Legal fiction v reality
What is a 'legal fiction'? And how far must we go to treat it as a fact?
A ‘legal fiction’ is something that is untrue or unknown, but is relied upon to guide a legal decision. On December 29th there was an interesting exchange between radio presenter James Max and campaigner Kellie-Jay Keen which I think illustrated the different perceptions that arise about the impact of legal fictions.
Mr Max adopted a incredulous tone throughout, primarily because Ms Keen was adamant that she did not wish to give female pronouns to biological males, no matter what they identified as. Mr Max appeared to be of the school of thought that ‘trans women are women’ and a refusal to acknowledge this demonstrated some deep rooted and dangerous bigotry. But just how far do we have to go to support a legal fiction in our day to day lives?
I thought it might be interesting to compare and contrast the ‘legal fiction’ under the Gender Recognition Act with the legal fiction established by The Adoption and Children Act 2002, to see if there is any guidance there for how we conduct ourselves in the future.
This is a developing area and one which will require careful consideration, as any form of compelled speech risks trespassing on the most fundamental of our human rights; that of free expression.
A man was recently convicted in Norway after a heated Facebook exchange in which he referred to transwomen as ‘perverted male pigs’ . His argument that this was protected free speech failed, the court declaring that it must take action against speech that ‘violated’ protected groups of people and which caused those who are exposed to it limit their participation in public debates. I am not clear if the courts in England and Wales would follow this after the ruling in CPS v Scottow in December 2020, where the High Court ruled that calling a transwoman a ‘pig in a wig’ wasn’t sufficient to cross threshold of criminality (but also clearly had not driven the recipient of such abuse away from social media). The EAT in Maya Forstater’s case also offered a teasing glimpse of what might be considered sufficiently ‘hateful’ to merit attention in an employment tribunal, such as ‘misgendering’ that was ‘indiscriminate and gratuitous’. The Equal Treatment Bench Book has also usefully been amended (see Chapter 12, para 26) to recognise that it is not compatible with the interests of justice to demand that female victims of violence and assault are compelled to call their male attackers ‘she’.
Finding our way through
So its not particularly clear cut so far. Hopefully we will get more guidance on what is acceptable in the workplace when the employment tribunal rules next year on whether or not Forstater was the victim of unlawful discrimination in her workplace. It will also be interesting to see how the College of Policing revise their hate crimes guidance following the Court of Appeal determination in December 2021 that in its current form, the guidance violates Article 10 ECHR.
I put the blame for much of the current confusion squarely on the hopeless drafting of The Gender Recognition Act of 2004 which famously provides at section 9 :
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
Despite the exceptions set out in the GRA itself - see in particular exemptions for ‘gender affected sports’ at section 19 - and the explicit recognition and protection of single sex spaces in the Equality Act 2010, this (deliberate?) conflation of sex and gender has provided fertile ground for confusion, misrepresentation and demands that a man who asserts he is a woman has actually ‘become’ a woman, even without a Gender Recognition Certificate. Only the morphing of a ‘legal fiction’ into a concrete reality can fully explain the incredulity of men like Max when women refuse to honour this fiction.
The legal fiction of adoption
But what is the approach of the law when it comes to adoption? The Adoption and Children Act 2002 is clear that an adopted person is to be treated in law as if born as the child of the adopters but also approves the use of the word ‘adoptive’ when describing relationships produced by adoption. Not only that, but there are detailed regulations that require information to be kept about a person’s adoption and protect the right of the adoptive person to seek information about their birth families.
The Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005 requires that the adoption agency must ensure that information held in relation to a person’s adoption is at all times kept in secure conditions and, in particular, that all appropriate measures are taken to prevent its theft, unauthorised disclosure, damage, loss or destruction. The adoption agency must keep the information for at least 100 years from the date of the adoption order. Schedule 3 to the regulations includes a very extensive list of information that must be kept about the child’s family and others, such as siblings.
The Registrar General must continue to maintain in the general register office, a register in two parts which is to be called the Adoption Contact Register. This records information about adopted persons who want to make contact with their biological parents and the relatives who want to make contact with the adopted person.
Children go into adoptive placements with their ‘life story book’, containing (hopefully) photographs of their birth parents and a history of how they came to be born and why their parents couldn’t care for them. To pretend that they were the actual biological children of their adoptive parents is now seen by the majority as emotionally harmful. Thus the legal fiction that they are now ‘the child of’ their adoptive parents, sits alongside the recognition that their biological origins are immutable and can be very important for not only emotional but also physical health. Research indicates that the greater the degree of ‘psychological openness’ about the adoptive placement, the more likely it is that relationships will be healthy and will endure.
I think there are some very useful lessons here for how we approach the ‘legal fiction’ that a man becomes a woman on his declaration alone. The love adoptive parents and their children feel for one another is no less ‘real’ because they do not share a genetic make up. Adoptive parents are not ‘lesser parents’ because they did not provide the gametes that made the child. But equally, no one is served by pretending that their children were found in a gooseberry bush - the pull of blood ties can be very strong and many adoptive children will seek out their birth family when they are older. It is their right to do so.
Equally for a man who feels unhappy with his male sexed body and wishes to adopt the persona of a female; that man is no less of a person. He must not face harassment, bullying or abuse for this decision. But he remains a man. No legal fiction can re-determine every cell in his body. No legal fiction ought to be relied upon to deprive a woman of their actual reality without some very careful and honest discussion indeed.
We have a ways to go in public discussion about all of this, and how we strike a balance between the the different needs of men and women in society. We have been severely hampered over many years by the aggressive refusal of many to permit any debate at all. I hope those days are gone and in 2022 we can start the necessary work of deciding the parameters of the legal fiction of transition, to ensure the safety and dignity of us all.
Thank you. That’s very good & very clear.
I wonder if there are any similar arrangements to the information available to adopted people for people born of surrogacy?
And of course what bearing it has on the demands of some to extend their legal fiction of being the sex they are not when it comes to their children’s birth certificates?