Gender Recognition Act reform is dead. The leak to the Sunday Times this weekend only confirms what was obvious as soon as Boris Johnson became prime minister, and must be a relief to anyone who recognised the problems with enshrining gender self-identification in law. This includes, presumably, every minister for women and equalities since 2016 who has quietly prevaricated on implementing the recommendations of the transgender equality inquiry, led by Conservative MP Maria Miller.
As faulty as GRA reform was, its demise is not something to celebrate
But as faulty as GRA reform was, its demise is not something to celebrate. Instead, it should be the moment that the conversation about trans rights in the UK stops being an intractable culture war, benefiting no one but the culture warriors, and becomes instead a frank discussion of how to ensure full and equal rights for trans people without sacrificing those of other groups – particularly women.
For proponents of GRA reform, this is a dramatic fall coming after an only slightly less dramatic rise. In the ten years after the GRA was passed in 2004, trans activists acquired a radical slate of demands that can be summed up in the Stonewall T-shirt slogan: “Trans women are women. Get over it!” Gender should be self-defined and unquestioned by others, regardless of whether someone has made medical or even cosmetic efforts to transition. Sex should be subordinated to identity.
By 2015, advocates for this position dominated the proceedings of Miller’s inquiry. More than a third of the witnesses to give oral evidence were trans activists; no representatives of the women’s sector were invited. Unsurprisingly, the inquiry went on to recommend that the UK should adopt full self-identification. And trans activism found support in the Tory party under David Cameron and Theresa May, both of whom were keen to break with “nasty party” history and establish their socially liberally credentials.
Meanwhile, in Jeremy Corbyn’s Labour, the movement was embraced as simply the next advance of civil rights, and (more cynically) a front on which May could be outflanked. Having been endorsed by Corbyn, the issue also functioned as a loyalty test within the fraught opposition: MPs who so much as hinted at divergence from the approved line faced bitter attacks from their own constituency parties.
The lack of scrutiny in parliament has been compounded by a determined anti-intellectualism that treats anyone who is less than wholeheartedly behind reform as a bigot. Essentially, trans activism has been playing politics on easy. When your critics can be cancelled – or even better, scared off from making their criticisms by the mere threat of cancellation – it’s never necessary to answer them. But by dodging the hard questions, trans activism left itself unable to make its case once organisations like feminist group Woman’s Place UK emerged to press the points.
The commitment to self-identification feels like an ideology in search of a context. Although the American press likes to portray the UK as a transphobic backwater, trans people in Britain have actually had greater safeguards against discrimination since 2010 thanks to the Equality Act, which includes the protected characteristic of “gender reassignment”. The US has only caught up this week, thanks to a supreme court decision. Yet an undifferentiated Atlanticism in trans activism applies the same rhetoric to both countries.
It’s not obvious what problem self-identification was supposed to solve in the UK. For example, one of the arguments commonly made for self-ID is that trans people face an epidemic of violence – but this is based on the number of murders of trans people globally. In the UK, trans people appear to be less likely than the average citizen to be killed. Of course, there is still prejudice against trans people; trans people still face unreasonable bureaucratic hurdles. It’s just that self-identification seems an unlikely way to achieve any concrete gains.
It’s true, for example, that applying for a GRC can be an intrusive and impersonal experience, as many trans people have testified. But being accepted legally as the opposite sex is a significant request to make of the state: it’s right that there are standards to fulfil, and barriers to bad actors protect trans people as much as anyone else. What there can be consensus around – once the ruinous extreme of self-identification has been dispensed with – is that the process of obtaining a GRC should be made as humane and accessible (and cheap) as possible.
Dedicated services for trans people should be created in prisons and the refuge sector, in recognition both of women’s right to female-only provision and trans people’s right to provision that serves their particular circumstances. There should also be increased funding for healthcare, with the understanding that healthcare entails a full exploration of differential diagnoses for patients who present with distress about their gender, especially when those patients are children.
There must be open scientific investigation into the causes of dysphoria, which seem likely to be very different in a 45-year-old male and a 14-year-old female. And there should be long-term follow-up on the health implications of lifelong HRT for those who physically transition: the risks may well be worth taking for most trans people, but they are entitled to know what they are.
One particular concern for trans people could be dealt with through a much-needed reform that has nothing to do with gender identity. The so-called “marriage veto” means that when a married person wants to change their gender, their spouse must sign a declaration consenting to continue the marriage, or the marriage must be dissolved before a GRC can be issued. Introducing no-fault divorce would remove the need for this inelegant mechanism, which correctly protects the interests of both parties to the marriage contract but adds unnecessary stress at a time which is surely fraught enough anyway.
Lastly, there’s a strong case for a wide-ranging independent inquiry in the style of the Human Fertility and Embryology Committee led by Mary Warnock from 1982-4, which did so much to foresee the ethical challenges immanent in new medical technology, and to take the culture war sting out of legislating for them. The great missed opportunity of the Miller inquiry is that it treated self-identification as an easy win with no costs to anyone (or at least, not to anyone who mattered).
None of this makes a very good T-shirt, but at least it would help to make better policy. After a grim half-decade that has set feminists like me at odds with a cause we would otherwise support, and left public opinion far behind, the end of GRA reform can be the beginning of a new phase where trans people’s needs and their place in society are finally taken seriously.
This piece has been updated to take account of the US Supreme Court’s ruling on Bostock v. Clayton County
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