Sex and the law in the UK

Introduction

The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) is the most comprehensive legal framework to tackle violence against women and girls. The UK government ratified the convention on 21st July 2022 and it came into force on 1st November 2022.

As a ratified treaty the Istanbul Convention can be cited by the UK Courts as persuasive authority with regard to legal decision-making and the establishment of legal principles. Where there is ambiguity as to what the law requires, the courts will assume that the law should be interpreted in a way that complies with the United Kingdom’s international obligations.¹

In January 2024 the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) will be visiting the UK to evaluate whether it is meeting its commitments. The focus of its evaluation is on “building trust by delivering support, protection and justice”.

GREVIO recognises that civil-society organisations are an important source of information. It invites national and regional NGOs and their networks to contribute to the evaluation procedure by submitting information on the implementation of the convention.

This report has been developed by Sex Matters, Fair Play For Women and Transgender Trend; and is being submitted together with LGB Alliance, the Women’s Rights Network, For Women Scotland and Merched Cymru, and in collaboration with other groups working on sex-based rights in the UK. It is concerned in particular with the operation of the the legal framework on sex discrimination and positive action for women in the UK. Annex 1 cross-references these concerns to the convention.

It argues and provides evidence that:

the current interpretation of the definition of sex in the Equality Act, which no longer clearly reflects the ordinary meaning, undermines the whole purpose of the law in relation to women’s rights and leaves the UK in breach of the Convention
this is exacerbated by widespread adoption of policies which are not aligned to the law at all, but to gender self-identification.

GREVIO should consider these issues when carrying out its planned visit and evaluation of the UK.

Sex, gender and the Istanbul Convention

The Istanbul Convention is founded on the recognition that:

“the realisation of de jure and de facto equality between women and men is a key element in the prevention of violence against women.”

It links violence against women to historically unequal power relations, male domination, discrimination against women and the prevention of the full advancement of women in society.

The Istanbul Convention does not define the terms “woman”, “man” or “sex”, but the meaning of these terms is crucial to the Convention. As Dr Michael Foran of Glasgow University notes:

“if sex is to ground distinct legal rights and duties, which it does, there must be a way for legal actors to know who bears those rights and duties.”²

Terms are rarely defined in law unless their ordinary meaning has become contested or their legal meaning diverges in important ways from the ordinary meaning. The Istanbul Convention seeks to hold states to a commitment to dismantle legal frameworks designed to create and maintain unequal rights between men and women, while maintaining and strengthening laws that prevent discrimination and protect women where they have particular needs and vulnerabilities.

The ordinary meanings of words like sex, man and woman were uncontroversial when sex discrimination was first prohibited in UK law. However, in recent years the terms have become socially and legally contested in the UK and in many Western countries, and so the ordinary meaning bears clarifying.

The ordinary meaning of sex relates to biology and sexual reproduction. Male refers to individuals, or body parts, that have followed the developmental pathway that supports the production of sperm. Female refers to individuals, or body parts, that have followed the developmental pathway that supports the production of eggs. Man and boy relate to male individuals, and woman and girl to female individuals.³

Sex is determined at conception and observed at birth (and often before). Almost all newborn babies can be easily classified as male or female by simply looking at their genitals (penis and testicles for males; vulva for females). Occasionally these may be unusually shaped, or there may be some other indication that the reproductive system has not developed along standard lines. In these cases, medical tests may be needed to identify the child’s sex. For humans, as for all mammals, it is impossible to change sex.

It is clear that the Istanbul Convention uses this ordinary meaning of sex when it refers to women and men. This is the meaning that relates to the reality of male domination and female subordination, to mothers and fathers, to forced marriage, rape and pregnancy, and to the traditions and social norms which shape women’s lives. Article 38 specifically refers to female genital mutilation (involving a woman’s labia majora, labia minora or clitoris), and Article 39 refers to performing an abortion on a woman without her prior and informed consent. The Convention spells out with great clarity that although men and women both can be victims of domestic and sexual violence, these affect women disproportionately.

The Istanbul Convention defines gender as:

“the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”

and gender-based violence against women as:

“violence that is directed against a woman because she is a woman or that affects women disproportionately.”

It does not define women by these socially constructed roles, but seeks to challenge those roles where they are harmful or constrictive.

Article 6 states: “Parties shall undertake to include a gender perspective in the implementation and evaluation of the impact of the provisions of this Convention”. Elsewhere, the Convention calls for a gendered understanding of violence against women and domestic violence as a basis for all measures to protect and support victims. The Explanatory Report to the Convention explains:

“This means that these forms of violence need to be addressed in the context of the prevailing inequality between women and men, existing stereotypes, gender roles and discrimination against women in order to adequately respond to the complexity of the phenomenon.”⁴

In 2018 the Council of Europe issued a statement to combat misconceptions about the use of the term “gender” in the Istanbul Convention, confirming that men and women relates to the two sexes:

“This term [gender] neither replaces the biological definition of ‘sex’ nor the terms ‘women’ and ‘men’, but rather emphasises how much inequalities, stereotypes and – consequently – violence do not originate from biological differences, but rather from a social construct: that is to say, by attitudes and perceptions of how women and men are and should be in society.”⁵

This statement makes clear that the Convention does not treat the categories “men” and “women” themselves as social constructs, but only the expectations for behaviour placed on men and women. A Q&A document published the same day emphasises the following:

The meanings of the terms man and woman remain the biological definitions.
The Istanbul Convention does not set new standards in relation to gender identity.
There is no undertone or “hidden agenda” to the Istanbul Convention. It is the result of long negotiations, leading to its adoption by consensus by all Council of Europe member states.
The convention does not require an adaptation of national legal systems to incorporate the use of the term “gender”.⁶

However, a web page on Key Facts on the Istanbul Convention published by the Council of Europe in 2021 appears to have become confused about the categories of man and woman. It states that “the protection and support provided under the Istanbul Convention must be available to any woman without discrimination, including with respect to her… gender identity…. For instance, a victim’s access to support services, shelters, protection and justice should not vary depending… whether she was born a woman.”⁷

This is a category error. Someone who was born male remains in reality and by definition a man whatever gender identity he adopts.

The principle that policies should target violence against women, and that specific support services and shelters should be available to women, is core to the Istanbul Convention. The Convention itself is not limited to women. The definition of domestic violence encompasses victims and perpetrators of both sexes, and the Convention encourages parties to protect all victims of domestic violence, including men, children and the elderly. Thus men with a transgender identity are also covered.⁸ But they are not defined as women.

Given the confusion and controversy over sex and gender identity in the UK described in this submission, it is worth reiterating, in the context of the UK visit and report, that the Istanbul Convention commitment to “include gender perspective” means thinking about the differences in status, power, social situation and needs of women and men, not imposing controversial ideas about gender identity.

This is particularly important since the shadow report to GREVIO by 58 specialist Violence Against Women and Girls (VAWG) organisations across England and Wales cites the 2021 “Key Facts” article as showing that the Convention’s approach to violence means that “transgender women” (i.e men who identify as women) should be included as women, and misstates the Equality Act as including “protection from discrimination on the basis of both sex and gender”.

When addressing the Scottish Parliament last year, Victor Madrigal-Borloz, United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, also cited the Istanbul Convention, among others, as creating a binding commitment for the UK to enact gender self-ID. This use of the Convention to promote gender-identity ideology contradicts the careful statements in the Istanbul Convention Q&A in 2018.⁹

GREVIO should make clear to all stakeholders during its visit to the UK that the Istanbul Convention is based on the understanding that woman means adult human female, and requires discrimination laws that protect this group.

Legal protection against discrimination is central to the Convention

Article 4 of the Istanbul Convention commits Parties to condemn all forms of discrimination against women and to take necessary legislative and other measures to prevent it, in particular by:

embodying the principle of equality between women and men in legislation and ensuring the practical realisation of this principle
prohibiting discrimination against women, including through the use of sanctions
abolishing laws and practices which discriminate against women.

GREVIO’s questionnaire focuses on changes in policies, funding and data-collection, rather than specifically asking about the underlying legal framework against discrimination. However, the sound operation of the legal framework that protects women’s rights is crucial to the effectiveness of government policies and strategy, and to the legal, policy and funding environment within which independent civil society operates.

The Convention recognises that focusing solely on formal equality (services should be provided for men and women without discrimination) is not enough. Substantive equality (women have particular needs and disadvantages and require positive action) is also crucial, otherwise states will tend to adopt “gender-neutral” policies which do not meet women’s needs.

In countries such as Albania, Denmark and Finland, GREVIO has criticised the gender-neutral approach of legal provisions and policies to address domestic violence:

“The gender-neutral approach taken by State parties fails to address the specific experiences of women that differ significantly from those of men thus hindering their effective protection. Such an approach deflects the focus away from persisting challenges to the safety of women and children who predominantly suffer domestic violence at the hands of male perpetrators.”¹⁰

Organisations within the VAWG sector in the UK are concerned about the shift to gender neutrality within the funding and commissioning landscape. For example, the 58 VAWG organisations in England say:

“Policies and practices on VAWG in England are increasingly gender neutral and aim for equal treatment for all, thereby disregarding the need for gender specific responses which reflect women’s experiences of violence, inequality and discrimination.”¹¹

Sex and the law in the UK

The GREVIO Questionnaire starts at Article 7. The UK Government’s submission therefore does not cover the legal framework for sex discrimination and positive action.¹² However this is a fundamental foundation for the UK to meet its commitments under the Convention and there is a serious issue here which GREVIO must consider.

