Although the Gender Recognition Act 2004 has now been in force for nearly 20 years, there is still a remarkable amount of confusion about the legal effect of a gender-recognition certificate.
Section 9 of the Act provides:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.
In his first-instance judgment on the question of whether Maya Forstater’s “gender-critical” belief was protected under the Equality Act 2010, Employment Judge (as he then was; now HHJ) James Tayler said (at paragraph 84):
I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned.[emphasis supplied]
The judge’s conclusion that Ms Forstater’s belief was not worthy of respect in a democratic society was of course successfully appealed. But the proposition that a GRC gives its holder a general right to be treated “for all purposes” as if he or she has changed sex is still widely believed and repeated. I wonder if this is behind so many politicians’ insistence that some women have a penis: it’s almost as if they think that a GRC imposes a legal obligation to pretend really hard.
Let’s look at it again, stripped of the surrounding verbiage and focused on the male-to-female transition which in practice gives rise to almost all the controversy:
[A GRC] provides [a male holder with] a right… to be treated for all purposes as being [a woman].
It’s a claim that may look quite appealing if you jog past it quickly without engaging your brain. It’s a state-issued certificate that says a man is a woman (or vice versa), right? So it must create a right to be treated as the opposite sex.
I want to examine that claim against the background of two questions:
- What does it mean?
- What kind of legislation is the GRA – what sort of thing is it trying to do?
I’ll take those in reverse order.
What kind of legislation is the GRA?
Before dealing with this question directly, we should back up a bit and think about what the possibilities are – the range of kinds of things that legislation does. Legislation can:
- create criminal offences: e.g. speeding, trading while insolvent, possessing a firearm without a licence;
- give individuals rights they can enforce against each other, against organisations or against the state: e.g. not to be unfairly dismissed, to consult a solicitor if arrested, to see what information others hold about you, to access information held by public authorities, to be provided with an education, to order someone out of your home;
- create organisations, public offices or institutions, like the EHRC, the Financial Conduct Authority, the Bar Standards Board or the Pubs Code Adjudicator;
- confer powers on statutory bodies, e.g. to own property, to spend money, to employ staff, to publish guidance, to make rules, to compel people to answer questions, to conduct investigations, to impose fines;
- make procedural rules about how different kinds of legal disputes are to be resolved;
- make rules about how other rules are to be interpreted.
I’m sure that’s not an exhaustive list, but it’s sufficient to illustrate that there are quite a lot of different kinds of things that legislation can do; and that a legitimate – indeed necessary – question when interpreting statutory words is “What kind of thing is this particular piece of legislation trying to do?”
Where legislation creates substantive rights and liabilities – the right not to have your nose punched, say – those rights need to be backed up by some kind of enforcement mechanism. If Parliament passed a Nose Punching Act that simply said “No one shall punch another’s nose without proper cause”, it wouldn’t be much use without provisions about enforcement and how disputes are to be resolved. To take a genuine example, the Employment Rights Act 1996 doesn’t merely create a right not to be dismissed unfairly; it gives employment tribunals jurisdiction to consider complaints of unfair dismissal, and powers to order reinstatement and payment of compensation.
Against that background, we’re better placed to look at the GRA and ask “What kind of things does it do?” It’s not a very long act, so we can run through it.
- Sections 1 to 8 deal with who can apply for a GRC, and how those applications are to be determined.
- Section 9, quoted in full above, deals with the effect of a GRC.
- Section 10 deals with registration of GRCs.
- Section 11 gives effect to schedule 4, which makes various consequential amendments to marriage law, and sections 11A to D make other provisions about the effect of a GRC on a marriage or civil partnership.
- Section 12 provides that a GRC does not affect the status of the holder as the mother or father of a child.
- Section 13 gives effect to schedule 5, which is about social security.
- Section 14 gave effect to schedule 6, which made some minor amendments (now superseded by the Equality Act) to the Sex Discrimination Act.
- Sections 15 to 18 deal with the effects of GRCs on the inheritance of property and titles.
- Section 19 (repealed) made provisions about single-sex sports, now to be found in the EqA.
- Section 20 deals with the effect of a GRC on “gender-specific offences”.
- Section 21 deals with foreign gender change and marriage.
- Section 22 creates an offence of disclosing information about a person’s GRC or gender history in certain circumstances.
- Section 23 gives the Secretary of State power to modify the operation of other legislation in relation to GRC-holders, and section 24 makes procedural provisions about how orders under the Act are to be made.
