Photo by Michael Prewett on Unsplash
On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004. It remains unclear, however, when exactly the Government will introduce the draft legislation. Shirley-Anne Sommerville MSP, the Government Minister with responsibility for this issue has publicly admitted that there is still a need to build a “maximum consensus” before things become clearer.
A link to information about the proposed Bill can be found below:
https://www.gov.scot/publications/review-of-gender-recognition-act-2004/
Gender reassignment (or even gender identity) seems to have become a particularly fraught issue recently as a number of diverse media articles demonstrates:
Father Ted co-creator Graham Linehan warned by police over ‘transphobia’ Twitter row
Transgender prison inmate who sexually assaulted women jailed for life
First UK transgender prison unit to open
https://www.bbc.co.uk/news/uk-47434730
Sam Smith comes out as non-binary: ‘I’m not male or female’
http://www.bbc.co.uk/news/newsbeat-47612616
My passport gender should be non-binary
https://www.bbc.co.uk/news/uk-england-london-48126998
Retired naval chief criticises gender neutral ships
https://www.bbc.co.uk/news/uk-scotland-48037933
Jacqueline Wilson: Gender reassignment for children makes me very worried’
https://edition.independent.co.uk/editions/uk.co.independent.issue.240419/data/8882366/index.html
Munroe Bergdorf: NSPCC cuts ties with transgender activist
https://www.bbc.co.uk/news/uk-48572955
‘Race science’ is rearing its ugly head – again and black women are the target
Political controversy
In 2018, the Labour Party became embroiled in difficulties concerning the issue of whether trans women should be included in all female short lists for the selection of parliamentary candidates. Senior members of the Party – Jeremy Corbyn, Dawn Butler, Harriet Harman and Angela Rayner are supportive of this initiative.
The Standing for Women Campaign ran a (fiercely debated) poster ad during the Labour Party’s Conference in Liverpool focusing on the definition of a woman. This poster caused something of a storm and was later removed by the billboard company amid accusations of hate speech and discrimination against transgender people:
Kellie-Jay Keen-Minshull, one of the activists behind the poster was quoted in The Spectator (11 September 2018) saying:
‘I was a supporter of the Labour Party for years, but I can’t now in all good conscience support a political party that is hellbent on destroying women’s rights. But this is wider than just the Labour party. The word ‘woman’ matters. It means adult human female. If we expand that definition to say that ‘woman’ includes men who claim to feel like women, so as not to hurt their feelings, the word will become meaningless. As will the rights that generations of women before us fought for.’
Gender Identity Research & Education Society
Sporting controversies
It’s not merely the world of politics which witnessed passionate debates about gender reassignment. The sporting world has also seen some fierce clashes between female and transgender athletes. Former Olympic medalists, Kelly Holmes and Sharron Davies; and former Marathon champion, Paula Radcliffe have all expressed caution about permitting trans-women athletes to compete in women’s sporting events. Martina Navratilova, the former Tennis champion was even accused of being a “transphobe” when she suggested that the inclusion of trans-women in sporting events could be viewed as tantamount to “cheating”.
Furthermore, the ongoing scrutiny concerning the gender of the South African athlete, Caster Semenya continues to divide many people in the sporting world.
The Gender Recognition Act 2004
In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.
Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.
Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment.
This now means that the decision by the House of Lords in Chief Constable of West Yorkshire Police v A (2004) which held that the police force could rightfully refuse to employ an individual who had undergone a sex change as a constable has been reversed. Such treatment would now be regarded as an example of unlawful discrimination.
That said, in addition to UK anti-discrimination and equality laws, the Court of Justice of the European Union (as long ago as the case of P v S & Cornwall County Council (1996))held that discriminatory treatment of people having undergone gender reassignment was a breach of the Equal Treatment Directive. The individual in question had been dismissed from employment because she undergone a gender reassignment operation.
In Richards v Secretary of State for Work and Pensions (2006) the Court of Justice of the European Union ruled that a person (Richards) who was born male and then underwent gender reassignment to become female was entitled to claim a pension that would have been payable to a woman at age 60.
