Amy Rodgers discusses the impact of the Gender Recognition Act for the trans community amidst fears over women’s spaces
Since 2004, trans people in the UK have been able to legally change their gender with a gender recognition certificate (GRC). Being able to do so not only upholds trans folk’s privacy and dignity but also ensures that their insurance policies, marriages and civil partnerships and pensions are all administered correctly. It makes life that little bit easier in a world that is otherwise overwhelmingly hostile to trans existence. The introduction of the 2004 Act was groundbreaking at the time - genital reassignment surgery was not a requirement to legally change your gender meaning that, essentially, the law recognised that men can have vaginas and women can have penises. This was welcomed in the trans community given that a significant amount of trans people cannot or choose not to alter their bodies for a number of reasons.
Unfortunately, the Act has not aged well. Both Scotland and England & Wales recently had consultations seeking views on possible amendments, resulting in a massive backlash from right wing newspapers and mumsnet sorts. These groups fear that the proposed amendments - that aim to make the whole process of legally changing your gender easier - will allow men to use the Act to access women only spaces like bathrooms and rape crisis centres. These fears are at best misguided and at worst outright transphobic.
The current process to legally change your gender is long, laborious and involves intrusive and often humiliating psychological analysis. There is a bunch of hoops applicants need to jump through to be granted the legal change they need and desire. Along with supplying evidence of having lived in your “acquired gender” for two years (let’s not get into what that’s supposed to mean), the biggest hurdle is the attainment of a diagnosis of gender dysphoria from doctors. Gender dysphoria is a mental health diagnosis and it is associated with experiencing feelings of discomfort or distress because there is a mismatch between your biological sex and gender identity. Without this diagnosis, trans people cannot legally change their gender.
The issue with this is that requiring a gender dysphoria diagnosis perpetuates the idea that having transgender desire makes someone mentally ill and establishes trans wishes as abnormal and pathological. The knock-on effect of this is that the applicant is then subject to stigmatisation that is attached to the diagnosis. We now look back on the fact that we treated homosexual desire as a mental illness with embarrassment and disgust; why are we still treating transgender desire in a similar way? Being transgender is not a mental illness. Much like homosexuality is but one example of the natural variance of human sexuality, trans desire is an example of natural gender variance.
This is why one of the amendments being sought by trans people is to get rid of any psychologist involvement and instead change the process to one of self-identification. As well as shedding the current system's pathologising tendencies, a self-identification system would make the process quicker, cheaper and less mentally exhausting for applicants. But certain people are going nuts over this. The main concern is that the introduction of self-identification system would have an adverse impact on women-only safe spaces. There appears, in fact, to be two fears: for some, the issue is men and the fear that they will use the legislation to violate safe spaces. For others, the issue is trans people themselves and the accompanying belief that trans women with penises are a danger to these spaces. Both of these are misguided.
First off, trans women are already in these spaces, whether they have legally changed their gender or not and whether they have a penis or not. Their right to do so has nothing to do with the Gender Recognition Act - the process of the Gender Recognition Act is purely for the sake of updating one’s birth certificate to reflect one’s true gender. Gender recognition only provides a limited legal recognition of a person’s acquired gender, primarily for medical privacy, marriage and pension access.
Trans people are not required to show that they have a GRC prior to entering bathrooms, rape crisis centres or any other kind of women-only space. This right stems from the Equality Act 2010. Because of this law, people who have the protected characteristic of "gender reassignment" can enter these spaces and be respected in their gender identity, with or without a GRC, and with or without having had genital reassignment surgery. Any proposed changes to the GRA would not create a new right for trans women to enter through the doors.
Self-declaration has in fact been the basis for access to rape crisis centres and women’s refuges for years. Contrary to public and mainstream media fears, this has not undermined the safety of these spaces for other women. Rather, as LGBTQI charity Stonewall points out, it has enabled these organisations to support the diverse range of vulnerable women who need their services and support. Indeed, many women’s only organisations, including Scottish Women’s Aid, Rape Crisis Scotland and Zero Tolerance, have publicly voiced their support for the Scottish government's proposal to introduce self-identification.
These organisations recognise that trans women are not a risk to women only spaces. Sadly, the recent case of Karen White has been used to suggest that they are, and is being weaponized by right wing media to limit trans legal rights. Karen White is a trans woman who assaulted four fellow female inmates. She was placed in a women’s only prison despite the fact that she was on remand for rape and had a history of sexual offending. The emotive responses to this case are understandable. It shouldn’t have happened. Given her offending history and the risk she posed to fellow female prisoners, Karen White ought to have been housed in a segregated unit within a women’s prison or otherwise in a male prison (where she would have most likely been segregated for her own protection). This is, in fact, what usually happens: trans women who are sex offenders are routinely turned down when they request to be transferred to female prisons.
This is because the protections afforded to trans people by the Equality Act are not unlimited; the Act seeks to balance the needs of women and transwomen. This means that in the context of women-only spaces, where it is “a proportionate means of achieving a legitimate aim”, transwomen may be refused access. It could be argued that Karen White should have been refused access, given her offending history. This is an example of a failure of the safeguards in place in prisons, not an indication that all trans women are dangerous. Safeguards, sadly, sometimes fail. The failure of the risk assessment system is being weaponized here by right wing media to limit rights of all trans women. This is transphobia. If it wasn’t, then why are these papers not giving the same column space to the amount of cis women and prison guards that abuse women prisoners?
We do not need a blanket ban on trans women. What we do need is a more robust risk assessment of all female prisons (and other women-only spaces). Focusing on biological gender obscures the real issue and the best possible responses. Removing trans women from female prisons will not stop female prisoners being assaulted, which is surely the main issue. There will be different responses to this issue for different institutions and organizations. What is clear, though, is that the blunt tool of biological gender is inadequate to properly deal with assessing risk. Assessing who someone is or what risk they pose solely through biological sex is unprincipled. Freeing ourselves from the obsession with genitals allows principled and robust decisions to be made.
The world of gender diversity and sexual complexity is not going away. More and more people are seeking to live out their gender or sexuality without stigma or the threat of violence. The heated debates on this issue too often overlook the vulnerability of the trans community. The statistics are frightening: Stonewall found that almost 1 in 10 young trans people have received death threats at school and trans people under 26 have been found to be nearly twice as likely (48%) to have attempted suicide in their life compared to non-transgender people of the same age group (26%).
Legal recognition can vastly improve the self-esteem of trans people and, importantly, sends the message to the world that it is ok to be trans. These amendments should be welcomed, not feared.