Rights & the Law - For Women Scotland

WOMEN’S RIGHTS, TRANS RIGHTS & THE LAW

What rights do trans people currently have under UK Law?

The Gender Recognition Act 2004 (GRA) requires that a person with a Gender Recognition Certificate (GRC) is treated, in law, as their acquired gender in most circumstances. If a person wishes to change their legal gender, they must apply for a GRC. This act was brought in primarily to give transsexual people the legal right to marry. This was necessary as same-sex marriage was not lawful at that time.

Applying for a GRC requires a diagnosis of ‘gender dysphoria’. It also requires the person to ‘live as the opposite sex’ for two years. The application has a fee of £140, for which financial assistance is available. There is no requirement to transition in any other way, or to undergo surgery or take hormones.

Transsexual people have the protected characteristic (see below) of gender reassignment under the Equality Act 2010. This protected characteristic is defined as proposing to undergo, currently undergoing or having undergone reassignment of physical or other attributes of sex. It is not currently required to have a GRC, or to have a surgical or medical transition, to acquire this protected characteristic.

A protected characteristic is a defined group or category, protected by the Equality Act. There are nine protected characteristics: sex, race, sexual orientation, age, disability, gender reassignment, marriage and civil partnership, pregnancy/maternity, and religion/belief.

What additional rights are some trans advocacy groups asking for?

The Transgender Equality Report 2016 made the following recommendations (among others):

Self-declaration/Self ID should be permitted. This aims to make legal gender changes easier for trans-identifying people. The need for a diagnosis of gender dysphoria should be removed, as well as the need to ‘live as the opposite sex’. Instead, Gender Recognition Certificates should be issued through a simple online administrative process of self-declaration of gender identity. This would apply to adults and 16 and 17-year-olds.
The protected characteristic of ‘gender reassignment’ in the Equality Act 2010 should be changed to ‘gender identity’.
The removal of gender reassignment as a legal exception to single sex spaces (see below).
To change the sex on a person’s birth certificate, without the requirement of a GRC.

As a consequence of this report, both the Scottish and UK Governments launched Gender Recognition Act consultations (the GRA is a devolved matter). The Scottish consultation closed in March 2018 and the England and Wales consultation closed the following October. An analysis of the responses from the Scottish consultation have been published here.

More recently, the Cabinet Secretary Shirley-Anne Somerville gave a statement in the Scottish Parliament announcing the intention to introduce a Bill to remove the medical requirement and proposing a three month period living as the acquired gender before making a statutory declaration to be legally recognised as the acquired gender. After a three month reflection period a GRC can be issued and the birth certificate changed accordingly. This draft Bill is to be introduced later in 2019.

The then UK Minister for Women and Equalities, Penny Mordaunt has stated the Equality Act of 2010 (which is a reserved matter) will not be reformed.

What rights do women currently have under UK law?

Under the Equality Act, women have sex-based rights to protect them from sexual discrimination and sexism. Being a woman is a protected characteristic covered by sex.

The list of exceptions in the Equality Act allows women to have single sex spaces where it is a ‘proportionate means to achieving the aim’. This is the law that allows service providers and institutions to offer single sex hospital wards, prisons, rape crisis services, single sex dormitories in hostels and homeless hostels amongst many other examples, including women’s sporting activities. It is also these exceptions that allow a woman to, for example, request a female nurse or carer, to be searched by a female police/customs/prison officer, to have women-only shortlists (for example, for political parties) and have women-only jobs (for example, counsellor in a female hostel).

Women currently have the right to exclude men and those with the protected characteristic of gender reassignment and/or a GRC from such services and spaces. This is detailed in the list of exceptions in the Equality Act.

Why do many women want single sex spaces?

According the the Office for National Statistics, three-quarters of violent crimes and 98 per cent of sexual offences are committed by males.

Sex segregation exists to provide comfort, safety and dignity where women are physically and sexually vulnerable. Some women also like single sex spaces to provide an escape from the male gaze (eg. women-only swimming) or male domineering behaviour (eg. girls-only science clubs).

For cultural and religious reasons connected with modesty, some women feel unable to use certain spaces if they are open to men. Women-only swimming, women-only changing, women-only sports and other events enable their social participation.

If the Equality Act is not changing, why are some women concerned that proposed changes to the GRA will impact their sex-based rights?

Women and many transsexual people believe the GRC process provides a gatekeeping function. The removal of that process makes it quick, cheap and easy for any person to change their birth certificate with no checks or verification.

A reissued birth certificate is indistinguishable from an original. When the GRA 2004 was passed there were a very small number of transsexual people. All had a diagnosis of gender dysphoria, with the majority medically transitioning. However in 2010, with the removal of a diagnosis of gender dysphoria, the ‘trans umbrella’ has grown to include people who state they have a trans identity, whilst still presenting as their birth sex. The number has grown from less than 5000 to estimated figures of 600,000 in the UK (Stonewall).

Although women have the right to exceptions, the law is weak in that it is reliant on an organisation to ‘opt in’ to the exceptions, and then to enforce them. A woman can no longer assume that rape crisis centres, domestic violence refuges, women’s homeless shelters are for women only. Many funding streams are linked to ‘inclusivity’ (meaning they are inclusive of transgender people). For example, this FoI shows that applicants to the VAWG fund from the Scottish Government are required to have transwomen inclusive policies. The result is we are seeing traditional female spaces opening up to people who are biologically men. This report documents the concerns of female clinicians and service staff at rape crisis centres who feel unable to speak out.

