The trans rights that trump all

Women’s rights were not considered in legislation that allows trans people to effectively decide their own gender

This article is taken from the April 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

In 2004, with the passing of the Gender Recognition Act (GRA) the UK became the first country in the world to legally recognise trans people as the opposite sex without medical treatment. The Act passed without controversy, and with little media coverage. The law was framed thus: a transsexual person (the terminology used at the time by legislators and most trans people) must acquire a gender recognition certificate from a new gender recognition panel made up of lawyers and doctors.

In most cases, to get a certificate a person will need confirmation from a specialist doctor that they have gender dysphoria, have been living in the acquired sex for two years, and that they intend to continue doing so. It is not necessary to have undergone surgery. Anyone issued with a certificate is entitled to a new birth certificate in their acquired sex and to marry someone of the opposite gender to the acquired gender (equal marriage had not yet become law). There are caveats, such as sport. The Act allows sports bodies to exclude those with a certificate if the sport is “gender-affected”: that is, where strength, stamina or physique provides an unfair advantage.

How quaint this all sounds today. The now defunct proposed amendment to the GRA, which would have dispensed with the need for any medical intervention in order to legally change sex, sparked a culture war between feminists seeking to hold on to women-only services, and trans activists who insist “trans women are women” based on an inner “feeling”.

What few people know is the influence the Act had on the international stage in the early 2000s.Two years after the GRA was passed, a set of 29 guiding rules on recognition and treatment of LGBT people were laid down at a meeting in Indonesia. The “Yogyakarta Principles” demanded that a person’s self-defined gender identity be legally recognised without the need for medical treatment, transforming the GRA from obscure British legislation to a minimum standard for the entire world.

Professor Robert Wintemute: change of opinion came from listening to women

The Principles were drafted and signed by a group of lawyers, human rights experts and trans rights activists, including Robert Wintemute, professor of human rights law at King’s College London. Since then Wintemute has had second thoughts. He says women’s rights were not considered during the meeting and that he should have challenged some aspects of the Principles. Admitting he “failed to consider” that trans women still in possession of their male genitals would seek to access female-only spaces, Wintemute, who is gay, says: “A key factor in my change of opinion has been listening to women.”

The Principles merge lesbian and gay rights with the right to protection and expression of “gender identity”. They provide a foundation for the view that “gender identity” — based on the feelings of an individual — trumps biological sex.

Principle 3 reads:

Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.

Legal documents such as birth certificates and passports must reflect self-defined gender identity, it adds, and these must be recognised in “all contexts where the identification or disaggregation of persons by gender is required by law or policy”.

The Yogyakarta Principles have no legal force but they, and their interpretation of “gender” are extremely influential internationally. They are credited with influencing national governments such as Argentina, Ireland, Denmark and Malta, and some Canadian provinces, to introduce “gender identity” recognition on the basis of self-identification.

The Principles also underpin the stance of human rights organisations such as Amnesty International, which campaigns around the world for pre-operative males who identify as women to be housed in female-only accommodation.

One of Amnesty’s reports, which calls on Hong Kong to detain prisoners in facilities “consistent with their gender identity”, refers approvingly to the Scottish Prison Service’s policy. According to the report, this states:

A male-to-female person in custody living permanently as a woman without genital surgery should be allocated to a female establishment. She should not be automatically regarded as posing a high sexual offence risk to other people in custody and should not be subject to any automatic restrictions of her association with other people in custody.

Having considered the Principles’ implications for women, Wintemute says he should have challenged references to “self-defined gender identity” and to “changes to identity documents [being] recognised in all contexts” in Principle 3. “If I had thought through the implications of Principle 3,” says Wintemute, “I would have had to consider the potential for conflict with women’s rights, but I didn’t.” Neither, so far as he knows, did anyone else at the meeting at which the Principles were drafted. “Women’s rights weren’t raised.”

Given the number of human rights experts at the meeting, including a dozen former UN special rapporteurs and committee members, this was a surprising failing, Wintemute admits. The European Convention on Human Rights makes very clear that certain rights may be restricted if they impact on “the rights and freedoms of others”.

He explains: “There was a feeling that transgender people have suffered and they are saying this is what is needed — the implications of no surgery and self-ID had not dawned on us back in 2006. So far as I remember nobody was thinking about males with intact genitals gaining access to women’s spaces.”

Despite the fact that Principle 3 specifically rejected requirements for medical treatment before legal transition Wintemute says he assumed that most trans women would want to have surgery. “I see now that Principle 3 was silent on whether a diagnosis, a waiting period, or any other safeguards could be required.”

