[CN: transphobia, gender dysphoria, sexual harassment, rape]

Recently, I had a long discussion with some of my partner’s friends about the safety implications of trans access to single-sex spaces: specifically the risk posed by men pretending to be trans, rather than by trans-women themselves. These are highly intelligent, well-educated and well-meaning people – by no means were they suggesting trans people shouldn’t have access, only that they were worried that it would allow for abuse. Ultimately, I think their concerns are misplaced, but I think they’re probably representative of a large swathe of the population in both concerns and their self-confessed lack of engagement with the issue. They aren’t involved in the wider discussion currently going on, often in bad faith, lead by transphobic “feminists” who wield exactly these misplaced concerns in order to curtail the rights of trans people – but this discussion is now reaching boiling point, and so it’s that which I want to talk about today.

[Note that this article has recently been recovered following a fire. Some formatting issues may be present].

In this article, I hope to clarify English law as it stands with regards to trans access to single-sex spaces, the process of gender recognition, and the interplay between the two. I’ll explain how the Gender Recognition Act has failed, and the ways the ongoing consultation may be able to fix it. That consultation ends on the 22nd of October, the beginning of next week; whether you’re trans or cis, I strongly encourage you to fill it out in support of streamlining the process, especially removing the spousal veto, and requirement for a gender dysphoria diagnosis and “real life experience.” But we’ll talk more about this later.

[Edit: The consultation has now closed]

I’ll be referencing relevant Acts, and I hope to make it easy for you to check them yourself. Where you see something like this:

Heeby Jeebies Act 2012, Part 1 Section 1

1. It is time to get spooky.
2. The time to get spooky, is now.

you can click on the arrow to expand the text. Any references to Acts which are not placed directly in the text can be found in the references.

Once we’ve got all the boring law out of the way, I’ll talk about the various concerns people have raised about trans access, and hopefully convince you that these concerns are largely unfounded.

Why are we talking about this now?

Trans access to appropriate single-sex spaces is afforded by the Equality Act 2010 (EA), not the Gender Recognition Act 2004 (GRA) – it might seem sensible to think that the current complaints are eight years too late. However, the EA makes the assumption that trans people will be in possession of a Gender Recognition Certificate (GRC), the process for obtaining which is set out in the Gender Recognition Act 2004 (GRA). In practice, the GRA has failed in its intended purpose, and very few trans people have a GRC.

The current furore around trans access has come about at the confluence of two separate issues. One is the government’s public consultation on possible amendment of the GRA, running from June to the 19th of October [1]

This has lead a number of Trans-Exclusionary Radical Feminist (TERF) organisations to claim that the consultation poses a risk to “women and girls,” based mostly on wild hypotheticals and almost no supporting evidence. They obviously do not include women and girls who happen to be trans, who would overwhelmingly meet violence if restricted to male-only spaces [2].

The other, slightly less monumental issue is the confirmation by the City of London that, in their view, trans people are welcome to use the appropriate single-sex bathing pond in Hampstead Heath in accordance with the EA. The obscene amount of media attention this has received might be down to the baths’ clientele, which is primarily chattering middle-class, and includes such luminaries as Julie Bindel.

The two TERF groups leading the charge against trans rights in England are Women’s Place UK and Fair Play For Women. Rather than argue the now unspeakable position that trans people themselves are dangerous, they instead try to hide behind the question: “What if a man pretends to be trans to gain access to women only spaces?”

“What’s transphobic about that?” one might ask. Prima facie, nothing. Trans people would be equally concerned if the risks were shown to be considerable, and we’ll look at some of them shortly. But instead of working with the community to find possible solutions, these organisations treat trans people as the enemy, insisting that any hypothetical problem is insurmountable, sensationalising scant evidence, and exalting birth sex as the divine will of Gods. When, somehow, the natural conclusion of your world view is to oppose rights for trans people at every opportunity, eventually, the mask starts to slip. From Fair Play For Women’s website:

https://fairplayforwomen.com/gov_response/

Spaces for natal women are already under siege. In the clamour to show their support for transgender rights many organisations are already rushing to change their women-only policies to include anyone who says they are a woman. Men who say they are women are already in our changing rooms, already in our swimming pools, already sleeping next to us in youth hostels, already on our female hospital wards, already in our domestic violence shelters.

When they take Girlguiding UK to court for allowing trans girls membership, it’s not hard to see the desperation of these people to use any technicality or shred of law they can find to beat trans people with.

The law as it stands

The Equality Act and single-sex spaces

The first thing to understand about this brouhaha is that the legislation defining access to single-sex spaces is the Equality Act 2010. The EA does not refer to the GRA in its definition of gender reassignment as a protected characteristic – rather, a “transsexual” is anyone who so much as proposes that they will undergo the process of gender reassignment. This effectively means that gender reassignment status is already self-determined for the purposes for the EA. However, the protected characteristic of sex is independent of gender reassignment; the Gender Recognition Act 2004 is relevant insomuch as it provides a means for trans people to change their legal sex.

Equality Act 2010, Part 2, Chapter 1, Section 7, "Gender Reassignment"

https://www.legislation.gov.uk/ukpga/2010/15/section/7

1. A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

2. A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

3. In relation to the protected characteristic of gender reassignment—

   1. a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
   2. a reference to persons who share a protected characteristic is a reference to transsexual persons.

As for spaces, the defining legislation is § 29, which essentially forbids discrimination against any protected characteristic when providing any form of service; this blanket protection is then chipped away by subsequent exemptions, the most relevant here being Schedule 3, ¶ 26, which allows provision of separate services by sex, and ¶ 27, which allows services for one sex only. (Any references to Acts not included in the text can be found in the references).