Businesses and organisations are facing huge pressure to open up female spaces. Accusations of transphobia and targeted campaigns have led to Girlguiding, council leisure facilities, shop changing rooms, and other organisations and places, to stop being women/girls only. For example, Girlguiding includes trans identifying boys in activities, but excludes trans identifying girls. Moreover, as reported in the Telegraph, in an extraordinary move away from standard safeguarding, this ‘affirmation’ of gender identity means a boy is placed in a tent/dorm with girls on an overnight trip, without the parents being informed or consulted.

In 2018 Topshop declared anyone who self-identifies as a woman can use the female dressing rooms, after a self-declared ‘non-binary male’ was refused access to these rooms and complained. This presents issues of comfort, safety and dignity to females who use these rooms, especially as many are teenagers and younger.

Unisex spaces (toilets, communal changing rooms, hospital wards), may be unsafe for women and also children. A recent study, reported in the Independent, showed that 89 per cent of sexual assaults and voyeurism in toilets and changing rooms occurred in unisex (gender neutral) spaces.

The NHS in England and Wales is conducting an urgent review of mixed-sex mental health wards after 900 sexual ‘incidents’ were reported in a three-month period. The Care Quality Commission said a ‘substantial number’ of services were admitting men and women to the same wards, despite the fact this is not permitted.

Single sex wards were abolished in Scotland in 2005 yet a recent FoI to NHS Lothian showed that they were unable to guarantee either women-only wards or treatment by a female health care practitioner, due to privacy issues surrounding the GRA.

Throughout the UK, institutions are failing to enact sex-based exceptions for the comfort, safety and dignity of women. Transwoman Karen White, a sexual offender and child sexual abuser, was placed (following prison policy) in a women’s prison. The same prison also had a mother and baby unit. Karen White was removed following several sexual assaults on female prisoners.

A Sun article showed 18 transgender prisoners within the Scottish prison system, including Tiffany Scott who was deemed too dangerous to attend Alloa court, and whom female prison staff have complained about having to body search.

Another transwoman Alan Baker/Alex Stewart won a women’s fitness competition while imprisoned in the female estate at HMP Greenock, and later had to be separated from fellow transwoman Daniel/Sophie Eastwood after openly conducting a sexual relationship.

The vast majority of transwomen retain their male genitalia. It is possible that a woman could become pregnant whilst in custody.

A transwoman is currently planning to seek a judicial review to enable transwomen to hide part of their criminal records. It is argued that crimes that can only be committed by males should be struck off their record, as it would reveal their birth sex. Worryingly, one of the few crimes that can only be committed by men is rape.

Women have the right to reliable and accurate data to measure things such as the sex pay gap, poverty, health, crime statistics and so on. If a person’s sex is masked, then statistics will no longer be sex-based. We currently know that 98 per cent of sexual offences are committed by men. If sexual assaults committed by a man are recorded as being committed by a female, no one can accurately measure and respond to sex-based trends. This is already happening in Scotland, as confirmed by a Parliamentary Question and subsequent FoI to Police Scotland.

Self-ID has been made law in Ireland since 2015. What is the situation there?

There has been no audit of the impact of the Irish reforms.

The Irish Gender Recognition Act allows self-ID but is reliant on a quasi-judicial exercise of ministerial competence – in other words, a gatekeeper.

This is an administrative process, which includes:

mechanisms to require information and overturn administrative decisions;
an exclusion for married people, with or without spousal consent;
the exercising of discretion which allows, for example, housing of prisoners in the estate relating to their sex. This has recently been successfully challenged when a physically intact transwoman was transferred to a women’s prison.

However, the Act also allows people to be treated differently on the basis of their ‘gender’ in many circumstances, including the following:

People can be treated differently in relation to cosmetic services that involve physical contact (for instance, hairdressing, body waxing, and so on).
People can also be treated differently if there is a risk that you could be embarrassed because of a lack of privacy.
People can be treated differently at sporting events if the differences are reasonably necessary and relevant and, in relation to educational establishments, having regard to the nature of the facilities or events.
Services may promote or favour the special interests of one person or group over another.
Goods and services which can be reasonably considered as being suitable only for the special needs of certain people may be provided.
In shared accommodation, people may be treated differently in relation to personal privacy where lack of privacy might cause embarrassment. This includes when the accommodation is provided by a person in their private home, if for example a home-owner took in a lodger. It also includes when housing is provided by or on behalf of the Minister for Justice and Equality, and when the accommodation is reserved for a particular category of people.
Single sex schools are allowed.
Institutions providing religious training to ministers of a particular religion may admit students of only one ‘gender’. Third-level or adult education institutions may treat students differently by way of traditional university sponsorships, scholarships, bursaries, and so on.
Clubs may be established for a particular group of people.
A person may be treated differently because of a doctor’s clinical judgement in relation to the person’s medical condition.

In short, Irish Equality law is quite different from that proposed for Scotland and has stronger sex-based exceptions.