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What are the challenges in the way the Gender Recognition Act 2004 and Equality Act 2010 interact?

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It is often incorrectly asserted that GRA reform will only improve the lives of transgender people and will have no impact on anyone else. “The Gender Recognition Act will not affect anyone except transgender people” (All About Trans). “It’s just admin”. Ruth Hunt, while CEO of Stonewall.

The reason given is that possession of a GRC does not determine or enhance an individual’s right to access a single- or separate-sex space or service because this provision is entirely contained within the Equality Act 2010. Therefore, GRA reform will have no impact on female-only service provision for women and girls. As such, women and girls are not considered relevant stakeholders in GRA reform and so their needs and opinions should not be considered nor sought. This is wrong.

Women and girls are indeed stakeholders in this process because GRA reform would have a material impact on their lives. As stakeholders their needs must be given due regard and balanced fairly against the needs of other stakeholders.

While it is true that GRC holders can, in theory, be lawfully excluded from female-only spaces in some circumstances, the availability of single-sex provision is being limited as a result of practical difficulties caused by the GRA2004.

Laws on paper for women and girls are meaningless if they cannot be made to work in real life.

Any reforms that increase the number or range of GRC holders will make these existing problems worse and further limit availability of single-sex provision.

Here we discuss various ways that the GRA2004 and its reform would adversely impact women and girls. This formed part of our written submission to the Women and Equalities Select Committee’s inquiry into GRA reform. You can read our full submission here.

There is widespread misunderstanding about what the Gender Recognition Act does which means people who oppose its reform are wrongly considered to be ‘against trans rights’. This is making it difficult for women and girls to talk about why they sometimes want or need a completely male-free service or space or to complain when it is lost.

The Gender Recognition Act was misnamed. It should have been called the ‘Sex’ Recognition Act because its purpose is to recognise a legal sex status, not a gender or a gender identity.

The misnaming of the Act has led to confusion which means it is often wrongly described as being about the right for trans people to self-declare their gender identity. “UK Government drops gender self-identification plan for trans people” Guardian headline, 22nd September 2020.

This misunderstanding exists because ‘gender’ and ‘sex’ are two different concepts that are often conflated. According to Stonewall definitions “gender” is often expressed in terms of masculinity and femininity, and is largely culturally determined, with “gender identity” being a person’s innate sense of their own gender. In contrast “sex” is either of the two categories (male and female) into which humans and most other living things are divided on the basis of their reproductive functions.

In short, gender is about how we feel or are perceived by others. Sex is about the bodies we have.

Because of this people who voice opposition to reform of the ‘Gender’ Recognition Act are wrongly thought to want to stop transgender people from living an authentic and happy life according to the gender with which they identity. It is wrongly thought that opposing ‘self-ID’ means that transgender people should have to prove to doctors that their trans identity is real and important. This is not what GRA reform is about. The GRA is about sex not gender identity.

Trans people already have ‘trans rights’ in the UK. Trans people have the right to self-declare and express their gender identity and to be protected from unfair discrimination, harassment and victimisation for doing so (Section 7 Gender Reassignment, Equality Act 2010). No-one ever has to prove they are transgender or have a doctor’s diagnosis to be covered by these rights. Most people, including most people who oppose GRA reform, support these ‘trans rights’ for trans people.

In contrast, the Gender Recognition Act is not about gender identity at all. Instead it enables someone to change their legal sex marker, which includes which sex they are classified as under Section 11 of the Equality Act (the protected characteristic of Sex). It also enables someone to change their birth certificate to say they were born the opposite sex, along with strong privacy protections enabling someone to hide the sex they were originally born and their transgender status.

Multiple polls shows that when it is made clear that GRA reform is about the process of changing the sex written on a birth certificate the majority of the public agrees that proper checks and balances are necessary. Only 15% of the public thinks that medical gatekeeping is an unnecessary part of that process.

While most people support ‘trans rights’ in the UK it is also true that sometimes birth sex is important and relevant in policy making and law. This means the GRA sets up a conflict of rights between two groups; the right of a transgender person to hide the fact of their birth sex and the right of others to accurately know someone’s birth sex. This conflict of rights needs to be acknowledged and communicated so it can be balanced fairly in law and policy.

