The last 5 weeks have been something of a strange ride in the world of trans rights. What has culminated this week is the pinnacle of idiotic behaviour begetting idiotic behaviour.
In order to put the “debate” into context, it’s important to establish the history of exactly what it is that is being debated.
Back in the mists of time, the United Kingdom signed up to the European Convention on Human Rights (aka the ECHR). This is a convention that lays out the inalienable rights afforded to all people regardless of age, race, gender, ability, etc.
Part of this convention is Article 8, which has clauses which cover birth certificates. Specifically, it requires signatories to provide two means in law:
- The right of redress in the case of an error recorded on a birth certificate, such that the error be rectified in full.
- The right to privacy regarding any such changes such that no consequences shall arise from such a redress.
The astute among you will notice that the word “trans” has not made it in here. The tenets are not specifically for recognising a trans gender identity, but for correcting a birth certificate that is deemed incorrect with regard the facts, and protecting victims of those errors from being discriminated as a consequence.
To facilitate this, the United Kingdom has a set of laws that are the Gender Recognition Act (2004). This act provides the process of redress described in Article 8 of the ECHR, and extends provision to transgender people to recognise their gender, update a birth certificate, and acquire privacy.
Now it should be noted that the GRA at the time had post-op trans people in mind, or at least very close in “lived experience”. That much is clear from the language in use. Parts of the GRA refer to having had surgery, whether as others recognise that surgery is not required if you can sufficiently prove having lived in the acquired gender for a sufficient period (this allows the GRA to redress errors in recorded sex on a birth certificate that do not pertain to trans people).
This is where the crux lies. Trans people have, through the Equality Act, and through general progress in LGBT acceptance, been able to live their lives largely free of discriminatory issues. However, the one area that persists in causing potential problems, is that of the birth certificate.
Why the GRA (as it stands) has issues
Birth certificates have very few purposes in real life. For example, my passport has “female” on it, and my driving license also indicates “female”. All my government documents, records, bank records, etc, all say “female”. But I do not hold a Gender Recognition Certificate, or an updated Birth Certificate.
However, in the unlikely event I manage to get married, without an updated Birth Certificate, I will be recorded as the groom in a gay marriage.
Upon my death, I will be recorded as a “deceased man”.
Fortunately, I have a current passport, so I can use that to prove right-to-work when applying for a job. But those who don’t have a passport will have to resort to a birth certificate, and out themselves.
In theory, the Gender Recognition Act resolves these issues. But the structuring makes it an invasive and bureaucratic process, the crux being submitting yourself for evaluation by a “Gender Recognition Panel” of complete strangers that you will never meet, who get to assess whether you are trans enough to be recognised.
The proposed reforms
It was in 2016 that the then Prime Minister, Theresa May, in an unusually progressive turn for a conservative, proposed the reformation of the Gender Recognition Act.
Because this was more publicised, the Gender Criticals suddenly became aware that trans people had rights. The proposed reforms would remove the need for a medical diagnosis of gender dysphoria, and remove the need for a 2 year “lived experience” period.
Instead, the process would involve a “self identification” process. And this is where the transphobes got it monumentally wrong, and kicked off a process of self deprecation.
It started with a miss…. (information)
The problem with Gender Criticals, and that includes those in government, is that they never actually understood the rights trans people have in the Equality Act, and the limitations of what the Gender Recognition Act does. From the beginning, it has been positioned that the GRA reforms would “let predatory men into women’s safe spaces”.
Notwithstanding the fact that a space isn’t safe just because it lacks a Y chromosome, the GRA doesn’t let anybody into anywhere, because there are no single-sex spaces in the UK that require presentation of a birth certificate or gender recognition certificate in order to gain entry.
Aside from this, as I have previously discussed, the Equality Act explicitly grants freedom of discrimination on the basis of gender reassignment when it comes to public provision of single-sex spaces, except as a “proportionate means of achieving a legitimate aim”. No part of this legislation has any reliance on having or not having a GRC or updated birth certificate.