This section sets out the framework of the Equality Act, and the two problems of legal definition:

The terms “man” and “woman” in the Equality Act have diverged from the ordinary meaning of the two sexes through interaction with the Gender Recognition Act 2004.
There is widespread misunderstanding of the law, such that policy diverges even further from the ordinary meaning of sex, replacing it with self-identified gender.

The Equality Act protects women’s rights on paper

The Equality Act 2010 is the legislation relevant to Article 4 of the Istanbul Convention in Great Britain. There are equivalent laws in Northern Ireland.¹³

The Equality Act reformed, harmonised and restated the greater part of previous enactments. covering nine “protected characteristics”: sex, age, race, disability, sexual orientation, religion and belief, pregnancy and maternity, marriage and civil partnership, and gender reassignment. It incorporates provisions that were first enacted in the Sex Discrimination Act 1975.

It prohibits discrimination and harassment on the basis of sex in many situations, including in employment, education and services. It also makes provision to allow for single-sex services to meet particular needs of women and men.

Sex is defined as a protected characteristic under Section 11 of the Equality Act 2010. It relates to the terms man and woman:

a reference to a person who has a particular protected characteristic is a reference to a man or to a woman
a reference to persons who share a protected characteristic is a reference to persons of the same sex.

Section 212 further provides that “man” means a male of any age and “woman” means a female of any age.

The main purpose of the Equality Act is to prohibit discrimination and harassment, and to give individuals a route to remedy. The definition of sex is important for this core purpose.

However, it is well-established that equality does not always mean treating women and men in the same way, and that single-sex facilities are often needed. These include:

Everyday facilities for washing, changing and using the toilet, and where people are living or sleeping communally such as in hospital wards. These situations are more comfortable when provided separately for men and women. Not providing these facilities separately makes women in particular feel unsafe and humiliated. It puts women at risk of voyeurism, exposure and assault – crimes that are predominantly committed by men against women – and makes the public realm a more hostile place for women, often keeping them at home.¹⁴
Specialist services for women, particularly as victim-survivors of violence against women, were born of the recognition that when it comes to violence, women and men are so different that treating them in the same way, or mixing them together as victims or offenders, reproduces violence. Prisons are also single sex, under the international Mandela rules.
Sports, so that women and girls are not forced to compete, train or undertake recreational sporting activities with men and boys where this would be unfair or unsafe for them because of men’s greater size, strength and athletic ability.

The Equality Act allows for single-sex and separate-sex services by providing a general statutory defence (in Schedule 3) against claims of both sex discrimination and gender-reassignment discrimination wherever single-sex services are justified. This is a symmetrical provision which applies equally to services for men and for women. It does not require case-by-case application, and it can be set as rules. There is also a specific provision for sport.

What the Equality Act does not do is give the right to demand female-only provision or place an obligation on providers to offer this in any particular circumstance.¹⁵ Other laws and policies do this in particular settings, such as prison, school and workplace toilets and hospital beds.

It does provide a duty that encourages public bodies to consider women’s specific needs when setting policy. The public-sector equality duty (s149) requires that public authorities have due regard to meeting the needs of groups with protected characteristics. This refers to the need to:

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; and
take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it
encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

The Equality Act allows for positive action (s158–159), making it lawful for both public and private bodies to take steps to address disadvantage and meet needs. It also provides for charities to be exclusively focused on disadvantages and needs of groups of people with particular protected characteristics as defined in the law, and for associations to be formed based on protected characteristics (such as an association of women or of lesbians).

It is these provisions that underpin the mandate, provision and funding for specialist support organisations and services for women who have been victims of violence.

Trans activists have pushed for self-identification for 30 years

Under the banner of “trans rights”, there has been a concerted international push since the 1990s to define men and women in law as self-identified categories.¹⁶

Christine Burns, a man who identifies as a woman, was one of the founders of Press for Change, an early organisation lobbying for gender to replace sex in law in the UK. Burns argued in 1998:

“All around us, changes are already in progress that make the requirement for a legal reference point for sex into an anachronism.”¹⁷

The Scottish Trans Alliance says that

“We strategized that by working intensively with the Scottish Prison Service to support them to include trans women as women on a self-declaration basis within very challenging circumstances, we would be able to ensure that all other public services should be able to do likewise.”¹⁸

Martine Rothblatt (another man who identifies as a woman, who was lobbying internationally) says that conceiving of people as either male or female is, in and of itself, an oppressive structure that warrants describing as an “apartheid of sex”:

“We must finally end the notion that sex is between our legs. Instead, it is time to realize that sex is between our ears.”¹⁹

These conceptions of gender identity replacing sex in law and policy are inimical to the Istanbul Convention, which requires policies and laws which protect women’s rights on the basis of sex.

Reforms to equality law have been careless of women’s rights

On paper, the Equality Act remains consistent with the Istanbul Convention, protecting the rights of “women”. But the question of what defines people as women or men for the purposes of the Act is important in practice. This has become unclear through a tangle of legislative reforms, in which women’s rights have never been at the forefront of consideration.

The underlying position at common law is that sex is biological, and is fixed at birth based on chromosomal and physical characteristics (Corbett v Corbett [1971], Bellinger v Bellinger [2003]). When the Sex Discrimination Act was enacted in 1975, legislators would have been clear that man and woman in that Act take their ordinary and common-law meaning.

Discrimination against trans people has become recognised as a different kind of thing. In 1999 the protected characteristic of “gender reassignment” was added to the Sex Discrimination Act 1975 for the purposes of employment. This followed the judgment of the ECJ in P v S and Cornwall County Council [1996], after a man who wished to transition to “live as a woman” was dismissed from his job.²⁰ The court ruled that it would be contrary to the Equal Treatment Directive 1976 for a person undergoing such “gender reassignment” to be dismissed from employment because of this. The UK Government therefore brought in a regulation to create a new protected characteristic. The protected characteristic relates to a person who 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.”

The Equality Act refers to this as being “transsexual”. But the term more commonly used today is “transgender” or “trans”. This broadly relates to anyone at any stage of a personal process that might include changing their name and using feminine or masculine language about themselves, adopting clothing styles and mannerisms stereotypically associated with the opposite sex, taking hormones to change their secondary sexual characteristics or having cosmetic surgery.

It was recognised that this process does not change a person’s sex, and that biological sex characteristics remain a material reality that affect how a person is perceived by and interacts with others and society at large.

In 2004 the UK passed the Gender Recognition Act, which provides for people to apply to have their “acquired gender” recognised in place of their sex. This followed an ECtHR case, Goodwin v UK [2002], which found that a person who has gone through extreme surgical modifications to their genitals may suffer acute distress if their gender identity is not legally recognised. In particular, it found that their right to privacy is breached in situations where they have to show a birth certificate for administrative processes such as opening a bank account, thus “revealing” their true sex.

The court came to this conclusion without considering the potential impact of changing the definition of sex on the rights and freedoms of women, or on legal protections from discrimination for women. The judgment states:

“No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.”²¹

Women were not a party to this case. The court heard no arguments from women or women’s groups about whether this legal change would have adverse effects.

The Gender Recognition Act 2004 as eventually passed went much further than the EcHR judgment required. It allows someone to change the sex that they are recognised as in law “for all [legal] purposes”.

This process is open to those who have a diagnosis of gender dysphoria and can show that they have changed their name and title in order to “live in the acquired gender” for two years. It does not include any requirement to undergo medical or surgical body modification at all.

Being a convicted rapist, child abuser or violent criminal does not preclude someone from getting a certificate.

Again, there was no consultation with women or women’s groups in respect of the impact this even greater change would have on their rights, freedoms and legal protections. See for example the report of the Joint Committee on Human Rights on the draft Gender Recognition Bill in 2003. The section headed “Rights of third parties” takes just over a page and does not even mention the rights of women.²²

The notes to the legislation state that “a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities”. However no analysis was ever published and no one has been able to find it.

In 2008 gender reassignment was added to the provisions outlawing discrimination in goods and services in the Sex Discrimination Act (this did not depend on a gender-recognition certificate). Exceptions for situations including single-sex services and sport were included. These provisions were folded into the Equality Act in 2010.

During all of these piecemeal developments it was never argued publicly that either the protected characteristic of gender reassignment or a gender-recognition certificate was to be an “all-areas access pass” that conferred the right to use spaces and services intended for the opposite sex, or that either conferred the right to force others to pretend to believe that a person had changed sex.