The individual in question had suffered less favourable treatment and the UK Government’s insistence that it would only begin to pay a pension to the individual in question from her 65th birthday onwards was an example of discriminatory treatment. In other words, the pensions authority was continuing to treat Richards as a man and was not taking into account the fact that gender reassignment had taken place.
In any event, the Richards case (above) is really of historical interest as the legal situation has greatly improved for any person having undergone gender reassignment. Such a person will now be issued with an official gender recognition certificate (see below) which means that they will be entitled to receive a pension from the date that such a certificate was issued.
The Court of Justice of the European Union has long held that discriminatory treatment of people having undergone gender reassignment is a breach of the Equal Treatment Directive.
The Scottish Government’s proposed Gender Recognition Bill
The proposed Bill is controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:
https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152
Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.
What would be required of the individual in question under the proposed legislation are the following:
- A statutory declaration to the effect that they have decided to change gender or sex;
- The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
- The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).
Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.
A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:
https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls
The Equality Act 2010
Section 7 of the Equality Act 2010 addresses the issue of a person who has undergone gender reassignment in the following terms:
(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
As we shall see, when discuss guidance from the Equality and Human Rights Commission (in the paragraph below), the Equality Act 2010 does not actually require a person to have undergone physical or physiological changes in order to be regarded as possessing the protected characteristic of gender reassignment.
Guidance from the Equality and Human Rights Commission
The Statutory Code on Employment issued by the Equality and Human Rights Commission contains a number of examples which demonstrate discrimination on the grounds of gender reassignment:
Example 1
A person who was born physically female decides to spend the rest of his life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully passes as a man without the need for any medical intervention. He would be protected as someone who has the protected characteristic of gender reassignment.
Example 2
A person born physically male lets her friends know that she intends to reassign her sex. She attends counselling sessions to start the process. However, she decides to go no further. She is protected under the law because she has undergone part of the process of reassigning her sex.
Example 3
Before a formal dinner organised by his employer, a worker tells his colleagues that he intends to come to the event dressed as a woman ‘for a laugh’. His manager tells him not to do this, as it would create a bad image of the company. Because the worker has no intention of undergoing gender reassignment, he would not have a claim for discrimination.
On the other hand, if the employer had said the same thing to a worker driven by their gender identity to cross-dress as a woman as part of the process of reassigning their sex, this could amount to direct discrimination because of gender reassignment.
It is worth noting in the above examples 1 and 2 that the individuals in question have not actually undergone the start of a physical transformation from one gender to another, but nonetheless both are protected in terms of Section 7 of the Equality Act.
Conclusion
A person who has undergone gender reassignment will have a protected characteristic in terms of the Equality Act 2010. Currently, the process by which an individual undergoes gender reassignment is laid down by the Gender Recognition Act 2004. This legislation was passed by the UK Parliament and applies across the country.
The Scottish Government has now announced that it intends to introduce a Gender Recognition Bill to reform the existing legislation. At the time of writing, it remains unclear when this will happen.
The purpose of the reforms is to move away from an emphasis on medical evidence to support the issuing of a gender recognition certificate to a system of self-declaration of gender (albeit under certain conditions being satisfied).
This subject has generated a lot of (often heated) debate and will probably continue to do so.
Postscript
The proposed Gender Recognition Bill continues to cause controversy – Wings over Scotland – the biggest pro-independence blog in Scotland edited by Stuart Campbell has found itself at the centre of the storm this week (4 July 2019). Campbell criticised the prominent nationalist MP, Mhairi Black for appearing on a YouTube channel where she appeared to attack those who were not in favour of the Gender Recognition proposals.
Needless to say this has generated a lot of comments by readers of the blog.
Links to Stuart Campbell’s blog entry and Mhairi Black’s Video can be found below:
https://wingsoverscotland.com/no-independence-day/#more-111060
Copyright Seán J Crossan, 25 June, 5 & 29 July 2019
Seán Crossan's Scots Law 