Gender, the GRA and Women’s Rights
Here is the second our six-part series on the debate around trans issues, identity, feminism and solidarity aimed at building understanding and in a spirit of open dialogue. Read the previous by Jennie Kermode here ‘Gender Recognition – it’s not what you think‘.
There has been a good deal of debate regarding the Scottish Government’s proposals for changes to the Gender Recognition Act 2004, but much of it has ignored what these proposals potentially mean for women and girls. So I’m attempting here to firstly explain how gender affects the lives of females, and to outline the ideological conflict between genderism and feminism. I will then go on to highlight some of the issues with these proposals, and provide suggestions for consultation responses.
To understand where feminists are coming from on gender, it’s firstly important to understand that the actual axis of oppression for females is and always has been our reproductive sex. For thousands of years, with few exceptions, patriarchy has been absolute. Based on our reproductive capacity, women were long considered to be morally and intellectually inferior to men; a woman’s role was to rear children and serve her husband, and from Aristotle on this was thought of as the natural order.
And today, women still suffer subjugation due to our sexed bodies. We are still socialised to be submissive, and to be responsible for the bulk of emotional and domestic labour. We are still less likely to have power and representation, which plays a huge part in upholding male power and privilege. We experience social inequalities in relation to employment, housing, health and social mobility. We suffer male violence, rape (including as a war tactic), femicide, FGM, lack of access to contraception and abortion (I could go on); we are dehumanised and objectified, often defined solely by what men want from us. All due to being biologically female.
And while sex is the axis of our subjugation, gender is the tool; with patriarchy long since underpinned by the notion of biological essentialism, which is the idea that gender – i.e. femininity and masculinity – is innate to the female and male sexes respectively, and thus that our gender roles are – just like Aristotle said – the natural order.
But this is profoundly regressive and so obviously a false ideology; are men really innately dominant, and women innately submissive? I don’t think so.
Nonetheless the idea persists, and along with it a fairly new iteration of genderism that says that while gender is innate, sometimes there is a ‘mis-match’ between our gender and our sex, and those for whom this is the case are considered transgender. For the rest of us, the idea is that our gender ‘matches’ our sex, i.e. that we essentially are our social roles, and this is what they say it is to be ‘cisgender’.
However those of us who understand that gender isn’t innate – i.e. that there’s no such thing as ‘lady brain’ or indeed any other biological/innate basis for gender roles – take great issue with the idea that females are inherently subordinate to men. And there is no way to separate the cause and effect here. As long as gender is understood to be innate, women will have the feminine gender coercively imposed on us and male supremacy/patriarchy will continue.
This is why feminists are clear that there is no such thing as feeling/thinking/living like a woman, and that to think so is actually to define women by gender stereotypes, which is pure sexism. Gender is not innate. Female is not the feminine gender; and it is in fact extremely misogynistic to suggest otherwise.
And we can’t identify out of it either, we simply don’t have that kind of individual control over social structures. I have challenged the feminine gender in many ways throughout my life and at times have been punished severely, because as a female I would not submit. My non-conformity didn’t give me any power over my place in the gender hierarchy.
And of course we all gender non-conform to a degree, no-one is 100% masculine or feminine (what would that even mean?) so it’s a falsehood that there’s a distinct class of people who really are the gender coercively imposed on them and a distinct class of people who aren’t.
And lastly, before moving onto the Gender Recognition Act, it’s important to note that women’s organisations, the UN and the WHO view the climate of male violence women live in to be a result of gender inequality. And gender inequality exists because of the imposition of hierarchical gender roles to uphold male supremacy. It’s male socialisation that conditions a substantial minority of men to want to control and abuse women; i.e. males are not innately dominant or violent – gender does this. Therefore for feminists, fighting for female liberation is the ultimate goal; we have to end patriarchy, this is the only way to achieve any kind of real equality of the sexes and to end male violence against women and girls.
This is why we want to abolish gender and indeed the oppressive idea that our sex is instructive to more than simply our biology. Gender abolition is the only way to end an unjust social hierarchy that is catastrophic for female people.
THE GENDER RECOGNITION ACT
The 2004 Gender Recognition Act (GRA) allows people to legally change gender if they are diagnosed with gender dysphoria and fulfil some other conditions. This is termed ‘gender reassignment’, and became a protected characteristic in the 2010 Equality Act. Anyone who legally changes their gender receives a Gender Recognition Certificate (GRC), which can then be used to change their sex on their birth certificate.
The Scottish government wants to move to a system of Self-identification, which removes the current conditions and allows anyone to change their legal sex if they want to. Many feminists have written brilliantly on the potential issues with this elsewhere, and while I recommend highlighting the issues with self ID in consultation responses, it seems clear that the Scottish government will move forward with self ID, so my focus below is regarding how the government needs to protect women and girls before they do.