Equality Act 2010, Schedule 3, Part 7, Paragraph 27(1), "Single sex services"

https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/paragraph/27

A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if—

1. any of the conditions in sub-paragraphs (2) to (7) is satisfied, and
2. the limited provision is a proportionate means of achieving a legitimate aim.

The requirement for a “legitimate aim” crops up in nearly every exemption related to single-sex spaces. What constitutes a legitimate aim is a matter left to the courts, but it is safe to assume that protecting the welfare of the individual or other individuals would be seen as legitimate. Taking cues from Schedule 3, ¶ 27(6), it may also extend to protecting comfort of other individuals (so long as the justification was not simply their discomfort around people of the protected characteristic).

The relation between the protected characteristics of “sex” and “gender reassignment” are not explicitly defined in the Act – is a trans woman’s sex male, or female? As we’ll see later, the answer depends on whether she holds a GRC. So according to the law as written, a vast majority of trans people do not have access to appropriate single-sex spaces on the basis of their legal sex. However, there are two readings that would give trans people access.

The first reading is that, while comparison of treatment is a metric for discrimination (you allowed X person access, but not Y person), there is no indication in the Act that exemptions must apply to all members of a protected characteristic (you could allow X whose legal sex is male, despite exercising your legal right to mark the space female only), and application of “a legitimate aim” can be decided on a case-by-case basis (the legitimate aim of maintaining safety and comfort could be decided based on a risk assessment per individual). You can have a legitimate aim to exclude men, using male sex as your excluded protected characteristic, but that aim may not be found legitimate in the case of trans women. This works both ways – you can also have a policy of including trans women, but exclude a specific trans woman on the basis that the individual is dangerous, which would be in accordance with a legitimate aim.

The second reading under which trans people may have access concerns legislative intent. One could argue that at the time of drafting the EA, the failings of the GRA were not fully understood. The expectation of the EA is that trans people will be in possession of a GRC, and the legislative intent of the EA is therefore that trans people should have access to the appropriate single-sex spaces.

In any case, one can ask, does this mean that trans people in possession of a GRC have blanket access to appropriate single-sex spaces, under all circumstances? No: Schedule 3 ¶ 28 states appropriate access to single-sex spaces can be refused on the basis of gender reassignment when this is a proportionate means of achieving a legitimate aim. Schedule 23, ¶ 3 also explicitly allows exclusion from communal accommodation, along with related services – relevant to this discussion, this applies to hostels, domestic violence shelters, rape shelters, prisons, &c.

Equality Act 2010, Schedule 3, Part 7, Paragraph 28, "Gender reassignment"

https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/paragraph/28

1. A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

2. The matters are—

   1. the provision of separate services for persons of each sex; (b) the provision of separate services differently for persons of each sex; (c) the provision of a service only to persons of one sex.

It’s important to note that the exemptions are discretionary – the Act sets a minimum on inclusion, not a maximum, and nothing says a single-sex service is in contravention of the act for making its own exceptions to allow a same-gender trans person without a certificate.

In summary, trans people with a GRC have legal grounds for access to any single-sex space, unless that space exercises its exemption on grounds of gender reassignment in accordance with some legitimate aim. Trans people without a GRC may or may not have grounds for access to these spaces under the EA, depending on interpretation. However, it’s clear that trans people should have grounds for access to these spaces – the fact that most may not is due to the failure of the GRA, which is what we’ll talk about next.

The Gender Recognition Act

What does it do?

The Gender Recognition Act was enacted to allow trans people to gain legal recognition as their “acquired gender,” in the form of a Gender Recognition Certificate (GRC) and an amended birth certificate. The holder of a full GRC is to be treated as the acquired gender “for all purposes” – i.e., their sex is legally changed.

Gender Recognition Act, Part 1, Section 9(1)

https://www.legislation.gov.uk/ukpga/2004/7/section/9

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Schedule 3 ¶¶ 3-6 also entitle holders to a birth certificate marked with the acquired gender. If a GRC holder wants to prove their legal gender, they can show their GRC, or they can show their birth certificate in order to avoid disclosing their trans status.

It is possibly illegal to ask to see a GRC, as it compromises the holder’s right to privacy [3]. According to § 22, it is also illegal for an official to disclose “protected information,” that is, anything relating to someone’s application for a GRC, or, on successful application, their gender before the GRC was issued. However, there are several circumstances where this is permitted by § 22(4), including when the information is

• not identifying.
• required by a court.
• requested in order to prevent or investigate a crime.

Why change it?

As of July 2018, only 4,910 people had acquired a GRC. A government survey of LGBT people found that of 6,900 eligible trans respondents, only 12% had a GRC; of those who knew of GRCs but did not have one, only 7% did not desire legal recognition of their gender [4]. Estimates of the trans population stand in the hundreds of thousands [5]. Clearly, the current Act is not fulfilling its intended purpose.

As it stands, the requirements for a full GRC are (§§ 1–3):

• Binary transition (male-to-female, female-to-male).
• Diagnosis of gender dysphoria from a medical practitioner specialising in gender.
• Two years living as the acquired gender (“real life experience,” RLE).
• Intent to live as the acquired gender until death.
• Disclosure of any gender affirming medical procedures.
• If you are married or in a civil partnership, you must have your partner’s consent.
• A statutory declaration to this effect by the applicant.

You must also pay a £140 fee to apply, with support available for low incomes [6].