In the House of Lords at the time of passage of the GRA, Baroness O’Cathain expressed concern about unintended consequences, saying that it is ludicrous “to suggest a person can change sex”. Lord Carlile of Berriew responded, playing down the impact of gender recognition on other people, saying:

“The noble Baroness is missing the whole basis of legislation. Legislation does not change our consciences at all – it merely confers legal status. When it says in the Bill ‘for all purposes’, it means for all legislative purposes. We cannot change the cast of the noble Baroness’s mind, if that is the cast she chooses to adopt on this issue. It can be cast in bronze, indestructible. I would not pretend that I could destroy the indestructible cast in her mind on this issue.”

In the case of R v Secretary of State for Work and Pensions [2017] UKSC 72, Lady Hale notes:

“There is nothing in section 9 [the ‘for all purposes’ clause of the GRA] to require that the previous state of affairs be expunged from the records of officialdom. Nor could it eliminate it from the memories of family and friends who knew the person in another life.”

Yet over time an entirely different idea has been widely adopted by many institutions: that gender identity has replaced sex “for all purposes”, in life as well as specific laws, both for those with and without a GRC, and that to contest this is “transphobic”.

This undermines women’s rights, freedom of speech and systems for safeguarding.

Policies are going beyond the law

Many organisations across the public, private and voluntary sectors act as if gender self-identification is already the law, collecting data on gender identity instead of sex and framing policies as if gender identity is a protected characteristic.²³

Around 25% of the UK workforce is employed by an organisation that is or was until recently a member of the Stonewall “Diversity Champion” scheme which promotes gender self-identity. Stonewall is just one of the advocacy organisations that promotes the idea that gender identity has replaced sex in law in the UK, but it is the largest and probably the most influential.

Its members have included roughly 250 government departments, the Scottish and Welsh governments, public bodies and regulators such as police forces, local councils and NHS trusts, the Office for National Statistics, Ofsted, the Care Quality Commission, almost all universities, and until recently the Equality and Human Rights Commission.²⁴ This gives Stonewall privileged access to the policy-making process, as well as enabling it to influence HR policies and training within major employers, their communications and the funding they offer to other bodies. Organisations that are part of the Stonewall scheme adopt policies that reflect Stonewall’s views about how the law ought to be, rather than what the law actually says. Their compliance with “Stonewall law” is policed via annual audits, internal staff LGBT+ networks and gamification of complaints processes.

Stonewall promotes the view that “trans women are women” and “trans men are men”. This position was officially endorsed by the Welsh Government in a Cabinet Statement in July 2020 (in contradiction to the national framework of the Equality Act).

Stonewall defines gender identity as “a person’s innate sense of their own gender, whether male, female or something else, which may or may not correspond to the sex assigned at birth”. This is a conceptual move which posits that a woman’s sense of being female (because she is female) is the same as a man’s sense of being female because he enjoys wearing women’s clothing. It encourages organisations to think that these two individuals share a single protected characteristic called “gender” or “gender identity”.

In 2015 Stonewall published “A Vision of Change”, stating that it:

“will lobby Government for reform of the Equality Act, to include ‘gender identity’ as a protected characteristic and to remove the use of the terms ‘gender reassignment’ and ‘transsexual’ from the Act.”²⁵

It did not achieve this goal, but nevertheless told and continues to tell organisations that this is good practice and to give the impression that this is the law. It tells organisations that transgender people have the right to use opposite-sex services and spaces, and that data about sex should not be collected.

It also promotes an all-encompassing view of transphobia, discrimination and hate speech, extending to matters such as “misgendering” (referring correctly to someone’s sex) and denying someone access to opposite-sex facilities. Accusations of transphobia are deployed to curtail people speaking about women’s rights, safeguarding and the law.

One example of this was exposed at Essex University (which is a member of the Stonewall scheme). In May 2021 the University published a review by barrister Akua Reindorf concerning the “deplatforming” of two academics by the university because of complaints that their speeches might amount to “hate speech”. She found there was no reasonable basis for thinking this. Reindorf found that what was being presented as harmful speech was debate about the law and the argument that there is a conflict of rights between women and transgender people. She reported on a “culture of fear” amongst staff whose views on gender deviate from trans rights advocates.

Reindorf also reviewed the University of Essex’s policy on supporting transgender and non-binary staff, which had been developed together with Stonewall and stated that the university “will not tolerate staff being questioned inappropriately about the facility they choose or being denied access to that facility”. These types of policies are common across universities, the public sector, the voluntary sector and large corporations. She found that these policies do not accurately state the law.²⁶

Essex University published the report, and then apologised for publishing it after backlash from trans-rights activists.²⁷

Another example is the NHS Confederation, the membership body for health services in England, Wales and Northern Ireland. Its members employ over 1.5 million staff. This year, advised by the LGBT Foundation, it published guidance claiming that it would be “discriminatory” for a patient to refuse to be treated by a trans healthcare professional of the opposite sex unless “evidenced clinical harm may result”. It says that “patients expressing any such view should be informed of the discriminatory nature of their request [and] that such behaviour is unacceptable”. None of this reflects the law, and all of it undermines patients’ rights, particularly those of women.²⁸

In November 2022 it emerged that HM Prisons and Probation Service’s Pride in Prison and Probation (PiPP) staff network had circulated documents for Trans Awareness Week telling Ministry of Justice staff to recognise that a series of words and phrases such as “biological sex” and “sex not gender” are “transphobic dogwhistles”, and to make complaints about any staff using them. It smeared feminists who think that sex matters as “anti-trans” and “transphobic”, and suggested links to the far right, antisemitism and neo-nazism.²⁹

These are not isolated incidents, but three illustrations of a widespread adoption of a definition of sex that is not in line with the Istanbul Convention, coupled with organisations failing to stop unprofessional behaviour by gender-identity activists.

The Equality Act no longer aligns with the Istanbul Convention

The confusion over the protected characteristics in policies and training has been allowed by genuine uncertainty about the interaction between the Equality Act 2010 and the Gender Recognition Act 2004 in law.

In November 2020 a working party of the Employment Lawyers Association noted that it could not reach agreement on whether possession of a GRC makes a difference to the “sex” of a person when their rights or position under the Equality Act 2010 are considered. It concluded:

“The current legislation is unclear, leads to uncertain outcomes and is subject to piecemeal judicial development. Primary legislation is required to bring clarity to the central questions as to which characteristics are protected? Or, to put it another way, who is the appropriate comparator for a trans person who is discriminated against? The answer to that question is a policy one.”³⁰

On 23rd May 2022, following a debate on “gender neutral” legislation, Lord True made a statement for the government to the House of Lords, clarifying that:

“The effect of section 9 of the Gender Recognition Act 2004 is that a reference to a ‘woman’ in legislation, without more, will include someone who is a woman by virtue of a Certificate and will not include someone who is a man by virtue of a Certificate. In some cases, this might be the desired result but in others it might not.”³¹

Legal academic Michael Foran has written about Sections 9(1) and 9(3) – the on/off switch of the GRA – and uncertainty about which one applies to the Equality Act:

“…From at least 2004 onwards, our law had a technical meaning of sex in addition to the ordinary common law meaning. The difficulty which arose, given the wording of s9(3), is how one is to determine when provisions refer to the ordinary meaning of sex and when they refer to the technical meaning crafted by the Gender Recognition Act?.. So the difficult task before any interpreter is to determine whether the meaning of sex in the Equality Act should be taken to be covered by s.9(1) or s.9(3).”³²

This legal complexity and uncertainty leaves service-providers of all sizes and in all sectors facing risk when operating within what should be a straightforward law. Many have become afraid of trying to provide single-sex services or to collect data on sex at all, and have made everything “gender-neutral”.

Clarification of the law has come through crowd-funded legal cases brought by the grass-roots women’s groups For Women Scotland and Fair Play For Women.

In 2020 For Women Scotland challenged the legality of the Scottish Government implementing a measure which sought to define “woman” for the purpose of positive action on boards as both women and any male who is “living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”.

For Women Scotland argued that amalgamating the two groups conflated two protected characteristics and failed to identify what disadvantage is experienced by those sharing them. The Inner House (appeal court) of the Court of Session agreed. In a judgment issued in February 2022 (FWS1), it said that if the Scottish Parliament wants to take positive action steps relating to the inclusion of women, these must be limited to the group defined as women in the Equality Act, which states a “female of any age”.

“Provisions in favour of women, in this context, by definition exclude those who are biologically male.”³³

But the Scottish Government then changed its approach and introduced a new definition which rested on the Gender Recognition Act. For Women Scotland challenged this and lost (the group may still appeal). This time the court ruled (FWS2 in November 2023) that:

“a person with a GRC in the female gender comes within the definition of ‘woman’ for the purposes of section 11 of the Equality Act”.

In a separate judicial review over the meaning of sex in the census, brought by Fair Play For Women (FPFW), the Scottish Inner house ruled that “there are some contexts where a rigid definition of sex must be adopted”. These are:

“matters affecting status, or important rights, in particular the rights of others.”³⁴

These are Scottish legal rulings, but they are likely to be persuasive to other courts. This leaves us in the somewhat contradictory position where it has been confirmed that:

transgender people without a GRC remain of the sex they always were (FWS1)
those with a GRC may also be treated by law as being their actual sex if the law concerns matters affecting status, important rights and the rights of others (FPFW)
but for the purposes of the Equality Act protected characteristic of sex, those with a GRC are treated as being of their acquired gender (FWS2).

