Repeal the GRA

[alexpolistigers]

The more I read about it, the more I am convinced that the best solution is to repeal the GRA.

• Gender critical women are not happy with it
• Trans people are not happy with it
• Ordinary people with no skin in the game think it is nonsense.

It seems to me that it is a badly-thought-out piece of legislation. It has created a legal fiction that people can change sex, ludicrous from a biological point of view, and it is badly misunderstood and wilfully misinterpreted. I think we need to start again from scratch.

Errr no, the GRA was a response to the judgement in Goodwin & I v UK in 2002 which concerned art 8 & 12.

Do you see now, Bespin?

If we are going to have these discussions, and patently we should, neither side of the arguement should get a free pass to spout nonsense without being challenged. It is all the hyperbole that reduces the chances of any proper debate, anywhere, anywhen!

Sadly, some posters persist in being a bit free and easy with the realities. I don't mean posters who state something in error and go on to acknowledge this, I mean those who blithely persist in dropping such nonsense in and then rarely, if ever, acknowledging that they were wrong. That devalues any thread!

ECHR rulings are mostly made in the wide context of human rights under the Convention, not on the narrow specificities of any discrimination that may have been suffered by the individual.

In the case of Goodwin(2002) this means that the Court ruled in terms of Article 8:

"6. Striking a balance in the present case

89. The Court has noted above (paragraphs 76-79) the difficulties and anomalies of the applicant's situation as a post-operative transsexual. It must be acknowledged that the level of daily interference suffered by the applicant in B. v. France (judgment of 25 March 1992, Series A no. 232) has not been attained in this case and that on certain points the risk of difficulties or embarrassment faced by the present applicant may be avoided or minimised by the practices adopted by the authorities.

90. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, § 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to be published in ECHR 2002-...). In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal's judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53).

91. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

92. In the previous cases from the United Kingdom, this Court has since 1986 emphasised the importance of keeping the need for appropriate legal measures under review having regard to scientific and societal developments (see references at paragraph 73). Most recently in the Sheffield and Horsham case in 1998, it observed that the respondent State had not yet taken any steps to do so despite an increase in the social acceptance of the phenomenon of transsexualism and a growing recognition of the problems with which transsexuals are confronted (cited above, paragraph 60). Even though it found no violation in that case, the need to keep this area under review was expressly re-iterated. Since then, a report has been issued in April 2000 by the Interdepartmental Working Group which set out a survey of the current position of transsexuals in inter alia criminal law, family and employment matters and identified various options for reform. Nothing has effectively been done to further these proposals and in July 2001 the Court of Appeal noted that there were no plans to do so (see paragraphs 52-53). It may be observed that the only legislative reform of note, applying certain non-discrimination provisions to transsexuals, flowed from a decision of the European Court of Justice of 30 April 1996 which held that discrimination based on a change of gender was equivalent to discrimination on grounds of sex (see paragraphs 43-45 above).

93. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention."

The ruling is clear. The State has a duty to recognise a transgender person's binary sexual identity/gender identity (see para.64 - 65) as determined by their transition for the purposes of domestic law, regardless of the ares of law, where sex is of issue, although it lies within the State's margin of appreciation as to when it does that, although given recent rulings, that margin is narrower than it was. Nonetheless, the State still has a duty under the Convention to ensure that a trans person maintains their Article 8 rights to have the gender identity they've transitioned to recognised as being their sex for the purposes of all areas of the law, not just marriage and pensions.

"Errr no, the GRA was a response to the judgement in Goodwin & I v UK in 2002 which concerned art 8 & 12."

The finding against Article 8 was the big one

I think what all of this proves is that hard cases make awful law.

massivelyouting

how much of Goodwin hinges on the post-op element?

At the time: the State was required to recognise, at a minimum, the new gender (sexual) identity of a post-operative transperson within its margin of appreciation, although nothing prohibited any Contracting State from going further than that (so the UK went further by not requiring a post-operative status for the UK to recognise a trans persons new sex)

Now: Nearly none. The Nicot(2017) ruling determined it was a breach of Article 8 rights for the State to require a trans person to undergo any kind of sterilizing, or potentially sterilizing, treatment as part of the condition of affording that trans person Article 8 rights to have their new sex(gender) recognised in law. Which means that it's doubtful that the Gender Recognition Act would now stand up to a human rights challenge. The State doesn't demand that somebody undergoes sterilizing treatment, but does demand that any applicant submits all their medical history regarding their transition, including details of any sterilizing treatment they've had, or reasons why they haven't had any, refusing to grant a GRC if this information isn't provided. If it doesn't lie within the State's margin of appreciation to demand that this treatment be carried out, then it follows that the State doesn't have the margin of appreciation to demand information about medical procedures that it then can't use in its considerations.

