UK Transgender Rights Legislation
Our reasons for concern about proposed government changes to the Gender Recognition Act which would make it easier for any person, for whatever motivation, to change their legal sex, are as follows:
- the practical impact on the rights of women and children and the safety issues it raises, especially for girls
- the implications for parents, schools and professionals in its acceptance of the diagnosis of ‘transgender children’ as fact
- the impact on children’s view of themselves if ‘gender’ stereotypes are enshrined in law as the distinction between men and women, rather than biological sex
For parents who want to challenge their child’s school on new policies such as ‘gender neutral’ toilets, allowing male pupils to use girls’ toilets, changing-rooms and residential accommodation, compete in girls’ sports, or allowing male pupils into all-girls schools, it is important to know your facts. We have put together a document listing all relevant sections of the Equality Act and government statutory schools guidance and advice which parents need to know. Download our easy guide here:
Guide to Equality Law and Statutory and Non-Statutory Schools Guidance
Existing UK Equality legislation and guidance
Our statement on sex and gender reassignment: legal protections and language (July 2018)
Equality and Human Rights Commission
After questioning by the campaign group Fair Play for Women, the EHRC was forced to clarify that a person without a Gender Recognition Certificate (GRC) is treated for sex discrimination purposes as their legal sex. No child under the age of eighteen has a GRC so a male child is still legally male even if he identifies as a girl.
Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.
Providing Services For Transgender Customers (Nov 2015)
Government Equalities Office in collaboration with Gendered Intelligence
This is a guide for service providers, and as such, not new legislation. However, service providers will be pressured to follow these guidelines as in any cases of litigation they may be used as part of a case for discrimination.
The guide specifically defines what it takes to be treated in law as the opposite sex:
“…if someone adopts a new gender role by changing their name, title and pronoun and/or by wearing different clothing, altering their body language, speech and hairstyle, they have reassigned their gender. As part of their gender reassignment some people may choose to take hormones and/or have surgery, but medical intervention is not an essential part of gender reassignment.”
This definition of the sexes as a set of behavioural and appearance-based stereotypes, in place of biological fact, is of great concern. It takes away the protection of children from adult ideas and judgments imposed upon them and puts gender non-conforming children at risk of believing themselves to be the opposite sex.
The guide also specifies the various different categories of people who fall under the ‘trans’ umbrella. The inclusion of people who don’t conform to “traditional gender roles” exposes the regressive and reactionary nature of gender ideology.
“Trans people come from all walks of life and include those who may describe themselves as transsexual, transgender, a cross-dresser (transvestite), non-binary and anyone else who may not conform to traditional gender roles.”
The guide further defines a ‘cross-dresser’ below; in the case of a man this indicates a male part-time cross-dresser, a fact which clearly puts women and girls at risk:
“Someone who wears the clothes usually expected to be worn by someone of the ‘opposite’ gender. Other terms include ‘transvestite’ (now becoming a dated term and disliked by some) and ‘dual role’. A cross-dresser is unlikely to have a full-time identity as a member of their cross-dressed gender and typically does not seek medical intervention.”
The good practice guidelines clearly encourage service staff and security guards to assume a man is a woman if he walks into a women’s toilet or changing room:
Try not to assume someone’s gender simply by their appearance.
Assume everyone selects the facilities appropriate to their gender.
A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present.
Staff are further discouraged from challenging a man for fear of being accused of harrassment which, in these guidelines, specifies the following:
Transphobic comments.
Isolation, exclusion and making a person feel emotionally or physically unsafe.
The meaning of ‘transphobic’ is not defined, nor the actions or words which would make someone feel ’emotionally or physically unsafe’ so service staff may reasonably feel afraid to challenge anyone who walks into a women’s toilet or changing room. No such consideration of feelings of safety is extended to women and girls.
The guidance further states “the exception has to be used in exceptional circumstances” and
In general, it is very unlikely that any exceptions will apply in ordinary ‘high street’ service provision situations.
This is inaccurate. It goes way beyond what the Equality Act actually says. Provision of single-sex facilities is lawful as long as it can be objectively justified as a proportionate means of achieving a legitimate aim.
Read the full guidelines here.
Technical Guidance for Schools (July 2014)
Equality and Human Rights Commission
This schools guidance does not advise allowing pupils who identify as transgender to use facilities of the opposite sex, but that the school must provide alternative facilities.
3.20 The way in which school facilities are provided can lead to discrimination. Example: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.
This guidance also recognises the right of schools to be single-sex:
2.13 For single-sex schools, there are exceptions for admissions to enable them to restrict admission to pupils of only one sex.
