only a person’s legally-recorded sex. Most identity documents, including passports and driving licences, can be changed without a GRC (which is not itself an identity document). The Government itself confirms that a GRC is relevant primarily to the holder’s certificates of birth, marriage and death.

More significantly, trans people’s rights under the Equality Act 2010 extend to people who are “proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex”, and for this purpose having or not having a GRC is generally irrelevant. A person’s status under the Equality Act is not changed by having a GRC.

The proposed changes to the Gender Recognition Process have been misrepresented to suggest that a GRC could be abused so that any man, for example, could “pretend” to be a woman with the intention of gaining the legal right to access single sex spaces designated for women. However, access to single sex spaces is not linked to possession of a GRC, and so a change to the GRC process does not change the law or practice relating to single sex spaces. A blanket exclusion of trans people from single sex spaces is neither necessary nor an equitable balance between the rights of trans people and the rights of others who have access to the same sex space, never mind the fact that it offensively portrays trans people as inherently a threat.

 

Should trans people use single sex facilities matching their gender?

Clearly, in general, yes. That is fundamental to living as a man or a woman in society. There may be rare occasions in which it is appropriate to exclude a trans person from a single sex service corresponding to their gender. The Equality Act recognises this, but stipulates that it can only be done as a proportionate means of achieving a legitimate aim, and the Statutory Code of Practice under the Act clarifies (section 13.60) that this generally means that a blanket ban is not lawful. Each case must be assessed individually.

The reality is that trans people have been using single sex services corresponding to their gender for years without issue. When was the last time you, or anyone, had to prove their gender before accessing a single sex toilet in public? It is also the case that increased policing of whether people are in the “correct” space largely affects people who are not trans, but whose appearance may not match the expectations of those using the facilities, rather than affecting trans people.

 

Is this not open to abuse?

A more nuanced version of the above policing is that “of course we are not suggesting that trans people are abusive, but if trans women can access women’s spaces then any abusive man can say he is a woman to obtain access”. The reality is that an abuser does not need to masquerade as trans in order to enter a single-sex space, and in countries that have adopted self-ID for trans people (starting with Argentina in 2012 and now extending to 18 countries including Ireland, Malta and New Zealand), this supposed scenario is not found to happen [3]. Of course, robust safeguarding is vital in spaces such as women’s refuges, and this is not incompatible with trans people having access to single sex spaces that align with their gender.

 

Have not women fought for the right to single sex spaces?

Single sex spaces were the default for most of history, usually to the detriment of women. For centuries this country was highly sex-segregated with men’s spaces holding the positions of power. The struggle for women’s liberation in this country was about equal access to spaces and the associated rights and power. The continued provision of single sex spaces in certain circumstances for reasons such as safety, support, comradeship, organisation, or any other legitimate purpose, does not undermine women’s liberation, nor does trans people having access to those spaces that match their gender.

 

Are women being erased?

If they are, it is not a result of rights being given to trans people. It is true that progressing and maintaining women’s rights requires focus on specific issues that affect women solely or disproportionately. Some of these will also affect trans women, and some may not. Some of these will also affect trans men, and some may not. We should continue to fight on these issues, and we believe our energies would be far better spent fighting against ingrained structural inequalities that impact women, rather than fighting against the rights of a small, similarly marginalised group.

In many situations where it is claimed that “women are being erased” (for example the use of gender-neutral language around pregnancy), it is often not appreciated that this language is being adopted so as to be inclusive of trans men and non-binary people, many of whom can and do become pregnant. Without inclusive language and awareness of the needs of trans men and non-binary people, many can find themselves failing to access adequate reproductive medical care. And, contrary to reports, no organisation has banned the use of the word “woman”.

 

Is “cis” a slur?

Related to this, it is sometimes alleged that “cis” is a slur. In general usage, this term is simply meant to indicate that a person is not trans, which encompasses the vast majority of the population. It seems possible that some people resist a label being applied to themselves because they think they are just “normal” or “default”. In the past, people have objected to new usages such as “straight” and “white” being applied to themselves, or to the need for gender neutral language such as “chair” instead of “chairman”. In time, we hope the term “cis” will also be accepted as neutral.

 

What about the conversion therapy ban?

