Gender law conflict: seeking a way forward

THERE HAS been heated debate in recent months over equalities, including how protection of transgender people is balanced with the rights of women and girls in general. This has often been harsh and divisive and has got in the way of measures which might reduce inequality overall.

In January 2023 Rishi Sunak, the UK prime minister, controversially used a power in the Scotland Act 1998 to block a bill passed by the Scottish parliament to make it easier to change legal gender. Previously Westminster ministers had warned of a possible clash with the Equality Act 2010, which covers the whole of Britain.

The Scottish government – led by the Scottish National Party in alliance with the Scottish Greens – was initially defiant. The bill had gained a degree of majority support from all parties other than the Conservatives and passed with a significant overall parliamentary majority. But aspects of its stance became unpopular, especially after high-profile cases of males convicted of sexual violence being placed in (or considered for) women’s prisons.

However, after Scotland’s first minister, Nicola Sturgeon, resigned, her successor, Humza Yousaf, was appointed, holding a similar position. He is pressing ahead with legal action. A negotiated settlement might seem preferable; but, according to Scotland’s social justice secretary Shirley-Anne Somerville, “Our offers to work with the UK government on potential changes to the bill have been refused outright by the secretary of state.”

In April 2023, the UK equalities minister, Kemi Badenoch, announced that the Equality Act might be overhauled to clarify that ‘sex’ referred to biological sex, accompanied by a letter from the Equality and Human Rights Commission chair, Baroness Falkner, on the implications. One petition calling for a clarification of the meaning of the term ‘sex’, and one opposing this, were debated in Parliament recently, with views remaining polarised.

Changing the Equality Act might simplify matters for providers in some instances but would negatively affect trans people – and more generally undermine equality principles (in particular that only proportionate and legitimate discrimination should be allowed), as well as sowing further confusion. In particular, I believe insufficient account is taken of the right not to be discriminated against on the basis of association and perception , which would ordinarily extend sex-based to gender-based protection, and of the public sector (as well as general) equality duty, which might require reasonable alternative provision.

On this matter, people with conflicting views have sometimes become more entrenched and less willing to recognise common ground or the complexities of doing justice to those with varying needs and experiences, within and across social groups. Politicians’ power games have made matters worse. Reportedly, Dougie Smith, an adviser who coordinated the ‘war on woke’ under a previous UK prime minister is in charge of ‘weaponising’ the issue of trans rights before the next election .

Meanwhile, Scottish leaders rightly wanting to reduce discrimination against trans people, have been accused of going about this in a way which has done the cause more harm than good. This included disregarding or criticising colleagues voicing concerns, whereas listening could have made the Gender Recognition Reform (Scotland) Bill harder to challenge.

In my view a more just and merciful way forward could be found, based on making it easier to put into practice sex-based exceptions when proportionate and legitimate (rather than disproportionately harsh) and not placing any dimension of equality above all others, or safeguarding and human rights. However this would face resistance from those committed to an all-or-nothing approach or who are exploiting the issue for their own ends.

That might include UK politicians making exaggerated or untrue claims against various minorities (also including asylum-seekers, social security claimants, Pakistani men  and so forth) to gain votes, as well as sections of the media. In addition, those who like to think of ourselves as ‘progressive’ may downplay the impact of some types of exclusion or be influenced (consciously or otherwise) by subtle or obvious differences of power and status. Yet even some people who shy away from complexity and dislike compromise may recognise that an imperfect outcome might be the best that can be achieved in current circumstances.

Equality, gender, sex and the law

Good law-making requires willingness to recognise complexity and to explore what may go wrong, rather than assuming that positive intentions are enough and that people one disagrees with on certain matters are wrong on everything . In policy-making too, ignoring or silencing dissenting voices can mean that potential problems are not addressed or, at least, that the resulting policies are less persuasively presented. Yet often, over-confidence is presented as a sign of good leadership or moral commitment. This applies not only to areas such as criminal justice but also to equality and human rights.

This includes balancing the need for limits on what private individuals and corporations are allowed to do, and the risk that powers held by political or other leaders will, at some point, be harmfully used. Also laws can usefully signal that everyone matters. But too often, overriding choice by people and communities in the interests of promoting virtue, can undermine freedom and democracy, especially if people do not learn how to make informed decisions about what or whom to support and explain their reasoning.

