by Claire Thurlow
In this post, Claire Thurlow, a doctoral candidate in the School of Law & Politics at Cardiff University, discusses the UK government’s response to the Scottish Gender Recognition Act and counters the misinformation in circulation. She outlines the facts of the legislation and how interacts with the Equality Act, discusses what ‘self ID’ means in practice and explores the international precedents for ‘self ID’. Establishing that gender recognition certificates make very little difference day-to-day, Thurlow proposes that gender recognition legislation is being used for political gain and this should signal concern about broader gender conservative politics.
This blog is written out of frustration. The UK government has applied S35 of the Scotland Act 1998 for the first time to prohibit a Scottish bill on gender recognition. For the past 6 years I, and many others, have been trying to communicate how gender recognition legislation has nothing to do with women’s safety or discrimination. We have tried to explain how gender recognition legislation is an administrative tool unrelated to issues of single sex spaces and discrimination, which come under the Equality Act. We have been screaming into the wind it seems because now the UK government is taking unprecedented action, remarkably with the potential to threaten the union, largely based on the erroneous claim that the Scottish gender recognition bill will negatively impact women. To put it mildly, it is infuriating. In this short piece, I will build on these points, discuss the basic details of gender recognition legislation, explain how the legislation relates to the Equality Act, and offer an interpretation of the UK government’s response.
What has happened?
The Scottish parliament has passed a bill to update the process of legal gender recognition in Scotland. The current UK-wide process dates from 2004 and requires a ‘gender recognition panel’ to be satisfied an individual is 18 or over, has a diagnosis of gender dysphoria (by 2 medical professionals), has lived as the gender for a period of at least 2 years, intends to continue to do so until death, and has made a statutory declaration in support of this. This process is not available to non-binary people.
The updated process, voted through by the Scottish parliament, removes the gender recognition panel, lowers the age to 16, does not require a diagnosis of gender dysphoria and consequently does not require medical reports and shortens the required ‘lived as’ criteria to 6 months for 16 and 17-year-olds and 3 months for 18+. A statutory declaration is still required. A 3-month ‘reflection period’ has been introduced after which an applicant has to confirm they still wish to proceed. Non-binary people are again not included. The UK government has announced it will block this updated Scottish legislation.
Gender recognition legislation
The basic details of the legislation have been lost amongst panic and misinformation. The UK has had gender recognition legislation since 2004. The legislation provides a mechanism for some trans people to obtain a gender recognition certificate that allows them to apply for an updated birth certificate with their sex revised from ‘M’ to ‘F’ or ‘F’ to ‘M’. It is as useful and consequential as any birth certificate. Personally, I have used my birth certificate once in the past 40 years (to get married). As I type, I have no idea where it is. I did not use it to obtain any ID (including a passport), enter any space, fill out any form, apply for any job or participate in any sport.
So while it might be personally important to a trans person – for recognition or to get married in the correct gender for example – it has limited impact beyond that. This lack of utility coupled with the bureaucratic, medicalised and costly nature of obtaining a gender recognition certificate means that very few trans people have one. About 30 per year are currently issued in Scotland. After updating the process, the Scottish government expects this to rise to up to 300 people per year. This is in line with Ireland, a country of similar population size and covered by similar legislation to that passed in Scotland.
Image credit: Photo by Thiago Rocha on Unsplash
The Equality Act and ‘self ID’
The Equality Act 2010 was written after gender recognition legislation and has operated alongside it for over a decade. It is the Equality Act 2010 that legislates on most of the issues incorrectly being linked to gender recognition laws. This includes access to spaces by trans people. It is irrelevant for the operation of the Equality Act if a person has a gender recognition certificate. The Equality Act, ironically, employs what has become known as ‘self ID’ for trans people. For the Act, a trans person is someone who has ‘proposed, started or completed a process to change his or her sex’. This is regardless of gender recognition certificate (and regardless of any or no medicalised intervention).
‘Self-ID’ has become shorthand for updated gender recognition legislation that removes ‘proof’ requirements. The updated Scottish legislation is not ‘self-ID’ in the truest sense. Proof of a ‘lived as’ period remains requisite, as does the making of a statutory declaration. However, the idea that people can more easily self-determine their legal gender has been subject to an outcry- even though we all ‘self ID’ every day. Every time we tick a box on a form – whether it be sex, ethnicity, sexuality, religion – we ‘self ID’. Every time we choose a gendered toilet or a changing room, we ‘self-ID’. When it comes to confirming various aspects of our identity, ‘self ID’ is widely accepted. The only alternative I can imagine would be a government issued card (or subcutaneous chip?) that we present each time our actions require confirming identity characteristics. To the question ‘How do we know ‘self ID’ is safe?’ we can point to a decade of the Equality Act.
