Gender Re-assignment - does sex matter?

what does the protected characteristic mean? And can it apply to children who are not Gillick competent?

One of the explanations for why ‘gender identity ideology’ has sent its roots deep into the soil of both our public and private lives, is that to make any effective challenge, requires that we become experts in diverse fields - of child development, medical transition, discrimination law, human rights, constitutional law, education law, human resources, etc etc etc. It’s meant a lot of us have tried to digest a huge amount of complex and technical information very quickly and even for the quick study, it’s naïve to claim that even a few years of dedicated reading and discussion will bring one close to the depth and breadth of specialist understanding.

But I still think we have to try. And if we are lucky, we can get some guidance from experts on the way.

I have been engaged recently in an interesting debate on the social media site formerly known as Twitter. It was a bit of a slow starter as my questions about applying the protected characteristic of gender reassignment to children, appeared to strike a raw nerve with some experts who made it clear that this was not an interesting topic and I was not to bother them about it. Happily the discussion warmed up and gave me lots of food for thought. I am grateful for those who engaged. I am not a specialist discrimination lawyer and it probably shows. Although I have tried to educate myself via reading case law and asking questions, I accept there is much I either do not know or do not understand. For what its worth, I set out my current thinking here, in case it is of use or interest to anyone else or sparks some questions.

For a child to be eligible for the PC of Gender Reassignment, he or she doesn’t have to do anything other than just think about proposing to undergo a process to reassign his or her SEX by changing the ‘attributes’ of sex. This is the fundamental problem at the very outset. Its not possible to ‘reassign’ sex. We don’t know what is meant by ‘attributes of sex’ as it is not defined in the Equality Act, so I will assume it extends beyond hair and cosmetics to breasts and genitals. This makes it an odd PC to apply to children who are not competent to consent to such interventions.  

I think the PCs of religion/belief/sexuality and GR are substantially different to age, sex, race, disability and pregnancy. The latter are inescapable biological conditions. Save for pregnancy there is no element of ‘choice’. We have to be careful when applying PCs which require the exercise of the mind to children, as they simply do not have the capacity to weigh and understand information in the way adults can. This capacity develops as they grow. Most children under 7 can’t decide anything much beyond what they want for breakfast; most children over 12 will be able to grapple with a much more complicated range of information, but few I argue would be able to understand the implications for their future selves, of giving up their fertility and adult sexual function. This is the likely consequence of medical and surgical transition.

I argue that its bad enough to apply the PC of GR to adults as it promotes a fantasy. Sex cannot be ‘re-assigned’ by messing about with its attributes. The man with long hair and eyeshadow is still a man, so too the man who inverts his penis and takes oestrogen. Adults however have the freedom to make bad decisions. Children do not. Adults have both moral and legal obligations to protect children from the consequences of decisions they cannot understand.

Allowing children to make ‘adult’ decisions ignores the stark developmental differences between children and adults. This not merely ignores accepted understanding of child development but puts children at risk of significant harm, including early sexualisation and irreversible medical interventions. Young children cannot consent to either. Infants will have no conception what any of this means.

I assert that the PC of ‘Gender reassignment’ repeats the same problem that is outlined in the Gender Recognition Act – the conflation of sex and gender. Gender has come to mean something much more than a delicate synonym for sex, and is used now to subsume sex itself; making a self declared and undefined ‘identity’ more important than an immutable physical reality. This has lead to lobby groups such as Stonewall finding it easy to argue that gender identity is to be protected - even venerated - in place of sex, while sending a very confusing and false message to children that they can ‘change the attributes’ of their sex.

We cannot make the law an ass. This is even more serious when the law is made ridiculous by the harm it does to children. Children who are not Gillick competent cannot possibly make a ‘settled decision’ to change aspects of their ‘gender identity’ or ‘sex’ - even assuming we can define ‘gender identity’. And yet case after case talks of children even younger than 12 of being capable of making such decisions and some affirmed in significant and irreversible decisions about their bodies.

I say we must get rid of the PC of gender reassignment - or if we are stuck with it, make it clear that it cannot apply to children under 16 years. Those who have gender dysphoria can be protected by disability, those who do not, can be protected by a belief in the possibility of changing the attributes of their sex, so as to be perceived as male or female or neither. I think this recasting of the PC brings ‘gender identity’ into clearer focus; it is not settled science but a thing that some people think is important. I disagree with them profoundly, but I don’t think they should suffer abuse or discrimination for this belief.

(We are of course now left with the fact that sex is real, immutable and important is also relegated to a ‘belief’ but that’s a battle for another day.)

If ‘sex matters’ - and I say it does - we cannot allow it to be shackled to ‘gender’ and we cannot pretend that young children can have any idea what they are signing up to. We are now all very clear about the damage this has done. Time to root it out.