For example, I am very much in favour of action within faith communities to further equality for all. But removing all religious exceptions in British equality law – sometimes called for to advance inclusion – could lead to a state crackdown on Orthodox Jewish and Roman Catholic communities (among others) for having only male rabbis and priests, or only celebrating marriages for opposite-sex couples. To legally force change in this way, and to punish member organisations for not complying, would be a grim reminder of historical persecution, and is anyway unlikely to be effective, compared to persuading and convincing people of the value of inclusion based on their own core values and beliefs. However, in institutions that serve the public, a factory manager or council leader could not, on the grounds of religious beliefs, lawfully treat women or LGBT+ people unequally. This underlines the fact that exceptions make equality law more likely to be applied and command public support – hence stronger, not weaker – provided these are proportionate and legitimate.

In most circumstances, across Britain and many other countries, discrimination on grounds of sex, sexual orientation, being transgender, ethnicity, being disabled and so forth is unlawful, though not uncommon. Economic precarity, lack of affordable legal advice and other factors make enforcement harder.

Sexism is still widespread, on an institutional and societal as well as personal level. It is often a factor in homophobia and transphobia too, if males are seen as failing to uphold the supposed superiority which is their birthright, females rising above their proper place and intersex people causing confusion just by being. Men and boys can also be affected by, for instance, the assumption that it is unmanly to shy away from risks, which can be exploited by employers and military recruiters. At the same time, it is important to acknowledge the progress that has been made in many regards, without being complacent. Exaggerating how bad things are compared with, say, 1950s Britain or parts of the world where there has been a sharp upturn in violence against women and minorities, can intensify the impact of the inequality which persists, as well as failing to mark the efforts of pioneers of social change.

Definitions vary. The World Health Organisation (helpfully in my view)  suggests that “Gender refers to the characteristics of women, men, girls and boys that are socially constructed… Gender is hierarchical and produces inequalities that intersect with other social and economic inequalities… Gender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs. Gender and sex are related to but different from gender identity. Gender identity refers to a person’s deeply felt, internal and individual experience of gender, which may or may not correspond to the person’s physiology or designated sex at birth.”

To complicate matters further, individual experiences of disadvantage vary widely, linked not only to other facets of inequality, but also to personal history, temperament, culture, et cetera. For instance someone born female, and who identifies as a girl and later a woman, might be encouraged by adults around her to resist society’s expectations – or taught repeatedly from earliest childhood, sometimes brutally, that she is inferior and destined to serve boys’ and men’s needs and desires (or something in between). A trans woman might have been open about her identity from early life or continued to conceal it throughout her career; have had hormonal treatment and surgery or neither; be visually indistinguishable from a ‘typical’ woman or man, at least some of the time; changed her name and/or transitioned officially or unofficially.¹

Even focusing just on the West, when someone trans comes out, in addition to any discrimination on those grounds, that person’s status with regard to gender may fall, if a woman, or rise, if a man, for instance affecting earnings  or street harassment  Indeed trans women can be at heightened risk from abusive men because families and the authorities are less likely to intervene, though trans men may also have been treated demeaningly because previously seen as ‘just a girl’. Competition as to which group is most oppressed is usually an unhelpful exercise.

At present the process for transgender people in the UK to gain a certificate under the Gender Recognition Act 2004 is difficult and overly-medicalised. This legislation was prepared at a time when it was expected that relatively few people might wish to change legal gender, often but not always associated with medical intervention. Common terminology has also changed (e.g. “transsexuals” is no longer in common use).

The Equality Act 2010, a critically important law with regard to tackling inequalities, covers nine “protected characteristics”, discrimination on the basis of which is unlawful except in very limited circumstances, including “sex” and ‘gender reassignment.”² The latter has increasingly been understood as including trans people who have not yet changed legal gender; this was confirmed in Taylor v Jaguar Land Rover 2020 employment tribunal case (about a worker in a vehicle plant who was harassed and victimised) which indicated that non-binary and gender-fluid people should also be protected.