We can also point to other countries. Over the last decade Sweden, Ireland, Norway, Belgium, Malta, Spain, Germany and a host of countries further afield have voted-in a similar system to Scotland of ‘self ID’ for legal gender recognition. In fact, many go further by introducing a third gender option, having a lower age limit and/or not requiring proof of a ‘lived as’ period. These laws, however configured, have not negatively impacted women’s safety in these countries. The UN independent expert on sexual orientation and gender identity, Victor Madrigal-Borloz, recently noted that 350 million people live in territories with systems of self-declaration for gender recognition and not a single case of the process being abused has been found. There is plenty of evidence the Scottish proposal is safe if you look beyond our shores. The UK government seems to have long accepted this too. The UK respects the gender recognition process of individuals travelling to the UK from many of the 30 countries and territories in the world that employ ‘self-ID’. As they have decided not to apply the same logic to Scotland, they are now said to be reviewing this wider policy.
But if my analysis, and that of other academics is incorrect, and the gender recognition legislation does indeed interfere with the safe operation of the Equality Act 2010, as the UK government contend, then why so only with the Scottish bill? The outcome, legal gender recognition, would remain the same after implementations of the new bill as has been the case for the whole of the UK since 2004. Logically, either ‘clashes’[i] have always existed, or they have not and therefore should not be forwarded as an argument against the Scottish bill. In its reasons for applying S35 the UK government forecloses the possibility of inconsistency by stating that the Scottish bill in the most part exacerbates existing clashes between the Gender Recognition Act of 2004 and Equality Act 2010. This brings up two points, firstly why is there no evidence of harm from these supposed over-decade-long ‘clashes’ and secondly, what counts as exacerbation? Given that we are talking about an estimated extra 250 applicants a year and any clashes will apply to the circumstances of only a tiny percentage of these, the government is taking this unprecedented action over a handful of cases a year. Not much of an exacerbation. Even applying their own terms, the government response is akin to ‘a nuclear weapon used in a minor skirmish’ to quote Lord Falconer.
Is gender recognition legislation really the problem?
With often unexplained reference to the bill creating a ‘reduction in safeguards for women and children’, what the UK government really seems to be saying is that by lowering the barriers to obtaining a gender recognition certificate, cis-gendered men might abuse the process for nefarious purposes. Yet the experience of other countries and the fact that we all ‘self ID’ every day make a nonsense of this. Why would someone who is not trans go through a process to change a largely inconsequential piece of paper? Why would a man who wanted to attack a woman – this is always the explicit or implicit concern – wait to change their legal gender to do so (remember, it will not change their ability to access spaces)? We know predatory men do not need a certificate. The argument is nonsensical and Scottish civil society agrees.
Perhaps gender recognition certificates are not the problem then. People opposed to the Scottish changes rarely say they only wish to exclude trans people without a legal gender recognition certificate. They almost always wish to only recognise sex assigned at birth. It’s another bitter irony that the holding of a certificate (or not) is irrelevant to them too. A better explanation of recent events might be a politically useful prejudice against trans people. The government’s own statement betrays this when it describes the ‘potential chilling effect’ that it believes any increase in the number of trans people would have on single-sex service providers and users. This comes from a government dotted with individuals ideologically opposed to trans rights and those with populist leanings who opportunistically use the issue to create division. In this right-moving political environment that is weaponizing women’s rights to meet a regressive agenda, opponents to the bill have shaped the narrative of the conversation being had. This position is sadly abetted by a small group of women (feminists even) who are so zealous in their anti-trans views they will act as cover for the misogyny of those they camouflage. If these women do get their way on issues of trans rights, they had better be prepared for the increasingly conservative politics that follows.
The inevitability of legal action by the Scottish governments means that this issue, short of the UK government backing down, will now rumble on and there will be many differing and opposing takes discussed in the coming months and years. Further, we wait to see how this rift between Westminster and Holyrood impacts calls for independence. Yet, whilst their voices are rarely heard in this conversation, what cannot be forgotten in this unsightly fight is that trans people are this political football. One of the most marginalised groups in society are again being kicked around to satisfy the unrelated spoils of those benefitting from the culture wars. Calls for respect and kindness are not twee here; they are lifesaving. While some politicians might need a culture war as distraction, trans people can only take so much demonisation.
Claire Thurlow is a PhD researcher in the School of Law & Politics at Cardiff University, UK. Her PhD research explores trans-exclusionary feminism in the UK and how it fits into the wider transnational ‘anti-gender’ movement. Her general research interests are feminist and LGBTQ+ politics.
[i] The UK government describes its reasoning on any clash here.