Friday 4 November 2022

Now I am become Death, the destroyer of women's rights


There is a lot of controversy in Scotland about the SNP’s Gender Recognition Reform (Scotland) Bill and also quite a lot of misunderstanding. It is important to understand what it will change and what it will not change.

At present the process of applying for a Gender Recognition Certificate (GRC) is set out by the UK Government and this will continue to be applied in England and Wales.

The purpose of a GRC is to enable someone’s affirmed gender to be legally recognised. This enables the person to change birth certificate get married in the affirmed gender and have the affirmed gender on a death certificate.

To apply the person must be at least 18 and have a diagnosis of gender dysphoria from a UK doctor and must have lived for two years in the affirmed gender and intend to continue living that way until death.

If someone lacks a diagnosis of gender dysphoria it is necessary to have lived for six years in the affirmed gender or have had gender affirmation surgery.

The UK Government when Theresa May was Prime Minister intended to reform this procedure to make it easier for people to obtain a GRC, but later changed it mind, partly because of the controversy that arose and also because of the opposition of many women.

The Scottish Government wishes to make the process of obtaining a GRC considerably easier. Being different from England as usual is part of the motivation. It intends to remove the need for a diagnosis of gender dysphoria. It lowers the minimum age to 16. It lowers the amount of time needed to live in the affirmed gender to 3 months after which there is a further 3 month period of reflection.

The bill in itself does not give trans people any new rights. But works together with the Equalities Act 2010 which prevents discrimination against transgender people.

There are some exceptions listed in the explanatory notes to the Equalities Act. For instance

A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.

But this is where the whole process becomes rather difficult. If a GRC enables someone to change his birth certificate and if it is true that transwomen are women and transmen are men, the transwoman might argue, but I really am a woman so I fulfil the condition in the example. On what grounds are you discriminating against me? Because you have male anatomy. But what has that to do with it if being a woman is a matter of gender affirmation rather than anatomy?

This is our problem. Either we determine gender by means of anatomy in which case why are we allowing people to change it? Or we determine gender by means of affirmation and say it has nothing to do with anatomy, in which case how can we discriminate against the male bodied trans woman who wants to be a rape counsellor?

We cannot have two radically different ways of determining the meaning of ordinary words like “man” and “woman”. Either a woman is an adult human female and we determine this by her anatomy or a woman is what any of us might affirm ourselves to be in which case we cannot have as the explanatory note requires a status of “real” women with female anatomy and “fake” women with a GRC.

This is the fundamental problem with allowing people with a GRC to change their birth certificates. Sex is an objective characteristic of a human being. This is how people have thought about it since time began. We now know that it is a matter of DNA. You cannot change from being male to female no matter how much you wish it and no matter what surgery you have. So, in essence people are being allowed to falsify their sex and then use that to justify their being allowed to enter spaces do jobs and have rights that they otherwise would not be entitled to.

There may be exceptions to the Equalities Act, but faced with a claim of discrimination who will attempt to make use of them? If someone who looks like a man goes to the women’s changing room in Marks and Spencer, the shop assistant might if she were very brave question them. But if the person said I have a GRC who would dare to say you have to go to men’s section? Who would apply to a court to determine if this were one of the exceptions?

It is in this way women’s safe spaces gradually become ever more open to male bodies and eventually the woman’s swimming team has someone with male anatomy getting changed and displaying that male anatomy to everyone else in the changing room. No one dares question. If you object you are a bigot and no longer on the team.

The GRC does not in itself give new rights, but this is beside the point. We know that there are male bodied rape counsellors in Scotland who have affirmed that they are women and no one dared question their right to the job even though it is an exemption to the Equalities Act. So, who is going to stop a male body entering the women’s showers at the swimming pool. No doubt it would be an exemption to the Act but the exemption depends on proving that this male body is not really a woman, but we have already allowed him to legally say he was born female and we have been told that transwoman are women. So, who will dare say he can’t take a shower?

The exception depends on the old definition of “woman” a person with female anatomy. But definition is no longer available to us if we have created women without female anatomy and they are women in just the same way as everyone else.

The root of the problem is the GRC. Once you allow the idea that people can really become men or women merely by affirming it, you inevitably allow male bodies into women’s safe spaces and allow rights that apply to women to apply to male bodies also. The problem with the Scottish Government’s legislation is that it makes this problem worse.

The UK regulations on obtaining a GRC require the trans person to convince a GP and to show considerable commitment by living in the acquired gender for at least two years. The Scottish GRC on the other hand will be easier to obtain than Higher Maths and will be available at a younger age. It won’t in practice be necessary to even live in the acquired gender for 3 months. Who will verify that the person did? If a 16 year old boy wanted to be a 16 year old girl he could just say I want to be a butch lesbian and continue wearing the same clothes. Who will say that he can’t?

People should be free to do what like and be what they like so long as it does not harm any one else.

People should be allowed to sleep with whoever they want as it harms no one else.

But allowing a man to become a woman, although he retains his male anatomy does have consequences for women.

Having a female body makes one group of people fundamentally different from another. It is for this reason that various rights have developed for women. It is not because they merely affirm themselves to be women, but because they actually have female bodies and all that goes with that fact. To allow those with male bodies to merely affirm that they are women with no evidence whatsoever that they are women and without any sort of medical diagnosis is a betrayal of women’s rights, because it allows those rights to be open to those who have not grown up with female bodies. It erases the very idea of what a woman is, because if those with male bodies are equally women, then what is it that makes each woman a woman. If it is not her body, what is it? We are left with no answer. The groundedness of women’s identity in their bodies collapses.

There is a medical condition called gender dysphoria and we must be kind to these people and we must not discriminate again them. I would be happy to give a GRC to someone who wants to live as the opposite sex. I would be happy to use whatever name is preferred and whatever pronouns, so long as it is clear to everyone that a transwoman is not a woman and a transman is not a man. Change gender if you wish, live as you please, but you cannot change reality.