This means that although “woman” and “man” are not self-identified, the law does not recognise female people as a group whose welfare and needs public authorities are required to consider separately from males with a GRC under the public-sector equality duty.

The Government has recently released helpful new guidance on the public-sector equality duty which makes clear that “gender” and “gender identity” are not protected characteristics.³⁵ But it will need to take a legislative approach to remove the legal effects of the Gender Recognition Act from the Equality Act.³⁶

When the Gender Recognition Act 2004 was passed, lawmakers recognised that it was an extraordinary piece of legislation, and that the implications of changing a person’s legally recognised sex “for all purposes” were unclear. Legislators put in a safety clause (Section 23) to give future governments the power to sort out any problems with interaction with other legislation. Section 23 of the GRA gives the Secretary of State power to modify other enactments. This can be done using a statutory instrument.³⁷

The government admits there are adverse effects on the Equality Act

At the same time as these legal cases, the Gender Recognition Reform (Scotland) Bill was making its way through the Scottish Parliament. It sought to make it much easier for people to get gender-recognition certificates in Scotland (by removing the requirement for medical diagnosis and two years’ of name change).

Those who opposed the bill, saying that it would have adverse effects on women’s rights via the Equality Act, were dismissed as scaremongering.³⁸ Nicola Sturgeon, the First Minister, argued:

“one of the… misconceptions at the heart of this is that simplifying the process of gender recognition takes away the protections and the safeguards women have under the equalities act – for example, access to single sex spaces. That is not the case.”

As the bill was coming to its final stages, Lucy Hunter Blackburn of the policy collective Murray Blackburn Mackenzie gave a speech describing the Herculean efforts of unpaid women’s groups that went into getting politicians to pay any attention to women’s rights. It was entitled “GRA reform and the Equality Act: not a single person who votes for that Bill will be able to say that they were not warned”.³⁹

Victor Madrigal-Borloz, United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, dismissed the arguments concerning women’s rights, saying that they:

“rest on the notion of sex as a fixed and binary biological given (defined by genitalia, reproductive organs, or chromosomes, or a combination thereof). One core argument of this discourse is that women are oppressed based on sex, not gender.”

The only connection between obstacles to legal recognition and protection of women, he said, was based on the “erroneous perception of trans women as being males and, specifically, predatory males.”⁴⁰

This extraordinary statement highlights the ideological nature of this debate. Men who identify as women are in fact males. As with any group of men, some are predatory. This has been confirmed by studies and by data on the prison population. In 2019, data showed that half of trans-identified male prisoners had a conviction for a sexual offence.⁴¹

Lawyers and legal scholars weighed in.⁴²

At the 11th hour the UK government invoked section 35 of the Scotland Act to block the bill. It cited eight adverse effects on the Equality Act in its reasons:

Clubs and associations such as women’s associations, associations formed “by and for” women who are victims of sexual and domestic violence, associations designed to foster women and girls’ participation in activities including sports, and associations of lesbians. The government recognised that it is an adverse effect on single-sex associations to be required to accept members of the opposite sex from “a new, larger and different cohort, who would not have met the requirements currently set out in the 2004 Act”.
The public-sector equality duty (PSED), where the expansion of the cohort of GRC-holders would also be “materially problematic” for its operation, leading to decision-makers “not always considering the impact on biological women as a distinct disadvantaged group compared with the impact on biological men”.
Equal pay, where a single employee with a GRC in a workplace could lead to an equal-pay issue being identified where one does not properly exist, or to the failure to identify such an issue.
Single-sex and separate-sex services, where service-providers are finding it difficult to operate single-sex services because of the existence of people who may or may not have a GRC among those who demand access to single-sex services. The government recognised the risk of operational and legal challenges, and also the chilling effect of disincentivising the provision of single-sex and separate-sex services, and the negative impact of self-exclusion when single-sex facilities cannot be guaranteed to actually be single-sex.
Competitive sports – similar issues were raised, where a GRC makes it more complex to exclude male people from female sports.
Jobs where sex matters, such as working in a women’s refuge that needs to use the “occupational requirements” exception – similar issues of legal and operational risk are raised when trying to advertise for and hire only people of one sex.
Schools and colleges. Single-sex schools would not be able to exclude children of the opposite sex amongst those aged 16–18 if children of this age were allowed to change their recorded sex.
Sex-discrimination comparators (although it was stated that this impact is unlikely to be significant, as hypothetical comparators could be used in any specific case).

On 8th December 2023 the s35 order was upheld by the outer house of the Court of Session following a judicial review. The Scottish government has 21 days in which to appeal if it chooses to do so. The judgment confirmed the reasonableness of all of the government’s eight concerns, vindicating those who raised them in Scotland and were dismissed, smeared and excluded from debate. Several of these reasons are particularly relevant to the VAWG sector and public policies addressing VAWG.

At the same time there has been a petition (promoted by Sex Matters) to amend the Equality Act to remove the effect of a GRC. This received more than 110,000 signatures and resulted in a parliamentary debate in Westminster. As a result, the UK government and the Equality and Human Rights Commission have both engaged seriously with the question of whether legal gender recognition has adverse effects on the operation of the Equality Act, and whether the Equality Act should be reformed.

The Women and Equalities Minister requested advice from the Equality and Human Rights Commission on sex and the law. The EHRC’s letter said that:

In its consultation to develop the EHRC’s strategic plan, sex was important to the highest proportion of respondents, and that many were concerned about the interaction between the protected characteristics of “gender reassignment” and sex.
It has not been straightforward for service providers and employers to apply the law, including in areas such as sport and health services.
The debate has become so polarised and contentious that civil debate is inhibited.
The EHRC has come to the view that if “sex” is defined as biological sex for the purposes of the Equality Act, this would bring greater legal clarity in eight areas.
Clarification might bring potential ambiguity in other areas such as how trans people with a GRC are treated in relation to equal pay claims and direct and indirect sex-discrimination claims.
There are human rights issues at play for both women and transgender people.⁴³

The EHRC cited many of the same concerns as the s35 order and also raised three additional ones:

Protection under the characteristic of “pregnancy and maternity” or sex are not provided for “trans men” who have a GRC if they are discriminated against for being pregnant or being mothers.
Positive-action measures such as “women-only” shortlists and other measures aimed at increasing female participation, which must include males with a GRC.
Data collection: “When data are broken down by legal not biological sex, the result may seriously distort or impoverish our understanding of social and medical phenomena.”

We also identify two more issues:

Charities. The charities exception (s193) provides that a charity can lawfully restrict benefits to those who share a protected characteristic. The effect of the FWS2 judgment is that charities that have long been set up for women (female people) or men (male people) must either adopt the new definition or face the risk of legal challenge and exclusion by grant-givers and public-sector commissioners.
Harassment. Situations that could amount to harassment on the basis of sex (or in some cases sexual harassment) often depend on the sexes of the combination of individual involved. For example, a woman undressing in a female communal changing room is doing nothing unusual, but a man who enters a female communal changing room and starts to take off his clothing is creating a humiliating and degrading environment.⁴⁴

Of these issues, the public-sector equality duty, positive action, charities, data-collection, genuine occupational requirements, single- and separate-sex services and harassment are particularly relevant to efforts to combat violence against women.

Another indirect effect is that organisations and government policies are prioritising “inclusion” and the idea that people can change sex over safeguarding and the maintenance of robust identity records. This creates a loophole that can be exploited by abusers. The GRA provides extraordinary privacy protection, and many organisations treat anyone with a transgender identity as if their previous identity or true biological sex must be kept private.⁴⁵

Evidence of harms in practice

In the s35 case, in the course of arguing about potential problems of the Scottish bill, the UK government admitted that these adverse effects already existed and would be made worse by the proposed legislation.

There are existing adverse effects from the state of the law, both directly, in relation to the legal framework concerning people with GRCs, and indirectly, in relation to the wider climate of uncertainty and fear and the increasing practice of treating all trans people as if they have a GRC.

Harms to women’s services

In 2022 Sex Matters conducted a survey about the importance of single-sex services and users’ feelings about their loss. Our research found that single-sex services matter to women across society for privacy, dignity, safety and choice.⁴⁶ These services are especially important for survivors of male violence. This is the case not only for specialist services but also for facilities that are part of the fabric of everyday life.

