Gender Recognition Act Reform Announcement Is A Cause For Concern

Liz Truss gave troubling evidence to the Women and Equalities Select Committee on 22nd April 2020. Benjamin Knight and Mark Pritchard pick apart the sparse detail.

Gender Recognition Act Reform Is Troubling

Before setting out her department’s plans to reform gender recognition law, she began by extolling, “the UK’s strong record in terms of LGBT rights and human rights”.  What followed sounded like an alarm bell to the trans community and its allies.

At this stage, the detail of measures being considered are thin on the ground. This has allowed the TERF community and rabid press to speculate according to their own tastes and predilections. 

Trans right are human rights

That may be good for playing politics but it has caused fear and anxiety in the lives of trans people who were already feeling under siege. Moreover, it has come at a time of “lockdown” where access to support is curtailed. 

The key points from the evidence are the “three key priorities” of the Government Equalities Office (GEO) in relation to the trans community. Truss set them out as:

  • ‘the protection of single-sex spaces;’
  • ‘making sure that transgender adults are free to live their lives as they wish without fear of persecution, whilst maintaining the proper checks and balances’;
  • ‘making sure that the under 18s are protected from decisions that they could make that are irreversible in the future.’

‘Single-sex spaces’

Benjamin Knight, Head of Crime and barrister at Central Chambers, Manchester  found this heading especially troubling. 

Schedule 3 of the Equality Act 2010 provides a list of circumstances in which discrimination between men and women is permissible. Those possessed of a Gender Recognition Certificate (GRC) have met the harsh criteria and have evidenced that process. The myths that have been perpetuated in the press, amongst trans-excluding campaigners and on sites such as Mumsnet have had a toxic effect of what should be a pretty simple concept i.e. your GRC affords you the protections afforded to your identified gender and is still subject to some exceptions. After all, for many, that is the point. 

More than that, the legislation provides a (far from perfect) threshold in terms of State recognition of the holder’s gender identity relative to legal rights. For example, in 2011, the High Court heard submissions that ‘top surgery’ should be denied to trans women as to treat them differently to cis women would be unlawful under the 2010 Act. 

This legal argument was specious, in my view. If that were the State’s position in 2011, it would now be totally unjustifiable for cis women to be afforded single-sex spaces and trans women not to be. It is an intellectually bankrupt position and a legal nonsense. One would hope that the Minister and her legal team would be aware of this.

It is the toxicity referred to by Benjamin that has likely caused Truss to place “safe spaces” at the top of her department’s list of priorities and why she singled it out as being “particularly important” when addressing the committee. This subject has occupied a considerable amount of time for campaigners and the anti-trans rhetoric has been beyond obnoxious.

Far from placing this hard-fought right to safe spaces for all women on a firm footing and expanding service access to trans people without GRCs, the Government continues to bow before the pressure of its trans-hostile core electorate. At least, for now, the Government is unlikely to be able take a backwards step without offending the Human Rights Act 1998.

Transgender adults free to live their lives – with ‘checks and balances’

It is not possible to identify what Truss meant by this. 

It may mean that there will be no reversal of rights already secured for trans people and nothing will change in relation to access to transition-focused services. 

It may mean that little will change except further ’checks and balances’ will be put in place to obstruct transitions or to amend the criteria for GRCs.

It is not particularly helpful to speculate – not least because the announcement may have been little more than political posturing to pad-out the anticipated GRA reforms. 

If there are reforms that amount to a change in the minimum rights secured so far, it is hard to see any substantive evidence to support such changes and so there will be inevitable legal challenges. The anecdotes and ‘what-ifs’ that pepper media coverage of this issue will not impress the High Court or the Supreme Court”, writes Benjamin.

Protection of under-18s ‘from themselves’?

Mark Pritchard, human rights barrister at Central Chambers in Manchester, observes that Truss cannot act in a vacuum. 

Any law or statutory instrument drafted by the Government should be made with the Human Rights Act 1998 (HRA) in mind. The HRA gave people the ability to enforce their rights under the European Convention on Human Rights in UK courts. 