The most obvious possible area of challenge is that it is hard for the State to show that it is within its margin of appreciation to have a more restrictive pathway for our own citizens than it is for other nationals who move here.

We should withdraw or campaign to change treaties and declarations that fudge biological sex. The gloating here, over how women's rights are so easily destroyed, is the product of years of grooming powerful people.

"The gloating here, over how women's rights are so easily destroyed, is the product of years of grooming powerful people."

So you are happy for trans men with beards, testosterone etc to be forced to use women's toilets not the men's, to be on female wards in hospital and to compete as women in sport because you insist they cannot change sex?

So you are happy for trans men with beards, testosterone etc to be forced to use women's toilets not the men's, to be on female wards in hospital and to compete as women in sport because you insist they cannot change sex?

I've got no problem with beards, I have a good few chin whiskers myself.

Ye gods! Where have you heard the word 'force' being used by anyone?

Most of the more prolific posters have been wrestling with the nuts and bolts of this for a long time... the point isn't to force anything other than a full and formal discussion that includes women.

Stop making such hyperbolic statements. If you are really interested engage with what is actually being said...

So you are happy for trans men with beards, testosterone etc to be forced to use women's toilets not the men's, to be on female wards in hospital and to compete as women in sport because you insist they cannot change sex?

Females are females. Males are males. Superficial changes using surgery and hormones do not change a person's sex.

Females taking banned performance enhancing drugs such as testosterone must not be allowed to compete with women. Females who only 'present' as men can still compete fairly with other females.

Males have the right to privacy and dignity too and some really do not want females in their locker rooms/etc. Their feelings should be taken into consideration.

Females who use hormones etc to look more male should be accepted on female wards just like women who naturally have beards, etc.

Sorry if I'm being really thick here but I'm still not getting how Article 8 has meant that people can change their sex legally.

I get that people have a right to express their gender identity but how has that led to people changing sex? Is it all because of the conflation of sex and gender or am I missing something?

Thanks for that comprehensive analysis MeettheNewAccount!

What an irony that (1) the 2002 judgment rests heavily on the idea that, however murky the science, if someone is determined enough to get their genitals removed, their identity was genuine. Hence 'the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.'

But that (2) now the court is saying that it's a breach of human rights to expect any operation?!

I suspect the average person would accept that a post-operative transwoman should be treated as a woman in almost all respects, and so would endorse the 2002 Christine decision.

But I'm sure that the average person is not happy with the implications of the latest decisions.

If you force trans men to use women's facilities, how will you stop predatory men from pretending to be trans men in order to access those spaces?

Whachoosaynow?

Oh! Silly Sunday... as you were Wakame.

Why can't they use the men's, wakame?

Wakame, would you prefer it if all us XX people never accessed female facilities set aside for us? Because that is what will happen.

Women from certain religious communities are already being restricted. Girls lives are being curtailed. As a mother, I have to consider the safety of my daughter before the potential hurt feelings of a stranger. If I know that she may face biological males in the changing rooms, then I will not allow her to go swimming, for example. This is not bigotry: it is years of experience of the behaviour of men who know they can get away with it.

This is what the GRA is leading us to.

"Wakame, would you prefer it if all us XX people never accessed female facilities set aside for us? Because that is what will happen."

We already have a GRA, the women's facilities already have trans women in them and have done for years. And yet I still had to queue for the women's toilet at Heathrow and Waterloo station a couple of weeks ago. So I don't know exactly when this mass exodus of females from female spaces is going to happen, but I haven't seen any evidence of it yet.

I do however favour a third, single person toilet for transphobes. Until we have gender neutral toilets of course, which I think is the ideal.

"Why can't they use the men's, wakame?"

They can, but if trans people were restricted to facilities that correspond with the sex they were assigned at birth, they would have to use the women's facilities.

Will you please get your thoughts out of everyone's knickers!

Reducing this to where we piss is not the point! As well you know.

"Will you please get your thoughts out of everyone's knickers!"

Now there's a piece of solid advice for transphobes ;-)