So why is this a problem? First, the legislation excludes non-binary trans people, as well as gender-fluid people who may not intend to live in the acquired gender until death. If you are a trans person who for some reason requires the legal status afforded by a GRC, you are still required to live in the acquired gender for two years before acquiring it. In practice, very few things currently require a GRC, but you may be outed as trans by any process that demands your birth certificate during those two years.

Requiring a diagnosis of gender dysphoria may seem sensible, but in practice there is not adequate medical provision to support this. There are two routes to a diagnosis: NHS Gender Identity Clinics (GICs), or private healthcare. The shortest GIC waiting list at the beginning of this year was 51 weeks, and current patients often face waits of several months between appointments – in Charing Cross GIC, the minimum wait is 6 months, meaning the fastest possible diagnosis of three appointments takes an additional 12 months. Going private, the situation is little better, with only one private clinic in London, GenderCare, at the time of writing (TransHealth, the other London clinic, closed its doors last December). Private options are faster, but typical costs for the diagnosis are around a thousand pounds, not including any provision of hormones or surgeries.

It’s also dubious how useful gender dysphoria is as a diagnosis. The normative definition is that of the DSM-5 [7], which essentially says that any strong desire to change gender for more than 6 months is gender dysphoria: if you want to transition, you are trans. It seems like needless gatekeeping to require a specialist doctor to act as a glorified witness.

If you are married or in a civil partnership, your application for a full certificate requires your partner’s consent. Without consent, you will get a partial certificate only, which is simply a means to acquire a full certificate once consent is given or the marriage is annulled. This has deterred trans people from seeking a certificate for reasons ranging from hostility and transphobia from partners, domestic abuse, and partners who cannot consent for medical reasons such as a coma [8].

In summary, the law fails to encompass the complexity of gender identity and diversity of the trans population, sets arbitrary limitations and requirements on applications, and practically bars a majority of the people it was intended to serve.

How will it be changed?

We don’t currently know what the outcome of the consultation will be. The current process was sparked by the Transgender Equality Inquiry, whose first report made many cricitisms repeated in the the previous section [8]. The best indication of the Government’s intent is its response to that report [9], and their GRA consultation document [4], in which they explicitly rule out any change to the Equality Act 2010. What we do know is that transphobic organisations are running campaigns to inundate the consultation with their view that the law should stay almost exactly as it is.

If they fail, it is quite likely that the rules regarding marriage will be changed. It is hoped by most that it will remove the requirement of a gender dysphoria diagnosis, as this is the greatest practical barrier to trans people gaining a certificate. In any case, it seems almost certain that they will acknowledge the existence of non-binary gender.

It’s important to note that even in the most streamlined outcome, using a self-identification model, would still require an application process, perhaps similar to acquiring a provisional driving licence.

The law in practice

In the real world, most organisations seem to go above and beyond the requirements of the EA and GRA: explicitly allowing trans people access to single-sex spaces without requiring a GRC; making provision for non-binary people, who are not explicitly protected; and waiving exemptions they would likely be able to support on grounds of sex or gender reassignment. It is unclear if this is because they believe they must under law, because they find the prospect of checking people’s birth certificates unpleasant, or simply because it’s the right thing to do.

It makes little sense for an organisation to accept that it must allow trans people with a GRC, but bar trans people without one. If they believe they have no grounds for an exemption vis gender reassignment, trans people can access that space with the correct documentation, so why would you exclude the majority who don’t? Requiring trans people (and perhaps cis people who look like they might be trans) to produce their birth certificate, checking if they’re Government Approved Trans, is just unpleasant for everyone involved, and I certainly don’t know of any organisation that does this – in fact, many organisations, including rape shelters and the prison system, have made explicit reference to the failure of the GRA when discussing their trans policies [10], [11].

The effect of the GRA reform on access will be minimal, not because it has no effect on trans access law, but because the law in this respect has been widely superseded by real world practice – and all of the cases where it may be reasonable to exclude a trans person on the grounds of being trans will remain exempted, whether or not people exercise those exemptions. The reform is still important, though – possession of a GRC solidifies trans people’s rights in many areas, not just access to single-sex spaces.

Men pretending to be women trans women

In this section, I’m going to go through the various settings in which trans access is typically contested. I’ll explain what the legal situation is, and discuss the hypothetical problems that have been raised regardless of whether the law already covers them.

To be clear, I reject any suggestion that discomfort around trans people and trans people’s bodies is legitimate. There is no difference in my mind between this discomfort and discomfort seeing two men kiss or a black person get on the bus after you. I also reject arguments that trans women should not be given access to single-sex spaces because they are somehow more (sexually) violent – instances of violence from trans women using the appropriate single-sex space are vanishingly rare, and there is no strong evidence that trans women are more violent than cis women. The idea that those few who are dangerous are hence not women or should not be treated as women does not follow – there are also dangerous cis women in society. The implication that society cannot deal with dangerous people unless we discriminate against their identity is the absurd argument of bigots.

The argument which tends to resonate more with well-intentioned people is that of a dangerous man pretending to be a trans woman. This is a powerful example because it seems plausible, and it allows transphobes to air all of the same transphobic talking points. Because it’s a man pretending to be a trans woman, and not a trans woman who is a man pretending to be a woman, it’s A OK!

The favourite example of TERFs is the rape refuge, so I’ll start there.

Rape Refuges

As we saw earlier, rape refuges are allowed to exclude people whose legal sex is male (trans women without a GRC) [EA 2010 ¶ 28] and also quite likely allowed to exclude trans people from appropriate single-sex accommodation and related services whether in possession of a GRC or not [EA Schedule 3 ¶ 28, EA Schedule 23 ¶ 3].

