Caution urged when Parliament debates changes to trans rights

Protections may be weakened not strengthened if self-declaration replaces expert testimony, and gender identity replaces gender reassignment as a protected characteristic.

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On 1st December 2016, the House of Commons will debate the motion:

That this House notes the UK’s status as a pioneer in legislating for equality for LGBT people; welcomes the Government’s announcement of a new trans equality action plan; and calls on the Government to review its response to the recommendations of the Women and Equalities Committee’s report on Transgender Equality to ensure that the UK leads the world on trans equality rights, in particular by giving unequivocal commitments to changing the Gender Recognition Act 2004 in line with the principles of gender self-declaration and replacing confusing and inadequate language regarding trans people in the Equality Act 2010 by creating a new protected characteristic of gender identity.

As a transwoman, I am delighted that Parliamentary time is being devoted to trans rights. Trans people continue to face systemic discrimination and bias, so it is timely to review the legislation. However, the more I reflect on the two specific proposals in this motion, the more anxious I become.

The current protections are based on objective reality.  The Equality Act 2010 created the protected characteristic, Gender Reassignment. It refers to something that people do: they change their name, their gender markers, their gender role, and they live full-time as a member of the opposite sex. These changes can be externally verified and, when corroborated by expert witnesses, used to secure full legal recognition through the Gender Recognition Act 2004.  I don’t enjoy being subject to scrutiny but it secures credibility to my transition that would be lost should these proposals be enacted.

Self-declaration of gender would weaken an already fragile protection. Discrimination can be fiendishly difficult to prove. A survey for TotalJobs earlier this year reported that 60% of trans people had experienced workplace discrimination, but cases are not being brought to Employment Tribunals.  Rather, the law helps our allies feel confident that they are doing the right thing when they support trans rights. However, if someone can change their gender in the absence of any substantiating evidence, trans people and their allies may find it harder to convince the more antagonistic parts of society.  It would certainly be far more difficult to defend against accusations that trans people are deluded, or that transition is something done on a whim.

Gender Identity is problematic because it is based purely on feelings.  Unlike my gender reassignment, I cannot prove my gender identity.  Whilst I can demonstrate that I live as a woman, I cannot provide any evidence that I think like a woman, or feel like a woman.  The proposed law might require people in official positions to take trans people at their word, but it cannot regulate social groups that create their own boundaries. Transwomen in particular may find that goodwill is replaced by suspicion should abusive men spot an opportunity to exploit women’s spaces and protections.

The real losers will not be those who are antagonistic to trans people, but trans people themselves.  Protections may be weakened not strengthened if self-declaration replaces expert testimony, and gender identity replaces gender reassignment as a protected characteristic.  We need to reflect on the reality of the society we live in before we rush into a world where facts are replaced by feelings and evidence is replaced by the ethereal.  I have therefore asked my MP to oppose the motion, and I urge others to do likewise.

Author: Debbie Hayton

Physics teacher and trade unionist.

13 thoughts on “Caution urged when Parliament debates changes to trans rights”

  1. Like you, I have requested my MP to oppose many of the proposals being put forward. My reasons are not dissimilar to those you outline. As I live in Scotland, there are a few organisations who use the desire of the Scottish Government to create a more society, to their own ends and continuously use political correctness to force their aims.

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    1. Hi Allana, thanks for commenting. I am campaigning for trans equality. It’s just that I want the legislation to be robust, workable, and offer real protections to trans people, non-binary people and gender non-conforming people. Unsound legislation is useless to everyone.

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      1. Hi Debbie,
        I have been active in the training and raising of awareness regarding transgender and transsexuals issues, for a few years and had some extremely positive responses. However, of late, I have withdrawn from any visible activism due to the hostility from certain organisations and hatred from some individuals who believe that they have some superiority.
        I have maintained that the current legislation covers transsexuals because they have proven that there is a need for protection. When the transgender lobby clarify and prove the need to have legislation then I see no reason why separate legislation specific to transgender cannot be created.
        I do believe that there are some issues contained within the current legal framework need sorted and clarified, but the EHRC and Parliamentary Ombudsman refuse to look at the points. Many of the transsexuals with whom I am acquainted feel they are being discriminated against by the transgender activist and are forced to use the term transgender.
        There are many such issues and if the current activists maintain their current stance then I forecast that the whole subject will implode and organisations such as the NHS will restrict treatments to the degree that no one will obtain any medical help.