Firstly, it needs to be highlighted that current sex based exemptions in the Equality Act that allow for trans exclusion in order to protect women and girls in a number of ways, are not actually fit for purpose. And while at the moment the numbers with a GRC are very small, the UK government estimates that around 1% of the UK population identifies under the trans umbrella, and that most of these are trans women. Thus under self ID the numbers of those with a GRC could massively increase, and this could have a substantive impact in many ways.
For example, the Scottish government just announced that all public boards in Scotland now have to be gender balanced, however if a board comprised of 8 men and two women reassembled to a board of five men and five trans women, as legislation currently stands this would be considered gender balanced, even though females would no longer be on the board at all.
This example highlights how when you stop basing gender equality on the very axis it hinges on – i.e. sex – then not only is it possible for female exclusion and inequality to get even worse, leading to deepening marginalisation and subjugation, but we can’t even know the ways this is happening, because it cannot be monitored when sex isn’t monitored. If you stop monitoring structural inequality based on sex, you lose the ability to address structural inequality based on sex (who knew!). Gender equality is meaningless if it’s not sex equality. As such, this failure in equality legislation has to be addressed urgently and certainly before bringing in self ID.
Then there’s the issue of safety and participation. Sex segregation exists to allow women to participate in society, and to do so safely, therefore the exemptions allowing trans exclusion cover areas such as sporting events, occupations where being a certain sex is important, communal accommodation and facilities, single/separate sex services, changing rooms, areas where health/hygiene/privacy is important etc.
However those who employ these exemptions have to be able to show that it’s “a proportionate means of achieving a legitimate aim”, and often have to offer other spaces and services, otherwise they can be prosecuted for discrimination. And there is *no imperative in the legislation to ensure that women and girls have our needs met*. So if most or every women’s only space decided not to employ these exemptions, and this led to the exclusion of many women and girls in a number of ways/had other impacts, these women and girls would have no recourse, and again, such impacts are not monitored.
And this is exactly what’s already happening. These exemptions are largely not employed, including by the government, and there are women and girls who are already self-excluding due to female only spaces being opened to male bodied people. I personally would self-exclude in many of the examples given.
It must also be noted that most trans women remain fully male bodied, capable of rape, and those with a GRC are allowed to move to women’s prisons, including those who are convicted of rape. And vulnerable female inmates have no choice but to deal with it, and be placed in danger. This is especially concerning when considering the recent comments by James Barrett, consultant at Charing Cross Hospital and president of the British Association of Gender Identity Specialists, who said he had been told by the Prison Service that “about half” of transgender prisoners – most of whom are biological males – are sex offenders.
And this leads into a very important point; women need sex segregation largely in order to not just feel safe, but to actually be safe. There are many other reasons for women only spaces, but this is one of the most important. A substantial minority of males are predators, and this is true however they identify. But also predators don’t come with a warning, it’s the male body that is a threat to women, it’s around male bodies that women need to manage this threat, and it’s around male bodies that women will self-exclude.
It should be clear too that the trauma male violence creates for the female population is both not our fault and inevitable, and that victims are the most likely to self-exclude, and indeed to suffer most from any further impact created by a policy of self ID. It’s also victims who are often accused of bigotry for being affected by male violence – which is horrific victim blaming and totally unacceptable.
And such victim blaming is coming hand in hand with a challenge to women’s boundaries and consent more generally. A testament to this is in the fact that some people have disgracefully compared requesting a female nurse to carry out a smear test, with requesting a nurse who isn’t a person of colour. The fact that women feel more comfortable around females cannot be separated from the meaning of male bodies for women under patriarchy and the whole of what we are subject to. Implying this is akin to racism is an outright dismissal of the reality for women as a *sex class* and our rights to our boundaries around males, as well as a rejection of the principle of consent. Yet people with these extreme views are in organisations currently advising the Scottish government on the GRA and women’s rights.
The daily attacks on lesbians are another example of how women’s boundaries and consent are being challenged. Women who are exclusively same sex attracted face horrific, misogynistic and homophobic abuse for not viewing male bodied people as viable sex partners, and this is aided by organisations like Stonewall in their refusal to any longer support females to be exclusively same sex attracted (and it looks like the Scottish Trans Alliance agrees with them). They actually deem this transphobic, and they ignore the abuse and coercion such a view is resulting in – which makes it particularly concerning that these organisations are advising on government policy that will affect the rights of women.
So how do we address all of this?
Below I will outline my suggestions for consultation responses and I contend that these are all absolutely necessary if we are to protect women and girls. Not one of these suggestions threatens trans rights. Equal does not mean identical. Trans women are not female. Trans people have their rights to live as they wish, love who they wish, and have the same legal protections as everyone else. And they should have the spaces and services they need; everyone supports that.
*None of this requires women and girls to lose our rights*.