Certain single-sex exceptions are set out, so that a job, service, activity such as sport or communal accommodation could lawfully be restricted with regard to sex, if it might be unfair, unsafe or inappropriate to treat males and females in the same way.

If this was a proportionate means of achieving a legitimate aim, a trans woman, even if she had been given a female birth certificate, might not be treated identically to other women, e.g. not admitted to a group counselling session for female victims of sexual assault if other clients were unlikely to attend. It had been known for decades that women and girls traumatised by male violence sometimes experienced a fear of males in general. Through accident of birth rather than any fault of their own, men and boys, likewise transwomen, can trigger powerful reactions, hence the need sometimes for distinct services or functions at work.

Gender recognition is also easier if not coupled with automatically being treated as typically female in all circumstances. If a physically male heavyweight boxer with a knockout punch comes out as a trans woman, others can grant her the dignity of respecting her identity without necessarily believing it is safe and fair for her to enter the ring with a female opponent in a few weeks. And she might be spared the distress and potential backlash if such a match ended in tragedy. Being able to compete in an open, rather than ‘men’s’, category might feel more appropriate, provided an atmosphere is nurtured in which diversity is truly welcomed, though criteria may vary across different sports and some are anyway mixed.

At the same time, whether ‘sex’ refers to sex registered at birth, legal sex (hence including trans people with a gender recognition certificate) or is wider in scope, I believe that prohibition of discrimination on grounds of gender would ordinarily be included. Unlawful discrimination can take place because of a protected characteristic that a person does not personally have, if treated less favourably because of their association with a person who has a protected characteristic, or because they are wrongly perceived to have one, or are treated as if they do. This is helpful especially for women, whether trans or not.

For example, let us suppose that the head of a computing firm has long discriminated against women because he thinks them less technologically-minded but this has been impossible to prove. On one occasion a trans woman, Susan, finds out from a friend who works for this boss that she was the best-qualified candidate for a job for which she was not even shortlisted, while only men were interviewed. If the employer did not know her, he might have assumed she was female from her name; or met her at a conference but felt that, as someone with a ‘female brain’, she would not be logical enough. Women in general would benefit from such sexism being legally challenged.

The Equality Act also introduced a Public Sector Equality Duty, which included eliminating discrimination in its work, advancing equality of opportunity and fostering good relations. This might involve steps to meet the needs of people from protected groups where different from others’ needs. However, the development of services and facilities tailored to specific needs, including those of trans people, and the assessment of proposals to minimise the risk of adverse effects on one group or another, often failed to happen, especially against a backdrop of austerity. Also, decision-makers perhaps sometimes failed to look too closely at whether specific measures aimed at inclusion of one kind might accidentally exclude others, if action were not taken to mitigate risks. Likewise, comprehensive equality impact assessments did not always happen, even when these would have been advisable.

A changing equality landscape

Gradually a shift occurred, in part perhaps because appropriate alternative provision, especially for trans women and non-binary people, was patchy. There was also a change in priorities around inclusion for several parties (including for a while, the Conservatives, though this changed, but markedly the Green parties in both England and Wales and Scotland, and the Scottish National Party). In addition, cultural change meant that some people were more relaxed about, for instance, sharing accommodation with people of any sex or gender – and could be impatient with anyone who felt differently. Hence, even if equivalent support could be offered, there was a push to get rid of single-sex exceptions, however compelling the reasons, if trans women or men (or those who claimed to be) were excluded; or at least, to make these unworkable.

As well as social conservatives being dissatisfied, there were objections from gender-critical feminists. But others who accepted individuals’ own perceptions of their gender, yet wanted flexibility to meet different needs in different ways where appropriate, were cautious about saying too much. A kind of romanticisation also took hold, in which it was deemed offensive even to consider any downside to measures supposedly aimed at trans inclusion, if only to mitigate the effects. However, history has repeatedly shown the hazards of not listening to diverse voices or being on guard against unintended consequences.

This did not mean that needs which, for many trans people, were more pressing were always being met more effectively. For instance, those seeking physical interventions often spent years on NHS waiting lists, to the detriment of their mental health, sometimes meaning that they turned to poorly-regulated or expensive private providers.