“I feel immense anger at raped or abused women not allowed any private healing space away from men. It is as if they are being punished for being victims. To call a rapist she is a travesty of justice adding to the victim’s trauma.” England, 55–64

“I know women opting out of using facilities because they are now mixed sex, I’ve spoken to women running charities who hate this but daren’t speak out because their services will lose funding and it is all placing women at increased risk of male violence. It’s intolerable.” England, 25–34

“It gives the message that females are not important. Most sexual crimes are committed by males against females. We females have many untold stories of sexual assault. I don’t want males in single sex facilities. I believe most men would prefer single sex facilities also.” Northern Ireland, 55–64

“It makes me furious. Especially when it is brushed aside as ‘inclusive;’. It is not. It excludes me and many others.” Scotland, 45–54

“As a survivor of an abusive relationship with a male I have found it incredibly helpful to discuss the issue with other women, many of whom have experienced the same. I would have felt uncomfortable discussing this if a male was present.” Scotland, 35–44

“I volunteer in a migrant charity where I noticed migrant women often talked about things like domestic violence, Immigration issues, childbirth, abuse, exploitation, reproductive health when we were doing a women only event or activity.” England, 35–44

“I am in recovery from alcohol misuse and attend some women’s recovery groups. These are safe spaces where women can relax without worries about predatory behaviour which can be dangerous for women in early recovery, risking relapse.” England, 45–54

“I run groups for Muslim women who would not be able to participate in mixed groups. It would be culturally unacceptable for them and these groups are crucial for their health education and mental health and are a critical route into spreading health information through isolated communities.” England, 65 and over

“I was a rape crisis volunteer in the 80s. Women wouldn’t have come to us for help if they thought men were present.” England, 55–64

“I work as a social worker in mental health and having single sex groups to do some group work is important. Both sexes may have the experience of being traumatised by the opposite sex leading them to have a fear of all members of that sex. This fear can be so intense that they would avoid a group offering treatment that they needed if it were mixed sex.” England, 35–44

“I work for a refuge service, this is the bare minimum of safeguarding and care we can provide to our women. I have seen women scream on sight of a male builder in a refuge, it is totally unreasonable for a woman who has faced cycles of abuse to facilitate the needs of a man.” Female, England, 25–34

During debates about legislation on sex and gender, it has often been claimed that the women’s sector sees no conflict between women’s rights and gender self-identification. But women using these services are in a vulnerable position with little power to object. Staff and trustees are subject to funding, career and social pressures. Many tell us they are concerned but afraid to speak up.

Sex Matters has recently undertaken research interviewing leaders in the women’s sector with protection for their anonymity.⁴⁷ These interviews reveal a sector silenced and in turmoil over this issue. Our research also draws on the work of Dr Karen Ingala Smith and Dr Shonagh Dillon, who have spoken courageously and persistently from within the sector.⁴⁸

Public discourse focuses on the risks to women of being attacked by males in female spaces. This has indeed happened. But those who work in the sector also speak of fear, loss of trust, re-traumatisation, self-exclusion and other forms of abuse such as bullying and coercion if “female-only services” include males as users or staff, or require participants to speak about people using gender identity rather than sex. Edinburgh Rape Crisis Centre is run by a man who identifies as a woman.

The sector leaders describe a sector distracted from its purpose by having to continually defend, justify, obfuscate and sometimes hide the fact that they are trying to provide, at least in part, female-only services, in the face of unsupportive laws and public policies.

The impact of the Equality Act comes not only directly, through the threat of legal challenges from trans individuals, but also through training and guidance, internal conflict within organisations and simplistic “inclusion” demanded by funders and commissioners.

The interviewees – seasoned leaders within the women’s sector – describe harrowing experiences of being investigated, ostracised and bullied; and feeling trapped and pressured into adopting policies they know compromise women’s welfare and safety.

While it is already lawful to exclude transgender males from women’s services, the law is complex, and women’s organisations do not rely merely on the part of the law that gives them a defence against specific gender-reassignment discrimination claims (the “single-sex exceptions”) but also on provisions such as the PSED and positive action. The lack of a coherent definition of sex across the Equality Act undermines the ability of organisations to exist, govern themselves, manage staff, communicate policies and secure funding.

The VAWG sector tends to speak about “LGBT” survivors, but the needs of lesbians are not the same as those of gay men; nor are they the same as those of trans-identified males who identify as lesbians. They do have commonalities with those of trans-identified females who identify as “trans men”, who are often same-sex attracted females.

Harms in the criminal-justice system

Our colleagues at Women’s Declaration International have made a submission to GREVIO which focuses on the impact on women of laws and policies based on gender identity via the criminal-justice system.⁴⁹ They highlight:

Data recording about suspects and offenders based on “gender identity” rather than sex

Police: Recent research by Keep Prisons Single Sex found that, out of 32 police services that responded to a freedom of information request, none recorded sex accurately as standard. Men suspected of rape may be recorded as female.
Prosecution services: The CPS and COPFS have policies of recording suspects on the basis of their “gender identity” and referring to them using their preferred pronouns in court. This applies even in relation to defendants charged with rape.

The compelled use of the preferred pronouns of trans-identifying suspects and offenders

Courts: Before the 2021 version of the Equal Treatment Bench Book, judges were given guidance that suggested they should compel all witnesses to use the preferred pronouns of defendants and other parties to proceedings who identify as transgender. This had particularly serious implications for witnesses who were giving evidence about traumatic events, such as being subjected to physical and sexual violence. In December 2021 a new, interim version of the ETBB was published that included amendments which took account of some of the criticisms of earlier versions made by advocates for sex-based rights. Scotland’s Equal Treatment Bench Book continues to suggest compelling witnesses to refer to trans-identified males as “she”.
Prisons: Prisoners can receive disciplinary penalties for “misgendering”. This policy amounts to the imposition of criminal penalties for referring accurately to someone’s sex, which is not a criminal offence.

Searching policies that are based on “gender identity” rather than sex

Police: Police forces allow trans-identified male officers to search female suspects. This is the policy of the National Police Chiefs’ Council (NPCC) and many individual forces.⁵⁰ Female police officers are forced to search trans-identifying male suspects. This is humiliating and may be experienced as sexual assault, especially where that prisoner is a known or suspected sex offender, retains male genitalia or is visibly aroused by the search.
Prisons: Prison Service guidance in England and Wales about the full (intimate) searching of prisoners states that prisoners with a GRC should be searched in accordance with their acquired gender, regardless of their bodily characteristics. In Scotland the policy on the searching of trans-identifying prisoners appears to be that prisoners should be given a choice about the “gender” of the prison officer who searches them, but also allows for sex-based searching at the discretion of the prison governor.⁵¹ The prison service in England and Wales has been unable to determine its policy on whether trans-identifying male prison officers with a GRC should be directed to search female prisoners, visitors and staff.

The placement of trans-identifying males in women’s prisons and probation services

Prisons: Males who say they have a female “gender identity” are housed in women’s prisons in England and Wales, and in Scotland. The allocation rules were recently revised and tightened in England and Wales to exclude anyone with male genitalia or a history of violent or sexual crime, apart from in the most exceptional cases with ministerial approval.⁵² The very recently revised policy in Scotland is laxer, allowing male prisoners with a history of violence against women and girls to be held in female prisons if there is “compelling evidence” they do not present a risk.⁵³ The Scottish policy allows for trans-identifying males who are deemed to be too great a risk to be held in women’s prisons to participate in some of the activities of women prisoners so that their “gender identity” may be supported. It should go without saying that women prisoners are not there to help support men who identify as women but who are too great a risk to be held in women’s prisons.
Probation: Males in the probation system may be referred to women’s centres and probation hostels that are used by vulnerable women. The prison allocation rules do not apply to such community-based services.

These policies undermine women’s rights under Article 3 and Article 8 of the ECHR, and put them at risk of harm.

Promoting sex stereotypes and undermining boundaries in schools

Teaching and policies on gender identity and childhood gender transition promotes sex stereotypes, erodes boundaries and encourages social contagion of gender dysphoria.

Relationships and Sex Education is compulsory in England, Wales and Northern Ireland. But the governments do not closely control what is taught in schools. The situation is similar in Scotland, although sex education is not compulsory. In each case loosely worded official guidance and lack of quality control have allowed ideological organisations into schools, where they are able to teach gender-identity ideology under the cover of the government’s own regulations, often referring (inaccurately) to the Equality Act.

Statutory guidance from the Department for Education in England says:

“Pupils should be taught the facts and the law about sex, sexuality, sexual health and gender identity.”⁵⁴

But in fact, there is no law on “gender identity”. Nor is there any scientific evidence that people have innate gender identities, still less that these can or should override biological sex in determining whether a child is a boy or a girl.

