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Artillery Row

The case for repealing the GRA

A category error cannot solved by exceptions

The debate over the Gender Recognition Reform Bill in Scotland has brought into focus the potential conflict between the Gender Recognition Act 2004 (specifically, the rights granted to holders of a Gender Recognition Certificate or GRC) and the Equality Act 2010 (specifically, the relationship between the protected characteristic of sex and the one of gender reassignment and how they are affected by the operation of the GRA). 

By and large, people ascribe to one of these views:

  • The GRA does not have an effect on the operation of the EA because the protected characteristic of Gender Reassignment in the EA is not the same as those people who have obtained a GRC. 

Amongst this group, there are those who believe people in the protected category of gender reassignment should be considered as not belonging to the protected category of their self-described sex, but of their birth sex. For example, a man who identifies as a woman should remain, for the purpose of the EA, a man with the protected characteristic of gender reassignment, not a woman, regardless of whether the individual holds a GRC. This position is held by “gender critical” feminists, and it can be easily summed up by the slogan “Woman = Adult Human Female”. 

Within this same group, there are also those who hold that a man who identifies as a woman is therefore a woman for the purpose of the EA. Their position is easily summed up by the slogan “Trans Women are Women”. Both believe the GRC makes no difference, but derive two different conclusions from this premise: either that only their biological sex matters, or only that their gender identity (which is how they interpret gender reassignment) matters. 

  • The GRA does have an effect on the operation of the EA, so that holders of a GRC ought to be treated differently from those people who identify as transgender but do not have a GRC. 

Since section 9 of the GRA establishes that a GRC changes the sex of the person “for all purposes”, this has to include whether a person is to be considered a man or a woman for the purpose of the EA. Most recently, this position, which had so far been a minority position, has been defended in the Court of Session by Lady Haldane, thereby immediately acquiring legal authority at least until a contrary decision in appeal. As Lady Haldane said, “for the purposes of the 2010 Act, ‘sex’ is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex”. 

When the law leads you to an absurd result, the law needs to be changed

Lady Haldane represents the view that a GRC makes a difference, and it ought to be taken into account in the application of the EA or other pieces of legislation where sex results in differential treatment. The specular view is the one I put forward in this piece, that the GRC could be found to matter, but the consequences for the rule of law are such that the only solution is to repeal the GRA altogether. I do accept Lady Haldane’s argument that the GRC makes a difference in the application of the EA. Better, I accept that this could be an interpretation to which a judge can reasonably arrive, although erroneously.

Where I depart from her judgment is in arguing that this interpretation results in unworkable or damaging results. How is a woman to assess whether a male entering a female toilet has a GRC and is therefore entitled to use female spaces? When the law leads you to an absurd result, the law needs to be changed. 

Therefore it is my contention that the only way to resolve this legal impasse is to repeal, not amend, the GRA and to remove the protected characteristic of gender reassignment from the EA. The GRA introduced a category error in law, by allowing people to move across sex categories, and category errors can never be resolved by proportionality or exceptions. Category errors can only be eliminated. 

Gender reassignment is a protected characteristic in search of a group, or better, that it is the law that created this group and therefore the possibility to protect it. No wonder that even equality law specialists who would describe themselves as gender critical claim that there are cases of discrimination on the basis of gender reassignment.

In reality, most transsexuals (this is how the EA calls those who belong to the protected characteristic of gender reassignment) are discriminated against:

  1. because of the perception that they are homosexuals (some, but not all of them, are); 
  2. because of their gender expression (i.e., because they do not follow the gender conventions of their sex, though they mostly follow the gender stereotypes of the opposite sex); 
  3. because of their gender belief (though currently it is much more likely that an individual is discriminated against for not believing in the existence of gender identities than for believing in them); 
  4. because of their gender dysphoria.

It is not legal for an individual to to compel others to share that belief

Discrimination by (mistaken) perception of an individual being homosexual or bisexual is covered by section 12 of the EA (sexual orientation). Discrimination for gender expression or belief is covered by section 10 of the EA (religion or belief) and, finally, discrimination for gender dysphoria on the basis of section 6 of the EA (disability). 

Clearly, adjustments need to be made to the law to accommodate this reframing of the relationship between sex and gender. These three necessary conditions must be taken into account: 

  1. Sex is an immutable material reality affecting the two sexes differently. We must call for differential treatment when this is necessary to ensure true equality between the sexes. 
  2. Gender is a social phenomenon highly dependent on time and space but mostly designed to keep the female sex in a position of social and economic subordination, by mistakenly equating women’s difference with women’s inferiority (this is where many of the arguments about biological essentialism fall, as clearly the proponents are intimately convinced that women’s biology is inferior to men’s). 
  3. Gender identity is a belief, or a set of beliefs, which rely heavily on the gender stereotypes existing in the society at the time and place those identities are constructed. It is especially important to remember that beliefs are protected in equality and human rights law, provided they do not affect the rights of others. In lay terms, it is perfectly legal for an individual to believe they are the opposite sex, or indeed no sex. It is not legal for that individual to compel others to share that belief and to act accordingly. Recognition of that belief needs to remain a strictly voluntary act whose enforcement is left to social mores. 

It is often said that it is too controversial to argue for repealing the GRA. I acknowledge that this should happen only after a democratic debate, where the momentous consequences of subordinating the reality of sex to the belief in gender identities are spelled out. We must not continue hiding behind “no debate” to avoid the legitimate questions that need to be asked, questions which were not asked when the GRA was passed. 

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