Our recommendations: Stop using the word ‘gender’ as a synonym for ‘sex’ and retrospectively update all official documents that conflate the two terms. Clear and meaningful language is required to ensure any conflicts between gender- and sex-based rights are understood by the public and policy makers. This will enable all groups to speak clearly and openly about their needs in relation to sex and/or gender identity so that no stakeholder groups are disenfranchised in the law and policy making process.

The GRA2004 means birth certificates can no longer be relied upon to provide information about the sex an individual was born. This means services and spaces lawfully reserved for people born female cannot be guaranteed even when it is considered necessary and lawful to have them.

The Act’s existence means there are in fact two types of ‘females’ in the eyes of the law; there are females by virtue of birth and females by virtue of a having GRC.  The Equality Act sex exceptions make it lawful for these two types of legal females to be treated differently when necessary. It can sometimes be lawful and necessary to exclude one type of legal female (transwomen) from a service that is provided specifically for the other type of legal female (women).

However, there is a problem. There is no way for a service provider to easily distinguish between these two groups of legal females if/when they need to. The only legal document available that records someone’s legal sex status is a birth certificate (identity documents such as passports and driving licenses are all now based on a self-declared gender identity). A birth certificate will record both types of legal female as if they were all female by virtue of birth, including legal females who were born male. The Gender Recognition Register that records which legal females are female by virtue of having a GRC is not open to the public.

This means service providers cannot reliably identify or make accurate decisions about who is eligible for a service they are restricting to people born female. At present there are approximately 5000 GRC holders in the UK. This relatively small number means that in practice service providers will rarely encounter this situation. In most cases a birth certificate will accurately reflect the sex someone was born (including people who identify as transgender but do not have a GRC). However, if reforms were to enable anyone who identifies as transgender (estimated by the Government to be up to 500,000 people in the UK) to change their legal sex status on demand and to hide their original birth sex by law it would become impossible for the sex exceptions to ever be reliably enforced or guaranteed. It would mean that no transgender person could be reliably excluded from a female-only service unless they willingly confirm their own trans status.

Our recommendations: When a replacement birth certificate is issued upon receipt of the GRC it should be noted on the birth certificate that the sex marker has been updated and is not the sex the individual was born. This change would be required to enable service providers to have the information they need to use the sex exceptions.

Strict privacy protections contained within the GRA2004 mean that service providers are now reluctant to ask anyone about birth sex.

The GRA2004 contains a prohibition on the disclosure of information. It is a criminal offence for officials to share information about a GRC holder’s transgender status and birth sex, except in very limited circumstances.

This means that if a member of staff was to acquire such information from a GRC holder the organisation must then have robust safeguards in place to ensure that the information is not shared illegally.

Acquiring information about birth sex is therefore considered a liability risk by some service providers. This means people who need to know about an individual’s sex do not ask about it or are being told they aren’t allowed to ask.

For example, if a Rugby team turns up to play a match and they suspect a member of the opposite team is not eligible to play due to age they can ask the referee to confirm the player’s date of birth. It is also standard practice for players and officials to be informed if anyone outside the age-grade has been given permission to play down. This information is considered important for health and safety reasons. The same procedure does not apply to birth sex. A RugbySafe Officer of a Rugby club in England (who wishes to remain anonymous) has been told that if they suspect a player in a women’s match was not born female “they can’t ask or see any confirmation that a player has been approved to play women’s Rugby” even though that information is relevant to the health and safety of all players.

Our recommendations: Expand the list of exceptions listed in Section 22 (4) of the GRA2004 to include health and safety. E.g. “But it is not an offence under this section to disclose protected information relating to a person if: the disclosure is for the purposes of preventing injury or harm to others”

Inaccurate guidance telling service providers they cannot lawfully exclude GRA holders has led some service providers choosing not to use the sex exceptions at all.

The sex exceptions in the Equality Act 2010 were designed to ensure spaces, services, sports and occupations can be lawfully restricted based on the sex someone was born, when necessary.