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      2. Sorry to hear about the tensions you are reporting, Allana. Divisions among minority groups play into the hands of those who oppress us all.

        I repudiate bias and discrimination against groups in society, and robust legislation is needed to counter it. I worry that the proposed changes make the protections weaker rather than stronger.

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  2. I was disappointed to read that you will be asking your MP to oppose the proposed changes.

    I simply cannot agree with your assertion that self-declaration could somehow lessen the validity of trans people. Our LGB friends do exactly this and suffer no ill effect, no weakening of their protections. No need for invasive investigations, no validation by ‘experts’. Likewise, those in the faith communities are free to self-declare.

    Medical transition didn’t suit, or is simply not appropriate for many trans individuals, particularly those who identify as non-binary. I would argue that the chances of suffering discrimination, harassment or abuse are less dependent on a person’s medical history than a perception that they belong to the trans community.

    The reality is that many trans people are denied the protections they need and deserve. This isn’t about removing protection from one group to hand it to another, or declaring that some are more important than others. This is about improving the situation for all trans people in Britain.

    This is likely a once in a generation chance to change this law. In these times where difference is seen as a threat, we should recognise the value in coming together as a single community and embrace, rather than fear, this opportunity.

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    1. Thanks for commenting. I agree with you that it will probably be a once-in-a-generation review so it is especially important to get it right. I worry that the proposed move to self-declaration and the change to the protected characteristic will produce legislation that is less effective than we have at present.

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  3. While I see the fear you have, and the desire to appease the bigots who proclaim loudly it is not trans women they have issue with, but rather Cis men pretending to be trans women I would ask what is the evidence from the countries that already allow self determination.

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    1. Thanks for commenting, Jade. My honest answer is that I don’t know. However discrimination can be fiendishly difficult to prove, especially when it arises out of bias and suspicion and it is obfuscated by spurious reasoning.

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  4. While I sort of understand your concern about the dangers of outright self declaration I don’t see why there cant be a move in that direction. Surely if one has already undergone numerous evaluations at GIC’s there should be no need to have to submit “evidence” to a “panel”. Why should someone be able to get a passport in their correct gender but not a GRC?

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    1. My viewpoint is that moving towards self identification and/or self declaration is a very dangerous path due to the implications it could enforce upon the general public. On this post, in particular, if someone has undergone “numerous evaluations” then it does not necessarily imply that a persons gender identity has been established, merely that some evaluations have taken place. [The post does not imply that such evaluations have been in a medical, social or legal context. ]
      The “evidence” required by the GRP is to establish a number of issues. Some of these issues are that a person has been medically diagnosed as transsexual, they have undergone transition, which is demonstrable, and confirm they intend to live in the acquired gender on a permanent basis. Many of these and other criteria cannot be established by many within the trans community, so the Gender Recognition Panel will refuse the application. There are many differences between a passport and a birth certificate, and without the GRC, a birth certificate cannot be amended as it is deemed to be an historical document. There have been many legal implications attached to the sex of a child, although these implications have been changed with legal and medical, social advancements. There are still legal implications, and having the correct sex markers on any paperwork has importance. To amend these markers based on what could be termed as a fluid basis, is not acceptable in legislative terms and furthermore, proof which is acceptable in a court, is strictly defined.
      The use of “gender identity”, in my opinion is not viable in legislative terms and since “gender identity” cannot be actually defined ( and I would remind anyone reading this, that, gender identity applies to every person on the planet, not specifically to trans people, irrespective of whether or not there are some who would deny having any gender identity) it would be totally useless as a legal term.

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