(Yes – this is terrifying).

Fair Play For Women and Woman’s Place UK still aren’t happy, though. Across both of their websites, the only argument against the GRA reform I can find that isn’t already covered by the actual existing law is thus: currently a rape shelter can refuse access to a “man pretending to be trans” on the basis of a) being legally male (sex) and b) being trans (gender reassignment), and can request to see his birth certificate in order to prove both a and b. However, if the GRA is amended to allow self identification, the man could have a GRC and amended birth certificate, in which case he would a) be legally female, making it illegal to bar him on grounds of sex, and b) the refuge could not legally ask to see the GRC [GRA 2004 § 22], giving them no way to prove that they could bar him on grounds of gender reassignment.

There’s so much to unpack here it’s hard to know where to begin.

First of all, thank God, many rape and domestic violence shelters serve trans women, and none of them requires a birth certificate at the door. Shelters often do face perpetrators of violence attempting to gain access by nefarious means, and for this and other reasons shelters perform risk assessments on applicants, and maintain vigilance. There’s an underlying assumption here that biological sex is the only possible way to discern if an applicant is actually an abuser, which, besides being absurd on its own terms, would completely undermine the current use of these shelters by cis lesbians.

The scenario also suggests that the shelter does not know the person in front of them is (pretending to be) trans. This implies they must “pass” as a cis woman. Suggesting that a man simply pretending to be trans can, without years of concerted effort and significant expense, pass as a cis-woman, is ludicrous. Passing as a cis woman is a goal of many (but by no means all) trans women, and the path is often laid with obsessive self-critique, months of voice therapy, and sometimes even invasive surgeries; to others, passing is out of reach.

But hold on a moment – if they do pass as cis, the shelter would feel no need to check their biological sex, and so the existence or non-existence of a GRC would be irrelevant anyway.

Stepping back to reality for a moment: Stonewall has surveyed 15 VAW (violence against women) organisations, including both umbrella organisations that operate nationally and individual local organisations [11]. All the organisations they spoke to served trans women. None requested evidence of legal sex, and none had ever made use of their exemption on grounds of gender reassignment. One account, in fact, details a cis woman physically assaulting a trans survivor, as well as victimising them for several days; another account said survivors expressed similar discomfort around lesbians as trans people. From the executive summary:

Many participants told us that reform of the Gender Recognition Act would have no relevance to how they deliver their services. While respondents were aware of a view that gender recognition reform could allow violent men to pose as women to access their services, with one participant expressing a concern about this, there was otherwise a clear consensus that services’ thorough risk assessment procedures would safeguard against this. These participants said that gender recognition reform would not compromise their ability to protect their service against, or turn away, any abusive or disruptive individual.

No participants said they have used the Equality Act exemption to deny support to a trans survivor. Some participants said that the exemption should be kept as a safeguard, while others were concerned about other services using the exemption to turn away trans survivors when they should be providing support.

Bathrooms and Changing Rooms

In another favourite hypothetical, the “man pretending to be trans” gains access to a bathroom or a changing room. This example differs from the others, because bathrooms and changing rooms are everywhere, and it’s very difficult to control access to them. It’s also doubtful that denying access to trans people achieves a legitimate aim. Now, a lot of the TERF material on trans access focusses on the cosmic horror of ever seeing a penis, which applies equally to actual trans women and I don’t buy into at all. The alternative, however, is that a man gains access in order to commit a crime.

Once a crime has visibly been committed, the criminal’s right to be in the space is irrelevant, so all that can be relevant here is the additional opportunity afforded by access to the space in the first place. For bathrooms, this additional opportunity is low. Without trans access, a man can stake out a bathroom until it has only one person in it. He can also hide in a stall. Not to alarm you, but there are many recorded cases of this actually happening, though Google is left as an exercise to the reader. There is no magical forcefield preventing men from entering, and no crime is made possible to a man pretending to be trans that they could not already commit without such a contrivance.

In changing rooms, the opportunity to commit less serious crimes may be higher, but the opportunity to get caught is significantly higher too. The criminal has entered a space hostile to him, suspicious of him, and the moment he gives indication that he is not using the space legitimately, he can quite handily be slapped with one of, if not all of, the following crimes:

Sexual Offences Act 2003, Part 1, Section 66, "Exposure"

https://www.legislation.gov.uk/ukpga/2003/42/section/66

1. A person commits an offence if—

   1. he intentionally exposes his genitals, and
   2. he intends that someone will see them and be caused alarm or distress.

2. A person guilty of an offence under this section is liable—

   1. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
   2. on conviction on indictment, to imprisonment for a term not exceeding 2 years.

Sexual Offences Act 2003, Part 1, Section 67, "Voyeurism"

https://www.legislation.gov.uk/ukpga/2003/42/section/67

1. A person commits an offence if—

   1. for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
   2. he knows that the other person does not consent to being observed for his sexual gratification.

2. A person commits an offence if—

   1. he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
   2. he knows that B does not consent to his operating equipment with that intention.

3. A person commits an offence if—

   1. he records another person (B) doing a private act,
   2. he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
   3. he knows that B does not consent to his recording the act with that intention.

4. A person commits an offence if he instals equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1).

5. A person guilty of an offence under this section is liable—

   1. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
   2. on conviction on indictment, to imprisonment for a term not exceeding 2 years.