Under Section 6 of the HRA it is unlawful for a public authority to act in a way which is incompatible with a Convention right. This includes any secondary legislation

If an Act of Parliament is incompatible with a convention right, the Supreme Court has the power to make a declaration of incompatibility. Once such a declaration is made it usually leads to the law being altered to become compatible with the ECHR rights involved.

The key right rights engaged are the right to a private and family life (Article 8) and the prohibition of discrimination in relation to rights under the ECHR (Article 14). 

Article 8 is what is known as a “qualified right” which means that the state can interfere with it if it is necessary and proportionate to do so. That raises the question as to what the law says about what is necessary and proportionate. 

When looking at necessity, there have been cases where the courts have found an interference with the medical treatment of a child lawful. These cases are commonly seen where a child is refusing life-saving treatment for medical reasons. This is because the State has a duty to not only protect lives but to act in the best interests of the children. In the case of treatment for children, it cannot be said that there is a necessity to interfere in the same way. The suggested law would likely prevent treating physicians and surgeons from acting in the best interests of their patients and so would be illegal.” 

One of the issues raised by anti-trans campaigners is that transgender children do not fully understand the significance of the choices they are making and therefore that choice should be removed in their best interests. This argument has seemingly been adopted by Truss. 

This approach would likely be found to be unlawful by the courts as it fairs to take into account that while some transgender children may not be able to understand the choice full others will. Human rights are designed to protect the rights of an individual and it would be difficult for the Government to show that it is necessary and proportionate to deny treatment to a child that a medical professional says is in their best interests and they are capable of giving informed consent.

At the moment if there is an issue in relation to consent the court will assess if the child is “Gillick competent”. This is a legal test established by case law where Lord Scarman observed that, “…as a matter of law, the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” 

Mark is firmly of the opinion that any law that prevented a transgender child making treatment decision yet did not affect the rights of cisgender children would also be seen as discriminatory under Article 14 as it is giving transgender children less right to their Article 8 rights than cis children.

The European Court has made it clear that gender identity is one of the most intimate areas of a person’s private life, the burden placed on a person in such a situation to prove the medical necessity of treatment, including irreversible surgery, appears therefore disproportionate.

There is no reason to suspect that a court will come to any other conclusion in relation to a Gillick-competent child. 

Any legislation or statutory instrument brought by the courts to restrict the rights of transgender children to self-development via medical procedures that are clinically deemed to be within their best interests could be challenged and should be challenged”, writes Mark.

Sparkle

Acting Chair of Sparkle – The National Transgender Charity, Lee Clatworthy, says; “By highlighting single-sex spaces, “checks and balances” for trans adults, and access to gender affirming healthcare for younger (under-18s) trans people, this statement not only suggests an intention to roll back hard-won rights for the trans and gender non-conforming community, it also looks to incite trans hostile and gender critical groups and individuals who have sought to persecute an already marginalised section of society,

Lee Clatworthy

Sparkle’s Board of Trustees will be relaying their consternation regarding Liz Truss’ intentions to the Government Equalities Office, and working with other charities and third-sector organisations who share Sparkle’s mission to advance equal rights for trans, non-binary/genderfluid and intersex people of all ages to fight any proposed prejudicial changes to current legislation.”

Safe To Be Me

Liz Truss used her evidence session to announce that, as part of the Safe To Be Me campaign, she could ride the UK’s LGBTQIA+ rights record, “…to make that case across the globe, and make sure that wherever people live, wherever LGBT people live, they’re safe to go about their daily business without fear of crime and harassment, and that is a very important priority.” 

The UK has made slow progress but the rise in hate crime directed at the LGBTQIA+ community suggests a disinhibiting of bigots and it would appear that, whatever Truss wishes to promote on her global tour, she should question her message at home.

Her message should be one of support to one of society’s most vulnerable communities and not one that panders to exclusionists and puts the Government on a collision course with the courts. 


Mark Pritchard and Benjamin Knight, along with other members of Central Chambers, run a virtual law clinic for the LGBTQIA+ Community. The service is free and covers a broad range of legal areas. 

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