On the 28th October 2020, the Women and Equalities Select Committee (WESC) launched an inquiry into proposed reform of the GRA. They called for evidence in response to the government’s proposed modernisation of the GRC application process. They also asked for evidence on the wider implications and issues surrounding transgender equality and current legislation.
The full written submission made by Fair Play For Women is now available on the WESC website. Our executive summary and recommendations can be read here:
Executive summary:
The value of female-only space is recognised around the world and is an important and well established component of the sex based rights for women and girls
- The principle of single- and separate-sex service provision was won on behalf of women and girls in the UK and included in the Equality Act in 2010. Since then the Government has repeatedly made it clear that these provisions will not be amended or weakened.
- UK law allows women and girls to have a fully male-free space when necessary. The sex exceptions in the Equality Act 2010 make it lawful for services, spaces, occupations, communal accommodation, and sports to be restricted on the grounds of birth sex, when objectively justified.
- The GRA2004 has reduced the availability of female-only provision for women and girls by making the sex exceptions difficult to use and talk about.
The GRA2004 directly interferes with and impedes the use of the sex exceptions by making them difficult to implement and understand. Laws on paper are worthless if they can’t or won’t be put into effect.
- The GRA2004 means birth certificates can no longer be relied upon to provide information about the sex an individual was born. This means service providers cannot always be sure who should be included in a space they wish to reserve exclusively for people born female. (Section 8).
- Strict privacy protections contained within the GRA2004 mean that some service providers now consider it a liability risk to ask anyone about birth sex at all. This means people who need to know about an individual’s birth sex do not ask about it or are being told they aren’t allowed to ask. (Section 9).
- Service providers have been wrongly advised that they cannot lawfully exclude GRC holders using the sex exceptions. This has made the sex exceptions appear unnecessarily complex and has made service providers hesitant about excluding anyone at all in case their staff get it wrong. (Section 10).
- In certain critical areas such as prisons, policies are being developed that treat GRC holders more favourably than non-GRC holders. This provides a strong incentive to obtain a GRC to facilitate transfer into a women’s prison. Retaining the existing eligibility process for a GRC is essential for women’s safety. (Section 11).
The GRA2004 indirectly interferes with the use of the sex exceptions by undermining the concept of sex as being fixed at birth and based on the bodies we have. This has made it more difficult for women and girls to talk about the needs they have because they are female.
- Sex-based rights can no longer be spoken about freely and openly. It has become a taboo subject and wrongly associated with being ‘transphobic’ or ‘anti-trans rights’. (Section 7)
- The meaning of 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. (Section 12).
- It has become more difficult to collect accurate and meaningful sex-disaggregated data. This undermines the evidence-base women and girls rely on to monitor and lobby for their sex-based rights and to evidence sex-based discrimination and violence. (Section 13).
Any reforms that increase the number or range of GRC holders in the UK will make these existing problems worse and further limit availability of female-only provision.
- As such, women and girls must be considered stakeholders in GRA reform and any adverse impact (loss of female-only provision) must be balanced alongside any intended benefits to other stakeholders.
- The Government decision to retain the checks and balances in the process of acquiring a GRC strikes an appropriate and fair balance between the needs of all stakeholder groups.
Guidance published by the EHRC and others go far beyond any reasonable legal interpretation of the Equality Act. This has led to widespread misunderstandings about how and when to use the sex exceptions.
- Being covered by Section 7 (Gender Reassignment) of the Equality Act does not mean that person’s sex has changed and does not confer any automatic right to treatment as the other sex.
- The sex exceptions should allow for the straight-forward and unambiguous provision of single- and separate sex services using ordinary language and signage. This is not happening.
- Individual ‘case-by-case’ exceptions to single-sex spaces do not work. If any males are included in a space designated as ‘female-only’ it should no longer be defined as single-sex.
Recommendations:
Stop using the word ‘gender’ as a synonym for ‘sex’ and retrospectively update all official documents that conflate the two terms. (Section 8)
Expand the list of exceptions listed in Section 22 (4) of the GRA2004 to include health and safety. E.g. “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. (Section 9).
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 the GRA2004. 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. (Section 10).
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 (Section 11).
We urge WESC to making it clear in their report that it is possible to respect a trans person’s gender identity while also acknowledging that all transwomen were born male. (Section 12).
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. (Section 13)
Better guidance is needed to ensure the workability of the sex exceptions in the Equality Act. It must be understood that the two protected characteristics are separate and should not be conflated. This guidance must be produced by a reliable, impartial source with comprehensive and transparent stakeholder involvement. This new guidance must be communicated clearly and effectively to all service providers to undo the many years of misdirection and misunderstanding. (Section 14).
Read more:
Why do so few transgender people apply for a Gender Recognition Certificate?
What are the challenges in the way the Gender Recognition Act 2004 and Equality Act 2010 interact?
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