We know this was the intention because each of the sex exceptions in the Equality Act also contains a paragraph to include an exception for Gender Reassignment. It was necessary to include an exception for Gender Reassignment because the GRA2004 had previously severed the direct link between someone’s legal sex status and their birth or biological sex.

In practice, if the sex exception cannot be applied to exclude someone from a female-only space on the basis of their legal sex (i.e. if someone born male has changed their legal sex to female by acquiring a GRC) there is the option to instead exclude on the basis of the protected characteristic of Gender Reassignment. The wording in the Equality Act means there is a legal distinction between someone who has become female by acquiring a GRC and someone who is female by virtue of birth and thus enables them to be treated differently in law when necessary.

Despite these legal provisions being set out in the Equality Act there is no reference to the GRA2004 in the Equality Act 2010 or vice versa. This has contributed to misunderstandings about how the two Acts interact.

This confusion was then further compounded in guidance produced by the Equality and Human Rights Commission and published in January 2011 to help service providers understand their obligations under the newly created Equality Act 2010.

  • This inaccurate statement was found on both p17 of ‘What Equality means for your business’ and p20 of ‘Your Rights to Equality from Health and Social care services’ : “Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services”
  • Following a complaint by Fair Play For Women on 11th July 2018 the statement was deleted from the EHRC website guidance on 5th October 2018 (just 14 days before the end of the UK Government’s public consultation on GRA reform). All internal emails relating to the correspondence between Fair Play For Women and the EHRC on this matter are publicly available via this Freedom of Information Act response. It is notable that during the 3 months it took to make the decision to delete this inaccurate statement a range of different views about the statement was expressed by members of the legal team including “I think it’s correct” “It’s an issue on which we are all not agreed”.
  • This shows how misunderstandings and confusion about how the GRA2004 and EA2010 interact have existed as early as 2010 and have persisted until at least 2018. These misunderstandings were held not just by members of the public and service providers but also legal experts within the organisation whose role it was to ensure the Equality Act was accurately understood.

Thinking they could not exclude GRC holders, some service providers are then hesitant about excluding anyone at all in case their staff got it wrong. This is because staff would be unable to know and afraid to ask who might have a GRC and who might not. This leads to three different outcomes, all of which mean women and girl lose access to a male-free space.

  • Mixed-sex / Gender-neutral provision. It is becoming increasing common for existing separate-sex facilities to be converted into mixed-sex (even in schools). We are even seeing signs on toilet blocks such as “gender-neutral with urinals” and “gender-neutral with cubicles” (such as the mixed-sex toilet provision at the Old Vic theatre). This approach avoids use of the sex exceptions entirely.
  • Rules based on self-identification. Policies are being updated to say ‘anyone who identifies as’ rather than a definition based on sex. For example, Marks and Spencer have recently confirmed their changing room policy as “we allow customers the choice of which fitting room they feel comfortable to use, in respect of how they identify themselves”. However, this ‘inclusive’ arrangement fails to cater for women and girls who require a male-free space to feel comfortable when undressing. We asked women to send us their experiences of these policies. We are submitting these stories as evidence. They can be accessed via this link. Our second policy example is the ECB’s (England Cricket Board’s) eligibility criteria for ‘female-only cricket’. It is defined in their policy as “a cricket competition, league or match governed by the ECB which are available for a woman or a trans woman to compete in”. This means women and girls (as young as 13) may find themselves playing competitive sport against an adult male despite this quite clearly being both unfair and unsafe.
  • No clear eligibility rules at all. In many cases businesses and public bodies are simply turning a blind eye to who might be using their facility or service. Years ago service providers could rely on a member of the public to alert staff if they saw a man enter through a door marked with the woman symbol or the letter ‘F’. In turn, service users could rely on a member of staff to deal with the problem. This is no longer the case. There is now so much confusion around what a policy might be that people don’t want to raise concerns in case they get it wrong. This means all undefined single-sex policies effectively become ‘self-declared’ by default.

Our recommendations: Add an amendment to the GRA2004 making it clear that ownership of a GRC does not prevent the sex exceptions in the Equality Act 2010 from being applied. Or separate the two Acts completely by adding an extra exception to GRA 2004. E.g. Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes, except in relation to the protected characteristic of sex in the Equality Act 2010.

