Tories Flush Gender Recognition Act Reform

Tories Flush Gender Recognition Act Reform

Finn Mackay

A recent article on the front page of The Sunday Times announced that the Government has finally decided what to do with their 2018 consultation on modernising the Gender Recognition Act (GRA) 2004. After being open for four months and receiving around 100,000 responses the Government kicked it into the long grass for a couple of years and have now decided to do nothing to reform the GRA. However, sources told the Sunday Times, they may take back control of toilets by setting up some sort of centralised toilet division and instructing local authorities to ban trans women from women’s public toilets, unless they have had genital surgery and do not have male anatomy.

This is a bizzare and unworkable suggestion as it’s impossible to know the form of someone else’s genitals while using private stalls in a public toilet. What those welcoming such pronouncements fail to see is that enacting this policy could mean all women have to carry ID confirming sex at birth, all women who weren’t immediately readable as feminine by current cultural norms might be challenged, and trans men would presumably be expected to use women’s toilets. Trans men, however, are rarely mentioned in such discourse at all.

The latest is that the Government will publish their response to the consultation on GRA reform this summer. We will find out if this seriously suggests that local authorities should ban trans women with male anatomy from women’s public toilets, or in some sort of Trumpist style bathroom bill, order that public toilets be segregated by birth sex. Such a move would only exacerbate the sort of tensions the government is conveniently exploiting to blame “culture wars” that detract from their murderous dereliction of duty resulting in over 50,000 people lost to Covid-19, the fast approaching precipice of a racism-fueled Brexit and yet another recession on top of a decade of ideological cuts to our welfare state.

The GRA debate began back in 2015 when Chair of the Women and Equalities Select Committee, Maria Miller, (who had only recently resigned from her post as Minister for Women and Equalities the year before due to the expenses scandal) began the Women and Equalities Committee inquiry on transgender equality. There was a professed concern to streamline the process of applying for a Gender Recognition Certificate or GRC, remove unnecessary red tape, costs and perhaps de-medicalise. Currently a diagnosis of gender dysphoria is required and medical reports from doctors or psychologists. But why, said then Prime Minister Theresa May at a Pink News Awards soiree in 2017, because being trans is not an illness. The Government launched a public consultation on these ideas in July 2018, and confirmed this was a consultation on possible liberalisation of the GRA only, and the Equality Act 2010 would not be affected.

Some of the questions in the consultation related to possible alternative methods of GRC process, like those used in other countries, such as Norway, Malta and Ireland. One of these routes could be a statutory declaration to replace the need for medical reports and diagnosis. This would be a legal document of self-declaration to transition, reassign sex category and live and remain in that acquired sex category for the rest of one’s life, with penalties attached to using it fraudulently. The Government never suggested they were planning to remove all the steps, such as minimum age requirement, minimum period of proof of living in acquired sex status (currently two years), nor axing an administration fee. The consultation didn’t say what was going to happen, because it was a consultation. However, questions on removing the need for a medical diagnosis were widely received by some groups as heralding a move to what became known as “self-ID”.

This hit social and mainstream media as being the beginning of a shift that would allow predatory men to fill in a form of some sort, declare themselves a woman with no legal steps to follow whatsoever and then be able to enter women-only spaces such as communal gym changing rooms or refuges and commit acts of voyeurism or other forms of sexualised male violence against women. Groups like the LGB Alliance, formed in 2019, called self-ID a green light for predators and journalists like Sarah Ditum branded it a “rapists charter” (2018).

This is the most extreme translation of a shift to self-declaration; it is still widespread and gaining traction every day in the context of the so-called “gender wars”. It should be noted that most gender-critical or GC campaigners, who have formed to work against the inclusion of trans women in women-only spaces, acknowledge such a usage may be rare by predatory men, but that any case would be one too many. More likely, such campaigners fear, is that a context recognising self-declaration would increasingly lead to an environment where women’s spaces become effectively unisex. An environment where those in sex segregated spaces will be too frightened of misreading someone to challenge them and where anyone challenged could say they identify as a woman.

Meanwhile many refuges and rape crisis centres have been trans-inclusive for years. Scottish Women’s Aid declares that: “women are a diverse, not homogenous, group with trans women an important part of our rich and culturally diverse society and an important part of the women’s rights movement of which we are proud to be part” (SWA, 2017). Now we know there will be no change to the GRC process, yet far from being a successful end to campaigning for those groups that sprung up to stop any such changes, anti-trans hostilities seem to be growing.

Perhaps the Government never intended to overhaul the GRA. I fear this might have been part of some compassionate conservative legacy proofing. Maybe they thought it was an easy win in terms of liberal looks, concerning only to a tiny minority and something nobody would notice. This was patronising tokenism, oblivious to the emboldened and rising illiberal populism (Graff & Korolczuk, 2018) growing throughout Europe and America, and, since around the mid 1990s, united against “gender ideology” (Lavizzari & Prearo, 2019). It was an insult to trans men and trans women who understandably feel stigmatised, marginalised and pathologised by society and state architecture that polices and limits their lives in the most personal of ways. It underestimated the decades long struggle for trans rights and recognition in the UK (Burns, 2018) and the growing generational shift to more fluid understandings of sex, gender and sexuality diversity. It also failed to predict resistance from all those self-organised women’s groups and settings who, justifiably, felt they were being told overnight that self-declaration of gender identity could replace single-sex requirements and legal exceptions.

As I have worked in policy and feminist activism against male violence against women and children for around twenty years, I am fully aware of the lengths to which abusive men will go to in controlling those they victimise. This is demonstrated most brutally and finally in the domestic homicide statistics. The place where women and children are most at risk is in their own home. High rates of sexualised male violence against women and children testify to the many successful tactics and methods adopted by abusers and I do not believe such men would find it necessary to live as trans women in order to continue their crimes. What is clear is that women’s public spaces are not safe currently from predatory men. Women’s toilets are targeted by flashers who hang round outside, or stalk women coming out. Women’s changing rooms are sites for predators who install secret cameras. Public toilets in quiet locations can just be walked into, by men intent on committing sexual assault.

Women’s safety from male violence is not taken seriously, the effect of a lifetime of socialised hypervigilance to the threat and reality of it, and the ingrained messaging making women responsible for it, are also, not taken seriously, or even recognised. It is these effects that lie behind a lot of the kneejerk exclusionary responses to trans women in women-only spaces. Tragically, too many women have good reason to fear and mistrust those they think are men, whether those individuals are men or not. It is not only trans women who bear the brunt of such conditioning. My research has shown that butch lesbians or masculine of centre female people are well versed in the staring, shocked challenges that can result from trying to use a public toilet. The sad fact is that what all of us fear is the very same form of violence; the exact same violence that trans women face and fear too. Such points urgently need fair and sensitive attention, trans women are women is the answer to the question are trans women women, but it has never been the question we need to be asking.

Burns Christine (2018) Trans Britain. London: Unbound.
Graff Agnieszka & Korolczuk Elzbieta (2018). “Gender as ‘Ebola from Brussels’: The Anti-colonial Frame and the Rise of Illiberal Populism,” Signs: Journal of Women in Culture and Society. Vol.43 (4) (Summer), pp. 797-821
Lavizzari Anna & Prearo Massimo (2019) ‘The anti-gender movement in Italy: Catholic participation between electoral and protest politics’. European Societies. Vol.21 (3), pp. 422-442.

Finn Mackay is a Senior Lecturer in Sociology at the University of the West of England, Bristol. The author of “Radical Feminism: Activism in Movement” from Palgrave, Finn is currently finishing a new book on female masculinities and the gender wars, for IB Tauris at Bloomsbury. Follow at