The second inquiry by the Women and Equalities Select Committee (WESC) into Gender Recognition Reform has now been published. Like its predecessor, led by Maria Miller MP in 2015, it recommends sex self-ID. Currently, changing your sex status in law requires a diagnosis of gender dysphoria by two recognised medical professionals. The WESC want that replaced by a self-declaration process.
Put simply, this means the WESC are once again recommending that any adult male should be free, on his say-so alone, to change his birth certificate to say he had been born the female sex, and for it to be a criminal offence for officials to reveal that he had in fact been born the male sex. Any male, on his say-so alone, would then be female in the eyes of the law “for all purposes” bar a few exceptions.
Most worrying of all, it appears that this second WESC inquiry hasn’t even grasped the basics on why sex self-ID presents problems for women and girls. The 2015 WESC inquiry didn’t bother to invite feminists to explain their concerns. This time they did invite us to speak, but they clearly didn’t listen.
The fact they hadn’t listened was obvious when the chair of WESC, Caroline Nokes MP, was interviewed on the BBC Radio 4 Today programme about her committee’s recommendation to drop the requirement for proof of gender dysphoria. Evidence given by Fair Play For Women was read out to her in the interview:
Martha Kearney “Looking at some of the evidence that was given to your committee, for example Dr Nicola Williams, director of Fair Play For Women. She says the issue with self-identification is that it would open up the ability for any male, for whatever reason, to obtain a birth certificate to say that that person was born female. So this allows someone to change their birth certificate and to hide the fact that they’d done that. On paper, someone who was born male would appear to have been born female.”
Caroline Nokes “There seems to be a real suggestion that trans people in some way make these decisions lightly, of course they don’t, they agonise for an incredibly long time and go through really difficult personal decisions in order to make the decision to transition. I think the suggestion that this in an attempt to undermine women’s rights is wrong. This isn’t a zero sum game. We can support women’s rights and trans peoples rights and that’s absolutely got to be the direction of travel.”
Martha Kearney “I’m not sure that was quite the point that she [Nicola Williams] was making though. It’s the idea of a birth certificate, which is a legal document, means that people wouldn’t be able to find out that someone had been born male and would appear to have been born female.”
Caroline Nokes “The question that I would pose back is “Why on earth would we want to? Why would we want to be that intrusive?”.
Nokes knows, or at least should know, the answer to “Why on earth would we want to” know the sex someone was born. It was explained in hundred of written submissions, given in oral evidence, and the answer from Fair Play For Women was quoted in her own WESC report:
“There is a fundamental problem there with the way that single-sex spaces work, because the Equality Act provides women with the opportunity to have female-only spaces but based on their birth sex. It provides a way for spaces to be reserved for people who are born female. If there is then also a separate law that allows people to hide the fact of their birth sex, there is an incompatibility. We cannot have both laws without a conflict. We have the single-sex spaces based on birth sex, but there is another law that allows birth sex to be hidden. That means that, although on paper, it looks like women have a law on single-sex spaces, they cannot implement it.”
If one law is based on knowing birth sex and another law allows people to hide birth sex, there is a clear and obvious clash. This is at the heart of the sex vs gender debate. It is scarcely credible that Nokes claims not to know this. What was the point of her inquiry if it didn’t result in her understanding the very basics of the issue?
Instead of grappling with the conflict of rights the WESC report simply, without justification, made the assertion that it “believes” the sex self-ID system is the right one. Unlike the government, in response to the concerns raised in the public consultation, the WESC has not attempted to get the balance right between woman’s existing sex-based rights and groups advocating for more “transgender rights”.
Liz Truss, in a Written Ministerial Statement to Parliament in September 2020, said medical gatekeeping would be retained: “It is the Government’s view that the balance struck in this legislation is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex”.
In contrast, the WESC recommendation is this:
9. We believe that the requirement of a diagnosis of gender dysphoria in order to obtain a Gender Recognition Certificate should be removed from the Gender Recognition Act, moving the process closer to a system of self-declaration. The legal recognition process should not involve medical scrutiny but strong legal safeguards. Appropriate safeguards are essential to ensuring that the rights of natal women and the use of the single-sex and separate-sex exceptions in the Equality Act 2010 are protected. Therefore, it is appropriate to retain the statutory declaration, as well as introduce additional legal tests. It would also be possible to police statutory declarations more strictly, and to bring prosecutions for fraudulent declarations if it becomes apparent that the person had no real intention of living in the acquired gender.