Internationally, fiercely polarised discussion of sex and gender left many hurt or fearful, some of them trans, while the far right in many countries saw ‘traditional values’ as a vote-winner. In the UK, the all-or-nothing approach backfired in 2018 when Karen White, a rapist who had been placed in an English women’s prison, despite a long history of sexual violence against women and children, predictably sexually assaulted fellow-prisoners and was found out. There was a furore. While almost all of us may sometimes fail to acknowledge our prejudices, even to ourselves, a situation in which caution about wider equality, safety and justice was frequently treated as a sign of ‘transphobia’ or even ‘hate’ was now undermining, rather than advancing, trans equality.

In the UK, leadership shifts in the ruling Conservative Party meant that proposals to introduce legal gender recognition based on self-declaration were not taken forward. In December 2021, the UK parliamentary Women and Equalities Committee recommended that this be introduced, while enabling protection for single-sex services. In April 2022, EHRC guidance provided greater clarity as to when single-sex services which do not treat trans people identically to other people of the same gender might be appropriate.

However, in Scotland and elsewhere, many politicians and campaigners (often not trans themselves) failed to learn lessons or to adopt a strategy which left room for complexity and compromise. Meanwhile those sounding a note of caution frequently failed to recognise that trans people’s social position as well as innate sense of gender was different from that of others born male or female, making it easier to dismiss what they said.

Ideally, new legislation on gender recognition would have struck a balance between different dimensions of human rights. One the one hand, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, published (in late 2022) a scathing report on the UK government’s backward movement on human rights which urged a move away from “an increasingly hostile and toxic public and political discourse” on trans people and called for an easier process of gender recognition based on self-determination.

On the other hand, in a letter to Scotland’s first minister, Reem Alsalem, the United Nations special rapporteur on violence against women and girls, suggested that care was needed to minimise the risk from predatory men who might pretend to be trans then pose a risk to “the safety of women in all their diversity (including women born female, transwomen, and gender non-conforming women.” She also mentioned trauma-based reactions among women survivors of male violence, cultural and religious factors which might make single-sex exceptions important and specific barriers for migrant women. She raised the possibility that failure to provide appropriate single-sex services to women born female, alongside gender-specific services for women in all their diversity, could amount to unlawful indirect discrimination. While later expressing disappointment at what she regarded as failure to take these issues fully on board, this was on the basis that the new measures could have been improved; indeed she suggested including a neutral or non-binary category too.

To these, she might have added the risk of disability discrimination, for instance in personal care services which involve physical contact. An older woman with advanced dementia, say, could hardly be expected to know, and consistently recall, that a worker providing intimate bodily care who looked and sounded male was a trans woman (especially if the client’s most vivid memories were from decades ago, when trans women tended to dress in more ‘feminine’ ways). It might be hard enough for the client to make sense of why a stranger is undressing or washing her. Nor would it be fair to the worker for an employer to send her into a situation in which she might cause unintended distress.

However, this was treated rather dismissively by the Scottish government, which pressed ahead –  though, at a late stage, making some concessions, for instance on safeguarding. The bill was passed, then blocked by UK ministers. The Isla Bryson case hit the headlines. This was a case in which a double rapist (the sincerity of whose claim to identify as a woman was questioned by those who knew her) was placed in a woman’s prison. Reports of her behaviour when at a beauty college, while awaiting trial, and use of accusations of transphobia and homophobia to silence the young women upset by this, further highlighted the risks of a simplistic approach to complex issues. When the physically powerful and violent prisoner Tiffany Scott, who had previously identified as a man, was considered for transfer to a women’s prison, the UN special rapporteur on torture, Alice Edwards, tweeted, “Female prisoners have a right to be protected from violent sex offenders no matter how they identify. Where is the common sense? Clearer guidelines are needed.”

Dismay at the situation which had arisen risked setting back the position of prisoners declaring themselves trans who posed no appreciable risk, with renewed calls for none to be held in women’s prisons. The idea of separate units was better than keeping them with the general male prison population – but it would be unreasonable to lock up a frail elderly serial shoplifter with no history of violence, and who socially and physically transitioned decades ago, alongside a strong, aggressive offender who has repeatedly assaulted people.

