"It is illegal to ask to see a GRC"

[SarahAr]

I often seen this in messages on MN. Is this correct? Does anyone have a statutory or case law reference.

It is certainly good practice not to ask anyone their legal gender unless you absolutely need to know. It is also good practice to ask for a birth certificate, not a GRC. That way you don't have embarrassing issues of accidentally asking a natal woman for a GRC because you think she looks trans.

But is it actually illegal to ask to see a GRC?

I can't see anything there that talks about people who get a GRC but don't get a new birth certificate (I am tired though so if I've missed something please do quote).

The guidance I linked to earlier seems to be saying that on being granted a GRC the registrar is automatically informed, they send a draft of how the new birth cert will look and if you're happy with the details you sign and return. A new, free, short birth certificate is then sent to you (with a paid option for a long certificate).

I can't see how it's possible that someone going through the process of getting a GRC is unaware that they can get a new birth certificate at the end of it. What else is a GRC for?

The transgender status of the applicant should be disclosed through a DBS check. So as long as that was done properly, the employer/service provider should have the relevant information to exclude a transwoman in your example.

Really? DBS is only about criminal convictions and other recorded brushes with the law. From what I have read the DBS process goes out of its way to not disclose someone's trans status. I understand that if a trans person is honest and follows the correct procedure to register previous names then any previous convictions will show up but their trans status will still not be revealed to a prospective employer.

I clearly don't know what I'm talking about. I think I got a bit confused after looking at loads of legal stuff.

I had assumed that the applicant had to disclose previous names. But I've just looked at the link posted by someone earlier in the thread, and they don't have to disclose those to the employer, only to the DBS.

If you're not allowed to ask whether someone is transgender, and the DBS check doesn't give you any relevant information then I can't see how the exceptions in the EA can be applied. Meaning that anyone with a GRC is their acquired sex for all purposes (no exceptions) and if self ID goes ahead any man can "become" a woman and be treated exactly as someone born female, with no exceptions.

More attention is being directed toward finding out if perhaps more gatekeeping is necessary.
www.telegraph.co.uk/news/2018/04/11/nhs-launches-sexual-abuse-probe-amid-fears-dangers-mixed-sex/?utm_campaign=Echobox&utm_medium=Social&utm_source=Twitter

If you're not allowed to ask whether someone is transgender, and the DBS check doesn't give you any relevant information then I can't see how the exceptions in the EA can be applied. Meaning that anyone with a GRC is their acquired sex for all purposes (no exceptions) and if self ID goes ahead any man can "become" a woman and be treated exactly as someone born female, with no exceptions.

Well I think that what the EHRC's guidance is saying is that if you are just trying to ascertain someone's legal sex (which is all most service providers and employers normally need to do) then you should just be asking for the birth certificate. You don't need ask for the GRC and to do so would be discriminatory as it would unnecessarily force trans people to reveal information they would presumably rather keep private.

However, it would be different in the case of eg a woman's refuge. There are exemptions in the Equality Act 2010 which basically say that refuges who are providing single sex services can do things which would normally be considered discriminatory against trans people if they have an objective justification for doing so. A refuge which is only open to and only employs biological females could ask transwomen if they are trans without it being discriminatory, as long as the refuge has a good enough reason for wanting to exclude transwomen from the service. Such a refuge would need to find out what a person's biological sex is, not just their current legal sex.

What I still remain unclear about though is the practicalities for single sex refuges. What happens in a situation where a transwoman applies for a job with a single biological sex refuge if the transwoman does not reveal their trans status?

• If the transwoman were non-passing, the refuge could ask them whether they were trans but if the trans person lied how would the refuge check? I suppose the refuge could exclude anyone they thought was trans as the Equality Act exemptions apply to discrimination by perception too (ie it would hypothetically be legal for a refuge to discriminate against someone who they thought was trans, even if it turns out they are not trans) but that's not very satisfactory. I suspect in the case of women's sport which is also subject to biological sex exemptions under the Equality Act 2010 the sport's governing body could ask a suspected transwoman to provide a blood sample for testing, but I can't imagine it being appropriate or practical for refuges to do the same!

• What happens if the transwoman passes? I don't know of any routine checks that the refuge could run which would reveal someone's trans status.