- Sections 25 to 29 deal with interpretation, commencement, transitional arrangements and short title.
If HHJ Tayler was right in Forstater that a GRC provides the holder with the right to be treated for all purposes as being of the opposite sex – i.e. that it provides a male GRC-holder with the right to be treated for all purposes as a woman, and vice versa – that right must be conferred by section 9: it must arise from the words “the person’s gender becomes for all purposes the acquired gender”.
Are those words sufficient? There are no others that can help. There is no provision that says anything like “It shall be unlawful for a person A to fail to treat a person B, who holds a GRC, as if B had changed sex, to misgender him or otherwise to fail to treat him in a manner appropriate to his acquired gender” or “Any person who fails to treat the holder of a GRC as having changed sex shall be guilty of an offence”. And if it is indeed unlawful to do those things, there is nothing to tell us who might prosecute any offence, or what remedy B might seek, or in what court or tribunal he might seek it.
So according to the Tayler approach, it would seem that the GRA is rather similar to my notional Nose Punching Act, blithely imposing duties on all and sundry without saying anything about the circumstances in which they arise, the kinds of liabilities they impose or the enforcement regime.
That should be enough to dispose of the idea that a GRC confers a general right to be treated as the opposite sex. But my second question is more fundamental. What could such a right mean? What is it to be “treated as a woman”? In what respects does an actual woman have a positive right to be “treated as a woman”? And in which of those respects could a GRC meaningfully be said to confer that right on a man?
What is it to be treated as a woman?
I must know the answer to this: I am a woman, so this is something I have presumably been experiencing all my life.
The truth is, it doesn’t arise very much. And in most of the situations in which it does arise, it shouldn’t. Everyone’s list will be different, but here is my list of the kinds of occasion I can think of on which I have been treated as a woman (or girl).
- I was admitted to a girls’ school.
- I am able to use women’s toilets and changing rooms.
- I have been sexually harassed.
- I have been asked out by heterosexual men.
- I have been followed late at night to the point that I have feared for my safety.
- Male colleagues have talked over and ignored me at meetings.
- I have been treated with condescending or facetious gallantry.
- I have been invited to a hen party.
- I have received a proposal of marriage.
- I have entered into a marriage.
- I have been asked if I might be pregnant before certain medical procedures.
- Men have offered to carry my heavy suitcase up flights of stairs for me.
- I have been offered medical screening appropriate to my sex.
- I have been treated by outsiders as the person responsible for domestic matters in my household.
- I am almost invariably referred to as “she” in the nominative case, “her” in the accusative.
When could a person be said to have a legal right to be treated in those ways? These can be classified as purely social and interpersonal interactions (3, 4, 5, 7, 8, 9, 12, 14 and sometimes 15); occasions on which my sex has affected my treatment by some part of the state or a public authority (1, 9, 10, 13 and sometimes 2); and workplace interactions (6 and sometimes 2 and 15).
If I have a right to a particular kind of treatment, someone else must have a duty to provide it. In which of these situations where I have been “treated as a woman” could it be said that I had a right to be treated as a woman?
We can dispose of the purely social instances at once. Most of my examples are of things that no-one in any sensibly imaginable legal system could be said to be duty-bound to do. Still less are they things that our particular legal system does oblige anyone to do. It should be obvious that no-one has ever had a duty to sexually harass me, to ask me out, to follow me late at night, to treat me with condescending or facetious gallantry, to invite me to a hen party, to propose marriage to me, to offer to carry my suitcase for me or to assume that I am in sole charge of choosing the fabric for my curtains.
School admissions, medical treatment, marriage, and (sometimes) access to women’s toilets and other facilities have involved my relations with various bits of the state. I was eligible to apply to be admitted to my girls’ school, and could not have been refused admission on grounds of my sex. The NHS could not without negligence provide me with medical care without taking account of the fact that I am female, so it makes sense to say that I have a right to be treated as female by the NHS. The state could not have lawfully refused to treat my marriage as a valid marriage between a man and a woman, so there too I had a right which imposed duties on others. And to the extent that I have used ladies’ toilets provided by educational providers and employers which were under a duty to provide single-sex facilities, I’m prepared to assume that I must have had an individual right to use those facilities which I could, if necessary, have enforced.