Teaching materials undermine basic understanding about the two sexes.⁵⁵ For example, Brook states:

“Sex has historically been understood as just two categories: male and female. But it doesn’t always fit into the two neat categories and many people think of sex instead as being on a spectrum, with people being more or less male or female.”⁵⁶

Bish Training states:

“Many biologists used to think of this ‘males have penises’ and ‘females have clitorises’ idea of sex too. But not so much now. First of all… there are many similarities between penises and clitorises. Often the main difference is how much it sticks out of the body.”⁵⁷

Teaching materials promote sex stereotypes. For example, in the book Can I Tell You About Gender Diversity? a girl is really a boy because she doesn’t like dolls, dresses or having long hair:

“When I was born, the doctors told my mum and dad that they had a baby girl, and so for the first few years of my life that’s how my parents raised me. This is called being assigned female at birth. I wasn’t ever happy that way. I didn’t like playing with dolls, or wearing dresses, and I hated having long hair.”⁵⁸

Teaching materials and school policies tell girls that they must accept having boys who identify as girls in their toilets and changing rooms. A GIRES/Mermaids factsheet on the PSHE Association website says:

“If boys’ and girls’ toilets are separate, the school must ensure that a pupil who transitions to use the facilities that match their new gender presentation and their wishes.”⁵⁹

Action for Children says:

“A trans young person may wish to use the toilets and changing rooms of their self-identified gender rather than of their registered sex. The use of toilet and changing facilities by trans and non-binary children and young people should be assessed on a case-by-case basis in discussion with the individual child or young person. We recommend that in making that assessment you should consider the fact that for some trans children accessing the toilet which corresponds to their gender identity can be extremely important. We would therefore encourage you to enable this wherever possible if asked for.”⁶⁰

Many of these materials encourage children to disregard personal boundaries, and not to believe their own eyes. Children are instructed by Bish to believe that anyone is the sex they say they are:

If someone tells you their gender believe them.
Don’t assume you know what their body is going to look like.
Don’t be so obsessed with people’s bodies in the first place, perhaps we can all be more interested in people’s stories about who they are instead.⁶¹

In January 2021 the Crown Prosecution Service issued guidance for schools on LGBT Bullying and Hate Crime. The teaching materials included a video exercise encouraging schoolchildren to view an adult male as a “girl” and telling them that expressing legitimate discomfort when someone they understood to be male came into the ladies’ toilet was harassment. It was challenged in court by a 14-year-old girl. The case did not come to court as the guidance was withdrawn for review and never reissued.⁶²

Girls are disproportionately impacted by teaching of gender identity as fact, both because it erodes safeguarding protections, which affects them more severely than boys, and because of the over-representation of adolescent girls seeking irreversible medical interventions such as hormones and surgery. The children most at risk of being set on a lifelong medical pathway are adolescent girls, lesbian and gay children, autistic children, those who suffer from mental-health issues or have experienced previous trauma or chaotic or abusive backgrounds, and those who are gender non-conforming and experience bullying.⁶³

Undermining safeguarding of transgender people and family members

Misunderstanding and misrepresentation of the Equality Act also harm trans people and their families. Victims and survivors who identify as LGB or trans experience additional barriers to disclosing and reporting abuse. Professionals are therefore rightly trained to be inclusive. But simplistic training, often based on a misreading of the Equality Act, which tells professionals that they should never acknowledge or record a trans-identifying person’s sex risks overlooking abuse or enabling secondary victimisation. Professionals should always engage with the reality of a situation, whatever language they use to be inclusive.

A recently reported example illustrates the danger posed when services treat people as if their gender identity changes their sex. A “trans man” (i.e. female) refugee who had been beaten and raped in her home country was placed in dormitory accommodation in the UK with men. She woke up to find some of the men stripping off her clothes:

“The hotel staff blocked my room card [because I refused to stay in the room, but] they said I had to share. I could not do it. I slept outside the room on the stairs and cried all night. It was the worst night of my life since I arrived in the UK.”⁶⁴

A key lesson of safeguarding is that no group in society should become a “sacred caste”. Treating children differently in relation to safeguarding because they may have the protected characteristic of gender reassignment leads to ignoring signs of abuse, for instance that a child is talking about their body or sharing secrets online.

Stonewall lobbied to have the following statement placed in the statutory safeguarding guidance for England and Wales: “The fact that a child or a young person may be LGBT is not in itself an inherent risk factor for harm.”⁶⁵ Several organisations have issued training that tells professionals to offer confidentiality to trans-identifying children. Social workers are being told to record trans-identifying children as being boys or girls according to their expressed gender identity. But every Serious Case Review into child deaths or abuse identifies a lack of information-sharing as a risk factor, and often as a major cause in signs being missed. The sudden development of a cross-sex identity may be an indication of significant underlying issues, including abuse.⁶⁶

Services that view the world through gender-identity concepts will also ignore abuse experienced by the wives and partners of transitioners, and by their children. Many women experience their transitioning partner’s behaviour as a form of coercive control. The woman is forbidden from calling her husband by his previous “dead name” or told that she is now a lesbian.⁶⁷ Often women report having experienced that their husband or partner has autogynephilia – erotic cross-dressing as a sexual fetish. This then becomes an obsession which leads to lies, neglect and the spending of family resources. But if the wife of such a man seeks help, statutory and voluntary-sector services will not recognise her husband as a man – in fact the Crown Prosecution Service may consider her to be the abuser if she does not recognise him as a woman.⁶⁸

The welfare of children of transitioners is also ignored by organisations that adopt the ideological approach of gender identity. They are put under pressure to pretend everything is alright, both inside and outside the home. As an adult child of a transitioner explains:

“The first people subject to the demands of trans people and the erosion of our female boundaries are the families. Our fathers insist that we treat them as something they are not. We are coerced into calling them women, sometimes even mothers, and then there are the safeguarding concerns. Sometimes our mothers can protect us, or in the worst case scenarios that doesn’t happen. But often the message we absorb is that our fathers are sanctified in society and that schools, local authorities, social workers, police and support agencies do not want to listen to us. Pride events at school don’t help and cause distress to us when our families are falling apart.”⁶⁹

Intimidation and violence against women human-rights defenders

Concerns about gender self-ID are difficult to raise. Those who do face vilification as “TERFs” (trans exclusionary radical feminists) and are often targeted for bullying. There are attempts – often successful – to destroy the livelihood of any woman who speaks up for women’s rights. On the internet, in the workplace and in schools, universities, hospitals and other services, a woman labelled a “TERF” will be inundated with sexual and violent threats. She will be told to recant and apologise. If she responds by explaining why it is important to retain protections for women and girls, she may be reported to her employer and often to the police. Shockingly, law-enforcement agencies’ powers of investigation are often then subverted to become tools of misogynistic abuse and coercion of women. In prisons, women who refer to males sharing their quarters as men are reported by the males and punished for their transgression in not accepting that they should pretend these people are women.

The most high-profile victim of this abuse of women human-rights defenders is the author JK Rowling, who has written carefully and compassionately about sex and gender and has received death threats. She wrote: “We’re living through the most misogynistic period I’ve experienced.”⁷⁰

But thousands of ordinary women have been targeted too.

In 2018 it was revealed that a Facebook group of academics acting in the name of “trans rights” were targeting gender-critical academics such as Professor Kathleen Stock. One member said: “File a hate crime report against her, and then the chairman and vice-chair [of her department].” Another said: “Drag them over the f*****g coals.” The targeting of academics has a particular impact in closing down research and calm, evidence-based discussion about this topic.

Women seeking to hold meetings concerning sex-based rights have difficulty securing venues, either because the venues think it will be too much trouble, or because their staff actively consider that it is acceptable to discriminate against “TERFs”. MP Joanna Cherry’s planned Edinburgh Fringe appearance was cancelled when staff refused to work on the event.⁷¹ It only went ahead following a legal challenge.⁷² Others that have faced this include Woman’s Place UK, Sex Matters and the journalist Julie Bindel.⁷³

Books by feminist authors critical of gender ideology including Helen Joyce, Kathleen Stock, Abigail Shrier and Heather Brunskell-Evans have been removed from public view in libraries.⁷⁴

Although following the successful case of Forstater v CGD Europe [2021], those challenging gender ideology now have some legal protection against belief discrimination, this does not prevent their livelihood and mental health being damaged.⁷⁵

When women try to hold public events to discuss concerns, they are subjected to intimidation, misogynistic and sexualised threats and even physical violence. This campaign of intimidation has been ongoing since 2018, and Sex Matters has collected evidence of 50 incidents.⁷⁶ When women try to speak in public, the police fail to protect them from mobs of shouting, shoving, aggressive men. When women are assaulted by these men, the police and Crown Prosecution Service are reluctant to bring charges.

At the Trans+Pride rally in London on 8th July 2023, Sarah Jane (formerly Alan) Baker, who served 30 years in prison for horrific crimes including kidnapping, torture and attempted murder, told the crowd: “If you see a TERF, punch them in the fucking face.” The crowd cheered. Initially, the Metropolitan Police brushed off women’s complaints about Baker’s threatening words. Only after multiple complaints from women and a public outcry did they arrest Baker. Despite his history of extreme violence and the evidence captured on video, on 31st August 2023 a court accepted his explanation that his words were a “joke”, intended merely to garner publicity and newspaper headlines.

Men who harass women under the banner of trans-rights activism do not restrict themselves to screaming abuse at women’s rallies: they wave signs with slogans such as “Decapitate TERFs” and “Kill JK Rowling”. On occasion they commit physical assault. There have been several incidents in the UK (recorded on our timeline)⁷⁷ and internationally. In Vancouver, Canada, trans-rights activists nailed dead rats to the door of the office of a women’s shelter to protest against it being female-only.

A whistleblower in the Metropolitan Police has revealed that at an official event for “Trans Day of Remembrance”, a speaker told officers that anyone concerned about transgender ideology was a bully and bigot motivated by hate. Officers booed and hissed when a well-known women’s-rights campaigner was mentioned.