The claims currently being made are completely bogus. But this is just the beginning.
The Party’s Most Essential Command
The problem with the Conservative government, is that it has positioned itself as a “defender of women’s rights” (a laughable statement given it’s history), by opposing GRA reforms. In truth, the party has subconsciously positioned itself as opposing trans rights altogether, and sees opposing GRA reforms as achieving that aim with a veneer of legitimacy.
To date, this has worked well. Since Boris Johnson was elected and appointed Liz Truss as minister for Women & Equalities, opposition to trans rights has been staunch, with the public-facing excuse being “to protect single-sex spaces”.
The problem is, this only works while everyone is in compliance with bypassing any scrutiny. The Women & Equalities Select Committee spent a whole year analysing the evidence both for and against GRA reform, and found overwhelmingly that GRA reform should go ahead. A parliamentary debate reached the same conclusion at the end of 2021. But Liz Truss vetoed it, again with the “protection” excuse.
Again, this managed to hold due to lack of proper public scrutiny. At this point, the Conservative government is entrenched in this opposition. It’s made its position clear, and the reasons for it, and stuck by it staunchly.
Then Nicola Sturgeon came along.
The Other Party and the Manifesto
Nicola Sturgeon declared a frustration with the Westminster government. This is not undue; Self-Id for the updating of birth certificates is law in 14 countries, including one of our nearest neighbours, the Republic of Ireland.
The First Minister therefore declared that Scotland would pursue Gender Recognition separately, which it was entitled to do under devolved powers. This has caused a problem for the Westminster government.
One of the subtexts for refusing GRA reform, DESPITE the number of other countries that had already done so, was the “that’s them, we’re different” line. The premise is that while it may work for other countries, the UK is different and fundamental differences in culture would mean a difference in consequence.
Ireland is just far enough away that this line can work, especially after Brexit whereby the estrangement of Ireland in politics was greater. But if SCOTLAND were to pass GRA reform, the “we’re different” line wouldn’t hold water. Especially after the Act having been inplace showed no issues.
However, Westminster would be overstepping its mark by telling Holyrood that they can’t even discuss it. So the process went ahead. Numerous (ill-informed or just plain deceitful) MPs tried to derail the process numerous times. But always, the Conservatives have stuck to their premise: “We’re protecting women”.
Too Much Scrutiny Spoils The Plot
One of the things Gender Criticals have always been keen to emphasise is scrutiny. The idea that any changes to trans rights need feverish examination for possible disastrous side effects. For the last 7 years this has worked to delay legislation. Even the attempts to ban conversion therapy have been stymied by claims that “talking therapies” will become illegal.
Of course, in reality, the Gender Criticals have never wanted scrutiny. They use that as an excuse to delay process. I’ve discussed before that getting legislation scrapped is not the most desirable outcome, because it can be resurrected with different amendments at a later date. The objective is to delay the process without making changes so that it can never pass.
Unfortunately for the Gender Criticals, they’ve overplayed their hand here. Holyrood went through all standard processes, and invited plenty of testimony against the proposed legislation. Except the Gender Criticals weren’t able to provide any. In summarising the conclusions of the parliamentary committee, it was said
When invited to present evidence of how the proposed reforms would affect the safety of women, none of the witnesses could provide concrete examples.
The bill has been scrutinised from top to bottom, and numerous amendments passed on it. It passed the Holyrood pariament on the 22nd of December 2022, by a massive majority, with support from all MSP parties.
But the Conservative government is too far in now.
The Government Panics
It is important to understand that the government’s actions from here on in are a consequences of its own stubbornness. They’ve positioned themselves as “protecting single sex spaces”, and relied on a lack of scrutiny and control of the action to preserve that status quo. But the scrutiny came, and the excuse was found to be bogus. Another government has the control, so the Conservatives are out of options.
If they acquiesce, they’ll have to admit that either, they were being transphobic all along, OR they’ll have to admit they didn’t do the proper research all along. Either way, it’s a very public lose-lose for Kemi Badenoch (the current minister for Women & Equalities).
