A group of senior lawyers recently wrote this letter in response to the TIE letter which was printed in the National and the Herald earlier this month. We believe it is vital that the misrepresentations of the legal position as expressed in the TIE letter are corrected, and are pleased to be able to publish this rebuttal.
We write as lawyers who wish to raise concerns about the TIE open letter which claimed that male to female transgender people already have rights in law to access women’s spaces and services. This statement is incorrect. The Gender Recognition Act 2004 provides trans people with the right to be recognised in law as the gender they have transitioned to when, and only when, an application to change legal sex is approved by a Gender Recognition Panel following a formal application supported by medical and other evidence and a statutory declaration. It does not create a general right for any person, at any stage of transition, to be treated as a member of the gender they are seeking to transition to.
The Equality Act 2010 provides trans people with the important and necessary protection from discrimination on the basis of gender re-assignment. This is not the same as a general right of access to single sex spaces and services in all circumstances. It is established in case law that the comparator for a transgender person claiming discrimination in relation to gender re-assignment is not the sex which they are seeking transition to but that which they are seeking transition from. There are a number of exemptions for single sex spaces and services, for example sports (section 195) and communal accommodation, such as youth hostels or other shared sleeping and sanitary accommodation (Schedule 23 paragraph 3), which can be invoked for biological women only. These exemptions are equally important and necessary, for many different reasons, such as enabling women to compete safely in contact sports or to use shared sleeping accommodation where otherwise they might be unable (for example due to their religious or cultural background or past trauma).
Professor of Law, Conflict and Global Development, University of Reading
Ely Place Chambers
Great James Street Chambers
Old Square Chambers
Solicitor and Senior Law Lecturer, Coventry University
Professor at Reading Law School, specialising in Gender, Sexuality, Property Law and Legal History
Forwomen.scot previously responded to the TIE letter in the blog post: https://forwomen.scot/27/02/2019/sex-matters/