This dismissal of women’s victimisation is familiar to all women who campaign against male violence. Police dismiss domestic violence as “both sides” and regard women as bringing it upon themselves by “nagging”. Women who complain about harassment on the street or at work will be told that they “can’t take a joke”. Women who are assaulted are told their own “intransigent” behaviour is the cause, and that they were “asking for it”.

We do not know of any incidents in which women calling for protection of single-sex services intimidated, threatened or assaulted transactivists. To the best of our knowledge, this campaign of abuse and violence is all in one direction. This is not a story of “both sides”.

Attacks on the equality and human rights regulator

The Equality and Human Rights Commission is the UK’s National Human Rights Institution (NHRI). It has statutory responsibility for implementing the Equality Act 2010. Previously it had a very close relationship with Stonewall. Then Chief Executive Ben Summerskill was one of the original Commissioners. When he stood down Angela Mason, former Executive Director, became a Commissioner. Later David Isaac, a former chair of Stonewall, was its Chair for four years.The EHRC was a member of the Stonewall Champions scheme for many years. It released policy positions and guidance that were in line with transactivist organisations’ positions.

A recent review of board effectiveness found that many staff joined the EHRC at a time when it saw itself as an advocacy organisation for specific causes. The current chair inherited an organisation in turmoil and has worked to shift the Commission back to being an objective regulator. The independent review said:

“In particular, the chair and board have been instrumental in effecting radical change by re-positioning the commission as a rigorous, objective regulator in the field of equality and human rights as opposed to its perceived historic position as an advocate for activist groups.”⁷⁸

There has been a backlash against this repositioning, starting from when the EHRC left the Stonewall scheme and intervened in the Forstater case.⁷⁹ The Commission has been criticised for publishing guidance for providers of single-sex services and a cautious opinion about the Gender Recognition Bill in Scotland.

Transactivists have twice picketed the regulator’s office, pouring urine around its doors and staging a “piss-in”. A group of staff leaked complaints to the press and submitted a dossier of complaints in February 2023, leading to an investigation.

Stonewall and associated organisations have submitted a dossier of complaints three times to the Global Alliance of National Human Rights Institutions (GANHRI), saying: “We believe the EHRC is no longer fit for purpose.” They complained about the EHRC’s guidance on single-sex services, and that EHRC’s chair, Kishwer Falkner, “has spoken in support of anti-trans ‘gender critical’ beliefs and appears to have liaised disproportionately with ‘gender critical’ groups in her capacity as Chair”. The ERHC’s “A” status is now under review by GANHRI following the third Stonewall complaint.

Conclusion and recommendations

Without clear legal protection against discrimination or measures to allow positive action on the basis of sex, or requirement to consider the specific needs and disadvantages of women as a sex the UK we believe the UK is in breach of the Istanbul Convention.

Removing the legal effect of the Gender Recognition Act on the protected characteristic of sex in the Equality Act would return legal protection to women. It would not take away protection from transgender people, who are covered by the separate characteristic of gender reassignment. This could be done using secondary legislation, using a provision in the Gender Recognition Act (s23) for resolving such conflicts and adverse effects.

GREVIO

Make clear to all stakeholders that sex (man/woman, male/female) and “taking a gendered approach” in the Istanbul Convention relates to the ordinary meaning of biological sex, not gender identity.
Meet with civil-society groups campaigning for sex-based rights when visiting the UK (see Annex 2).
Assess whether the UK’s legal framework, which no longer recognises women as a group (based on biological sex), is compatible with Article 4 and Article 6 of the Istanbul Convention.
Highlight attacks on gender-critical human-rights defenders and the chilling effect on discussion of women’s rights and safeguarding.

UK Government

Amend the definition of sex in the Equality Act to remove the effects of the GRA and restore protection for women.
Provide clear guidance to people applying for GRCs, explaining which rights the certificate does and does not give.
Ensure that data on sex is collected clearly wherever sex matters.

Devolved governments

Reform data-collection and reporting across the criminal-justice system to be accurate about sex.
Revise searching policies so that all decisions are on the basis of sex.
Make all prisons single-sex.
Make clear in victims’ codes and communication on VAWG that single-sex services are valuable and should be maintained.
Review safeguarding risks associated with secrecy about sex and identity, and about trans identification.
Direct organisations required to deliver rights under the victims’ codes to leave the Stonewall Champions scheme and review training received on the Equality Act.

Annex 1: Cross-referencing concerns to the Convention

Article 4 – Fundamental rights, equality and non-discrimination	The protected characteristic of “sex” in the Equality Act no longer aligns with the two sexes.
Article 5 – State obligations and due diligence	Within the police, the NHS and the prison service, males with a GRC (and in some cases without) are allowed to search and/or intimately examine women in situations where those women have not consented to be examined by a man. This could constitute sexual assault and sex-based harrassment by state agents. It breaches Article 3 and Article 8 of the ECHR.
Article 6 – Gender-sensitive policies	The public-sector equality duty should promote gender (meaning sex) sensitive policies, but because the definition of sex in the Equality Act no longer equates to sex it does not. The PSED is being used to undermine women’s rights because of the lack of recognition for actual sex as a protected characteristic.
Article 7 – Comprehensive and coordinated policies	Lack of certainty and coherence about sex in the law (and adoption of “gender identity” instead of sex in policies) undermines comprehensive and coordinated policies.
Article 8 – Financial resources	Lack of protection for funding for truly women-only services because of the Equality Act definition does not target women as a sex in the public sector equality duty. Fear about legal uncertainty encourages “gender neutral” commissioning.
Article 9 – Non-governmental organisations and civil society	Lack of protection for single-sex charities in law because of the Equality Act definition. Women running truly single-sex services or advocating for them face bullying, harassment and discrimination in the workplace and in public life. Women meeting to discuss sex-based rights face intimidation, violence and threats. Organisations promoting sex-based rights are discriminated against by service-providers, including banks, internet services and venues, because of perceptions that to disagree with the idea promoted throughout the public sector, and by charities such as Stonewall, that “trans women are women” is discrimination or hate speech.
Article 11 – Data collection and research	Data is not collected on sex in many areas of administrative data and official statistics: it has been replaced and confused with gender identity.
Article 12 – Prevention – General obligations	The protected characteristic of “sex” in the Equality Act no longer aligns with the two sexes. This undermines efforts to achieve these goals. “Gender identity” ideology promoted in schools and public bodies is sexist, equating the material reality of being a woman with a costume and a male sexual fetish of cross-dressing.
Article 14 – Education	Education on the Equality Act misrepresents “man” and “women” as self-selected genders rather than sexes. PSHE informed by gender ideology promotes the sexist idea that gender non-conformity means that someone is trans. It undermines respect for boundaries and consent by encouraging children to accept males in female-only spaces.
Article 15 – Training of professionals	Professionals are trained to ignore sex as a risk factor and a material reality. This undermines safeguarding.
Article 18 – Protection and Support – General obligations	The obligation that measures should be based on a “gendered understanding of violence against women and domestic violence” has been undermined by a widespread institutional misunderstanding that “gendered” means relating to gender identity, rather than relating to the social conditions of men and women. Individuals and organisations that do not accept the dogma that “trans women are women” are attacked and ostracised.
Article 19 – Information	The obligation to provide information in “language [people] understand” is undermined by services and policies which do not use clear sex-based language. E.g. saying that a service is women-only or female-only when it also includes men who identify as women.
Article 22 – Specialist support services	The obligation to provide or arrange specialist women’s support services for all women victims of violence and their children cannot be met if the word “woman” is interpreted by services, commissioners and the law to include men with a certificate. Funding is increasingly directed towards “gender-neutral services” in part because of the legal jeopardy and controversy involved in providing single-sex services with unclear laws.
Article 23 –Shelters	Shelters that are for “women-only” but that also include men who identify as women as staff or users are gaslighting and abusing women. Shelters that seek to remain truly “women-only” face attack, tensions over whether they can say this clearly, legal challenges and lack of funding. Funding is increasingly directed towards “gender-neutral services” in part because of the legal jeopardy and controversy involved in providing single-sex services with unclear laws.
Article 24 – Telephone helplines	Telephone hotlines staffed by females only should be available. The law currently makes this difficult.
Article 25 – Support for victims of sexual violence	Female-only support should be available for victims of rape. The law currently makes this difficult.
Article 40 – Sexual harassment	Although the UK has laws which prohibit conduct of a sexual nature with the purpose or effect of violating the dignity of a person”, if the law, the judiciary and police do not recognise that a man who identifies as a woman is not actually a woman, they will continue to expose women to sexual harassment.
Article 49 – Investigation, prosecution, procedural law and protective measures – General obligations	The obligation that the rights of the victim are taken into consideration at all stages of criminal proceedings is not met where the suspect has a trans identity and the victim is forced to refer to them as the sex they identify as – for instance, a victim of rape or child sexual abuse having to refer to, and hear police, lawyers and judges refer to, their rapist as “she”.