Amnesty International has apparently adopted the view that even acknowledging the existence of a clash between women’s and trans rights is transphobia

The majority of the 2006 Yogyakarta signatories were men and trans men. “The issue of access to single-sex spaces largely affects women and not men. So it was easy for the men in the group to be swept along by concern for LGBT rights and ignore this issue,” says Wintemute. Of the women present, some had been asked to focus on particular angles, such as health, and limited their contributions to these areas. So far as Wintemute recalls, the other female signatories did not raise questions about potential conflicts between women’s rights and transgender rights.

The omission may not have been a simple oversight. The female co-chair of the meeting, Brazilian sexual rights activist Sonia Correa, wants references to inequality of the sexes eliminated from human rights discourse and holds up the Yogyakarta Principles as an example to follow because they do not mention the word “woman”.

Correa has said she refuses to use the term “women’s rights” because she believes feminism should not be related to female bodies and that sex is a nineteenth-century Western social construct. In her opinion, the view that biological difference between the sexes are materially important is “fundamentalist”.

In 2017, some of the Yogyakarta signatories reassembled, and, together with additional experts signed ten additional Principles. These went much further than the original Principles. Principle 31 asserts that all countries must “end the registration of the sex and gender of the person in identity documents such as birth certificates”. If registration of sex or gender continues, it must be done on the basis that there are no restrictions on self- identification, such as “a psycho-medical diagnosis, minimum . . . age . . . marital . . . status, or any other third party opinion”.

Wintemute was not invited to participate in drafting the new set of Principles. He says of Principle 31: “It’s outrageous! There is no country in the world that has ended the registration of sex on birth certificates.” The original Principles were based on the law as it existed somewhere in the world, even if only in one country, he explains.

Wintemute did not notice the change in 2017, however. Despite his focus on LGBT human rights, the furious debates raging across the world between feminist groups and trans activists had failed to penetrate his world. He finally woke up to the conflict in 2018, when he was lecturing at a summer school. His lecture included a discussion of the UK’s “spousal veto” provision, which gives spouses of people transitioning the right to an annulment before the transition is legally recognised.

“I explained that spouses didn’t sign up to a same-sex marriage, so their consent is needed before they are made part of one.” A trans man in the audience objected. “I talked about needing to consider the rights of others and said that trans rights don’t trump everything else. The person became angry and stormed out of the room.”

Since then, increasing evidence of the impact on women of males self-identifying as the opposite sex — with and without formal certification — has emerged. In the UK, Canada, Argentina, and Ireland, female prisoners have been locked up with trans women with histories of violence, including a trans woman described as a “grave threat to women”.

A woman was reported to the police for having asked a male (with visible male genitalia) to leave the women’s changing room in a gym

Ireland has laws that allow for self-identification of sex, including for those under the age of 18, without any requirements of having had a “meaningful” transition or having lived for a length of time as the opposite sex.

When Ireland passed its version of the law that allows trans people to legally self-identify as the opposite sex in 2015, Human Rights Watch hailed the country as a “global transgender leader”. Ireland is held up by trans rights activists as the gold standard model of self-ID, with claims that no woman has been adversely affected.

In December 2019 a judge sentenced a trans woman to six years and six months imprisonment (with six months of the sentence suspended) for ten counts of sexual assault of a child and one of child cruelty over a period of two years.

The appellant (who cannot be named to protect the victim’s identity) transitioned around the time of the offences against the child. Appealing against the sentence, a lawyer for the trans woman argued that the sentencing judge did not have “sufficient regard” to the difficulties his client, as a transgender woman, would have in prison. The appellant is being held in a women’s prison pending judgment of the appeal.

Malta, a country with a shockingly poor record on legal, political and social rights of women despite its vibrant feminist movement, introduced gender self-identification in 2015.

In 2015 the Council of Europe passed a resolution on Discrimination Against Transgender People in Europe. Maltese MP Deborah Schembri authored the resolution and visited the UK on a fact-finding mission prior to drafting it. No feminist organisations critical of transgender ideology and self-identification were consulted, either in the UK or Malta, but plenty were that advocate replacing legal sex with gender identity. Schembri is no friend to feminists: after major scandals involving male colleagues that were exposed as having visited brothels during state visits, she proposed new tougher privacy laws to protect them.

In Malta trans prisoners are housed with people of the sex in which they identify, and female prisoners have no voice or opportunity to speak out. The same is true in Denmark and Norway.

Rosa Freedman, professor of law at the University of Reading, points out: “There are only six million people in Denmark. And women’s rights and the women’s movement is central to that society. Yet there are already cases of violence against women and rape by self-identifying ‘women’ who have accessed women’s spaces. The same is true of Norway.”