Sexual Offences Act 2003, Part 1, Section 68, "Voyeurism: Interpretation"

https://www.legislation.gov.uk/ukpga/2003/42/section/68

1. For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and—

   1. the person’s genitals, buttocks or breasts are exposed or covered only with underwear,
   2. the person is using a lavatory, or
   3. the person is doing a sexual act that is not of a kind ordinarily done in public.

2. In section 67, "structure" includes a tent, vehicle or vessel or other temporary or movable structure.

Sexual Offences Act 2003, Part 1, Section 71, "Sexual activity in a public lavatory"

https://www.legislation.gov.uk/ukpga/2003/42/section/71

1. A person commits an offence if—

   1. he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,
   2. he intentionally engages in an activity, and,
   3. the activity is sexual.

2. For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual.

3. A person guilty of an offence under this section is liable on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.

Sexual Offences Act 2003, Part 1, Section 63, "Trespass with intent to commit a sexual offence"

https://www.legislation.gov.uk/ukpga/2003/42/section/63

1. A person commits an offence if—

   1. he is a trespasser on any premises,
   2. he intends to commit a relevant sexual offence on the premises, and
   3. he knows that, or is reckless as to whether, he is a trespasser.

2. In this section—

   "premises" includes a structure or part of a structure;

   "relevant sexual offence" has the same meaning as in section 62;

   "structure" includes a tent, vehicle or vessel or other temporary or movable structure.

3. A person guilty of an offence under this section is liable—

   1. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
   2. on conviction on indictment, to imprisonment for a term not exceeding 10 years.

Perhaps this is why a recent study, /Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms/, found no evidence that trans access had lead to increased sexual offences in those spaces [12]. From the abstract, “This study provides evidence that fears of increased safety and privacy violations as a result of nondiscrimination laws are not empirically grounded.”

With respect to the GRC, one argument is that a cis man holding one could, presenting as a male, claim a right to be in those spaces simply to intimidate women, and obstinately refuse to leave. However, by doing so, he would not be using the spaces as they’re intended, and the establishment would be justified in removing him – particularly if he was harassing someone. Men acting in this way (if men ever did act in this way) would be significantly rarer than actual trans women in such a space, and if the man went on to sue, the establishment need only show that they equitably serve trans women to undermine the case: they threw him out because of his behaviour, not because he was (pretending to be) trans.

The idea that a GRC is relevant to more serious offenders is laughable, because it requires a person who intends to commit a serious crime to hand over his ID in the establishment he intends to commit it in – the moment he’s challenged by anyone, the game is already up. Why someone intending to commit a serious crime would apply for such a document, knowing that on being caught it will only add fraud to their list of crimes, is beyond me.

Ultimately, our sex-separated facilities and general squeamishness about nudity are a cultural hold-over from the Victorian era; many European countries have open plan, unisex changing rooms, and their societies do not revert to barbarism as a result. There are certainly survivors of sexual abuse who may find penises triggering – I think it’s entirely valid for those people to receive special provision, but I imagine many of them would be dismayed by society using their trauma to bar trans people en masse, with all of the associated violence against women that would cause.

The Hampstead Heath bathing ponds

This case is pretty much equivalent to changing rooms, but it serves as an illustrative example of transphobia. The concern was that men could get into the women’s pond. This lead to a farcical protest, where, in order to prove nothing could be done to kick them out, two cis women activists entered the men’s pond claiming to be trans… and got kicked out anyway. Clearly it is possible to remove people who are acting in bad faith. The magnitude of this self-own is quite phenomenal.

Contrary to misleading media coverage, the ponds did not change their policy, and they did not say only trans women could use the appropriate pond. Rather, in response to complaints about trans bathers, they clarified that in their view, the EA allows trans men to use the men’s pond, and trans women to use the women’s pond.

Note that the campaigners are against trans people using the appropriate pond. Their claimed motivation is to keep men out of the women’s pond, but in doing so, they would ensure that trans men would be prevented from using the men’s pond, while still welcome in the women’s. This shows that these groups do not believe trans people are their identified gender, and until they do, I have no respect for their concerns.

Prisons

One of the more baffling hypotheticals I’ve heard is that of a sexually dangerous men pretending to be trans to get access to a women’s prison. My instinctual response is, buh? Do you know… what a prison is? If there’s one place in our society that should be able to cope with dangerous individuals… surely, it’s a prison?

But, ok, prisons do fail to protect their inmates quite regularly, so let’s consider this possibility.

As we saw earlier, prisons are permitted to exclude trans people from appropriate single-sex accommodation and related services under EA Schedule 3, ¶ 28 and Schedule 23, ¶ 3. In practice, this means that trans prisoners are housed initially according to their legal sex or, lacking evidence for legal sex, their biological sex; a prisoner should then, within three days, sit before a Transgender Case Board, which will work with them to determine suitable housing [13].

You might think that, if GRCs are easy to obtain, dangerous male prisoners pretending to be trans could be housed in women’s prisons by default. In fact, not even dangerous cis women are housed in women’s prisons: it is standard policy for dangerous women to be housed in male prisons [10], [13]:

The care and management of transgender offenders, Section 4, Paragraph 7 [13]

If the prisoner’s view accords with their legally recognised gender this must be recorded and they must be located accordingly. Exemptions apply to women offenders (whether or not transgender) where the risk posed to other offenders and/or staff prevents location in the female estate.