Finally, pronouns. Does anyone have a legally enforceable duty to refer to me by feminine pronouns? My friends and acquaintances certainly don’t. If they take to calling me “it” (or “he”, or “Terfy McTerfface”, come to that), that will be rude and the friendships are likely to founder. But you can’t in general get the courts to command people to be polite to you. If my colleagues called me “it” or “they”, that might possibly give rise to a claim under the Equality Act 2010, but that has much more to do with my right not to suffer discrimination or harassment than any kind of specific right to be “treated as a woman” arising from the fact that I am one.
In which of those cases does a GRC confer on a man the right to be “treated as a woman”?
In any situation in which a woman has no legal right to be “treated as a woman”, a GRC cannot confer such a right on a man. If no-one ever had a duty to sexually harass me, ask me out, propose marriage to me, talk over me in meetings and so on, then no-one can have a duty to do those things to a man who possesses a GRC. Self-evidently – provided only you look straight at it and keep your hair on – in all the social ways in which people often treat men and women differently, a GRC cannot win a man the right to be “treated as a woman”.
- A GRC cannot affect school admissions, because currently no child can have one.
- A GRC will rarely if ever mean that its male holder cannot be excluded from single-sex spaces or services for women, although it may affect the legal route by his exclusion can be justified.
- A GRC does allow a man to contract what will be recorded as a heterosexual marriage with another man, or what will be recorded as a same-sex marriage with a woman.
- A GRC does not have any bearing on medical matters – indeed, it would be dangerous if it did.
- A GRC explicitly provides a right to be treated as a woman for the purpose of pensions: although most of the differences between men and women in pensions have been eliminated, a GRC lets a person who is male be recorded as female in the tax and national insurance system.
- A GRC makes no difference to any request or demand to be referred to by “preferred pronouns”. If and to the extent that such a claim can ever be enforced, that will have to be done by characterising refusal to use preferred pronouns as harassment or discrimination under the Equality Act. The legal rights and wrongs of that are far from settled, but so far as I’m aware there is no-one at all who suggests that a GRC affects the outcome.
Conclusion: the GRA is an interpretation act
It can be seen from this quick survey of the respects in which a person may be said to be “treated as a woman” that a GRC makes little difference to other people’s obligations. As Choudhury J said when Forstater reached the Employment Appeal Tribunal:
Although section 9 of the GRA refers to a person becoming “for all purposes” the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all “legal purposes”. That the effect of section 9 of the GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale PSC in R (C) v Secretary of State for Work and Pensions  1 WLR 4127.
This is not surprising. After all, the default position in law is that sex is irrelevant: that is almost the whole point of the Sex Discrimination Act 1975 and its successor provisions in the Equality Act. For most legal purposes, no-one is treated “as a woman” or “as a man” – they are simply treated without distinction as adults or children. In most situations in which sex-discrimination law permits different treatment of the sexes, there is some good and concrete reason for the distinction which cannot be wafted away by a certificate – and as a result, even a man with a GRC need not be “treated as a woman”. But in a small category of symbolic or administrative respects (chiefly marriage and pensions, both largely superseded since the Gender Recognition Act was passed), a GRC confers on a man the right to be treated by the law as a woman, and vice versa. Those, and very little else, are the “legal purposes” referred to by Choudhury J.
This takes us back to the question with which I began. What kind of legislation is the GRA? What kind of thing is it aiming to achieve?
My answer is that it is not chiefly about creating rights, duties or liabilities. If it was about requiring people in general to treat GRC-holders as if they had changed sex, it would look very different – and it would be much longer, weighed down with remedies, specialist tribunals, rule-making powers and enforcement mechanisms. The clue to its true nature is in Choudhury J’s limitation to “legal purposes”. What this really is is a rule about rules: it tells us that in those (rare) situations in which the law attaches consequences to whether you are male or female, a GRC requires you to be deemed to have changed sex unless the contrary is stated. In other words, it governs how other laws are to be understood.
At its core, the GRA is a rather fancy kind of interpretation act: an act that tells you (in general) that when other acts attach consequences to sex, some people are to be deemed to have changed sex. This puts the proposed Sex Matters amendment of the Equality Act into perspective. The GRA says “unless otherwise stated, other acts are to be interpreted so as to deem GRC-holders’ sex to have changed” (and provides a mechanism in section 23 for the government to state otherwise); the Sex Matters amendment would simply state otherwise in relation to the Equality Act.
A GRC really doesn’t do very much. It certainly doesn’t confer the general right claimed by HHJ Tayler in Forstater to be treated by other people as if you have changed sex.