By Rebecca Reilly-Cooper
A fortnight ago the women and equalities select committee, chaired by Maria Miller MP, published a report on transgender equality. It examined the discrimination experienced by transgender people in the UK and made a number of recommendations on issues including health, social care, education, the criminal justice system, and current equalities legislation.
Few people outside of the trans community paid much attention to the report – perhaps unsurprisingly, as despite the committee's vague estimate that there are 650,000 people in the UK who are "gender incongruent to some degree", this is still very much a niche issue affecting a minority of the population.
But one group was paying attention. Enter stage left the perennial villain of the transgender story: the radical feminists, who for no discernible reason but their own bigotry and mean-spiritedness want to rain on Maria's trans-inclusive parade. At least, this is the story as Miller tells it. Over the weekend, she released a statement to The Independent on Sunday expressing her shock and disappointment that the only objections she has heard to the report's findings have come from people "purporting to be feminists", something she finds "extraordinary", and in stark opposition to the "barely a peep" she has heard from her traditionalist Tory colleagues on the backbenches. In case you missed the implication, Miller repeats it: "All of us who are feminists know that equality for other groups of people… is good for us as well". Therefore if you don't welcome all the findings of the committee's report, you aren't a real feminist.
Some of the committee's findings are eminently reasonable and should be welcomed by everyone, including the recognition that trans people are a marginalised and stigmatised minority who experience "everyday transphobia", are frequently the victims of hate crimes and face obstacles in their access to NHS Services. All of this needs to be addressed. However, you don't need to be a radical feminist to realise there are a number of valid and legitimate objections to be made to the report – objections that Miller is currently dismissing as irrational anti-trans prejudice. Some of the report's key recommendations are poorly thought through, based on ill-defined and highly contested ideas and concepts, and if implemented would have substantial negative implications.
Feminists tell Chair of Women and Equalities Committee their concerns. She dismisses them derisively. https://t.co/v3mDfabonL
— RebeccaReilly-Cooper (@boodleoops) January 24, 2016
The most significant recommendation is that the process by which trans people can legally change their gender should be overhauled and replaced with a much more straightforward system. As the law currently stands, in order be granted a gender recognition certificate and have the sex on your birth certificate and other identifying documents changed, you must apply to the Gender Recognition Panel, providing proof of a medical diagnosis of gender dysphoria, and evidence that you have lived fully for the last two years in the acquired gender role and intend to live in it permanently. This process, the committee found, is outdated, medicalised, "pathologises trans identities", and should be replaced with an administrative process "in line with the principles of gender self-declaration… centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers".
The good intentions behind this proposal are obvious, and are supported by the testimony of many trans people to the inquiry. Having to satisfy the panel about one's identity was described as bureaucratic, expensive, and humiliating. And since personal identity is nobody's business but the individual concerned, it seems reasonable that the state should have no authority to pronounce on the validity of this. Nobody can determine my identity better than I can. Therefore, changing my legal gender should be a minor administrative procedure, a simple matter of my declaring my gender and having that automatically recognised and respected.
This change would operate in conjunction with a couple of significant proposed modifications to the Equality Act of 2010. Under that legislation, "gender reassignment" is a protected characteristic, meaning that it is prohibited to discriminate against people on the grounds that they are undergoing, or are perceived to be undergoing, a process of gender reassignment. The report concludes that the Act – which is just six years old – is "outdated and misleading", due to its usage of terms like "transsexual" and its emphasis on the process of reassignment, since apparently not all trans people undergo such a process.
The committee is therefore recommending that being recognised as trans would become entirely a matter of self-declaration. And so the report recommends that rather than protecting people undergoing "gender reassignment", the protected characteristic should be "gender identity".
More importantly, the report recommends a change to an exemption in the Equality Act. The exemption allows an employer to advertise a post as being open only to people with a particular protected characteristic, where this is a genuine occupational requirement. The report suggests that the exemption not apply to people whose acquired gender has been legally recognised.
The practical consequences of all these recommendations are that changing your legally recognised gender would become a simple administrative procedure, presumably not much more involved than ticking a box on a form. Legal recognition of your new gender would be granted solely on the basis of self-declaration: you are whatever you say you are. If you say you're a woman, then you are one. No questions asked. This self-declared "gender identity" would then be a legally protected characteristic and it would be prohibited to discriminate against you on the basis of it, even in cases where provision of women-only services is a proportionate means of achieving a legitimate aim, and even where there is a genuine occupational requirement to employ a woman.
Even if it were true that gender is entirely a matter of self-definition, it's so obvious that legislation enshrining this is ripe for abuse
— RebeccaReilly-Cooper (@boodleoops) January 24, 2016
On the basis of mere self-declaration, you would be legally entitled to access women's spaces and apply for scholarships and jobs open only to women. If a male-bodied, masculine-presenting, male-socialised person wanted to use the women's changing facilities at the gym, they would have a legally protected right to do so. If such a person wanted to get a job at a service that provides support for women who have experienced sexual assault or male violence, they would have a legally protected right to be considered.
If such a person had committed crimes of violence against women and were imprisoned, they may have a legally protected right to be housed in a women's prison, solely on the basis of their self-declared gender identity.
Once self-declared gender identity becomes a legally protected characteristic, there is nothing to prevent this from being exploited and abused by men who, for a variety of reasons, may want access to services and protections that are currently provided to women on the basis of sex, not gender identity. This is not to say that trans people represent a threat to women, or that trans people want to abuse services and provisions made available for women. What it does mean is that when gender is entirely a matter of self-declaration, there is no way, either in principle or in practice, to distinguish genuine trans women from men who declare themselves women for the purposes of gaining access to women's spaces and availing themselves of women’s resources.
When the distinction between men and women becomes one of how you identify, then sex-based protections for women will disappear.
It would take an extraordinary amount of naïveté or wilful blindness to imagine that such legislation will not be exploited. As long as special provisions are made for women, there will be at least some men who will want access to those provisions. For such men, making legally recognised gender a matter of mere self-declaration is a gift.
Of course we can and should show empathy and concern for trans people, and remove unnecessary obstacles to their living as they wish. But this cannot and should not be done by dismantling legal protections put in place for the safety and equality of those born and raised female.
Rebecca Reilly-Cooper is a lecturer in political theory at the University of Warwick. She tweets as @boodleoops.
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