10. The Government should remove the diagnosis of gender dysphoria from the Gender Recognition Act by 2023, reflecting the support for this in responses to its own consultation. It must ensure that appropriate safeguards are in place when doing so, including retaining the requirement for a statutory declaration. Robust guidance on how a system of self-declaration would work in practice should also be developed. For example, male prisoners with a record of sexual assault or domestic violence, who self-identity as a woman, should not be transferred to a woman’s prison.
Not everyone at WESC agreed with the recommendations. Notably, Jackie Doyle-Price MP (a recent addition to the WESC) proposed that the recommendation to support sex-self ID was removed. The majority voted for it to remain.
Amendment to paragraph 9 proposed by Jackie Doyle-Price to leave out “believe that” down to “legal safeguards”, and insert “have carefully considered the diagnosis of gender dysphoria and believe the diagnosis should be retained” REJECTED.
Amendment to paragraph 10 proposed by Jackie Doyle-Price, to leave out “The Government” down to “own consultation”. REJECTED
It appears there had been some discussion within WESC about the adverse impact sex self-ID could have on women and girls. In particular, the fact that any male, including males with a history of violence against woman and girls would be able to get a birth certificate saying their sex was now female. The draft recommendations included the idea that “additional legal tests” should be added to improve safeguards such as refusing or revoking a GRC to males convicted of violent or sexual offences.
It should also look to introduce additional legal tests before and after the granting of a GRC, as part of this safeguarding process. These tests could include refusing a GRC to be granted to any person who has been convicted of a violent or sexual offence and allowing for a GRC to be revoked, should the holder be convicted of a violent or sexual offence after being issued with a GRC. Clear guidance on how this would work alongside the single-sex and separate-sex exceptions in the Equality Act should also be issued.
However, Kim Johnson MP proposed that these additional safeguards should be removed from the final recommendations. The majority agreed, with the notable exception of Jackie Price-Doyle MP. Given the choice, WESC decided that male sex offenders should continue to be considered female “for all purposes”.
One concession that remained in the WESC recommendations was that “male prisoners with a record of sexual assault or domestic violence, who self-identify as a woman, should not be transferred to a woman’s prison”. Unhelpfully, it is not clear whether this means male prisoners who would go on to obtain a GRC through the WESC’s preferred self-identification process or simply those who self-declare their gender identity but do not have a GRC. Current MOJ policy for England and Wales is that prisoners should be allocated to a prison according to their legally-recognised sex – meaning that male prisoners who obtain a GRC will be placed in a female prison. Fair Play For Women had set out in both oral and written evidence how making it easier to get a GRC would inevitably lead to a rise in male prisoners moving into female prisons.
The right to hide sex registered at birth
Obtaining a GRC doesn’t just allow anyone to choose their legal sex status. It also brings with it strong privacy protections so people can hide their birth sex. This is contained within Section 22 of the GRA2004. Fair Play For Women presented evidence that this right to hide birth sex is incompatible with the public’s need to know birth sex in certain instances. The WESC report appears to have ignored these concerns and simply asserts the importance of privacy for transgender people.
18. Section 22 of the Gender Recognition Act is important. It ensures the privacy of transgender people by making it a criminal offence for a person who has acquired information about a person’s GRC, in an official capacity, to disclose it without the transgender person’s consent (except in limited circumstances). No prosecution has been brought under this section so far. We are concerned to hear about the fears many working in an official capacity have in relation to this provision, and we are not convinced that in all cases those handling GRCs should be subject to criminalisation where mistakes could be made. We recommend that the Government amends section 22 of the Gender Recognition Act to ensure that only cases where there is evidence that the disclosure was deliberate and knowing are covered.
The WESC heard evidence from Fair Play For Women and others that service providers fear falling foul of the privacy law and as such don’t ask or act on birth sex. WESC recommends the criminal offence should only apply if an official discloses information about birth sex “deliberately”. It is unclear how this would address the problem. It is the “deliberate” disclosure of information about birth sex that needs to be made lawful to allow service providers to use the single-sex exceptions.