A common complaint from TERF groups is that organisations are not considering the consequences of trans access. From the government review on the care and management of transgender offenders [10]:

Decisions on the allocation of transgender people to binary services, especially custody, must include the possibility of a review and rapid remedy if it appears that the initial allocation might have an unforeseen and detrimental impact on the person’s mental health or well being, their social integration and access to services, or an impact on safety to themselves or the safety of others.

Decisions to transfer serving prisoners between male or female prisons (or vice versa) should be based on clear criteria, with reasons given for the outcome and appeal processes clearly explained. As part of this process, it will be necessary to factor in the impact on and risks to those in current or potential establishments especially, for instance, in the women’s estate where many prisoners will have been the victims of domestic violence or sexual abuse and may continue to be exceptionally vulnerable.

This doesn’t mean that prisons always get it right. Female prisoners report significantly higher instances of rape (assault by penetration) and other forms of sexual assault by fellow inmates than men [14], and sexual violence is clearly endemic in the prison system. As for trans perpetrators, the only case I know of in the UK was reported earlier this year, and again this week, where a trans woman (not a man pretending to be trans) sexually assaulted prisoners while awaiting trial. She had committed rape in the past, but her case board failed to account for her full offending history when deciding where she should be transferred. Importantly, the prison had the legal capacity and correct policy to avoid this mistake – they simply failed to implement it correctly. She has now been given life imprisonment in a male prison.

Conclusions

Well, I didn’t expect anyone to get this far. Well done!

I feel like I’ve written an awful lot here, but I also feel that there’s so much more that I could say. If nothing else, I hope I’ve shown that the proposed changes to the GRA, and increasing the ease of acquiring a GRC, is only a good thing. Bad actors have so little possible motivation to get one that it seems like an absurdity, but I can understand why people might find these concerns compelling. To those people, I would point out that the very principle of legitimate concern is enshrined in law in the form of gender reassignment exemptions.

The organisations opposing the changes are not people with legitimate concerns. Their constant, obsessive focus on finding something, anything with which to restrict the rights of trans people is obvious and disgusting. They enjoy coming up with hypothetical bad outcomes, which can be tiresome and difficult to grapple with, because in the world of real social policy, people rely on evidence, studies and things that have actually happened. Some of the hypotheticals may happen, some of them have in fact happened, but all evidence suggests such cases are are incredibly rare, and it seems obscene that stripping rights from trans people can be seen as a proportionate solution.

If your worry is the protection of women and girls, then think about trans women and girls, and the horrors that await them in male-only spaces. This is a real, verifiable and all-too-common evil, which trumps the mere possibility that, in a blue moon, someone could abuse the legislation that corrects it. The argument that we can’t let trans people into bathrooms because they might be bad men is almost exactly the same argument that we can’t let Muslims into the country because they might be terrorists – and if you believe that, this article wasn’t meant for you.

Acknowledgements

I’d like to thank Quinn, Lisa, Alex, Calum and Becci for looking over early drafts of this, and for their feedback and comments. ❤️

References

Equality Act 2010, Part 3, Section 29, "Provision of Services, etc."

https://www.legislation.gov.uk/ukpga/2010/15/section/29

1. A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

2. A service-provider (A) must not, in providing the service, discriminate against a person (B)—

   1. as to the terms on which A provides the service to B;
   2. by terminating the provision of the service to B;
   3. by subjecting B to any other detriment.

3. A service-provider must not, in relation to the provision of the service, harass—

   1. a person requiring the service, or
   2. a person to whom the service-provider provides the service.

4. A service-provider must not victimise a person requiring the service by not providing the person with the service.

5. A service-provider (A) must not, in providing the service, victimise a person (B)—

   1. as to the terms on which A provides the service to B;
   2. by terminating the provision of the service to B;
   3. by subjecting B to any other detriment.

6. A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.

7. A duty to make reasonable adjustments applies to—

   1. a service-provider (and see also section 55(7));
   2. a person who exercises a public function that is not the provision of a service to the public or a section of the public.

8. In the application of section 26 for the purposes of subsection (3), and subsection (6) as it relates to harassment, neither of the following is a relevant protected characteristic—

   1. religion or belief;
   2. sexual orientation.

9. In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance (within the meaning of the Immigration Act 1971), it does not matter whether an act is done within or outside the United Kingdom.

10. Subsection (9) does not affect the application of any other provision of this Act to conduct outside England and Wales or Scotland.

Equality Act 2010, Schedule 3, Part 7, Paragraph 26, "Separate sevices for the sexes"

https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/paragraph/26

1. A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—

   1. a joint service for persons of both sexes would be less effective, and
   2. the limited provision is a proportionate means of achieving a legitimate aim.

2. A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services differently for persons of each sex if—

   1. a joint service for persons of both sexes would be less effective,
   2. the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and
   3. the limited provision is a proportionate means of achieving a legitimate aim.

3. This paragraph applies to a person exercising a public function in relation to the provision of a service as it applies to the person providing the service.

Equality Act 2010, Schedule 3, Part 7, Paragraph 27, "Single sex services"

https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/paragraph/27

1. A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if—

   1. any of the conditions in sub-paragraphs (2) to (7) is satisfied, and
   2. the limited provision is a proportionate means of achieving a legitimate aim.

2. The condition is that only persons of that sex have need of the service.

3. The condition is that—

   1. the service is also provided jointly for persons of both sexes, and
   2. the service would be insufficiently effective were it only to be provided jointly.

4. The condition is that—

   1. a joint service for persons of both sexes would be less effective, and
   2. the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services.

5. The condition is that the service is provided at a place which is, or is part of—

   1. a hospital, or
   2. another establishment for persons requiring special care, supervision or attention.

