Conversations about trans rights have got bogged down in a narrow focus on language and terminology. About who counts as a man or a woman. But really, it needs to be about how to ensure trans people are treated fairly and equally in society.
Of course, biology matters. It is indisputable that the reality of our sexed bodies impacts every one of us – and that it is this reality that is at the root of so much of women's inequality. It is also at the root of so much of trans inequality too – that we live and identify in a way considered deviant and wrong for our biology. That we can only be, and must only be, seen and treated in a way that aligns with the body we were born with. Furthering trans equality is part of a broader fight to reach a point where biology is not destiny.
But you can acknowledge the importance of biology without conceding that how we are treated in society is exclusively determined by our bodies. Upon transitioning, a trans woman doesn't escape sexual harassment because she was born with a penis. As a trans woman walks down the street she gets the same abusive misogynistic catcalls from men as any other woman and, if they notice that she is trans, those men simply add some transphobic catcalls into their harassment.
The men who dominate company boards don't see a trans woman as any more 'like them' than any other woman; her views and qualifications get treated with the same sexist disdain. Meanwhile, trans men can describe in detail what we've all known for a long time; that (so long as they don't flag up their trans history) they're no longer talked over in meetings and are automatically assumed to be competent and knowledgeable. Sex, gender, and sexism is more complicated than bodies alone.
It has now been over 20 years since the European Court of Justice ruled in favour of a UK trans person and determined that gender reassignment discrimination is a form of sex discrimination. Since 1999, UK law has recognised 'physiological or other attributes of sex' and does not regard a person's sex as only being their biological characteristics at birth.
For the last 50 years, the sex markers on UK passports, medical records and other day-to-day documents have been allowed to be changed easily as soon as a trans person begins living permanently in their gender identity. Birth certificates were more complicated because they were considered historical records rather than identity documents. It is now 15 years since the Gender Recognition Act passed, the UK law first allowing trans men and trans women to change the sex marked on their birth certificates. That law was the result of a decision in 2002 by the European Court of Human Rights, which ruled that trans men and trans women have a right to privacy about their trans history and that their lived identity has great personal meaning and significance so they should not be forced to retain an official document that denied it.
In these 15 years, around 3,500 trans people have had their gender legally recognised. They are, in law, women and men. The law does not require trans men or women to have any particular medical transition treatments in order to be legally recognised – no hormones or surgeries are necessary. This has not caused a huge difficulty for general society, or made our understanding of the words 'woman' or 'man' too diluted to be useful. It has simply served the purpose it was intended for; acknowledging that trans men and trans women have the right to privacy and dignity.
However, the current Gender Recognition Act does have its problems. It requires you to provide an intrusive psychiatric report detailing how 'gender dysphoric' you were before you transitioned. This is despite the fact that the World Professional Association for Transgender Health (which represents the doctors who specialise in providing gender reassignment treatments) says that no diagnosis should be required for legal recognition. It also bizarrely requires you to provide details of any hormonal or surgical changes you have made to your body, despite these not determining your eligibility.
As well as this, two years' of administrative evidence, such as copies of bank statements and utility bills, are required to prove you have been living in your acquired gender. This cumbersome, embarrassing and pedantic application process has deterred many eligible trans people from applying for legal gender recognition.
That's why we think the Gender Recognition Act needs reformed to bring how birth certificates are changed more into line which how other identity documents are changed. The process would still be a robust and serious one. It wouldn't switch to being based on 'a feeling', it would still be based on how a trans person is actually living. It would require a trans person to sign a statutory declaration, which is a legal oath, that they are living permanently in their gender identity. Falsely completing a statutory declaration is a serious crime.
To be legally recognised as a woman, a trans woman would still need to be living and identifying permanently as a woman in all aspects of her life. It would just be the intrusive medical reports and arbitrary two-year delay that would be removed from the application process. This would bring Scotland into line with the gender recognition laws already working smoothly in Ireland, Malta, Belgium, Denmark, Norway, Portugal, Uruguay, Argentina, Colombia, three US states and four Canadian provinces.
If a trans person does not live and identify consistently as a woman, then they will remain ineligible for legal recognition as a woman. We want to see an option of non-binary legal recognition created for trans people whose lived identities are not solely as men or solely as women. This would enable the complexity of their gender to be formally acknowledged and respected. It would not give them any extra rights to access single-sex services.
Indeed, the ability of a trans woman to access women-only services is not determined by whether or not she has received legal gender recognition. No single-sex services in Scotland have ever required people to show their birth certificates for access. Reform of the Gender Recognition Act will not alter the Equality Act 2010 provision allowing women-only service providers the flexibility to treat a trans woman differently from other service users if that is proportionate for the specific circumstances involved. The right for sports governing bodies to place competition restrictions on trans people if necessary for safety or fairness will remain unchanged. Prisons will still be able to use robust risk assessment to determine where to house a trans prisoner.
It is true that the current debate around trans rights is often fractious, toxic and fraught. We know that this kind of debate isn't the way forward to ensure trans people are fully welcome and included in Scotland. We have always been and remain happy to talk constructively with those who agree and disagree with us about the practicalities of improving trans rights. We are confident that the trans inclusive world we envisage is one that is better for everyone.
James Morton works for Scottish Trans Alliance
