The Women and Equalities Committee met on the 10th February to hear evidence from witnesses about the Reform of the Gender Recognition Act, we live-tweeted the event and here offer an overview of the meeting.
The witnesses were:
- Karon Monaghan QC, Barrister, Matrix Chambers;
- Robin White, Barrister, Old Square Chambers;
- Naomi Cunningham, Barrister, Outer Temple Chambers and member of the group Legal Feminist;
- Sally Brett, Head of Diversity and Inclusion, The Law Society.
The format of the meeting was committee members asking questions of the witnesses and the witnesses responding. There was no feedback given as to the evidence submitted.
Karon Monaghan QC stated that she felt that one of the difficulties with the GRA is that it conflates gender and sex. She told the committee that, “sex is about biology and gender is about the social attributes that generally are associated with sex”. Karon also said there was a lack of clarity in the criteria to get a GRC.
There was considerable discussion around the issues of the GRA on employment law and parental leave, with Karon and Naomi both stating that they felt that maternity leave should reside with the person who gave birth, regardless of their legal gender. Robin White said that there are a raft of complex and difficult situations that could cause litigation as a result of the act as it stands, with regard to more complex issues such as adoption, etc.
Karon, Robin and Sally were all of a similar opinion that the two year ‘living in your gender period’ requirement was unnecessary and potentially caused further entrenchment of gender stereotyping. Robin White spoke of trans youth who have been living in their authentic gender for years and yet can’t apply until they are 18. She asked what it achieves to make people wait?
Sally Brett referenced laws elsewhere, “In Ireland, there is no requirement to live in your gender for two years“. All panelists were largely agreed that the two year waiting period aspect of the act is not good for women, in the way it enforces stereotypes.
The permanency of the act was discussed and Robin White said that the GRA offers no straightforward method to go back if needed, “The stats on detransition are between 1 and 3% of people… express some kind of regret.” says Robin White.
However, she felt that provision should be made for this cohort in case they needed to legally change back to their assigned birth gender.
Naomi Cunningham said, “We don’t think that the ‘until death’ requirement should be removed. The whole justification for the availability of gender reassignment always was that there was a small minority of people who have such profound gender dysphoria, or have such a conviction that they’re physiologically the wrong sex that their best hope of flourishing as human beings is some form of transition…But transition does make serious demands on the rest of society and it’s fair that those demands shouldn’t be lightly made.
It’s not reasonable to expect everyone to learn to use a different name and new pronouns and to strive to think of you in the affirmed sex and make what may be in some ways quite inconvenient accommodations to ensure that you have the physical privacy that you need and so on, unless you intend at the time that you make it, that that should be a permanent change.”
Karon Monaghan said she believed the ‘until death’ aspect serves the purpose. “There should be an intention about the degree of permanency of this status, because it does have consequences. And I don’t just mean social consequences, I mean pronouns and such, which I don’t myself think are terribly important.”
“There should be a commitment and a declaration that it be a permanent state,” says Karon Monaghan, regarding people applying for a GRC.
“Transition makes serious demands on the rest of society, it’s not reasonable to expect everyone to use different pronouns or make difficult accommodations,” says Naomi Cunningham, she adds that people should have an intention that their transition is for life.
Sally Brett says some trans people are uneasy about the lack of transparency about the panel and that you have no idea who is going to be looking at your private information.
Regarding the makeup of the deciding panels, Sally Brett said some trans people are uneasy about the lack of transparency about the panel. “There is unease about the anonymity of panel members and the fact that there’s not much transparency around the process,” she said. “You’re being asked to submit very detailed medical information, sometimes, particularly if you’ve been through gender reassignment surgery – but you have no idea who is going to be looking at that and it can make you feel very uncomfortable. I’m not sure why there is a requirement for panel members to be anonymous.”
Robin White says she would be happy to go before a registrar and make a declaration but she finds the idea of submitting herself to a panel for validation as offensive. “We don’t do that for sexuality. If you come out as gay, you don’t have to go off to a panel to be assessed to find out if you are gay enough.”
Naomi Cunningham said that people should have an option to appear before the panel but only if they want to.
There was significant discussion of Section 22 of the GRA (the Prohibition on disclosure of information).
There has never been a prosecution under section 22, said Robin White. “I don’t think criminal law has a place in this part of society,” she added. “Section 22 is frightening for HR people and they are shocked by it and they come to lawyers for advice about it. I adopt the position that perhaps there should only be an offense if someone did something deliberate.”
Sally Brett stated that she felt it should remain a criminal offence. “Putting aside the HR context, we do think there are situations where it should be a criminal offence. If it just became a civil offence there’s fears that only those with the deepest pockets would be able to enforce it.”
She added further concerns, “There are situations where tabloid media may be willing to pay compensation for the sake of a story, but would maybe think twice if it was a criminal offence.”
Naomi Cunningham said, “There is no place for criminal law in protecting this sort of information… It creates a wider chilling effect.” Naomi said that the act created problems for people running events or services in single-sex spaces. “It is perfectly lawful to advertise certain services as for being for women only, it’s good practice to make that clear. Imagine for example that someone turns up at an all-female yoga class, who is obviously male-bodied – it’s perfectly fair for those organising that class to say “sorry this is a women-only session. I think there is a widespread belief that is the person Naomi added that Section 22 causes, “justified fear”.
There was also a lot of time spent discussing the equality act.
Karon Monaghan said that the act is concerned with protecting trans people who have had gender reassignment from discrimination and the act separately protects females and males against sex discrimination. Generally, a trans person with a GRC will be treated the same as a man or a woman. She added that there are exemptions that might be applied to this, giving the example of women’s refuges, “and places where women may be vulnerable as females.”