I would be delighted if anyone knows the answers to the above questions, as I remain unclear. I should say for the record that I don't think the situations above are particularly likely to happen but there ought to be something in place just in case as otherwise the biological sex based exemptions are a bit meaningless. Also, whilst I'm sure that at least 99.9% of transwomen with a GRC are lovely people who just want to get on with their lives and wouldn't want to apply for a job at a single sex women's refuge, there was that case of the male Canadian sex predator who pretended to be a transwoman to get a job at a women's shelter. I'm not clear whether he had the equivalent of a GRC or whether the shelter was just allowing him to work there as he identified as female, but I suspect the latter. I would hope that the current GRC process would weed out men with nefarious purposes so that they can't legally change sex and get a new birth certificate.

I think your last paragraph applies Speedy.

And is one of many reasons I do not want gatekeeping removed.

Let's face it there has to be a good reason why 595,000 trans people are not willing to apply under the current rules to get a GRC whereas 5000 have.

It is not because of lack of surgery or hormones. Neither of those are necessities. Though they do usually make access easier and quicker.

Is it the £140 fee? Okay, means test and fund it and if you can afford it and won't pay then it is hardly something you NEED to have is it?

Is it the need to wait 2 years first? Well it is going to be at least that long before any self ID law comes into focus so why are all these people not just applying anyway if it so urgent the delay needs removing?

My suspicion has to be it is the need to a see a doctor first and talk this through. And if it is just a matter of principle - I don't NEED a doctor so I am not going, then the urgency again cannot be there otherwise surely you would just swallow that as a means to an end.

So are there other reasons that make some one afraid to see a doctor?

I think those fighting for self ID know fine well that they could not get a diagnosis of sex dysphoria. And this is why they want all 'gatekeeping' gone.

Its not the cost, as its already means tested.

You can ask someone if they have a GRC but they are under no obligation to answer. (I don't, by the way). Neither a birth certificate nor a DBS check will identify a GRC-transitioner so it's unclear how any single sex exemptions could be applied once someone has a GRC.

So far this hasn't been a problem because the few people who have GRCs tend to have medically and surgically transitioned so it hasn't been necessary to apply single sex exemptions.

However international human rights best practice requires us to move to a system of self declaration. This is likely to increase the number of people with GRCs and draw in more people who make no body modifications at all.

Under these circumstances it's probable that womens groups would want to apply single sex exemptions but it's no clearer how they could work. It's not surprising therefore that the Women and Equalities Committee recommended abolishing them for anyone with a GRC.

The problem goes then goes away, doesn't it?

Debbie

Debbie
However international human rights best practice requires us to move to a system of self declaration.

Do you mean the Council of Europe Resolution 2048? I understood that this was just recommendations, not a directive.

The problem goes then goes away, doesn't it?

Yes, Debbie, I cannot see how human rights can insist upon handing over access to same sex spaces to anyone who simply says I want that access.

It makes no sense as it is prioritising ease of access to rights they already have via an established act of parliament versus those who would be asked to give up rights if that act were amended.

If there was no existing right of access I would agree that it might be arguable that we should create one. But this is about shifting the goal posts to allow in under the radar those currently unwilling to apply.

The best solution I can see is keep the GRA more or less as it is for the purpose it was designed and with the gatekeeping that without which I doubt it would have even passed in the first place. Certainly not without a fight.

And create a new Gender Identity Act that defines rights of access and protection against discrimination for those who want to just live their lives as they choose.

But without legally redefining them for all purposes of the law which should remain gatekept.

This takes no freedom of choice away from anyone.

Those wanting quick easy self ID for the right to live day to day get that via this new act.

Those who want to legally be redefined for all purposes have ti go the full way and through the checks and balances provided.

Personally I would add some physical transition requirement there too, but I suspect that would not be allowed by international law.

And, crucially for this forum, doing both of the above retains the rights for women of not having to face many more not really transitioned people into their spaces.

Seems by far the simplest way to go. And hard to see who could object. As it gives more or less what everybody wants.

I would certainly like to hear those trans people who say the above does not give them what they want explain why they believe full redefinition under the law without being willing to offer anything back is fair.