So Westminster is trying to do damage control. They made two threats to try and “stop” Holyrood:
- To use Section 35 of the Scotland Act to overrule Holyrood,
- To refuse to recognise birth certificates updated by the legislation.
I use the word “stop” here, because abandoning the legislation is what Westmisnter would really like, but couldn’t hope to achieve with Nicola Sturgeon. A “revision” might be achievable, but unlikely.
Let’s look at these in detail.
You Have No Power Here
Section 35 is meant to be used sparingly by the UK government to overrule Holyrood if it feels some legislation has been passed that would impact the rest of the United Kingdom unfairly.
The stated reason for invoking Section 35 is “the changes will affect UK-wide equalities legislation”. This of course, is not possible, because it doesn’t change who can acquire an updated birth certificate, or what doing so would result in, it only changes the criteria for obtaining an updated birth certificate.
The usual claims of “single sex spaces” don’t work here. Especially, when the bill itself states “This does not affect the functioning of the Equality Act 2010”.
Kirsty Blackman MP asked Alister Jack (minster for Scotland) what the GRA does, and he was unable to answer:
That’s because his directive is to stop the legislation, not to act appropriately. Nicola Sturgeon has already signalled the Section 35 will be challenged in court, and it’s very likely she will win. One thing that Gender Criticals always fail to realise in court cases is that in a court of law, you actually have to tell the truth and provide evidence for your claims. The usual tactic of “I’m saying it therefore it’s true” doesn’t work.
This will of course add delay to the passing of the bill. But it will pass, and Westminster will be humiliated. But they have no choice. They made this bed, and they have to lie in it if they want to avoid an early humiliation.
The second tactic is a little more baffling, and seems to be an act of pure spite.
Kemi Badenoch signalled she would refuse to recognise birth certificates updated through gender recognition from any country without a “rigorous process”. The problem is this also affects a number of European countries who have been OK under UK law for over 10 years.
But again, this is par for the course: The claim is “protecting single-sex spaces”. If the Section 35 order fails, the backup plan is to simply not acknowledge it. The former is likely to fail, and there will be nothing Westminster can do, so there is a backup plan that can’t be challenged. It’s petty on the part of Westminster, and spites Europe just to engage in trans hatred.
Ultimately, it will make no difference. I’m not sure what she thinks birth certificates are used for that one with what she considers “the wrong marker” will be rejected. To re-iterate, I presented my birth certificate to the passport office with “Male” on it, and they granted me a passport with “Female” on it, because I presented documentation to backup my trans status. This doesn’t require a Gender Recognition Certificate, and neither will most employers utilise some government process for verifying the acceptability of a GRC-induced birth certificate.
Similarly, for marriages and deaths, the worst that will happen is people will be denied dignity in process. It’s not going to protect any single-sex space, no matter how much she throws a tantrum.
The Conservative party already looks abysmal on the world stage when it comes to equality and LGBTQIA+ rights. The “Safe To Be Me” conference in 2022 had to be cancelled because the majority of LGBTQIA+ organisations in the UK found it to be farcical. A government that was proactively using fearmongering against trans people could never be the organiser of an event claiming trans people were safe.
Westminster has painted itself into a corner. By starting on the fearmongering propaganda wagon it’s committed itself, short-sightedly, to a factually false reasoning behind denying trans rights, and is forced to play out this idiotic game to it’s conclusion.
The Section 35 order will be thrown out of court, because it has no legal basis. The legislation will go before the King, who has promised to respect parliamentary democracy. It will become law.
Kemi Badenoch may well get to give the finger to Europe in order to spite trans people, but ultimately it will be pointless.
While strengthening Scotland’s case for independence, and estranging ourselves further from Europe, Westminster demonstrates once that it is a party of personal crusade, rather than governance.
By the time they’ve been laughed at by the courts, Kemi Badenoch might not even be in power to be laughed at by Europe.