Naomi Cunningham said the single sex exceptions in the equality act are commonplace and that they are the justification for women only toilets and change rooms. “The ability to exclude male people from certain women-only services or spaces…are commonplace and are all, or almost all, founded on differences of biological sex.” Naomi said. “In practice it makes no difference whether someone has a certificate or not.”
The witnesses were asked if there was a gap in protection in the law for non binary or other gender-fluid identities.
Robin White said it was clear that there was. “Gender reassignment only protects people going from one end of the binary to the other end of the binary.”
Karon Monaghan disagreed and said that Non-binary and gender fluid people are already protected under other laws and that there are problems with adding them to the equality act, particularly when it came to single-sex spaces.
The committee said that the submission from Legal Feminist had stated that “the rights of trans people must also be balanced with the rights of others to freedom of speech”. Naomi was asked to expand on this and she said the “trend” to widen the definition of transphobia is “worrying”. She told the committee that the Gender Critical position is reflective of the position of the law.
Karon Monaghan stated that there is a difference between free speech & harassment. “It’s one thing in a work environment to deliberately misgender someone“, she said it’s quite different to express the views of gender critical feminists. Karon added that some of her views are gender critical.
Robin White was asked about the terminology used in the act. She explained that the term ‘gender reassignment’ is an outdated term. “It’s more common to say gender confirmation. Transexual is also outdated as it appears to bring in sexual orientation.”
Naomi disagreed that the word transsexual be replaced with transgender. She thinks there needs to be another term of definition written into the law.
Naomi Cunningham was asked by a committee member, about a blog post she had written about Stonewall and their diversity program for organisations. Naomi spoke at length about her blog post, “If an NHS trust, for instance, has allowed its policies to be Stonewalled, to be written in accordance with Stonewall’s wishes, it may expose its trans staff to the horrible risk of being in effect imposed unwittingly on individuals who have asked for a female healthcare provider. If the trust takes the view that it is none of the patient’s business that the healthcare provider is trans and the patient consents to an intimate procedure on the basis that she’s asked for a female healthcare provider, and the trans healthcare provider undertakes that procedure then there is a horrible risk to both the patient and the trans healthcare provider.”
Answering questions about the equality act, Karon Monaghan said that, “there are exemptions that permit the employer to exclude trans people from a particular role or as a service user in limited circumstances and it doesn’t matter whether a person has a gender recognition certificate or not.”
“The fact that a trans woman has a GRC does not mean that a service provider or employer can’t exclude them if single-sex service provisions apply.” she added.
Karon said there are criteria and constraints, it can’t be based on discrimination when it comes to the exemptions in the equality act.
Robin White stated, “What we’re effectively doing, is allowing discrimination. Because it is allowing discrimination, it has to have a legitimate aim. How would be legitimate or proportionate to exclude me from the toilet in a supermarket?”
On self ID, Karon Monaghan asks what are the consequences of self ID? “More important than getting the GRC is what it means when you get one?”
Robin White said there should be a formal declaration for self ID. Sally Brett added that the law society supported a move to self ID and she raised the reclassification by WHO that trans isn’t a mental illness. “We shouldn’t have doctors diagnose and gatekeep your legal identity.” Sally said.
Naomi Cunningham indicated that Legal Feminist are “very troubled” by the idea of making GRC a self ID process. Naomi says self ID would, “massively expand the category of people” who could apply. She says the change in law was “to accommodate a tiny minority with a rare medical condition“. Naomi Cunningham added her thoughts that, “Self ID will have dangers for women.”
Discussing the language used in the act, Robin White said, “The word biological doesn’t appear anywhere in the act.” Robin asked, “If we redefine the act or add to the definition, what is the consequence of doing that?” she asks will it create a category of people who are treated differently by society?
Sally said there is a difference of legal opinion on this subject and if there was a move to decide on a definition that would require a lot of consultation.
Naomi Cunningham was asked about the evidence submitted by Legal Feminist where they said the government should have included a bar to applicants with unspent convictions for violence against women offenses.
Naomi Cunningham answered, “If an individual has unspent convictions for violence against women, especially sexual offenses and most especially if any offense, part of whose nature entails being male, as it almost always will be then that should be a reason for revoking a gender recognition certificate because that is something that is fundamentally incompatible with being a woman.”
Karon Cunningham said of prisons, “There are genuine concerns about trans women who have committed serious sexual offenses or any sexual offenses as men.” She added that as the law stands, “Trans women with a history of violence are not automatically entitled to be in a women’s prison.”
Robin White stated that this is not her area of practice but if this area was to be explored it would need proper evidence from people who deal with the rehabilitation of offenders to look at this issue. Sally Brett said that having a GRC would not enable anyone to escape from previous convictions any more than those convicted who change their name would.
The committee said that some of the submissions argued that there are too many definitions like non-binary, gender fluid etc. Naomi Cunningham said, “before you specifically protect from discrimination on a particular ground, on a particular group you should I would suggest, start with some evidence that that group is suffering discrimination on that ground, and I’m not aware of a cogent case having been made that there is a widespread social problem requiring legislation on the grounds of being non-binary or gender fluid, etc.”
Sally Brett called for updated terminology to reflect the language that the people the GRA is supposed to protect would use. She added, “There is evidence, it may not be widespread because we are talking about a very small number of people – that Non-Binary and other people with trans identities that might not currently be covered – do suffer similar issues of discrimination and harassment in the workplace.”
GenderGP will continue to report on the outcomes of further sessions pertaining to the Reform of the Gender Recognition Act.