6. The condition is that—

   1. the service is provided for, or is likely to be used by, two or more persons at the same time, and
   2. the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.

7. The condition is that—

   1. there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and
   2. B might reasonably object if A were not of the same sex as B.

8. This paragraph applies to a person exercising a public function in relation to the provision of a service as it applies to the person providing the service.

Equality Act 2010, Schedule 23, Paragraph 3, "Communal Accommodation"

https://www.legislation.gov.uk/ukpga/2010/15/schedule/23/paragraph/3

1. A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to—

   1. the admission of persons to communal accommodation;
   2. the provision of a benefit, facility or service linked to the accommodation.

2. Sub-paragraph (1)(a) does not apply unless the accommodation is managed in a way which is as fair as possible to both men and women.

3. In applying sub-paragraph (1)(a), account must be taken of—

   1. whether and how far it is reasonable to expect that the accommodation should be altered or extended or that further accommodation should be provided, and
   2. the frequency of the demand or need for use of the accommodation by persons of one sex as compared with those of the other.

4. In applying sub-paragraph (1)(a) in relation to gender reassignment, account must also be taken of whether and how far the conduct in question is a proportionate means of achieving a legitimate aim.

5. Communal accommodation is residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy should be used only by persons of the same sex.

6. Communal accommodation may include—

   1. shared sleeping accommodation for men and for women;
   2. ordinary sleeping accommodation;
   3. residential accommodation all or part of which should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.

7. A benefit, facility or service is linked to communal accommodation if—

   1. it cannot properly and effectively be provided except for those using the accommodation, and
   2. a person could be refused use of the accommodation in reliance on sub-paragraph (1)(a).

8. This paragraph does not apply for the purposes of Part 5 (work) unless such arrangements as are reasonably practicable are made to compensate for—

   1. in a case where sub-paragraph (1)(a) applies, the refusal of use of the accommodation;
   2. in a case where sub-paragraph (1)(b) applies, the refusal of provision of the benefit, facility or service.

Gender Recognition Act 2004, relevant sections

https://www.legislation.gov.uk/ukpga/2004/7

1 Applications

1. A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of—

   1. living in the other gender, or
   2. having changed gender under the law of a country or territory outside the United Kingdom.

2. In this Act "the acquired gender", in relation to a person by whom an application under subsection (1) is or has been made, means—

   1. in the case of an application under paragraph (a) of that subsection, the gender in which the person is living, or
   2. in the case of an application under paragraph (b) of that subsection, the gender to which the person has changed under the law of the country or territory concerned.

3. An application under subsection (1) is to be determined by a Gender Recognition Panel.

4. Schedule 1 (Gender Recognition Panels) has effect.

2 Determination of applications

1. In the case of an application under section 1(1)(a), the Panel must grant the application if satisfied that the applicant—

   1. has or has had gender dysphoria,
   2. has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
   3. intends to continue to live in the acquired gender until death, and
   4. complies with the requirements imposed by and under section 3.

2. In the case of an application under section 1(1)(b), the Panel must grant the application if satisfied—

   1. that the country or territory under the law of which the applicant has changed gender is an approved country or territory, and
   2. that the applicant complies with the requirements imposed by and under section 3.

3. The Panel must reject an application under section 1(1) if not required by subsection (1) or (2) to grant it.

[F1(3A) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.]

[F2(3B) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3C.]

[F3(3C) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3E.]

4. In this Act "approved country or territory" means a country or territory prescribed by order made by the Secretary of State after consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. Annotations: Help about Annotation

3 Evidence

1. An application under section 1(1)(a) must include either—

   1. a report made by a registered medical practitioner practising in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practise in that field), or
   2. a report made by a [F4registered psychologist] practising in that field and a report made by a registered medical practitioner (who may, but need not, practise in that field).

2. But subsection (1) is not complied with unless a report required by that subsection and made by—

   1. a registered medical practitioner, or
   2. a [F4registered psychologist], practising in the field of gender dysphoria includes details of the diagnosis of the applicant’s gender dysphoria.

3. And subsection (1) is not complied with in a case where—

   1. the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or
   2. treatment for that purpose has been prescribed or planned for the applicant, unless at least one of the reports required by that subsection includes details of it.

4. An application under section 1(1)(a) must also include a statutory declaration by the applicant that the applicant meets the conditions in section 2(1)(b) and (c).

5. An application under section 1(1)(b) must include evidence that the applicant has changed gender under the law of an approved country or territory.

6. Any application under section 1(1) must include—

   1. a statutory declaration as to whether or not the applicant is married [F5or a civil partner],
   2. any other information or evidence required by an order made by the Secretary of State, and
   3. any other information or evidence which the Panel which is to determine the application may require, and may include any other information or evidence which the applicant wishes to include.

[F6(6A) If the applicant is married, an application under section 1(1) must include a statutory declaration as to whether the marriage is a marriage under the law of England and Wales, of Scotland, of Northern Ireland, or of a country or territory outside the United Kingdom.

(6B) If the applicant is married, and the marriage is a protected marriage, an application under section 1(1) must also include—

1. a statutory declaration by the applicant’s spouse that the spouse consents to the marriage continuing after the issue of a full gender recognition certificate ("a statutory declaration of consent") (if the spouse has made such a declaration), or
2. a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).

(6C) If an application includes a statutory declaration of consent by the applicant’s spouse, the Gender Recognition Panel must give the spouse notice that the application has been made.]