Some policies are being developed that treat GRC holders more favourably than non-GRC holders. In prison, having a GRC confers a significant advantage and so the eligibility criteria are of critical importance.

Many of the sex exceptions in the Equality Act require objective justification. This means a service provider must be able to show that use of the sex exception was necessary and reasonable (i.e. is a proportionate means of achieving a legitimate aim).

Although the law is clear that sex exceptions can apply in the case of all transgender people, including GRC holders, there is no case law that clarifies whether having a GRC should be considered a relevant factor in the proportionality test.

In other words, does the possession of a GRC tilt the balance towards accessing a space for the opposite sex when a service provider is considering whether denying access is both a proportionate and legitimate decision. (i.e. should a trans people with a GRC be treated more favourably than trans people without a GRC).

If that were to be the case, any GRA reforms that increase the availability of GRCs would increase the number of people given access to spaces reserved for the opposite sex that they would otherwise be excluded from if they didn’t have a GRC. This is another example of how GRA reform could directly impact the availability of male-free space for women and girls.

Some policies are already being created based on the assumption that GRC holders should be treated more favourably to non-GRC holders. The example we present as evidence is the HMPPS 2019 prison policies; namely the “HMP Downview E Wing policy” and “Care and management of individuals who are transgender”.

Fair Play For Women attended a meeting with HMPPS and MOJ representatives on 2nd May 2019 to discuss the new prison policy prior to publication. We learned that while the physical safety of the female inmates has been considered as part of E-wing policy it became apparent that the psychological impact of forcing women to share space with high-risk prisoners they perceive as male has not. A high proportion of women in prison have experienced male violence and sexual abuse. The impact on their mental well-being, rehabilitation success and self-harm rates has never been assessed.

The proportion of transgender prisoners that currently have a GRC is expected to be low (in line with what is known for wider society). No official figures are available for the number of GRC holders in prison but it has been reported there has been approximately 3 GRC holders requiring supervision in E-wing. However, that number could dramatically increase if obtaining a GRC became a self-declaration process. The evidence is as follows:

  • The latest HMPPS Offender Equality report published in November 2019 revealed there were 163 transgender prisoners without a GRC in England and Wales, the majority of whom were male-born transwomen (140). Most were located in the male estate (129) with a much smaller number in the female estate (11).
  • If the process for acquiring a GRC changed to self-declaration it is possible that all 129 transgender prisoners in the male estate could then choose to apply for a GRC making them all eligible for transfer into the female estate. This means GRA reform could increase the number of male-born prisoners living in the female estate to over 140. This number would mean that 1 in every 30 prisoners in the women’s estate would have been born male and not female.
  • It is known that over half (76) of the 129 male-born transgender prisoners housed in the male estate have at least one conviction for sexual offending. Freedom of Information requests submitted by Fair Play For Women has revealed this includes 36 convictions for rape, 10 for attempted rape and 21 sexual assaults. The high frequency of sexual offending observed by this cohort is similar to estimates we made in 2017.
  • This means one of the adverse consequences of reforming the GRA to become a self-declaration process could be for women in prison to be required to live alongside dozens of sex offenders, some of whom would be categorised as presenting a high risk of harm to women and requiring supervised association with other prisoners.

The fact that GRC holders are treated differently to non-GRC holders in prison also means there is an incentive for non-transgender prisoners to obtain one. The current medical gatekeeping process prevents exploitation of this incentive but a self-declaration system will be more open to abuse. Expert evidence was given to support this at the 2015 WESC Trans inquiry.

  • “It has been rather naively suggested that nobody would seek to pretend transsexual status in prison. There are, to those of us who actually interview the prisoners, in fact many reasons why people might pretend this. These vary from the opportunity to have trips out of prison through to a desire for a transfer to the female estate….. a plethora of prison intelligence information suggesting that the driving force was a desire to make subsequent sexual offending very much easier”. British Association of Gender Identity Specialists

Our recommendations: In prison, having a GRC confers a significant advantage and so the eligibility criteria are of critical importance. Any reforms that increase the number or range of GRC holders in the UK must be fully evaluated in terms of the impact on women in prison.