And again here:
2.35 Single-sex schools are allowed to admit pupils of only one sex without this being unlawful sex discrimination. In this context, a single-sex school includes those schools that admit pupils of the opposite sex, but the admission of whom to the school is exceptional or whose numbers are comparatively small and their admission is confined to particular courses or classes.
Collecting Information On Gender Identity (2012)
Equality and Human Rights Commission
Even though ‘gender’ is recognised as a socially constructed role, this government document specifically states that the terms ‘man’ and ‘woman’ refer to ‘gender’ and not biological sex.
“Gender refers to socially constructed roles, behaviours, activities, and attributes. The terms ‘man’, ‘masculine’, ‘woman’, and ‘feminine’ denote gender.”
This document also gives this very confusing definition of a ‘cross-dresser’:
“The term refers to a person who wears the clothing of the opposite sex because it is the clothing of the opposite sex. This excludes people who wear opposite sex clothing for other reasons. Cross-dressers may not identify with, or want to be the opposite gender, nor adopt the behaviours or practices of the opposite gender, and generally do not want to change their bodies. This term is associated with transvestite, though some cross-dressers would not identify as such.”
The specified definition of those who fall under the ‘trans’ umbrella is so wide as to be meaningless. It allows both a diagnosis of children as ‘trans’ if they fail to conform to expected gender roles, and affords protection to anyone wanting to enter private facilities for women and girls for whatever reason:
“The terms ‘trans people’ and ‘transgender people’ are both often used as umbrella terms for people whose gender identity and/or gender expression differs from their birth sex, including transsexual people (those who intend to undergo, are undergoing or have undergone a process of gender reassignment to live permanently in their acquired gender), transvestite/cross-dressing people (those who wear clothing traditionally associated with the other gender either occasionally or more regularly), androgyne/polygender people (those who do not identify with male or female
identities and do not identify as male or female), and others who define as gender variant.”
Equality Act 2010 Statutory Code of Practice (2011)
Equality and Human Rights Commission
This is the Code of Practice for all protected groups under the Equality Act 2010, which specifies both ‘gender reassignment’ and ‘sex’ as protected characteristics. The Code subsequently refers to the ‘reassignment’ of a person’s sex, not gender, validating the view that it is possible to change sex:
“The reassignment of a person’s sex may be proposed but never gone through; the person may be in the process of reassigning their sex ; or the process may have happened previously. It may include undergoing the medical gender reassignment treatments, but it does not require someone to undergo medical treatment in order to be protected.”
The document specifically references the application of this ideology to children (although conceding that some children may be ‘too young’ to make the ‘decision’) and reinforces ‘mode of dress’ as an indicating factor that a child may be the opposite sex.
“This broad, non-medical definition is particularly important for gender variant children: although some children do reassign their gender while at school, there are others who are too young to make such a decision. Nevertheless they may have begun a personal process of changing their gender identity and be moving away from their birth sex. Manifestations of that personal process, such as mode of dress, indicate that a process is in place and they will be protected by the Act.”
The Code also stipulates that a gender recognition certificate (GRC) is no longer required as proof that a person is genuinely transsexual, making it easier for any man to access women and girls’ private spaces:
“The Gender Recognition Act 2004 (GRA) provides that where a person holds a gender recognition certificate they must be treated according to their acquired gender (see the GRA for details on those who are covered by that Act; see also the Data Protection Act 1998 which deals with processing sensitive personal information). 2.27 Transsexual people should not be routinely asked to produce their Gender Recognition Certificate as evidence of their legal gender. Such a request would compromise a transsexual person’s right to privacy. If a service provider requires proof of a person’s legal gender, then their (new) birth certificate should be sufficient confirmation.”
Equality Act 2010
The Equality Act 2010 specifies the reassignment of ‘sex,’ not gender, even though the ‘protected characteristic’ is gender reassignment. The ‘process’ of reassignment is undefined, as are the ‘other attributes’ of sex apart from the physiological:
“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
The Act defines the protected characteristics of ‘gender reassignment’ as in reference to a transsexual person, and ‘sex’ as in reference to a ‘man’ or ‘woman’ although these terms are redefined as denoting ‘gender’ in the Collecting Information on Gender Identity document 2012 (above).
“In relation to the protected characteristic of gender reassignment – a reference to a person who has a particular protected characteristic is a reference to a transsexual person”
“In relation to the protected characteristic of sex— a reference to a person who has a particular protected characteristic is a reference to a man or to a woman”
Gender Recognition Act 2004
This Act is defined as:
“An Act to make provision for and in connection with change of gender.”
It then goes on to specify that an ‘acquired gender’ indicates a change of sex where a person has obtained a Gender Recognition Certificate (GRC). This means that a person with a GRC is treated for legal purposes as a member of the opposite sex. (However, sex-based exemptions may still be invoked if it is a proportionate means of achieving a legitimate aim).
“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).”