In June 2016, Norway allowed anyone to change their legal sex without the requirement of a diagnosis, medical reports, or proof of having lived as the opposite sex for any length of time. The age limit was set at six years old, providing the child has at least one parent’s consent. As trans woman Debbie Hayton learned from speaking to women in Norway, soon after the law went through, a woman was reported to the police for having asked a male (with visible male genitalia) to leave the women’s changing room in a gym. The case dragged on for more than two years until the woman was eventually cleared of harassment at appeal, but only because the tribunal decided that her comments were not directed at the trans woman.

Not only are self-declared trans women able to use all women-only facilities, but they are also protected from “transphobic hate speech” that could include “misgendering”, with a maximum jail term of three years. Hate speech legislation does not protect natal women.

Wintemute has travelled so far from his original position that he now wonders whether the GRA and prior laws in Europe should have been passed

In the UK, the NHS has issued guidance that female patients who object to trans women sharing their wards should be treated as racists, ignoring the patients’ rights to privacy and dignity.

Gender and sex are being conflated during official data collection exercises, meaning that statistics on women as a distinct sex class, such as crime figures, risk being undermined.

An increasing body of evidence shows that inclusion of trans women in some female sports increases the safety risk to women, or is inherently unfair due to the advantages presented by male anatomy and physiology even when testosterone is suppressed.

Evidence from the Employment Lawyers Association to the recent House of Commons Women and Equalities Committee’s inquiry on gender equality highlights some of the considerable uncertainties in UK employment law. It is unclear, for example, whether and when a woman may cite a trans woman as a comparator when claiming sex discrimination. This is particularly important in equal pay claims as women cannot bring these without citing a male for comparison.

Having listened to women and had his “eyes opened”, Wintemute has travelled so far from his original position that he now wonders whether the GRA and prior laws in Europe should have been passed. “The arguments made at that time were that people had done everything they could to appear to be of the opposite sex, but the fact that their appearance did not match their official documents put them at risk of violence, harassment, or discrimination,” he says.

Instead of changing the person’s legal sex, the law could have simply sought to protect people from harm triggered by the difference between their legal sex and their appearance on the basis of their presentation, he suggests. “This would remove much of the current conflict, as it would affirm trans people’s birth sex as their legal sex, while ensuring their protection from discrimination based on gender non-conforming appearance or behaviour.”

He adds: “Birth sex is less important now, with same-sex marriage and equal state pension ages. But in my view birth sex is not an irrelevant detail and should not be automatically ‘trumped’ by gender identity in single-sex situations.”

It’s a view that is gathering weight among activists who argue that women’s rights organisations were not consulted before the GRA was passed. In January a campaign website, www.repealthegra.org, was set up to argue that people should not be allowed to “misrepresent their birth sex”.

In contrast, Amnesty International has remained steadfast in its refusal to acknowledge any conflict between women’s and trans rights. Instead, it has apparently adopted the view of activist group Transactual that even acknowledging the existence of a clash is evidence of transphobia. In 2018, while urging a positive response to government proposals for removal of the requirement for a medical diagnosis before a change of legal sex, Amnesty said: “Trans women are women and there is no risk to single sex services. You might have heard discussions on the media and social media trying to tip trans rights against women’s rights. These discussions are informed by prejudice and misinformation.”  Ignoring the mounting evidence of infringement of women’s rights resulting from self-ID, it told the consultation: “There is no evidence from countries implementing a self-determination system that this has had any impact on anyone except trans people themselves.”

Towards the end of 2020 Amnesty International Ireland signed a letter calling on politicians to “no longer provide legitimate representation” to those who “stand against the right to self-identification of transgender people”. The letter prompted condemnation from the grand-daughter of Amnesty’s founder. Wintemute struggles to understand Amnesty’s stance. “I agree with the vast majority of the demands of the trans rights movement. But there are limits when those demands affect the rights of others.”

Vitit Muntarbhorn, international human rights expert and professor of law at Chulalongkorn University in Bangkok, is another of the original authors of the Principles. But unlike Wintemute he remains steadfast in his support for the notion of “gender identity” and does not accept that this has led to an erosion of women’s sex-based rights. “When you talk about trans women in toilets, well, many countries don’t have toilets, so how can that be a primary concern?”

Whether the Yogyakarta Principles will attract more scrutiny may depend on the bravery of other signatories to stand beside Wintemute and admit they may have been wrong. A number of others were approached for comment. We were unable to reach Correa. Some other signatories responded that they had not given the matter sufficient thought. Perhaps they should have considered the implications for women at the time. But then, women’s rights have always been an afterthought.

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