Is the concept of 'Legal' sex dead and burried?

[Apollo441]

On the back of the Supreme Court judgement, is the concept of 'Legal' sex introduced by Lady Haldane now defunct. i.e there is no such thing as legal sex now.

I don't think so. Not as long as the GRA still exists.

I agree. We’ve won a huge battle, but the war isn’t over yet. We will have to quote this ruling for some time to come and that will include using the phrase ‘legal sex as state in the Supreme Court ruling of April ‘25’.

The judge used the term certificated sex. Not sure how language will change.

Maybe we can sway society’s use of the term ‘legal sex’ and start referring to TIMs/TIFs as people with a ‘certificated sex’?

Maybe there’s a clue in the name ‘GRA’. It’s a certificate which recognises ‘gender’, it should be seen as completely separate to sex.
It should protect gender nonconforming/gender dysphoric people against genuine discrimination due to their gender presentation.

I think it's still meaningful for the Register of Births Marriages & Deaths and for applying the SSEs, because they are asymmetric as between people with and without GRCs. Or are they?

I can't quite make it out, to be honest
In the judgment, it does say that

"Although many provisions of the GRA 2004 have been overtaken by other legislative developments, we consider that the Act continues to have relevance and importance in providing for legal recognition of the rights of transgender people. This recognition of their changed status has practical effects for individual rights and freedoms (including, for example, in the context of marriage, pensions, retirement and social security) but also in recognising their personal autonomy and dignity and avoiding unacceptable discordance in their sense of identity as a transgender person living in an acquired gender."

So, the GRA serves a purpose in making GRC-holders feel good... Ok... But I don't really get how it would affect marriage nowadays, and as for pensions and retirement, I don't really see how a different pension age is justifiable given today's ruling... I don't really see how the scope of a GRC can go beyond letting people change their birth certificates for the purpose of a "sense of identity" and privacy, and even those things are in reality precarious, because if it's obvious that the GRC-holder is not the sex they claim to be, they can still be excluded from single-sex provisions.

But Lord Hodge said that trans people have protection against discrimination and harassment whether or not they have a GRC.

It's a piece of paper that gives the holder no additional rights. Pointless.

I think if the GRA isn't repealed it will in time become one of those laws that languishes on the statute book like a defunct appendix that noone can be bothered to cut out.

Except that the intention of the GRA was that people could actually legally change sex.

Section 9, subsection 1
"Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)."

True. It shouldn’t be necessary.

I think, despite saying "for all purposes", there was then a list of exclusions (like women inheriting titles) and a statement to the effect that other laws might curtail this too.

Doesn't it suggest that people have 2 sexes - a biological one and a certificated one. They can be the same or they can be different.

Which sex matters depends on the circumstance.

However this brings up a new problem, of how is bio sex proven? Because birth cert sex isn't a reliable indicator of bio sex any more. This is the mess we've made. Birth cert sex used to mean bio sex, because birth cert sex was based on a test for bio sex. Now birth cert sex is based on the bio sex test until 18, and after that, adults get to choose. Not changing the sex marker is a choice. Any of us can apply for a GRA, because anyone can do what is required to meet the criteria.

What we're facing now, is a women only service using this ruling to exclude a man with a GRC, and the man saying prove I'm a man (as my understanding is that you can't ask about the existence of a GRC because his right to privacy means you can't do that - he's allowed to conceal documentary evidence of trans status).

The wang about GRA only changing gender doesn't wash because it's used to change the sex marker on the birth cert.

I think the affect on marriage is that a man pretending to be a woman is registered as female on the marriage cert, so he and his husband, on paper, are registered as a heterosexual couple. We're told this is extremely important for the individual - to have their pretend sex on the paperwork. To have their real sex on there is undignified.

I think that the upshot might be that everyone is allowed to have both single-sex and trans-inclusive things, to serve various purposes including being nice to trans people. But they are two different things, and trans can't insist on admission to the single-sex thing on the basis that they have changed sex.

