Rip it up and start again; sex and gender identity
There is growing discussion about how we identify and protect sex/gender identity in law. Here are my suggestions.
One of the benefits of being lazy is that you are often motivated to search for the simplest solution. And the simplest solutions are very often the best, if only because they are more likely to be understood, remembered and applied. There has been growing discussion in recent weeks over what we should do to rescue the current confused and confusing situation with regard to sex/gender - who and what is protected?
Sex Matters kicked this off with their petition to clarify the meaning of ‘sex’ in the Equality Act after a 2022 court ruling declared that it encompassed both biological and ‘legal’ sex, the latter conferred by the award of a Gender Recognition Certificate pursuant to the Gender Recognition Act 2004. The Sex Matters proposals have been criticised by Keep Prisons Single Sex in its report ‘Sex and Gender in Legislation: The case against Legal Sex Change’
Such is the drama and excitement caused by all of this that we have just seen a hamfisted - but no doubt extremely upsetting - attempt to oust Baroness Falkner from the EHRC, for daring to suggest that Parliament might want to have a look at this. Some people definitely have a vested interest in maintaining the confusion.
I have read acres of print about all this by now, and my head is hurting. Even the legendary patience and clarity of those such as Michael Foran have not helped me find a path through the murky undergrowth in the Forest of Sex and Gender. Night is drawing in, the shadows grow deeper, and I don’t want to get lost in here.
But allow me to let you into a little secret which I first discovered as a law student, wanting to break down and cry over Equity and Trusts. If you don’t understand the law and what it is trying to do, this is much more likely to be because the law is bad, not because you are stupid. Law is bad for all sorts of reasons and one very common reason is that someone has decided what outcome they want to achieve and then contorted existing law to secure that outcome. Judges created ever more convoluted notions of trusts because they felt sorry for people who had lost out; great for the individual, a living hell on earth for a 20 something law student trying to figure out what the hell Lord Denning was going on about in Eves v Eves.
But the current twisted and convoluted case law about sex and gender has much wider ramifications then getting muddled up with constructive and resulting trusts. It’s implications are huge, and at every level of society. We simply cannot afford, as a society, to carry on like this.
So, let’s take it back to basics and apply the Lazy Person’s Guide to Sex and Gender.
First - the Fundamental Principles.
Our overarching principle is that the law is our servant, not our master. It exists to make it easier for us to do the right thing and keep the wheels of society turning. It identifies and protects those basic rights, without which life is not worthing living - the right not to be killed, tortured, deprived of your family, your liberty or your speech etc. Some complexity is unavoidable but we should strive to make things as simple and accessible as possible.
A further fundamental principle is that we should not abuse, harass, discriminate against or deny employment, goods and service to people just because they are ‘different’ to us. Such discrimination has been the bedrock of every genocide in human history. So long as people aren’t hurting us, they are allowed to express their personalities and sexualities in any way that is permissible within existing laws. If you are offended or disgusted by that, it is your problem and one for you to deal with.
It is not possible to change sex. Sex is immutable, fixed at conception, real and important. There is not a drug or surgical procedure that can allow a person born of one sex to become the other; all that can be achieved is a mimicry of sex based stereotypes, with greater or lesser degrees of success. Sex refers to the reproductive role; at conception 99.9% of us go clearly down one path or the other - the potential to produce large gametes (eggs) or small gametes (sperm). We are instantly recognisable as the sex we are, even with all our clothes on. This is because being male or female imposes obvious and inescapable differences on our bodies; most men are bigger, stronger and faster than most women and sporting bodies are finally waking up to this fact and re-affirming sporting categories for women.
Some people have genuine and deep rooted mental distress that they cannot change their sex and some will achieve genuine relief by changing their outward appearance as much as they can to mimic a stereotypical version of the opposite sex. They wish to adopt a ‘gender identity’ which does not reflect the stereotypes associated with their sex at birth. These people should be supported. Others are motivated by social contagion/other mental health issues. These people should be supported. The degree and nature of support should rarely involve irreversible medical or surgical procedures, without at least some access to talking therapies. Children are highly unlikely to be able to consent to any irreversible ‘gender affirming’ treatment and I would support a blanket ban on any medical intervention for the under 16s.