Our rights are only threatened because trans activists don’t want any distinction made between trans women and women. But we are not the same and pretending otherwise erases the female sex class, preventing us from addressing our sex based oppression, and what could possibly be a more heinous act of misogyny than that? Surely no-one in the Scottish government believes that women don’t suffer as a result of our female bodies.
So firstly I suggest we call on the government to establish the following principles as an underpinning to any legislation affecting women and girls:
• Females suffer exploitation, discrimination, injustice, oppression and male violence due to their reproductive sex. And as such, female bodies have a political significance that they need to be able to talk about, organise around and address as a distinct reproductive class of people.
• Females deserve equality, to participate in society, to be safe, and to have their welfare valued. The government should monitor and address females as a sex class on all of these measures, however ‘woman’ is defined in legislation.
• Trans equality should be based on trans as a characteristic, and not on erasing the female sex as a characteristic.
• Females are not to blame for the climate of male violence they live in or for the effects. Victim blaming is never acceptable, and legislation should reflect this.
• Females should be able to set their own boundaries around their own bodies; understanding that anything less is in direct contravention of the principle of consent.
• Females should not be forced to adopt trans ideology/biological essentialism/genderism. There can be no assumption that women as a group identify as the feminine gender that is coercively imposed on them to subjugate them; and women who do not subscribe to genderism and instead contend that for them a woman is simply an adult female, must be able to assert this (that’d be most of us).
• The government should not work with any LGBT/Trans organisation that deems *exclusive same sex attraction* as inherently objectionable.
In order to work with the above principles, the government should identify and pursue the necessary Scotland specific exemptions/amendments to the Equality Act before making any changes to the GRA.
In addition, before moving to a system of self ID the government should do the following:
• Carry out Equality Impact Assessments (EQIAs) on how the proposed changes to the GRA will potentially affect the equality, participation, safety and welfare of women and girls, understanding that trans inclusion has already had an unmeasured impact.
• Inform and consult with women on sex segregation and male bodied trans inclusion to properly gauge how to protect women and girls on the aforementioned measures. Most women don’t realise what is already happening, and a recent Panelbase poll found that women in Scotland are *3:1* against male bodied trans people having access to female only spaces.
• Draw up the necessary Scotland specific exemptions/amendments in response to these assessments and consultations, in order to ensure women and girls are protected, and secure these with the UK government *before* moving forward with self ID. FAILURE TO DO THIS IS ABANDONING WOMEN AND GIRLS ENTIRELY.
• Draw up guidelines on how to implement Equality Act exemptions, so businesses and providers can do so without fear of legal action.
• Be aware that the Engender led women’s organisations’ joint statement saying that these changes posed no threat to women’s equality, was released without any of these organisations consulting their members regarding the GRA beforehand, and indeed without conducting and concluding their own research on how these changes will specifically impact on women’s equality. Not only this, they have not consulted with women at all despite being asked to do so and choosing to speak for us, and nor have they carried out any other work in order to gauge how women and girls are already self-excluding/are otherwise affected. Furthermore, when approached by victims in relation to this proposed legislation, they refused to engage with their concerns. I know – I am one of them. Therefore we should call on the government to understand that these organisations cannot possibly represent women in this, and since they came to their position before carrying out the work necessary to come to said position, the government should assess any cited research/data itself, rather than rely on the interpretation of women’s organisations.
Lastly, there are a few additional suggestions for steps the government should take in relation to other parts of their proposals:
• Carry out its own research on dysphoria in young people and on desistance, not least because – as the NHS notes – studies show that most children diagnosed as transgender grow out of it, with all of the studies undertaken on this showing anywhere from a 63% to 88% desistance rate. Within this the government should properly research suicidality; follow up interviews usually halve the percentage for suicide in studies, and controls are used to filter out other factors so results can be instructive as to the causes. The study referenced in the consultation was neither followed up nor controlled. The government also needs to be clear on how transition affects mental health, including for the majority who desist, and who – due to affirmation – didn’t receive the right support when they needed it. Only then can the government assess the potential impact of reducing the age limit for a GRC.
• Unless the government wants to assert that a woman is someone who identifies with being submissive, and a man is someone who identifies with male supremacy, they should not introduce a third legal gender. It is reactionary in the extreme to uphold the idea that women and men identify as/actually are the gender imposed on them, and this should not be assigned to people as part of any legislation, and providing trans services does not necessitate this either.
• Immediately move to introduce misogyny as a hate crime. Women are being targeted for violence and abuse at unprecedented levels, just for being women. We are even becoming targets of hate for talking about the meaning of our bodies, and naming male violence. We are an oppressed and marginalised group and deserve the same protections all other such groups have.
The Scottish government consultation has been written with a very clear bias, and the fact they haven’t carried out a single EQIA regarding how these proposals could potentially impact on the equality of women and girls is simply indefensible. Surely it’s in no-one’s interests that the government moves forward with legislation without understanding how to protect the largest marginalised group in our society. So let’s make sure that happens.