What do you think should happen to the Gender Recognition Act (GRA)?

[TERFisTHEnewTREND]

Personally, I can't believe this act was ever passed! I know 2004 was a different time, but still!

I believe that the only way of moving past the gender madness in law is to revoke the GRA. "Gender" is about as useful as someone's favorite type of music, so it has no place on a legal document.

As for what should happen to those who already have a GRA... well, I think some of them are owed an apology by those who told them that this piece of paper would change their sex (which it doesn't).

What do others think?

It bears repeating that the GFA has absolutely nothing to do with gender or single sex spaces, and so there is absolutely no reason why we cannot maintain the obligations under it whilst dealing with the issue of gender and single sex spaces.

It's also worth noting - and I say this as an ardent remainer who warned before the referendum that leaving the EU could have serious implications for the GFA - that it would not be the first time the UK had left an international treaty that was baked into the GFA, and a workaround had been found.

Also law is about intention too. It was never ever the intention of the court to take rights away from women or for any man to be allowed in women spaces. It was about extreme edge cases who are considered to be so mentally unwell society can treat them the other way as a kindness. Only for dysphoria so bad multiple Dr's agree to surgery because there is no other way to improve their life.

Never was it intended to destroy privacy and dignity for females by saying men can do literally anything they want if they claim they feel like a woman!

Did i detect a whiff of “mansplaining” to@MargotBamborough

i swear i did, maybe i am wrong

Just want to throw in the observation that I've been lurking here for maybe 5 or 6 years, and it's notable how far views have shifted.

5 years ago, I don't think there was majority support here, or among women's rights campaigners more generally, for GRA repeal - it was a minority view. Not a small minority, but a minority. Most people on this side of the general issue thought the status quo - GRA without self ID - was tenable.

I think it's become increasingly clear that we have to remove the inch to take back the mile. Not least with the recent Haldane judgment suggesting the GRC is more powerful than previously thought.

(Myself, I was rather on the fence 5 years ago. I'm now firmly in the "no legal sex falsification" camp, so yes, repeal the GRA and anything else needed to achieve that.)

No I’m not. Because even if I disliked the GRA, I would not think putting the UK in the company of Belarus and throwing away the Good Friday Agreement is a price worth paying so that about 8000 trans people can’t change their birth certificate.

It seems that Planet doesn’t have the case law to hand so I’m looking to see what I can find.

Here’s a report which provides an overview of the case law.

https://rm.coe.int/thematic-report-on-legal-gender-recognition-in-europe-2022/1680a729b3

I’ve cut and pasted that section, below…..

19. European and international case-law have set out important bench- marks regarding LGR, although existing legal standards do not explicitly refer to transgender and intersex persons.

20. The European Court of Human Rights (the Court) is the judicial institution that has dealt with the largest number of cases related to gender identity and transgender persons. It has embraced evolving social realities and affirmed a right to self-determined gender as an essential manifestation of the right to protection of private life (Article 8 of the European Convention on Human Rights, ECHR). The Court has issued landmark decisions, offering minimum standards for the protection of transgender persons (see below).

21. In its landmark judgment, Goodwin v. the United Kingdom (2002)23, the Court ruled for the first time that the applicant had a right to gender recog- nition and established the corresponding obligation for the State to secure that right.

22. This was the first of a series of judgments in which the Court has further reviewed the means employed by States to comply with their obligation to provide for Legal Gender Recognition (LGR). The following paragraphs detail the requirements for LGR which the Court considered to be in breach of Article 8 of the ECHR on the right to respect for private and family life.

23. For the Court, any requirements of irreversible changes in the individual’s metabolism would amount to a violation of the right to private life (Article 8 ECHR): this includes medical intervention, or sterilisation requirements.[ …] ECRI recommends that “relevant legislation is amended to allow gender changes in personal documents, without the requirement for completion of full medical gender reassignment proce- dures, particularly surgery”. […] In its most recent judgment, X. and Y. v. Romania (2021), the Court moved towards greater recognition of self-determination to transgender persons: it established that conditioning LGR to gender affirming surgery in a case where the applicants refused such surgery on the ground of the invasiveness of the medical procedure itself (regardless of its impact on fertility) violates Article 8 of the ECHR.

