This article is about gender and the law. When I asked several friends, politicians and journalists, about writing it, they all said the same: don’t. It will go badly for you. And that is why I’m writing this. In fact, that’s what I’m writing about: fear. The fear that persuades some people they can’t say what they think about something, or even ask questions about it. Fear that prevents proper discussion of public policy and the public interest. Fear that chills debate.
I’ve been a journalist for 20 years. I belong to no party and I have no allegiances or affiliations. I don’t have an agenda or an axe to grind. I just think this is important and I’m worried the law on the recognition of gender is not being debated properly: when should state and society consider a person to be a woman or a man? What about people who wish to change the gender they are recognised as having? Mostly, for reasons largely beyond my scope here, that means people who were in the past recognised (in law) as men, and who wish now to be recognised as female.
As things stand, if you are legally recognised as male and wish to be legally regarded as female, the law for you is the 2004 Gender Recognition Act (GRA). It allows for the issuing of a gender recognition certificate subject to conditions: you need to live as a woman for at least two years, and have your transition confirmed by a doctor, who either diagnoses gender dysphoria (a medical condition) *or* affirms that you’ve had surgery to change your sexual characteristics.
Some find this law unreasonable. They object to having what they see as a matter of personal identity ‘medicalised’: why should they need a doctor’s approval to be recognised as the person they feel themselves to be?
Some want to change that law. In parliamentary terms, that case starts in earnest with the 2016 report of the Women and Equalities Select Committee chaired by Maria Miller. It said that the current GRC process ‘pathologises’ the identity of those who wish to change gender and infringes on their dignity. As a result, ‘the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration’.
I’ve covered more select committee inquiries than I can count and submitted evidence to a few. The Miller report is not a good example of the type: it relied on too few sources and treated them uncritically. A report of such limited quality is not, I politely suggest, the strongest foundation on which to build the case for a change in the law. But lots of other people took it seriously, including the Government, which was, last year, poised to issue a formal consultation on moving towards a system based on self-declaration of gender.
That consultation is now on hold. But that does not mean the idea of self-declaration is dead. Far from it. Among politicians who talk publicly about this stuff the direction of travel is towards a law allowing people to change gender without the approval of a doctor, or anyone else.
This is the emerging orthodoxy on gender, and I choose that word ‘orthodoxy’ quite deliberately. This orthodoxy is most obvious in the Labour Party. Jeremy Corbyn has called the GRA ‘invasive’ and suggested backing a system of self-identification to replace it. On the Andrew Marr show recently he was asked: ‘Do you think that a self-identified transgender woman is a woman?’ He replied: ‘Yes.’ Whether that position is consistent with the current law is open to question.
Would it matter if everyone could simply choose their own legally-recognised gender? To advocates, this is no big deal and a matter of fairness: people are who they are and who they *say* they are, so the state and society have no right acting as gatekeepers, imposing curbs or rules on that identity. Anything else is injustice and prejudice.
On the other side, there are people who think this is a big deal. A very big deal. A person’s legal gender has implications for more than that person. It is not merely a badge or label. It carries rights and entitlements.
If you are legally recognised as a woman, you can do things that men cannot. You also have certain protections in law that are not applicable to men. You are treated differently under the law and more widely. Where should an incarcerated person who was born male and now regards themselves as female be jailed? Should charities offering secure havens for women fleeing domestic abuse offer their services to someone who was born male and now considers themselves female? Who can use the bathrooms and other spaces set aside for women?
To those who worry about this, the prospect of women’s prisons, refuges and toilets being open to a person who was born male and now says they are female and who is entitled to enter those women-only spaces *solely on that person’s self-declaration of gender* is profoundly troubling. They fear that such rules could easily be exploited by men who were not genuinely conflicted about their gender but simply wished to gain access to women’s spaces and rights for some other malign purpose.
Some jobs are reserved for women; should they be open to a person who was born with a male body and who retains male physiology solely on the basis that this person declares ‘I am female’? Ditto scholarships, prizes and other resources available to women. Likewise sporting contests.
There are also statistical questions about crime rates (people born male who don’t alter their hormonal balance probably commit, on average, more crimes than people born as women; including significant numbers of such people in the legally-recognised female population could, in theory, skew the female crime figures) and the life-expectancy estimates that underpin some pension policy. Might figures on gender pay, in due course, be skewed?
In politics, who should qualify for all-women shortlists? Who can serve as a women’s officer? Would allowing someone who was not recognised as female under the GRA to hold such a post be compatible with current laws?
These are all reasonable questions, to which I cannot offer definitive answers. Advocates of self-declared gender laws might answer them thus:
‘These are fair questions that deserve properly considered answers. We hope that the reality of self-definition won’t live up to your fears, and international evidence suggests it won’t. After all, we’re probably only talking about a very small percentage of the overall population. But we take your concerns seriously so let’s talk about a set of rules that meet our demand for greater dignity and respect for people who want to change gender, while also answering your well-intentioned questions about potential risks and costs to others. Because we accept that there are different groups of people here who hold differing views and who all have legal and moral rights, rights that might potentially end up in conflict if we don’t get this right.’
But that is not how political debate about this issue is being conducted. Far from it. The actual debate about gender law is horrible, a minefield of anger and accusation into which many people choose not to step.
