Legal gender and sex - confused

[jellyfrizz]

Gender has nothing to do with biological sex (other than stereotypes). Most transgender people will agree with this and indeed argue that gender has got nothing to do with what is between your legs.

So why then are people allowed to change their sex on their birth certificate and erase their past? How you present or what you do to your body has nothing to do with biological sex. Why would you want to do this if gender is unrelated to sex?

I'm guessing it's because historically people were classed as transsexual rather than transgender but once it became transgender surely 'changing' sex legally should have been stopped rather than the two being conflated? I'm told gender is a spectrum so what are you transitioning from/to?

thanks Jelly
looking at the wiki page - with the stuff about "no surgery needs to have taken place" and their definition of "transitioning" I now feel as self identification is already here?!

en.wikipedia.org/wiki/Gender_Recognition_Act_2004

WTF? I've just been reading some of the Gender Recognition Act and it doesn't even mention biological sex in some of the most important parts e.g.:

*20 Gender-specific offences

(1)Where (apart from this subsection) a relevant gender-specific offence could be committed or attempted only if the gender of a person to whom a full gender recognition certificate has been issued were not the acquired gender, the fact that the person’s gender has become the acquired gender does not prevent the offence being committed or attempted.

(2)An offence is a “relevant gender-specific offence” if—

(a)either or both of the conditions in subsection (3) are satisfied, and

(b)the commission of the offence involves the accused engaging in sexual activity.

(3)The conditions are—

(a)that the offence may be committed only by a person of a particular gender, and

(b)that the offence may be committed only on, or in relation to, a person of a particular gender,

and the references to a particular gender include a gender identified by reference to the gender of the other person involved.*

(From: www.legislation.gov.uk/ukpga/2004/7/section/20)

It's not a 'gender-specific' offence then is it? It's a sex-specific offence? To talk about gender here makes no sense.

xposting

"live as a woman"

huh. I don't know what in my life makes me a woman other than my biology so that term is meaningless.

*"live as a woman"

huh. I don't know what in my life makes me a woman other than my biology so that term is meaningless.*

Yes, Maria Miller uses that as part of her argument for self-identification though!

The Gender Identity (Protected Characteristic) Bill 2016-17 proposes to change the 2010 Equality Act. Mariah Miller is Chair of the Women & Equalities Committee and the MP bringing this bill. It has its second reading on 24 March.

Under the Equality Act, people are protected from discrimination on the grounds of any of nine 'protected characteristics':

The following characteristics are protected characteristics—

<span class="italic">age;</span>
<span class="italic">disability;</span>
<span class="italic">gender reassignment;</span>
<span class="italic">marriage and civil partnership;</span>
<span class="italic">pregnancy and maternity;</span>
<span class="italic">race;</span>
<span class="italic">religion or belief;</span>
<span class="italic">sex;</span>
<span class="italic">sexual orientation.</span>

Miller's bill is still being 'prepared for publication' so we don't know exactly what it says yet. All we have so far is:

A Bill to make gender identity a protected characteristic under the Equality Act 2010 in place of gender reassignment and to make associated provision for transgender and other persons; and for connected purposes.

The Women & Equalities Committee report on trans equality is here. There is a section in the report about changing 'transgender reassignment' to 'transgender identity' in the EA here.

According to this report:

• the term 'gender reassignment' is 'outdated and confusing'.

• It fails to protect trans people who are not proposing to have anything to do with the medical profession.

• it fails to protect 'broader kinds of trans identities' such as non-binary people.

The proposed solution is to change the wording in the EA from 'gender reassignment' to 'gender identity'. The report suggests adopting the Yogyakarta Principles, in which 'gender identity' is defined as:

each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

A lawyer has been engaged to turn this into workable legislation. Claire McCann was quoted in the report as saying:

Clearly, in my view, the addition of “gender identity”—if defined as referring to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth—will widen the protected characteristic within s.7 of [the Equality Act] to include elements of the “transgender” community more widely.

She had a lot more to say than that, you can read her full report here.

If 'gender reassignment' is changed to 'gender identity' in the EA, McCann proposes that:

a legislative amendment might look as follows:

“Gender identity refers to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned to that person at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or functions by medical, surgical or other means) and other expressions of gender, including name, dress, speech and mannerisms36. It includes references to a person who 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”.

So although we don't have the exact wording of this bill yet, it is likely to be something along those lines.

---------

The further aims of this bill could be anything:

to make associated provision for transgender and other persons; and for connected purposes.

The other thing Miller could go after connected with the EA is the exemption for female sex-segregated spaces, services etc. to exclude transwomen. This is where toilets, prisons, shelters, crisis services, changing rooms, sports etc. etc. come in. Women's orgs, services etc. already have to show they have a legitimate reason for excluding transwomen and that they are doing their best to provide for transwomen via alternative arrangements if they cannot accommodate them in their mainstream services. I need to check this but my understanding is that the report recommends removing this exemption for anyone who has a GRC - i.e. any transwoman who has a GRC will be allowed in all female spaces and categories.