Annex 2: Groups campaigning for sex-based rights in the UK

A range of grass-roots groups campaign in the UK on sex-based rights. See list at: www.sex-matters.org/groups. Particularly relevant to the Istanbul Convention are:

Joint Committee on Human Rights Violence against women and girls; Sixth Report of Session 2014–15.[↩]
Michael P. Foran (2023). On Defining Sex in Law.[↩]
Sex Matters (2023). FAQs – sex and gender.[↩]
Council of Europe (2011). Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence.[↩]
Press Release. Council of Europe. Strasbourg, 22.11.2018[↩]
The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention): Questions and answers[↩]
Council of Europe (2018) The Istanbul Convention: Key Facts[↩]
The Explanatory Report to the Convention mentions transgender or transsexual persons, cross-dressers and transvestites as vulnerable.[↩]
Letter from the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, December 2022[↩]
GREVIO (20202) 1st General Report on Grevio’s Activities.[↩]
End Violence Against Women Shadow Report.[↩]
UK’s response to GREVIO Questionnaire.[↩]
Northern Ireland does not have a consolidated Equality Act but has separate regulations for each strand. Similar principles apply in the amended Sex Discrimination Order (1976), which includes both “sex” and “gender reassignment”.[↩]
Sex Matters (2022). Why single-sex services matter: privacy, dignity, safety and choice.[↩]
However, not providing adequate single-sex facilities for women where it is expected has been judged to be sex discrimination in a recent case – Earl Shilton Town Council v Miller 2023 [EAT].[↩]
This is documented in the report The Political Erasure of Sex by Dr Jane Clare Jones.[↩]
Quoted in The Political Erasure of Sex by Dr Jane Clare Jones.[↩]
J. Morton (2018). ‘A Scottish History of Trans Equality Activism’ in (ed.) Burns, C. Trans Britain. Our Journey from the Shadows. Unbound: London[↩]
Martine Rothblatt ‘Unisexuality: The wave of the future’, Third International Conference on Transgender Law and Employment Policy Proceedings, Appendix E[↩]
P and S v Cornwall County Council.[↩]
Goodwin v UK.[↩]
Joint Committee on Human Rights (2003) Report on Draft Gender Recognition Bill.[↩]
See https://www.sexnotgender.info/ for examples.[↩]
See https://sex-matters.org/campaigns/keeping-track-of-stonewall/.[↩]
Stonewall (2015). A Vision of change: acceptance without exception for trans people.[↩]
Sex Matters (2021). Leadership starts with the law – briefing for universities on the Reindorf Report.[↩]
Kevin Rawlinson (2021). ‘Essex University makes further apology in trans rights row’. 4th July 2021, The Guardian.[↩]
Naomi Cunningham (2023). ‘Leading for some: New NHS Confederation guidance fails women’, June 2023, The Critic.[↩]
Sex Matters (2022). ‘Mass harassment in HM Prisons and Probation Service’.[↩]
Women and Equalities Committee Call for evidence on the Gender Recognition Act Response from the Employment Lawyers Association, 27th November 2020[↩]
Review of legislative drafting Statement made on 23rd May 2022 – Statement UIN HCWS47[↩]
Michael P. Foran (2023). On Defining Sex in Law.[↩]
For Women Scotland v The Lord Advocate & Ors. [2022] CSIH 4.[↩]
Fair Play For Women v Registrar General for Scotland & Ors. [2022] CSIH 7.[↩]
GEO (2023). Public Sector Equality Duty Guidance.[↩]
Sex Matters (2023). Campaign – sex in the Equality Act.[↩]
Sex Matters (2023). Campaign – sex in the Equality Act.[↩]
MBM (2022). Stage 3 Briefing on the Gender Recognition Reform (Scotland) Bill.[↩]
MBM (2023). ‘GRA reform and the Equality Act: “not a single person who votes for that Bill will be able to say that they were not warned”.’]]
One of the people who spoke up was Reem Alsalem, the UN Special Rapporteur on violence against women, its causes and consequences. Alsalem wrote to the Scottish Government raising concerns that the plans to open up the gender-recognition process would harm women. She wrote that the approach does not:

“sufficiently take into consideration the specific needs of women and girls in all their diversity, particularly those at risk of male violence and those who have experienced male violence, as it does not provide for any safeguarding measures to ensure that the procedure is not, as far as can be reasonably assured, abused by sexual predators and other perpetrators of violence.“[[Letter from the Special Rapporteur on violence against women and girls, its causes and consequences, November 2022[↩]
Letter from the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, December 2022[↩]
Professor Rosa Freedman, Professor Kathleen Stock and Professor Alice Sullivan (2021). Written evidence submitted to the Women and Equality Committee: Evidence and Data on Trans Women’s Offending Rates.[↩]
Michael Foran (2023). The Scottish Gender Recognition Reform Bill: The Case for a Section 35 Order.[↩]
Letter from Baroness Kishwer Falkner, April 2023[↩]
Sex Matters (2022). ‘If you can’t say sex, how can you say sexual harassment?’. If the law recognises this man as a woman (or the courts and service providers are confused about the matter) women lose their protection against harassment.[[Women’s rights Network (2023). ‘Why are they taking Sex out of Sexual Harassment?’[↩]
Keep Prisons Single Sex (2022). Safeguarding Loopholes Created by Change of Identity.[↩]
Sex Matters (2022). Why single-sex services matter: privacy, dignity, safety and choice.[↩]
Sex Matters (forthcoming). Women’s services: a sector silenced.[↩]
Karen Ingala Smith (2023). Defending Women’s Spaces. Polity Press; Shonagh Dillon (2021). #TERF/Bigot/Transphobe – We found the witch, burn her! A contextual constructionist account of the silencing of feminist discourse on the proposed changes to the Gender Recognition Act 2004, and the policy capture of transgender ideology, focusing on the potential impacts and consequences for female-only spaces for victims of male violence. Doctoral thesis. University of Portsmouth.[↩]
Also see Maureen O’Hara (2022). Transgenderism and policy capture in the criminal justice system. Policy Exchange.[↩]
Women’s Rights Network (forthcoming). State Sanctioned Sexual Assault.[↩]
The SPS Policy for the Management of Transgender People in Custody.[↩]
Ministry of Justice (2023). ‘New transgender prisoner policy comes into force‘.[↩]
The SPS Policy for the Management of Transgender People in Custody.[↩]
Department for Education (2021). Statutory Guidance: Relationships and Sex Education (RSE) (Secondary).[↩]
Transgender Trend (2022). ‘Teaching gender ideology in schools‘.[↩]
https://www.brook.org.uk/your-life/difference-between-sex-and-gender/[↩]
https://www.bishuk.com/about-you/sex-and-gender/[↩]
Can I tell you about gender diversity? Atkins, C.J.[↩]
PSHE Association[↩]
Action for Children (2022). Everyone Welcome: Gender Identity Guide.[↩]
https://www.bishuk.com/about-you/whats-your-gender/[↩]
Crown Prosecution Service withdraws schools LGBT Hate Crime Guidance following schoolgirl’s legal action.[↩]
Written evidence submitted by Transgender Trend (GRA1920) Submission to the Women and Equalities Committee Gender Recognition Act Call for Evidence[↩]
Diane Taylor (2023). Fears rise for LGBTQ asylum seekers over Home Office hotel room-sharing push. The Guardian.[↩]
https://twitter.com/Nancy_M_K/status/1678389660383338496[↩]
Transgender Trend (2020). Transgender Schools Guidance – Safeguarding Concerns.[↩]
https://www.transwidowsvoices.org/our-voices[↩]
https://www.cps.gov.uk/legal-guidance/domestic-abuse[↩]
https://childrenoftransitioners.org/[↩]
JK Rowling (2020). ‘J.K. Rowling Writes about Her Reasons for Speaking out on Sex and Gender Issues‘.[↩]
Libby Brooks (2023). ‘Edinburgh venue at risk of legal action after MP ‘cancelled’ over gender views‘. The Guardian.[↩]
Questionnaire for the evaluation of the Istanbul Convention[↩]
Mark Brown (2022). ‘Julie Bindel to sue Nottingham council after talk cancelled‘. The Guardian.[↩]
https://www.spiked-online.com/2023/11/07/why-are-libraries-hiding-gender-critical-books/[↩]
https://sex-matters.org/posts/updates/what-does-forstater-mean-for-employers/[↩]
https://sex-matters.org/resources/intimidation-threats-and-violence-by-trans-rights-activists/[↩]
https://sex-matters.org/resources/intimidation-threats-and-violence-by-trans-rights-activists/[↩]
Board Effectiveness Review of the EHRC.[↩]
Sex Matters has compiled a timeline: https://sex-matters.org/ehrc-timeline[↩]

Sex Matters	Fair Play For Women	FiLiA
LGB Alliance	Safe Schools Alliance	Transgender Trend
Women’s Declaration	Woman’s Place UK	Women’s Rights Network
Merched Cymru	For Women Scotland	MBM
Scottish Feminist Network	Trans Widows Voices	Keep Prisons Single Sex