Stephanie R. Hayden essay posted on Stephanie Hayden's blog 'JudicialCat' Discussing Politics, Housing, Law, and Current affairs
(includes live link to author's Twitter account flyinglawyer73)
Saturday, 18 August 2018
'Gender Recognition Certificates: Why the Feminists and the Trans Rights Activists Have got it Wrong'
(extract)
"All of the evidence is submitted to a panel comprising of legal and medical professionals who then determine the outcome of the application. If successful, the panel awards a “GRC”. From the date of the “GRC” the holder, for all purposes, is of the gender specified on the certificate[11]. The “GRC” also has the effect of changing legal sex. A holder of a female “GRC” becomes a woman with the holder of a male “GRC” becoming a man[12]. There are some exemptions to this concerning parental status, inheritance of peerages, and gender-specific criminal offences[13]. The “GRA” is prospective[14], in other words the change of gender (and thus legal sex) has no retrospective effect. (continues)
It was this case that directly led to the enactment of the “GRA”; however, prior to enactment the House of Lords was called upon to determine the case of Bellinger v Bellinger[21]. What was a woman for the purposes of marriage was again the focus of the question to be determined by their Lordships. Considering Corbett[22]their Lordships arrived at the same answer as Ormrod J over 30 years earlier; namely, that it was a person’s biological gender as determined at birth that mattered. In the context of the contemporary debate about “GRA” reform the comments of Lord Nicholls are well worth considering[23].
“The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilise the female's eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction.” (continues)
When one considers the legal effect of being granted a “GRC” and considers the comments of Lord Nicholls (albeit prior to the enactment of the “GRA”), it can be argued that those consequences are far more than being permitted to obtain a new birth certificate. The legal status of whether one is considered male or female by society is profound. If law is accepted as normative, and a reflection of the values of society as a whole, then it must follow that the legal status conferred on the citizen must be objective in nature and not based solely on one’s own subjective identity. Consider at birth that one’s parents do not have any subjective say on the gender and legal sex assigned to a new born child. That is objectively assessed by a medical practitioner and endorsed on behalf of the state by the registrar when a birth is registered. It can therefore be argued that the transgender person should not expect to be able to subjectively determine their legal sex. " (continues)
About the Author
Stephanie is a male to female transgender person holding a Gender Recognition Certificate. She is a Bachelor of Laws and has been in legal professional practice since 2008. Stephanie practices in employment law and regularly appears in the Employment Tribunal. In 2012 she was granted a special right of audience in the High Court to represent a defendant in the case of Hardy v Jones & Others. Stephanie has appeared on BBC News in her previous legal gender to discuss the Royal Bank of Scotland computer crash of 2012 and regularly makes contributions on radio. She has written for both the London Evening Standard and the Daily Star."
judicialcat.blogspot.com/2018/08/gender-recognition-certificates-why.html