24. The Court acknowledged that the requirement for married transgender applicants to get divorced before having access to LGR leads to daily situations in which a transgender person faces “inconveniences”. When in the case Hämäläinen v. Finland (2015) the Court found that a divorce requirement was not disproportionate, it was due to the availability for the applicant of a genuine option that provides legal protection for same-sex couples almost identical to that of marriage: “if the applicant wishes both to obtain legal recognition of her new gender and to have her relationship with her wife legally protected, Finnish legislation provides for the possibility to convert their marriage into a registered partnership, with the consent of the applicant’s wife”. (§ 77).29 I

25. In its jurisprudence, the Court reviewed the time span between apply- ing for and being granted LGR and found that a transgender person’s right to privacy had been violated due to the excessive duration of the proceed- ings. The Court highlighted that rigid and long judicial LGR procedures leave transgender individuals vulnerable and are contrary to the aims of the ECHR31, and that protracted examination of a claim has long-term negative consequences for mental health.

26. In several cases, the Court addressed issues of legal clarity both in terms of language and responsible authorities and concluded that the lack of clarity of the legal framework on LGR amounted to a violation of Article 8. It did reach such a conclusion for example when noting that national courts reached very varying conclusions about the conditions and procedure for LGR33, or when it observed that any conclusion on the applicants’ request would be “precariously close to speculation” hence creating a situation of legal uncertainty for the applicants. The Court also noted that transparency is lacking when “no provision clearly specifies the body that has jurisdic- tion to decide on a request”.

27. Explicit or implicit age restrictions may obstruct the best-interest-prin- ciple for young as well as elderly transgender persons. In Schlumpf v. Switzer- land (2009), the Court held that the personal circumstances of the persons should be prioritised over a mechanical application of the law.

28. In conclusion, the Court’s case law has dynamically evolved since it declared a violation of Article 8 concerning the recognition of transgender persons for the first time almost 30 years ago in the case of B. v. France in 1992.37 What was considered a breakthrough at the time needs to continu- ously evolve not only to reflect the evolution of societal norms and attitudes with regard to gender identity but to offer genuine protection to all, includ- ing transgender and intersex persons.

footnotes:
19. The Court dealt with the issue substantively for the first time in 1986 in Rees v the United Kingdom.
20. There have also been debates as to whether the Court was providing transgender persons with all necessary protections, particularly when using the concept of ‘European consensus’. See for an analysis of the Court’s case-law, including its use of the concept of ‘European consensus’ Polgari, Eszter. “European Consensus: A Conservative and a Dynamic Force in European Human Rights Jurisprudence “ ICL Journal, vol. 12, no. 1, 2018, pp. 59-84, Pieter Cannoot, The pathologisation of trans* persons in the ECtHR’s case law on legal gender recog- nition Netherlands Quartely of Human Rights,Volume 3, Issue 1, 2019, pages 14 to 35. See also the joint dissenting opinion of Judges Sajó, Keller and, Lemmens drawing attention to the weakness of the majority’s argumentation on the lack of European consensus in Hämäläinen v. Finland (Application No. 37359/09, ECtHR), 16 July 2014

. The Commissioner for Human Rights had had a pioneer role in addressing issues of equality for transgender persons in its Issues papers, ECRI is also addressing the issue in its country monitoring reports. In its judgments, the Court usually refers to PACE resolutions, includ- ing Resolution 2048 (2015), as well as CM/Rec(2010)5 (paragraph 20 to 22) which inter alia recommends to member States to review prior requirements for legal recognition of gender recognition.
22. See Guide on Article 8 of the European Convention on Human Rights Right to respect for private and family life, home and correspondence, page 43, para 167. Among these: B. v. France, § 63; Burghartz v. Switzerland, § 24; Dudgeon v. the United Kingdom, § 41; Laskey, Jaggard and Brown v. the United Kingdom, § 36; P.G. and J.H. v. the United Kingdom. www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf.
23. Goodwin v. the United Kingdom, (Application No 28957/95, ECtHR), 11 July 2002, hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-57974%22]}. Goodwin, who had undergone sex reassignment surgery, was denied an amended birth certificate showing her female legal sex marker. As a result, she was unable to access core legal and social benefits in the United Kingdom, including retirement guarantees and marriage

26 ECRI 5th cycle recommendations, available at https://rm.coe.int/5th-cycle-ecri-recommendations -on-lgbt-issues/16809e7b66.

