Hilary Benn - Member of Parliament for Leeds Central
Lots of people have contacted me about the Scottish Gender Recognition Reform Bill and the issue of trans rights. I have received many emails on this from constituents, both supporting the Bill and opposing it. I hope you will bear with me if I set out the issues as I see them.
The first thing I want to say is that we should be trying to bring people together and treat everyone with respect. I regret that some of the public debate has become so divisive. We should stand against discrimination, bigotry and hatred and nobody should suffer abuse or violence because of who they are or who they love, and everyone – including trans people – is entitled to equal rights in our society.
On the Scottish Gender Recognition Reform Bill, the reason the Government gave for blocking the Bill was that it felt it would have serious adverse effects on the operation of the Equality Act 2010.
I think this issue is quite important, because a lot of the concerns that have been expressed to me revolve around the relationship between gender recognition certificates and the operation of the Equality Act. To some extent, this matter has not yet been fully tested in the courts but now may be, following the legal challenge to the Government’s decision to block the Scottish Bill.
When the Government made its statement in the House of Commons, I asked the Scottish Secretary why, if a gender recognition certificate (GRC) issued under the Scottish Bill would have serious adverse impacts on the operation of the Equality Act, the same was not also the case for a certificate issued under the Gender Recognition Act 2004. In other words, the result of both processes would be the issuing of a gender recognition certificate, so the Government must think there is something about the Scottish process that has consequences for the Equality Act that the English and Welsh process does not have. The Minister replied that “What we are trying to do is avoid having two conflicting regimes either side of the border.”
This did not answer my question and having read the Government’s legal reasons, I think they are pretty thin. In other words, I don’t see how the Scottish Bill will change the Equality Act 2010 in terms of the way it protects trans people or in the way it protects women. I want to explore this in some detail because many of those who have written to me to express concern about the Scottish Bill are worried about the impact it will have on women only spaces.
Lord Falconer, the former Secretary of State for Justice, has explained the issue in this way:
“The Equality Act…. provides a trans woman can be excluded from single sex services or spaces where this is a “proportionate means of achieving a legitimate aim.” It’s the organiser of the single sex space who determines what rule to apply.
If allowing a trans woman into a safe space materially increases the risk to users of that space or deters them from using it, excluding all trans women or some trans women is permitted irrespective of whether those excluded have a GRC.
For example a group counselling provider for female victims of sexual assault could not allow any trans women (whether they hold a GRC or not) to attend if the provider judges other clients would not attend if a trans woman also attended.
This is the example given in the Equality Act Explanatory Notes… if the question of whether an exclusion satisfied the proportionate means test was contested in any particular case that would be resolved by the courts.”
I think that this fundamental point has caused some confusion. For example, in a recent statement outlining its position on transgender participation in athletics, UK Athletics (UKA) said it supported a ban on trans women in female competition on fairness and safety grounds, but proposed a new “open” category which would replace the current male category which would be open to athletes of all sexes. UKA, however, also said that it did not believe that it could prevent trans women from competing in the women’s category unless the Government changes the law.
The Equality and Human Rights Commission disagrees with this interpretation of the law and has described it as “inaccurate.” It said that it had made it clear to the UKA that section 195 of the 2010 Equality Act already allows sports to restrict competition in the female category on safety and fairness grounds.
Or to take another recent example, there was the case of two women who were raped by a man who, once charged, then said he was transitioning. Having been found guilty, the person was originally sent to the women’s prison estate in Scotland. Following concerns being raised, that decision was reversed because it was felt that it presented an unacceptable risk to women prisoners. This was a very rare case but it illustrates why this question is complex.
On the general issue of gender recognition certificates, it is important to point out that GRCs are only required for a limited number of purposes, namely, acquiring a new birth certificate, getting married or entering into a civil partnership, or having your new acquired gender recorded on your death certificate. For all other purposes, trans people do not need to have a GRC in order to live their lives. In terms of documents, they are able to change their gender on, for example, their passport, driving licence, with their employer and their bank.
The matter which is at the heart of all this is that there is a fundamental and apparently irreconcilable difference of view among those who have written to me about how acquired gender relates to biology; ie about the relationship between gender identity and biology. This is summed up by the question “Is a trans woman a woman?”
The answer, of course, is that a trans woman feels herself to be female and wishes to be regarded as such by society, and I support her right on both counts. However, that does not mean of course that she is physically a woman in exactly the same way as someone who was born biologically female is. This should not really be controversial, but I recognise that those on both sides of the debate hold diametrically opposing and passionate views.
To be honest, I don’t know whether it is possible for both views to be reconciled – apart from people agreeing to disagree – but regardless of that we need to uphold fair and equal treatment for all trans people who are amongst the most marginalised and discriminated against sections of our community.
I support (as does the Labour Party) a change to the GRC process to remove the medical requirement and to enable self-declaration, subject to demonstrating that someone has been living in their acquired gender for a period of time. The Scottish Bill proposes three months in order to apply for a GRC, followed by three months of ‘reflection’, while the current English legislation specifies two years. I think three months is too short, and as we rightly remove the medical element, how should those receiving the application determine whether the person applying has indeed been living in their acquired gender for the required period (ie to deal with any malicious or frivolous applications)? I also think that the age at which people can apply for a GRC should remain at 18 (as is the case with the current 2004 Gender Recognition Act). As you will be aware, people in England and Wales now have to be aged 18 and over to get married.
In all other respects, however, someone can have their acquired gender recognised on almost all of their documents and they do not have to be at least 18 years old in order to do so. These are all things you can do without having to possess a gender recognition certificate, and you are rightly free to live your life in your acquired gender.
I believe that such modernisation of the current English and Welsh law can and should be consistent with upholding the Equality Act which makes very specific provision for women only spaces. It’s worth pointing out that self-ID, with different requirements, now broadly operates in these countries: Argentina, Belgium, Brazil, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, Iceland, Ireland, Luxembourg, Malta, New Zealand, Norway, Pakistan, Portugal, Spain, Switzerland and Uruguay.
Finally, I fear that the vitriol that is far too evident on occasions when these matters are discussed is unnecessary and damaging to both gender critical feminists and trans people, and makes it more difficult to reach a consensus on the way forward.
I think most people believe in the concept of “live and let live”, and I certainly do.
MP for Leeds Central