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This is not a 'self-identification' bill - that would require a change to the gender recognition act and I don't think Miller would try to do both in one bill. The report recommends that too though, and the government have already pledged to review the GRA, so keep watching!

The combination of this bill (which is unlikely to pass this time ) plus a change to the gender recognition act would spell the end of sex segregated spaces and services.

I think what has happened has laws were made using "gender" as a synonym for "sex" and then after the laws were made the meaning of "gender" was transposed from the meaning assigned to it at birth.

Goldfishjane

Well, quite. And I think everyone is acutely aware of that. When they talked about protecting gender as an identity, they didn't quite realise that they had no real definition of the word, and that the next day they would see 50 different genders all clamouring to be given the label Very Important.

I think as the law currently stands it's a bit messy, and hasn't been tested. Gender and sex clash. So I agree with people who say this needs to go to court. Sex based protections are still the legal norm. However because it's confusing policy makers and organisations err on the side of caution fearing being accused of transphobia.

Pencils Can you clarify what you mean by

This is not a 'self-identification' bill - that would require a change to the gender recognition act and I don't think Miller would try to do both in one bill. The report recommends that too though, and the government have already pledged to review the GRA, so keep watching!

So under the GIB it would be gender identity rather than gender reassignement that would be the protected characteristic? Does this not mean bringing in self-identification? Or would it mean eg if a man identified as a woman and was discriminated against as a result he would have a legal claim BUT he couldn't legally call himself a woman unless he fulfilled the existing reassignment criteria???

I have yet to see the word gender properly defined though. It's always followed by identity, or expression.

It's either, 'of the two sexes', or a state that does not correspond to the two sexes. Eh?

The reason why they are running to such difficulty is they are trying to write legislation about a word that has no real meaning.

Says it all really

This is not a 'self-identification' bill - that would require a change to the gender recognition act and I don't think Miller would try to do both in one bill.

Thanks for the explanation Pencils. I had read it as Gender Identity would replace Gender Reassignment in what was required to get a GRC.

Which the WEC report recommends: (www.publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/39010.htm#_idTextAnchor213)

Within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.

In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.

No, no, no! How can we have gone from people with gender dysphoria being allowed to wear what they like to alleviate their symptoms, to any man, whatever his circumstances, mental health, predatory nature, sexual fetish, being given the right to call himself a woman and have all the rights of women handed over to him.

So under the GIB it would be gender identity rather than gender reassignement that would be the protected characteristic? - yes

Does this not mean bringing in self-identification? - no, that would mean a change to the GRA so that instead of having to 'live as' your chosen gender for 2 years and get medical reports, you'd just fill in a form and send off an admin fee to get a gender recognition certificate and be legally allowed to change all your docs.

Or would it mean eg if a man identified as a woman and was discriminated against as a result he would have a legal claim BUT he couldn't legally call himself a woman unless he fulfilled the existing reassignment criteria??? - This is already the current situation.

It's confusing because there are two bits of legislation - the EA and the GRA that interact.

Under the EA, you are protected if you are proposing to undergo, are in the process of undergoing, or have undergone, gender reassignment. Or if you are perceived as someone who is proposing to undergo ... bla bla bla. If you are 'non-binary', 'gender-queer' 'demi-unicorn' etc. you are not currently specifically protected, unless you can claim you are perceived as someone who is proposing to undergo / has undergone etc. gender reassignment.

Schedule 3 part 7 of the EA permits single sex services, facilities etc. where appropriate and para 28 permits the exclusion of those with the protected characteristic of 'gender reassignment' if it's a 'proportionate means of achieving a legitimate aim'.

Unless female single sex services can show that excluding transwomen is proportionate, they are currently expected to include transwomen who have a GRC or are proposing to get one, but not all the other made-up gender variants who feel a bit girly that afternoon.

Miller wants to get rid of that exemption so anyone with a GRC cannot be excluded from single sex facilities in any circumstances.

She also wants self-identification in the GRA.

Put the two together and literally any man can legally change their sex and not be excluded from female spaces under any circumstances.

This particular bill, as far as we know so far does neither of these things. What it does is permit entry to some female spaces, not only to those who have a GRC or are proposing to get one, but to anyone who identifies as a woman, however temporarily, without doing a single other thing.

Dunno if that makes sense, it's hurting my head

Here we go:

132.Significant concerns have been raised with us regarding the provisions of the Equality Act concerned with separate-sex and single-sex services and the genuine occupational requirement as these relate to trans people. These are sensitive areas, where there does need to be some limited ability to exercise discretion, if this is a proportionate means of achieving a legitimate aim. However, we are not persuaded that this discretion should apply where a trans person has been recognised as of their acquired gender “for all legal purposes” under the Gender Recognition Act. In many instances this is unlikely, in any case, to meet the proportionate test. We recommend that the Equality Act be amended so that the occupational requirements provision and / or the single-sex / separate services provision shall not apply in relation to discrimination against a person whose acquired gender has been recognised under the Gender Recognition Act 2004.