I know MPs, in more than one party, who privately say they will not talk about this issue in public for fear of the responses that are likely to follow. The debate is currently conducted in terms that are not conducive to – and sometimes actively hostile to – free expression. As a result, it is very unlikely to lead to good and socially sustainable policy.
Thus far, the prevailing response to the people who ask those reasonable questions has not been anything like the one I sketched out above. It has been aggressive and dismissive, and often includes words like ‘bigot’ and, especially, ‘transphobic’. The people who ask those questions about the implications of self-identification — or merely report that those questions have been asked by others — are apt to find themselves accused of hateful prejudice on a par with homophobia or racism.
For some people, trans-women (i.e. people who were born male and now identify themselves as women) are a distinct and persecuted minority, a group deserving of recognition and respect just as non-white and non-heterosexual people are. To deny them the ability to define and assert their own identity as women is thus as bad as, say, denying gay people the ability to have sex with and marry the person of their choice.
This is powerful rhetoric. Not many people now want to be seen as opposing gay marriage and quite right too. The case for gay marriage was unanswerable since no-one is harmed by letting gay people marry. No one’s rights are infringed, since there is, lest we forget, no right not to be offended.
Which is why comparing self-declared gender to gay marriage strikes me as inaccurate. Unlike gay marriage, this is a policy that could affect the rights of others. It demands careful consideration. It’s not getting that consideration though, because a lot of the people who are asking those questions above are being shouted down and dismissed as ‘transphobic’, or cowed into silence by fear of the same.
This is most obvious in Labour. Under the direction of Mr Corbyn and the new NEC, Labour is becoming a party not just unwilling to engage with those questions above but actively hostile to those who ask them. Some party members recently tried to raise money to fund a legal challenge to ask whether a policy of self-definition was indeed compatible with laws like the Equality Act 2010. It was supported by people including Jolyon Maugham QC, a thoughtful former Ed Miliband adviser who is about as far from being a nasty bigot as a person can get; he thought the challenge had a fair chance of success and was a fair question to ask the courts.
Labour doesn’t see it that way. Several of the Labour funders of the challenge say they have been suspended by the party. Others have been accused of ‘transphobia’ and inciting hatred. Lists of funders, including their personal details, are circulating online among people supportive of self-identification, some of whom are said to be pressing for retaliation against those on the list. Writing recently in the Morning Star, Trish Lavelle, a longstanding trade union activist, described the approach being taken in Labour circles as McCarthyite.
In Tory circles too, it can be risky to question the orthodoxy. Maria Miller has been pugnacious in her approach to those who question her committee’s recommendations, talking of ‘women purporting to be feminists’ and accusing them of ‘extraordinary’ hostility to the trans community. More recently, David T.C. Davies MP was accused by his own party’s LGBT group of ‘transphobia’ for saying:
‘Somebody possessing a penis & pair of testicles is definitely not a woman.’
The response to Mr Davies was not one favourable to enlightened debate. It did nothing to explain or educate. It merely told anyone who agreed with him – a group which I suggest would, rightly or wrongly, include a large proportion of the electorate – that they were a transphobic bigot. This is why some MPs avoid this debate. They feel they have only two choices: embrace the orthodoxy and back self-identification; or question it and be labelled ‘transphobic’.
The current ‘debate’ strongly discourages politicians from trying to discuss options that lie somewhere on the spectrum between the status quo and the shift to full self-identification. That is the definition of a chilling effect.
The same is true of journalists. Many steer clear of this issue. Others waive critical faculty and embrace the orthodoxy, producing reporting that falls short of honesty and accuracy. So the field is largely left to rhino-skinned provocateurs like Rod Liddle and Guido Fawkes. Those who try to engage with less polemical intent are rewarded with unfounded accusations of bigotry. Just ask Helen Lewis of the New Statesman and Janice Turner of the Times. Both have done their jobs as journalists and asked questions about this issue. Both are routinely smeared as ‘transphobes’.
In short, an important policy is up for change, but is not fully debated because many people are staying silent for fear of expressing the ‘wrong’ views and being stigmatised. That’s dangerous. Giving the final say to the people who shout loudest risks producing bad policy. It risks the freedom of thought and expression on which pretty much everything else depends. And it risks the sort of public backlash that could do real harm.
How do you think many voters would feel if they woke up one day to find that politicians, without a real debate, had changed the rules so the definition of ‘woman’ now included anyone born male and who retained male genitalia and physiology yet who qualified as a woman simply because they signed a piece of paper saying ‘I am female’? If you really need an illustration, have a look at Mumsnet’s reaction to new guidelines for how swimming pools should accommodate trans people.
I very much hope that some sort of compromise can be found on the gender issue. Hopefully there’s a sensible reform that takes the stigmatising medicalised element out of the GRC process and provides a compassionate process for people to establish a new status that lets them live at peace and with dignity and respect, while addressing the legitimate questions others have. But right now, it seems all too plausible that things will go wrong, that any new policy will be based not on reasoned debate but on shrill social media anger. If so, harm will surely follow, and anger will surely grow.
This is a long article, because it’s a complicated issue that deserves careful discussion. But for all its length, my point can be summarised quickly: moves to change the law on gender are not being properly debated because many people who should be talking frankly about the issue aren’t doing so because they’re afraid of being accused of transphobic bigotry by an angry mob.
Am I right about that? Take a look at the social media reaction to this article and decide for yourself.