You shall not pass!

In 2004 the law said a Gender Recognition Certificate made a man into a woman. 20 years later - where are we now? Why does a piece of paper give a man a right to strip search a woman?

Disclaimer: I am not an expert in discrimination law. For the purposes of this exercise I see this as a positive. If I - the intelligent lay person - is confused by a law, that says more about the content and expression of that law than it does about my understanding. Laws are our servants, not our masters.

And what is now clear, is that the law around sex and gender identity, who is protected, when, how and why, is very poorly understood either by accident or design. The consequences of this have been horrific - for the individuals threatened with the loss of livelihood or even liberty for daring to say sex is real and it matters, for society at large which has seen millions of pounds and hours wasted in either trying to deny fundamental rights or restore them. Think of what we could have achieved if all this time and energy had been directed to something - anything - else.

We are inching our way out of this very dark forest. But the night remains dark and full of terrors. An interesting recent example is the Guidance published in 2021 by the National Police Chiefs’ Council, regarding trans identifying police officers searching people of the opposite sex.

The Guidance provides that, “once a Transgender colleague has transitioned, they will search persons of the same gender as their own lived gender.” A police officer is to be treated as having transitioned from “the point at which they present in the gender with which they identify.” Police forces are expected to treat officers “in accordance with their lived gender identity, whether or not they have a GRC”.

This guidance therefore allowed any trans identifying man to strip search a woman - if she objected she might find herself the subject of an investigation into a hate crime or incident. This was despite the requirements of the Police and Criminal Evidence Act that strip searches, recognised to be degrading and humiliating, should only be carried out by a police officer of the same sex as the person searched.

It was today confirmed that this guidance has now been withdrawn, pending review. However, at the time, it was declared that this guidance had been thoroughly checked by robust ‘external counsel’ and given the green light as entirely lawful. The Women’s Rights Network thought differently, and produced a report objecting to the Guidance and demonstrating how it was being followed by 35 out of 47 police forces.

Fair Cop and Keep Prisons Single Sex then raised money via a crowdfunder to pay for advice from a KC as to whether this guidance was lawful. His advice and the guidance can be found here.

He identified the fundamental issue at para 34

How, then, should the words “the same sex as the detainee” be interpreted in this context? In particular, is the Guidance right to rely on an officer’s “lived gender” or whether the officer “present[s] in the gender with which they identify” to determine whether they fulfil the requirement of being “the same sex as the detainee”?

Consideration was given to the case of Chief Constable of West Yorkshire Police v A and another (No. 2) [2005] 1 AC 5 and the interesting words of Lord Bingham

“only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 Act [the Sex Discrimination Act, precursor to the EqA], as referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search”.

The KC considered how the Guidance defined the word ‘sex’ . The Equality Act defines “sex” by reference to whether an individual is male or female (see sections 11 and 212). The two For Women Scotland Ltd decisions set out that a person’s sex is decided by reference to their biological sex unless they have a Gender Recognition Certificate in which case they are to be treated (for these purposes) as though their biological sex corresponded to their acquired gender.

The Guidance should also define sex in this way, given that it directly references the Equality Act and therefore the Guidance was unlawful, as it provided a much broader definition and allowed men without GRCs but a ‘female lived gender’ to search women. The Equality Act provides protection only for the defined protected characteristics, which include sex and gender reassignment, but do not include lived gender, gender presentation or gender identity.

Further, no equality impact assessment was carried out before the guidance was implemented. One was conducted later, but it was insufficient. The KC commented at para 49

Notably, no consideration at all has been given to the position of detainees, for example as to the position of women who are searched. The issues identified above, for example in relation to searches which may risk being unlawful as contrary to PACE due to being conducted by an officer of the opposite sex to the detainee, are not considered at all. No consideration is given to the possibility of concerns of harassment on the part of those who have been searched; nor, more generally, as to impacts on the privacy and dignity of detainees.

We hoped that even if we couldn’t take this any further i.e. into a court we would at least spark some discussion - and we did. Sex Matters produced a rebuttal to the KC’s advice, pointing out

We think it should be obvious to police forces, the prison service, politicians and the judiciary that if it would be assault for a man to watch a woman undressing or to touch her body without her consent, then it remains assault even if that man has a government-issued gender-recognition certificate.

Sex Matters identify the trap that they consider the KC has fallen into - that possession of a GRC does NOT mean other people, as private individuals have to treat you as the opposite sex

As Naomi Cunningham has written, in everyday interactions individuals have no legal duty to treat men and women in any particular way, and no particular duty to pretend that a man who has gained a GRC is a woman. There is simply nothing in the Gender Recognition Act or the Equality Act that could require us to do that: no definition of what it is to be “treated as a woman” and no mechanism of adjudication, sanctions or remedies for infringements. 