The UK Government has long promised to introduce a ban on conversion therapy – an abusive process that purports to change someone’s sexuality or gender identity. But it has repeatedly stalled, and the latest delay has been to consider excluding conversion therapy for trans people from the ban. We see no reason to treat gender identity differently from sexuality in this context, and consider that all forms of conversion therapy should be outlawed. The ban as originally proposed in fact extended to trying to change someone “to or from being transgender”, and so in reality addressed some of the concerns of those objecting to it of children allegedly being influenced into transitioning. The proposed exclusion of trans people from the policy therefore seems to reflect only the fact that the welfare of this marginalised group is being used as a chip in a manufactured culture war.

 

What about prisons?

Much has been made of the tiny number of instances where trans women housed in women’s prisons have gone on to sexually assault other inmates, leading to calls for trans women to be excluded from women’s prisons entirely. We believe that it is unacceptable for an entire minority to be blamed for the actions of a few members, and it would not be tolerated in any other context. As with all other issues with single sex spaces, we think the key (as recognised under the Equality Act) is that safeguarding decisions need to be based on the individual, and the fact that poor safeguarding decisions have been taken in the past is no reason to always house trans women in men’s prisons. Indeed, housing all trans women in men’s prisons is, we would suggest, much more likely to result in a person being harmed.

 

What about sport?

Trans people deserve access to sport on the same basis as cis people. There are nuanced discussions to be had about how to achieve this appropriately, and they will be different according to the particular sport and the level at which it is being played. The individual sporting bodies ought to be able to resolve this appropriately, but recently many have bowed to pressure from anti-trans groups, even ignoring their own studies and reversing prior inclusive policies. While this issue has been focused on by critics and some parts of the media, the actual numbers of trans people participating in professional sport are negligible.

 

What about trans children?

Much concern has been expressed about children undergoing medical transition too early, which they may later come to regret. The allegations completely ignore the reality for trans children (and indeed many adults) that medical treatment is impossibly hard to access, with waiting times of many years [4]. In the meantime, trans children are left undergoing a distressing puberty that makes it harder for them to change their presentation later, and trans youth have among the highest rates of suicidal tendencies of any population. The “regret rate” for gender-affirming treatments, including surgery, is incredibly low [5], and the treatments have been shown to significantly reduce depression and suicidality, so it defies the evidence to suggest that gatekeeping for treatments should be increased further. Anti-trans campaigners seek to overturn the legal principle of “Gillick competence”, by which children (irrespective of their parents’ wishes) can consent to medical treatment provided that they can fully understand what is proposed. This has consequences for many other medical treatments, such as access to contraception and abortion, which may indeed be the goal of some campaigners but should not, we believe, be used as a weapon specifically against trans people.

 

Gender critical beliefs

There have been two recent court cases [6] in which so-called “gender critical” beliefs – basically that trans people should always be treated as their sex assigned at birth and not their acquired gender – have been held to be protected beliefs under the Equality Act. The test for a protected belief does not include any assessment of whether it is correct or reasonable, and even offensive beliefs can be protected. Employers have a difficult task where there are conflicting beliefs in the workplace, and in both court cases the employers lost because of poor policies and procedures, not because of any inherent merit in the belief itself. Having a protected belief is not a blanket permission to act on it, and the following passage from one decision is important:

However:

1. This judgment does not mean that the EAT [Employment Appeal Tribunal] has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
2. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of the EqA [the Equality Act 2010] will be for a tribunal to determine in a given case.
3. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
4. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

In one case, the main target of the case was the LGBTQ+ charity Stonewall, but the allegations against them were dismissed (this is under appeal).

 

What about gender fluid and non-binary people?

While talking about court cases, we might also recall the Taylor v Jaguar Land Rover Employment Tribunal case, which ruled that non-binary and gender fluid identities were also in principle protected under the Equality Act under the category of “gender reassignment”. However, non-binary people still do not receive sufficient recognition in the UK, and for example none of the proposed changes in the Gender Reform Process would allow indication as neither male nor female, and a court case seeking to add the possibility of a gender neutral passport marker was unsuccessful. Such changes would be welcome. Indeed, several countries already have a third-gender option on passports, including USA, Canada, Australia, New Zealand, Denmark, Germany, Pakistan and India.