From the Transgender Equality Report here

The clearest thing I've read on how all this legislation and the proposed changes interact is from Women Analysing Policy on Women. Scroll down to 'Extending the coverage of the Equality Act' for analysis of the particular proposal in the current bill. In a nutshell:

The second, more complex issue, relates to employment, goods or services that are only open to one sex. The law protects the rights of someone with gender dysphoria who wishes to transition to live permanently as a woman to be treated as a woman in most circumstances, and to be legally recognised as a woman through applying for a Gender Recognition Certificate. However should someone who was born male, sometimes or mostly presents as male but identifies as female automatically be entitled to access services aimed at or reserved for women? Should an organisation that provides services to women victims and survivors of violence be obliged to provide services to a person who sometimes identifies as male because they also sometimes identify as female? If the organisation does provide such a service would they be obliged to provide it at times when the person was presenting as male? How would that impact on the willingness of the other women who need those services to access them? This question becomes particularly problematic when combined with the proposal to remove the exemption in the Equality Act for single sex services

Currently, you have to have a gender reassignment certificate. If you have that, your birth certificate, drivers license, passport, etc, can all be renewed stating you are female, not male

That's not actually true. You need a letter from the GP stating that you are undergoing treatment and are intending on living as the opposite sex. If you show a deed poll and that letter, you can change your passport and driver's license.

However - you need a GRC to change your birth certificate and also to change life insurance and car insurance forms.

It may be changing - but that was what happened 6 years ago. Changing passports and driving licenses wasn't too difficult.

Pencils Thanks for all that information.

so the term "gender reassignment" actually meant "sex reassignment"
except it didn't because no medical treatment was required

so "living as a woman" meant, what, having long hair and shellac nails and wearing dresses - and then some official panel gave you a certificate?

and now the argument is that the long hair and shellac should not be necessary - agreed - and the official panel thing should be gone...

okay I think I've got that.

but I still think we need to determine biological sex for safe space purposes.

The EA defines the protected characteristic of sex thusly:

11 Sex

In relation to the protected characteristic of sex—

(a)a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;

(b)a reference to persons who share a protected characteristic is a reference to persons of the same sex.

There's a helpful 'explanatory note' too:

Effect

54.This section is a new provision which explains that references in the Act to people having the protected characteristic of sex are to mean being a man or a woman, and that men share this characteristic with other men, and women with other women.

So they are saying 'sex' is whether you are a man or a woman. Given how up-for-grabs the word 'woman' is now, that's quite concerning.

so "living as a woman" meant, what, having long hair and shellac nails and wearing dresses - and then some official panel gave you a certificate

Not really. Part of the process of getting HRT is to 'prove' you are serious about the process so you need the 'real life experience'. But when you ask what that really means, you have to prove you have 'lived as a woman'. But what does that really mean? You have to provide documentary proof to the clinics that you have lived as a woman before they will treat you with HRT.

Then you need 2 years of RLE to even be considered for surgery. The steps are long and lots of assessments with psychologists and lots of documentary evidence from people such as employers and sometime family to add weight to getting HRT and then surgery.

ego - my understanding from the Wiki link - which might be wrong of course - was that transitioning -didn't have to include any medical treatment
en.wikipedia.org/wiki/Transitioning_(transgender)

that's the link embedded in the page about the 2004 act, that Jelly linked to, so I thought that was the explanation of trans as per the 2004 act.

Then you need 2 years of RLE to even be considered for surgery. The steps are long and lots of assessments with psychologists and lots of documentary evidence from people such as employers and sometime family to add weight to getting HRT and then surgery.

How does that work?

Employer: "Yes, we have been paying Caitlyn a woman wage for two years now. We are happy to support her transition!"

Wife: "At first, I was sceptical, but then Caitlyn actually started to do 50% of all household chores!"

... or what?

(I suspect it is more like "Yeah, Caitlyn consistently says she feels like a woman and uses the women's loo and all")

That's for getting hormones or surgery though ego. You don't need to have either to get a GRC.

The GRA says:

... the Panel must grant the application if satisfied that the applicant—

(a)has or has had gender dysphoria,

(b)has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,

(c)intends to continue to live in the acquired gender until death, and

(d)complies with the requirements imposed by and under section 3

(from what I can make out, (d) is stuff to do with marriage and is under review since equal marriage came in).

In terms of evidence you need a medical report that shows a diagnosis of gender dysphoria, and a statutory declaration that you meet the conditions above. No hormones or surgery necessary.

That's not actually true. You need a letter from the GP stating that you are undergoing treatment

What treatment does this refer to ego?

I'm still very confused. So is it the case that all the existing gender reassignment legislation is relevant for transwomen who have gender dysphoria and want to become as physically like a woman as possible? But the legal changes proposed in the GIB and associated reports would open up legal gender reassignement to the other group of transwomen which is the autogynephiles who don't want to alter their male bodies in any way, but are motivated by the sexual pleasure they get from believing/presenting/I don't know what the word is themselves as women? And if so, why is there no accompanying discussion of autogynephilia? I haven't trawled through all the papers for the GIB yet - is it discussed in there?