The next mistake, Sex Matters asserts, was to turn the analysis then to the Equality Act and the issue of ‘discrimination’ against a trans identifying male officer who wants to search women. This simply isn’t the point. What is needed is to balance the ECHR rights of the men and women in this situation. Women have an article 8 right to privacy that outweighs the man’s article 8 rights to ‘psychological integrity’ and being seen as a ‘lived female gender’.

The context and purpose of PACE, enacted in 1984, was not to force women to subject themselves to being searched by transvestites or transsexuals. And the GRA in 2004 did not give men with a certificate the right to search women. 

Further

Lady Haldane, in the first instance (Outer House) judgment and quoted in the appeal (Inner House) judgment at paragraph 18, said her conclusion that the default meaning of “sex” in the Equality Act includes GRC sex did not “give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex”. She gave as an example the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, which she said can only be read fairly “to mean that a victim should have access to an examiner of the same biological sex as themselves”. She goes on to say: “There are no doubt many other such examples.”

Police searching is an obvious candidate for one of these “many other such examples”. It is surprising that FairCop’s KC did not even consider whether it might be in the same category. 

The Sex Matters response is powerful and angry. People, even clever lawyers, keep missing the point, so keen are they not to cause distress to trans identifying men. A GRC does not work magic, a piece of paper does not change one’s biology

They think about clever abstractions like “the application of a chromosomal, gonadal and genital definition”. They forget, or fool themselves into thinking they have forgotten, that we can tell a man from his shoulders, his chin, his gait, his brow, his neck, his voice, his hands. We don’t need to see him undressed, and we cannot switch off this perception. It is instinctual. You don’t have to read any case law.

So what now?

So what can we make of all this? What do I, the reasonably intelligent lay person, think is going on? The words ‘hot mess’ spring to mind. I return again to Lord Bingham’s words as cited above

referring to the acquired gender of a postoperative transsexual who is visually and for all practical purposes indistinguishable from non transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search”.

THIS was the man for whom the Gender Recognition Act was written. The ‘post operative transsexual’ who passed so wonderfully well - or at least had tried so jolly hard - that it would simply be cruel to deny his wish to ‘live as’ a woman. But for every April Ashley or Caroline Cossey there are men with beards, penises and testicles who claim that they are a woman, or middle aged men who ‘transitioned’ late in life and who retain the large frame and the unmistakable voice of a male person.

Decisions from the European Court make it clear that we cannot demand that a man undergo medical or surgical intervention in order to claim the protection of a ‘transgender identity’ and campaigning groups like Stonewall have lobbied hard to make ‘transition’ simply a matter of self declared identity. Whatever Lord Bingham thought was going on 20 years ago regarding the desire of men to ‘pass’, is no longer true today.

The State is demanding that women comply with a cruel and unworkable ‘legal fiction’ - that the person standing in front of you, demanding you undress to be searched is a woman, even though you can tell with every fibre of your being that he is male.

We are being tied up in knots by those who believe themselves to be ‘kind’, those who don’t care enough to think anything about it, and those who are fuelled by a deliberate and malign misogyny. As Keep Prisons Single Sex commented - even though the Guidance has been withdrawn, it is still being followed by local forces. If - when- the Guidance comes back, it will be surely only with a simple tweak, that now trans identifying men with GRCs can strip search women. But you aren’t allowed to ask if they have got a GRC. (I don’t believe this is true but is certainly now received wisdom).

Here is what I think.

1. You can’t change sex.

2. Be whatever gender identity you like but you can’t change sex.

3. You can’t change sex by making ‘an effort’ - a man with an inverted penis is still a man.

4. If you can’t explain precisely what ‘living as a woman means’ - other than be born female and don’t die - then you aren’t allowed to include it in legislation or guidance.

5. It is impossible to have an organising category in society based on how pretty you look, or how well you ‘pass’ as a woman, for what I hope are obvious reasons.

6. Women have a right to single sex female spaces and for potentially degrading treatment, such as strip searches, to be carried out by another female.

7. Our law seems a complete mess and open to hijack by the ill informed and the bad intentioned.

8. We need urgent Parliamentary intervention NOW to clarify what exactly a GRC does and doesn’t.

9. If this is too difficult, repeal the GRA and the PC of Gender Re-assignment. Protect ‘gender identity’ as the quasi religious belief it is.

10. If you are a man and you want people to think you are a woman, you will have to accept that there are some places you may not go, and some jobs you cannot do.

    And one of places is intimate contact with a woman, unless she has given you her enthusiastic consent.