S.V. v. Italy, 11 October 2018, (application no. 55216/08, ECtHR), paragraph 72. Following the judgment of the Court, the situation in Italy is reported to have changed substantially. 32. X v. the former Yugoslav Republic of Macedonia, 17 January 2019, (application no. 29683/16,
ECtHR), paragraph 70.
33. X. and Y. v. Romania, 19 January 2021 (applications no 2145/16 et 20607/16, ECtHR), para-
graph 162.
34. X. v. the former Yugoslav Republic of Macedonia (2019), para 69.
35. Schlumpf v. Switzerland, 9 January 2009 (application no. 29002/06, ECtHR) concerning the
applicant’s health insurers’ refusal to pay the costs of the reassignment operation on the ground that the applicant had not complied with a two years period requirement before the surgery in order for the costs of the said surgery to be reimbursed. The Court held that this was a violation of Article 8 as the waiting period had been applied mechanically without regard to the age of the applicants (67) and that this would impact the applicant’s decision to undergo surgery, see also D.Ç. v. Turkey, 7 February 2017 (decision on the admissibility) (application no. 10684/13, ECtHR): the applicant, a transgender person whose reassignment has not yet been carried out, complained of the refusal of the authorities of the Ministry of Justice to bear the cost of the reassignment despite medical evidence which was submitted, clearly showed that the applicant urgently needed treatment.

It’s an interesting discussion

It’s a bad law with consequences, these are mounting and becoming more obvious year on year

No consent was given and it may well be women vote in a way to get their sex based rights back. All the people who failed to consider the implications or pushed women without getting that consent can think about why they forgot to check we were ok with it.

It is that arrogance and anti women dismissiveness which is the failure

8000 trans people? And the 51% if the population whose rights are adversely affected by sex falsification just don't exist, I suppose. Its not about trans people ffs. It's about women.

But 8000 trans people have no issues with compromising the Good Friday Agreement by having a fight about whether they should have the legal right to falsify their legal documents and making the general public lose support for remaining in the ECHR?

Or does it not work that way?

In any case, as I alluded to above, we managed to leave the EU and find a workaround for the Good Friday Agreement, despite the fact that leaving the EU made having an open border incredibly tricky from a legal point of view. If we managed to do that, we can definitely find a workaround to preserve the Good Friday Agreement whilst agreeing to differ from other countries in respect of the completely irrelevant issue of whether people should be allowed to lie about their sex and have the rest of society participate in that lie.

I never said the sex markers must be changed ‘on request’. States can create a process - even a fairly onerous one as is the case in the UK - so there is not a right for example to self-ID.

But the right to have a process to change sex markers is not established in just one specific case - it has been established and built on in nearly 20 cases since Goodwin was decided twenty years ago.

There’s a graphic too, on page 18. Copy and paste lost the formatting but here’s the text

INTERNATIONAL HUMAN RIGHTS LAW BENCHMARKS

RIGHT TO SELF-DETERMINED GENDER IDENTITY

STATES' OBLIGATION TO LEGALLY RECOGNISE ONE'S GENDER IDENTITY

FRAMEWORK FOR COMPLYING WITH STATES' LGR OBLIGATION

• DEPATHOLOGISATION
• AGE INCLUSIVE
• NO DIVORCE REQUIREMENT
• QUICK, TRANSPARENT AND ACCESSIBLE PROCEDURE

(including for non-nationals residing in the country).

I note that it says “gender identity” not “sex markers”.

Case law evolves, Janette, as you keep pointing out.

Bad law can be overturned.

There is nothing actually in the treaty which gives men the right to fake IDs.

This is interesting. Page 19.

“32. Several Council of Europe member States, including the four countries participating in the review project have engaged in improving their LGR pro- cedure (or lack thereof) and have used existing Council of Europe support to steer legislative work towards ensuring that access to LGR is based on the declaration of the person with no additional requirement (self-determination model). For all four countries, building consensus on a bill on LGR continues to be a challenging undertaking: the pressure of opponent forces, whether in Parliament, in a coalition government or among high level decision-makers may indeed lead to a lowering of the required level of protection granted to transgender persons in LGR.”

This is so so concerning. This court basically is saying men or boys can say they want to be or are a girl and then states have to pay for plastic surgery? Wtf?

Age inclusive meaning let kids be groomed by rainbow families and schools.

No divorce, as long as consent is actually given might be ok but seems dangerously like abuse and being forced to stay married.

Quick access to procedures meaning no therapy to see why they want to mutilate their body to the point of likely disability, no sexual function and loss of healthy life years.

I note no mention of articles 8 right to private life is considered of all the women in sport or toilets, who these handouts are causing issues to more than one article.

The more I see the more I think we should certainly leave this court, they are pushing through insanity.

WHERE IS THE COURT GETTING THIS FROM?