 

What about the LGB Alliance?

A number of groups have sprung up in recent years which seek to divide the lesbian, gay and bisexual community on the one hand from the trans community on the other. The most high profile is the LGB Alliance, which states that it is a “charity that supports lesbian, gay and bisexual people”, and if indeed that is what it did it would be unexceptional. However, most of its output seeks to decrease recognition for trans people, and from the outset it adds the rider “as recognised by biological sex”. Supporters of the LGB Alliance are not necessarily LGB, but they are usually hostile to trans people.

A common allegation from members of the LGB Alliance is that lesbians are being coerced into dating “people with penises” (or similar expressions). Obviously, nobody should be forced to date or to have sex with anyone they do not want to. We do not think anyone is actually suggesting that they should, so this again seems to be a straw man argument being used as a scare tactic. Women can still identify as lesbians, have a “type” of woman they are attracted to, and date who they wish to date, while acknowledging trans women as women. In reality, the general truth seems to be that people are attracted to gender expression, not to chromosomes, and so for example trans women who are attracted to men are generally partnered with men who identify as straight, not who identify as gay.

If anyone of any gender or sexuality categorically excludes the possibility of ever dating a trans person, it seems such an attitude may be informed by transphobia. Transphobia is widespread in our society, so we need to work against it, but nobody is being forced to date anyone they do not want to in this context.

 

What can I do to help?

It is important that cis allies have sufficient knowledge of the difficulties trans people face, so that cis people can recognise and challenge prejudice – however subtle it may be – when it arises, and be able to do that in a respectful and calm way that will not inflame tensions further. Self-education is therefore an excellent first step, so well done for reading this piece. There are several charities that work with and for trans people that you can support, including Stonewall and Mermaids, and we encourage you to visit their websites for more information on the work they do. Stonewall also has a helpful Q&A on trans issues that you can read here.

Although you might not (knowingly) know any trans people, signalling you are an ally, for example by including your pronouns in your email signature, can be a small but powerful step. Ask to see the anti-discrimination policies of your workplace to ensure they include and protect trans people, as they are required to do by law. Read this piece from US charity the National Center for Transgender Equality on supporting the trans people in your life. And of course, share this article and other resources with anyone in your life that might find them helpful.

 

We stand with the trans community

Lesbians, gay men and bisexual people are inherently no more tolerant than anyone else. Of course there are trans-hostile people in the LGB community. But the majority view, and the position of IP Out, is that lesbians, gay men and bisexual people stand with the trans community and their struggle is our struggle. Many of the accusations levelled at trans people are ones that we recognise having been levelled at us in the past – a danger in single sex spaces, a danger to children, predatory and untrustworthy. They are no more true now than they were then. We expect people to recognise our identities even though we can point to no cause for our orientation, nor can we prove we are who we say we are. We expect people to respect us and allow us to live our lives without hurting others. How can we offer less to our trans family? We stand or fall together, as we always have.

 

References

[1] Many of the points here have also been raised by the Commissioner for Human Rights of the Council of Europe in her 2022 report.

[2] Including a requirement for a formal diagnosis of “gender dysphoria”, a term that is no longer recognised by the World Health Organisation (WHO) although it was previously categorised within “mental and behavioural disorders”. It is now quite rightly acknowledged by the international medical community that being trans is not a mental or behavioural disorder. Homosexuality was declassified as a disease by WHO in the 1990s.

[3] Victor Madrigal-Borloz, the independent expert on protection against violence and discrimination based on sexual orientation and gender identity, highlighted this point in a statement on the Gender Recognition Reform (Scotland) Bill. See https://www.ohchr.org/en/press-releases/2022/12/un-expert-gender-identity-calls-scottish-parliament-adopt-gender-recognition.

[4] In the judicial review on this matter, the average waiting time for a first appointment for young patients being seen at the Tavistock GIC in May 2022 was said to be 152 weeks, but since then it appears that waiting times have increased.

[5] Around 1%: see for example the papers here and here. Conversely, the regret rate for knee surgery is consistently reported to be around 18%, but no one is suggesting people should not be able to access knee surgery.

[6] Maya Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ and Ms A Bailey v Stonewall Equality Ltd and others: 2202172/2020.