Common words that women and girls use to talk about their sex-based rights are now contested. This is making it more difficult to argue the case for why these rights are needed in both the public sphere and in policy meetings.

Any good policy making related to sex and gender identity requires policy makers and stakeholders to be free to accurately discuss both characteristics without ambiguity or sanction. In the vast majority of cases that distinction is clear. The sex of transwomen is male (by birth and by law) with only a small number of exceptions (GRC holders). If the GRA was reformed to allow self-declaration of sex it could lead to a situation where the sex of all transwomen would need to be officially regarded as female.

How will campaigners, policy makers or journalists be able to do their job if we are all obliged to name someone born male, with a male body and male genitals, as being the female sex? How can we protect single-sex spaces and services when we can no longer know or say who was born male or female? How can a female-only space ever be guaranteed to be male-free if we can no longer acknowledge that transwomen were born male.

It is our experience that sex-based language is already being discouraged in sport policy meetings. Requests have now been made by participants in three separate sports policy meetings attended by Fair Play For Women that no one should be allowed to refer to the sex of a transwoman as male. This is despite policy discussions needing to focus on the consequence of being born male, the impact of male puberty on the body and the resulting male performance advantages in sport. Selectively prohibiting language referring to one of the protected characteristics will result in bad policy making.

Our recommendations: We urge WESC to making it clear in their report that it is possible to both respect a trans person’s gender identity while also acknowledging that all transwomen were born male.

The GRA2004 causes problems for data collection and is making official statistics unreliable. Bad data leads to bad policy decisions.

The GRA2004 means birth certificates can no longer be relied upon to accurately record someone’s birth sex in all cases. This presents a problem when data on birth sex needs to be collected for equality monitoring purposes. Any reforms that increase the availability of birth certificates that do not accurately record birth sex will exacerbate these existing problems leading to further problems for data collection and statistical analysis.

For example, the HMPPS Annual Equalities report provides an annual snapshot of the number of transgender prisoners in England and Wales. This number is inaccurate because it does not include transgender people with a GRC. Page 14 of the HMPPS Annual Equalities report for 2019 states “Prisoners who have already transitioned and have a full Gender Recognition Certificate are excluded from this dataset” . The proposed self-declaration system for the GRA would enable all transgender prisoners to acquire a GRC on demand meaning many more would not be counted in the annual transgender offender statistics rending the figures meaningless.

The MOJ also releases offender management statistics each quarter. This includes important information about which groups are committing which types of crimes. These datasets consistently show that 99% of all sexual offenders are male. At the last count (30th September 2020) there were 11,892 males in prison in England and Wales convicted of a sexual offence. In contrast, sex offending by the female sex is rare. There were only 113 female sex offenders in prison at the last count. However, male-born transgender prisoners with a GRC are being counted as female and will make up an unknown contribution to this total of 113 female sex offenders. This means the female sex offending statistics now include sex offending by people born male, including exclusively male types of sexual crime such as rape (penetration with a penis). Accurate information on sex offending by people born female has now been lost and would be made worse by GRA reform. If the GRA was reformed to allow self-declaration of legal sex it would mean all 76 of the current male-born transgender prisoners convicted of sexual offences (referred to in Section 11.7.3) would be free to change their legal sex to female. The female sex offending statistics would increase dramatically from 113 to 189 with at least 40% of female stats then being made up of male-born sex offenders rendering them meaningless.

Accurate statistics about sex and gender identity matter to good policy making. Our knowledge of male-pattern criminality is part of the evidence-base that stakeholders and policy makers use to objectively justify female-only spaces and services. Bad data inevitably leads to bad policy decisions for women and girls.

Recommendations: Add an amendment to the GRA2004 to include an exception for data collection. E.g. “where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes, except for equality monitoring purposes”.

Read more:

Why do so few transgender people apply for a Gender Recognition Certificate?

Summary and Recommendations: Fair Play For Women submission to the Women and Equalities Select Committee inquiry on GRA reform 2020

 

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