[F7(6D) If the applicant is a party to a protected Scottish marriage, an application under section 1(1) must also include—

1. a statutory declaration by the applicant that the applicant wishes the marriage to continue after the issue of a full gender recognition certificate (if that is the case), and

2. either—

   1. a statutory declaration by the applicant’s spouse that the spouse consents to the marriage continuing after the issue of a full gender recognition certificate ("a statutory declaration of consent") (if the spouse has made such a declaration), or
   2. a statutory declaration by the applicant that no such declaration by the applicant’s spouse is included.

(6E) If an application includes a statutory declaration of consent by the applicant’s spouse under subsection (6D)(b)(i), the Gender Recognition Panel must give the spouse notice that the application has been made.

(6F) If the applicant is a party to a protected Scottish civil partnership, an application under section 1(1) must also include a statutory declaration as to where the civil partnership was registered and, if the civil partnership was registered outside the United Kingdom, that details of the civil partnership have been sent to the Registrar General for Scotland.]

7. The Secretary of State may not make an order under subsection (6)(b) without consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland.

8. If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so.

[F8(9) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.]

[F9(10) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3C.]

[F10(11) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3E.] Annotations: Help about Annotation

[F11 3A Alternative grounds for granting applications

1. This section applies to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with this section.

2. The Panel must grant the application if satisfied that the applicant complies with the requirements imposed by and under section 3B and meets the conditions in subsections (3) to (6).

3. The first condition is that the applicant was a party to a protected marriage or a protected civil partnership on or before the date the application was made.

4. The second condition is that the applicant—

   1. was living in the acquired gender six years before the commencement of section 12 of the Marriage (Same Sex Couples) Act 2013,
   2. continued to live in the acquired gender until the date the application was made, and
   3. intends to continue to live in the acquired gender until death.

5. The third condition is that the applicant—

   1. has or has had gender dysphoria, or
   2. has undergone surgical treatment for the purpose of modifying sexual characteristics.

6. The fourth condition is that the applicant is ordinarily resident in England, Wales or Scotland.

7. The Panel must reject the application if not required by subsection (2) to grant it.] Annotations: Help about Annotation

[F12 3B Evidence for granting applications on alternative grounds

1. This section applies to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.

2. The application must include either—

   1. a report made by a registered medical practitioner, or
   2. a report made by a registered psychologist practising in the field of gender dysphoria.

3. If the application is based on the applicant having or having had gender dysphoria—

   1. the reference in subsection (2) to a registered medical practitioner is to one practising in the field of gender dysphoria, and
   2. that subsection is not complied with unless the report includes details of the diagnosis of the applicant’s gender dysphoria.

4. Subsection (2) is not complied with in a case where—

   1. the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or
   2. treatment for that purpose has been prescribed or planned for the applicant, unless the report required by that subsection includes details of it.

5. The application must also include a statutory declaration by the applicant that the applicant meets the conditions in section 3A(3) and (4).

6. The application must include—

   1. a statutory declaration as to whether or not the applicant is married or a civil partner,
   2. any other information or evidence required by an order made by the Secretary of State, and
   3. any other information or evidence which the Panel which is to determine the application may require, and may include any other information or evidence which the applicant wishes to include.

7. If the applicant is married, the application must include a statutory declaration as to whether the marriage is a marriage under the law of England and Wales, of Scotland, of Northern Ireland, or of a country or territory outside the United Kingdom.

8. If the applicant is married, and the marriage is a protected marriage, the application must also include—

   1. a statutory declaration of consent by the applicant’s spouse (if the spouse has made such a declaration), or
   2. a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).

9. If the application includes a statutory declaration of consent by the applicant’s spouse, the Panel must give the spouse notice that the application has been made.

10. If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so.]

22 Prohibition on disclosure of information

1. It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.

2. "Protected information" means information which relates to a person who has made an application under section 1(1) and which—

   1. concerns that application or any application by the person under section [F14A,] [F24C, 4F,] 5(2) [F3, 5A(2)] or 6(1), or
   2. if the application under section 1(1) is granted, otherwise concerns the person’s gender before it becomes the acquired gender.

3. A person acquires protected information in an official capacity if the person acquires it—

   1. in connection with the person’s functions as a member of the civil service, a constable or the holder of any other public office or in connection with the functions of a local or public authority or of a voluntary organisation,
   2. as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or
   3. in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.

4. But it is not an offence under this section to disclose protected information relating to a person if—

   1. the information does not enable that person to be identified,
   2. that person has agreed to the disclosure of the information,
   3. the information is protected information by virtue of subsection (2)(b) and the person by whom the disclosure is made does not know or believe that a full gender recognition certificate has been issued,
   4. the disclosure is in accordance with an order of a court or tribunal,
   5. the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal,
   6. the disclosure is for the purpose of preventing or investigating crime,
   7. the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland,
   8. the disclosure is made for the purposes of the social security system or a pension scheme,
   9. the disclosure is in accordance with provision made by an order under subsection (5), or
   10. the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.

5. The Secretary of State may by order make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under this section.

6. The power conferred by subsection (5) is exercisable by the Scottish Ministers (rather than the Secretary of State) where the provision to be made is within the legislative competence of the Scottish Parliament.

[F4(6A) The power conferred by subsection (5) is exercisable by the Department of Justice in Northern Ireland (rather than the Secretary of State) where the provision to be made could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]

7. An order under subsection (5) may make provision permitting—

   1. disclosure to specified persons or persons of a specified description,
   2. disclosure for specified purposes,
   3. disclosure of specified descriptions of information, or
   4. disclosure by specified persons or persons of a specified description.

8. A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.