There's interpreting the law and then there's just fucking making shit up.

And I’ve told you that twenty years of jurisprudence doesn’t get overturned in a normal precedent based system.

But by all means if your position is that we should wait for ECHR case law to evolve before repealing the GRA, that’s fair enough. I think you’ll be waiting decades and decades but you do you.

I think it will be a lot quicker than that if these judges know what is good for them, i.e. they don't all want to be out of a job.

The issues with the GRA are about the needs of 52% of the population. Not, oddly enough, those few thousand people with penises.

Mind you, will make a wordy if helpful new definition of the female sex: the ones responsible for sacrificing themselves for the GFA by submitting to inappropriate enforced penis.

The desperation to prevent women having any space away from these penises is quite amazing.

Advancing the very limited rights in the GRA did not necessitate leaving the ECHR. So those who did so did not in any way impact the Good Friday Agreement.

Those arguing we should leave the ECHR to repeal the GRA are directly advocating ripping up the Good Friday Agreement because you can’t do one without the other.

It's quite staggering the GFA managed to happen without anyone being explicit about the penile requirements at the time.

We clearly need to leave. That graphic is disturbing. The current case law is so clearly wrong for women it's madness. How the fuck has this happened? Who works there? Is it very unpopular as a job for lawyers so easy for activists to fill up like the UN?

Literally every one of those points is so obviously not ok, to push surgery, the age thing is so awful. They almost of them contradict other articles. What a mess. Law is a joke. It's all a social construction we make up anyway, then fight about interpretation.

I find it really really hard to believe the judges made these decisions, they are so bad for women.

And there’s this.

Age Limits

38. There have been on-going discussions in some Council of Europe member States about reconsidering age limits for LGR, especially since age- limits may lead to young transgender persons facing rejection, exclusion or other problems from their environment in everyday life. The paragraphs below focus specifically on the steps taken by some States to ensure a more flexible approach to LGR for children.

39. These include States like Malta or Luxembourg where the legal frame- work on LGR is without an age limit. Emphasis is placed on the maturity and development of the child. Court procedures for those below age 16 (Malta) and for those below age 5 (Luxembourg) follow specific procedural safe- guards: In Luxembourg, the law foresees that in the event of disagreement between the parents of a child aged five years, the most diligent parent applies to the competent authority which rules in the interests of the child. In Malta, the child must have parental consent or the consent of the per- sons exercising parental authority or the tutor in order to initiate the request. The person exercising parental authority, or the legal guardian, must file an application in the registry of the Civil Court requesting the Court to change the recorded sex and the first name of the child with the express consent of the child. When the application is made on behalf of a child, the Court must: (a) ensure that the best interests of the child as expressed in the Convention on the Rights of the Child are the paramount consideration; and (b) give a due weight to the views of the child having regard to the child’s age and maturity.

40. Others have included children while keeping some age limits. Legislation in Norway for example provides that LGR is possible at any age but imposes certain conditions according to age groups. Children between 6 and 16 must apply together with the person or the persons who have parental responsibility of the child. For children under the age of 6, the application must be filed by the person who has the parental responsibility for the child. If the parents have shared custody, but the application is only filled by one of them, the legal gender may nevertheless be changed if this is in the child’s best interest.

https://rm.coe.int/thematic-report-on-legal-gender-recognition-in-europe-2022/1680a729b3

The GRA is bad law and should never have been passed.

If repealing it necessitates leaving the ECHR then the ECtHR should probably give some thought to whether this is the hill it wants to die on.

Because, despite being a lifelong advocate of national governments being held to account over human rights by appropriate international institutions, I take the view that if we have got to the point where the judges responsible for ensuring compliance with the treaty are reading things into it that aren't fucking there and throwing women and girls under a bus in the process, the system has broken down and we are better off out of it.

Oh and on Brexit solutions - UK membership of the EU was never a requirement of the Good Friday Agreement. So Brexit caused practical difficulties that required creative solutions - but was not inherently incompatible with the UK’s obligations under the Good Friday Agreement. And even then the solution has caused years of instability and disorder that are still not resolved.

By contrast ECHR membership is actually an obligation of the GFA.

What exactly is your problem?
Also why do we need the gfa to stay the same forever? Are you trying to threaten us?

If NI could ever get it together to have a sitting government they might get further. Constant threatening to start terrorism in the UK again because you hate that women won't pretend some men are girls?

Are we meant to worry we will be car bombed? What will the people do if we do leave, start a war? Really? Within our one country? This argument is so odd.