But support and validation for those who are distressed by or reject the sex of their birth, cannot come automatically at the expense of the safety and dignity of women. Sex is not always relevant to how we move through the world, but when it is, it is very relevant and women must retain rights to single sex spaces, where they undress, sleep, play sports or receive counselling as victims of male sexual violence.
So how could we make this work in law and practice?
Repeal the Gender Recognition Act. Its infamous section 9 has wholly muddied the waters about the distinction between sex and gender identity. Make sure that we have documents that will be accepted as proof of identity which are silent as to sex, if some find it too embarrassing or upsetting to declare it.
Remove ‘gender reassignment’ as a protected characteristic from the Equality Act and instead affirm that a wish to be perceived as a ‘gender’ which does not align with your sex at birth is to be protected as a religion or belief - just as rejection of the notion of ‘gender identity’ is a protected belief following the EAT decision in Forstater.
In my view, ‘Gender reassignment’ is a muddled and unhelpful protected characteristic, relying on some nonsense concept as ‘living as a woman’. The only way to ‘live as a woman’ is to be born female and not die. To continue to yoke womanhood to sex based stereotypes should never be any part of our legislation.
The EHRC describe it in this way:
In the Equality Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign your sex.
To be protected from gender reassignment discrimination, you do not need to have undergone any medical treatment or surgery to change from your birth sex to your preferred gender.
You can be at any stage in the transition process, from proposing to reassign your sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not you have applied for or obtained a Gender Recognition Certificate, which is the document that confirms the change of a person's legal sex.
For example, a person who was born female and decides to spend the rest of their life as a man, and a person who was born male and has been living as a woman for some time and obtained a Gender Recognition Certificate, both have the protected characteristic of gender reassignment.
So if you don’t have to do anything to claim protection as a person who is ‘reassigning’ their ‘gender’ , this should be protected as a belief, that it is possible to have a ‘preferred gender’ which is different to your sex. You should not be abused, harassed or discriminated against for holding that belief, but I am allowed to consider it absurd (provided I manifest that belief in its absurdity in a way that is mindful of context and work place environments etc).
Prohibit any ‘gender affirming’ medical intervention for those under 16 and make it a criminal offence to supply a child under 16 with cross sex hormones or puberty blockers unless to treat precocious puberty. Prohibit any ‘gender affirming’ surgical intervention for all children - i.e. up to age 18 - and make it a criminal offence to procure such surgery in this country or abroad. Susie Green should be in prison, and treated as any black African mother would be for forcing FGM on her daughter.
I think this could work
I think this could work - and am interested to know what you think. Preferred gender identity should be protected EXCEPT when it is conflict with sex in the kind of circumstances outlined above. When it is, then sex - that characteristic which is immutable and we did not choose - is given primacy.
I can’t see any other way to proceed unless we are content to add further subsections or judicial gloss onto a legal edifice already close to collapse under the weight of its own absurdity. Let’s go back to basics so we can direct all the energy now wasted on this, to somewhere much more interesting and useful.
As a solicitor, I’m all for elegant simplicity and I think, Sarah, you may well have found a very good solution.
I agree. The path forward is to respect the rights of others to believe and act in ways that are contrary to our own beliefs, but still retain our right to believe differently, and to ensure our laws are enforced based on facts, not beliefs. The problem we still have to figure out how to solve, though, is the indoctrination of kids. There seem to be a great number of people out there whose goal it is to convince as many children as possible that they’re transgender. If a 14 year old gets convinced by the internet that they’re trans, and this continues to be reinforced by their school, and therapists, and doctors, and media, when they turn 18 they may very well move on to medicalization. And there are many, many of these kids (one of them mine), and I believe nearly all of them are far worse off for it and will likely regret it eventually. While the very sensible guidelines you’ve outlined help people of different beliefs live together peacefully, they assume everyone is a mature adult acting on free will and having access to multiple viewpoints so they can freely make up their minds what to believe, and I don’t believe that’s the case here. So I think we have to go a bit further than just allowing dissenting opinions to exist, we also have to begin to treat this as a religious belief, not a fact, and ensure schools, media, and therapists don’t endorse one view over the other.