Female-only sport
WESC touched on how GRA reform might impact female-only spaces and the use of the existing single-sex exceptions in the Equality Act. It reported the progress the UK Sports Councils had recently made on this issue for sport.
“The [Sports Council’s] guidance concluded that, “for many sports, the inclusion of transgender people, fairness and safety cannot co-exist in a single competitive model”, recommending that each National Governing Body and Scottish Governing Body should “define the priorities for their sport, and whether the current format of their sport will provide a focus on either inclusion or fairness (and safety where relevant)”.
The Sports Councils has published the most comprehensive and authoritative assessment to date, including clear and accurate information about the law; anyone born male can be lawfully excluded from female-only sport for reasons of fairness and safety. Despite this WESC says the guidance continues to be “confused and inadequate” and calls for even more guidance.
21. Guidance on the application of the sports exception continues to be confused and inadequate, leaving many sports providers feeling unclear about its application. The Sports Council Equality Group has produced some guidance to try and bridge this gap. However, both the Government Equalities Office and Equality and Human Rights Commission have a responsibility to provide clarity in this area. We recommend that the EHRC and GEO work with the Sports Council Equality Group to publish supplementary guidance that clearly and correctly addresses some of the main concerns sporting bodies have in relation to this exception, including under what circumstances it is acceptable to use the sports exception. We believe it is absolutely essential that the integrity of women’s sport is maintained and not compromised, and that nothing should happen in this space which would undermine that. In addition, the EHRC and GEO must work with trans rights groups and sports providers to develop clear, evidence-based guidance with practical examples for how to facilitate trans and gender non-conforming inclusive spaces in sports.
WESC says they believe it is “absolutely essential that the integrity of women’s sport is maintained and not compromised, and that nothing should happen in this space which would undermine that” yet does nothing to stop what is already happening. Women’s sport is already undermined. Almost all sports in the UK now allow male-born trans people into female sports teams despite clear evidence this undermines fairness and sometimes safety. WESC’s solution is to “work with trans rights groups to develop clear and evidenced-based guidance” ignoring once again that this is an issue with multiple stakeholders including women and girls.
Language and data
WESC had a few things to say about the difference between sex and gender. This was perhaps the most useful part of the report with WESC acknowledging the problems that have been caused by conflating the concepts of sex and gender identity.
22. The GEO should work to update the language in both acts in relation to sex and gender, ensuring consistency in the definitions used. It should be clear when an Act is referring to natal sex, legal sex and gender. The Government should also aim to update all official documents that conflate the terms sex and gender.
23. The Government Equalities Office should work closely with trans rights groups and researchers to develop clear guidelines around data collection in relation to sex and gender, with the aim of minimising such distress, particularly for publicly-funded or mandated data such as the census.
But once again, WESC sees the solution to data collection on sex to be found by “working closely with trans rights groups”. The first step to solving this issue is to acknowledge that the views of more than one group matter on this issue. WESC have failed to grasp even this.
Recognition of non-binary identities
Not content with allowing people to swap the sex on their birth certificate, WESC also wants to erase sex completely by allow people to say they were born neither male nor female.
30. The Government should clarify what the barriers are that prevent it from allowing non-binary people to be legally recognised. The Government should lay out reasons in writing to this Committee at the earliest possible opportunity, within a maximum of 12 weeks. The Equality and Human Rights Commission should undertake research in this area so that proposals to allow for legal recognition of non-binary people can be brought forward during this parliament.
Final thoughts
This inquiry has been little more than a platform for a small group of MPs to once again promote their view of “trans rights”. Women engaged with the inquiry in good faith with the hope that this would be a serious and fair assessment of the conflict of rights. Thousands of hours have been dedicated to providing evidence. Our concerns have not been listened to – but that’s no surprise. What matters is that our collective concerns are now on the parliamentary record. We now have an incredible resource to pull on and next time someone says “But why on earth would we want to?” you’ll have the answers at your finger tips.
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You can read our full written submission to WESC online HERE.
Fair Play For Women give oral evidence on GRA reform to Women and Equalities Select Committee (WESC)