Moving forward

Scottish First Minister Humza Yousaf has decided to mount a legal challenge to the UK government’s block on Scotland’s bill. It is hard to predict the outcome. There has, perhaps, been a lost opportunity on all sides to take forward trans inclusion in a way that might win support from a wider range of people.

Meanwhile UK ministers are >still considering legislation to specify that single-sex exceptions in the Equality Act would ordinarily refer to biological sex. While aspects of the wording of that law could do with clarification and updating at some point, the effect of this change in current circumstances would be highly damaging, albeit with modest benefits. These would mainly be in enabling single-sex exceptions which might be reasonable but hotly contested and hence carry a substantial human and/or financial cost.

A better solution might include clearer guidance to commissioners and providers of public services and regulators; and wider awareness-raising on the rationale for sex- and gender-specific activities or opportunities in certain circumstances. Taking account of equality-related issues across all protected characteristics, human rights and safeguarding responsibilities would be crucially important if this were to be credible. This might include reviewing design of public spaces, for instance to ensure greater provision of self-contained unisex toilets, as well as more privacy and safety generally; of services and activities, so that varied needs can be met, sometimes at different times or in slightly different ways; and of communications, to take account of different levels of literacy and fluency in English as well as sex and gender, especially since often people disadvantaged in varying ways are badly affected by poverty and ill health. A few of the remaining scenarios raised in the EHRC letter might be approached in alternative ways, for instance by taking account of philosophical belief.

If the law is changed so that trans people are excluded, without good reason, from certain spaces they have been using, it might leave some feeling that their identity is not really recognised, while also causing numerous practical problems. One might imagine a trans woman forced to out herself at work if now required to use men’s facilities. If her workmates are supportive and she is still welcome at the team’s usual end-of-week gathering at a local pub, one of the heftier blokes might have to accompany her each time she visits the gents’ toilet to make sure she is not attacked. Meanwhile a butch lesbian colleague finds herself challenged even more often when using the ladies’. A trans man who has had surgery and hormonal treatment and was holding his own against other men in local amateur swimming contests finds himself again competing with women, though he is now far faster. Meanwhile at a women’s bridge club, one member is especially sad at the absence of her good friend and bridge partner, with whom she has enjoyed many a winning hand. These might not all be required by law but, amidst widespread confusion, might happen, nonetheless.

Additional complications could arise if some commissioners or providers decide, in response, to open up previously single-sex posts and services to people of all sexes and genders, which might intensify exclusion of non-trans as well as trans women.

Complex issues remain, for instance with regard to children and young people, in which approaches which lend themselves to soundbites are inadequate. Sometimes the gulf between ‘sides’ is not as great as it might appear. Under the Gender Recognition Reform (Scotland) Bill, a certificate could be obtained at 16 years and six months, having applied at 16. At present someone can obtain this at 18, having lived in the “acquired gender” for two years – i.e. from 16. More generally, evidence indicates that, of children registered female at birth but who feel they are boys, or male at birth but who feel they are girls, a sizeable proportion go on to have a durable trans identity in adulthood and a sizeable proportion do not. Politicians and campaigners tend to focus on either the former or latter; but parents, schools, GPs and many others have responsibilities to seek the wellbeing of both. In general, educational, health and social care professionals and relevant authorities should not be deterred, by any change in name and gender, from sharing information important to the health, safety and wellbeing of a child under 18. More resources and backing for education which effectively tackles sexism and inequality overall, along with speedy access to high-quality support tailored to each child, could help.

In seeking greater justice and equality it may be useful (as well as asking searching questions about different policy and legislative options) to create more space to share stories and try to extend empathy to those with widely varying experiences. In some cases, people’s ardour and inflexibility may be fuelled by personal hurt or years of supporting victims of a particular kind of injustice.

People of all faiths and none who are committed to a more compassionate and inclusive world can perhaps help to create a climate in which bridges can be built. Any solutions will inevitably anger or disappoint some people; yet there are ways forward based on recognising complexity while striving for equity and human rights for all.

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© Rosemary Brien is a writer and equalities campaigner.