I'm confused about this part too. Let's say two individuals, who both look biologically male in appearance, turn up at a women's support group. They say they are women. The group organisers say "prove it". They produce ID in female names. The group organiser says "anyone can do that". One of them has a GRC and produces a birth certificate with a female name. The group organiser says "well, anyone can do that too, if they jump through the right hoops". What breaks this stalemate? The judgment seems clear that neither male has a right to be there, but if the only evidence of someone's sex is their (obvious) appearance and voice, do you actually end up in court having to say "of course he's male, he's six foot four with a baritone voice and five o'clock shadow"?

Basically, I'm just saying what you said, trying to digest it!

"Certificated sex" is actually rather clever. It can refer to the sex on a Gender Recognition Certificate and/or a falsified birth certificate.

It may have been relevant before the legalisation of same sex marriage. It shouldn’t matter now.

One unintended consequence of this inconsistent mess unravelling might be that the case for transwidows to obtain an annulment might be seen as unecessary - after all, their husbands haven’t changed sex.

If legal sex is biological then legal documentation needs to reflect that.

There would need to be a sex category on documentation that recorded biological sex and then a gender category that recorded chosen gender.

Can't see it happening soon - can you?

This was alluded to in the handouts version as part of the problem, so maybe the full judgment will call on government to sort it out.

CheekySnake I absolutely agree that amending people’s original birth certs is problematic, was a terrible way to do things and should stop.

However, on a practical level, I don’t think this changes much in terms of the power a female-only space would have to eject a biological male. Even if the GRA had never existed, a biological male could potentially present in such a way as to gain access to a female-only space and go unnoticed.

Realistically, it’s not like women are asked to show a birth cert for entry, so it will always depend on the biological male being recognised as such to be denied access. The advantage given this ruling is that the manager of the space has the legal right to operate a space for females, and they will likely feel more confident in questioning or challenging a person whose biological sex is difficult to determine at first glance.

While that’s obviously great for protecting female-only spaces, I suspect the consequence will be an increase in GNC women being challenged for a while, because as you say, the GRA means none of us can use our birth certs or other ID to definitively prove our actual biological sex one way or the other.

No, probably not.

what needs to happen, I think - first step is that in order for things to be consistent and coherent we should return to documentation (passports, NHS records, crime records etc) recording sex. Then if it’s deemed necessary, add the ‘gender’ information. That obviously shouldn’t be M/F - if it exists as a clearly separate concept it can accommodate nonbinaries/‘gender fluid’ in a way that the current system doesn’t.

Sex is binary, as the court and reality say. ‘Gender’ can be as multifaceted as human individuality!

Agree @ErrolTheDragon that there should just be an addition in brackets for the gender identity part that would make it clear the difference.

So W (NB) or M(TW) or W (GF) or just W for the majority who don't need any add ons.

I don’t think it’s all overturned yet but we should try to get to the place where we get out of this GRA mess.

By that I mean no certificate just no discrimination based on presentation. The idea of changing sex hasn’t worked for society, and mostly it’s been harmful for women.

What breaks this stalemate? The judgment seems clear that neither male has a right to be there, but if the only evidence of someone's sex is their (obvious) appearance and voice, do you actually end up in court having to say "of course he's male, he's six foot four with a baritone voice and five o'clock shadow"?

I guess if the person is a biological male, their lawyer would advise them they will lose at court as the law is now clear, so the only cases likely to make it to court would be those where a woman has been denied access on the basis of their GNC presentation.

That said, I think this would only really be an issue for online spaces, as it’s typically quite straightforward to tell a GNC woman from a man in person (assuming no cross-sex hormones) in the vast majority of cases, at least.

@ErrolTheDragon I strongly agree we should return to recording sex and not gender for all stats, passports, etc, which I suspect will be a necessary consequence of today’s ruling as organisations will have to do this in order not to discriminate on the basis of actual sex now.

However, while it makes sense to collect additional stats on gender identity where appropriate, I’m strongly opposed to the notion of recording people’s inner gender feeling on official documentation such as passports, for two main reasons:

1. because legal documents are supposed to record objective facts, and an inner sense of gender identity (which can change for all sorts of reasons and is completely subjective) isn’t the type of information such documents are designed to handle; and

2. it means there would be a field on all of our passports for gender identity, thus implying that everyone has one. This would be like having a passport category for which denomination of Christian we are, which just doesn’t work for the people outside of that religion.