WITH THANKS TO THE FRONTLINE FEMINISTS

Over the next week or so, I’ll be putting up three articles arising out of a workshop run by the group Frontline Feminists to which I was honoured to be invited recently. I’m very grateful to all of the women participants who worked through these ideas with me, and without whom these articles wouldn’t have been written.

Needless to say, if I’ve got anything wrong in any of the articles, or in anything that follows here, that’s my own responsibility.

The first article will deal with the dramatic clarification that two recent cases – one English and one Scottish – have made of the law relating to the Equality Act, and in particular to the law relating to women’s single sex spaces. I’ll argue that the combined result of these two cases is that males who are undergoing gender reassignment, and who do not have a Gender Recognition Certificate (GRC), can never have a right to enter such spaces, and that males who do have a GRC may also be lawfully excluded.

The second article will deal with the effect of this on the “trans-inclusive” policy of the Scottish Government (SG) whereby, in order to receive SG funding, women’s single sex services are forced to state that they will include in those services males who are undergoing gender reassignment. I’ll argue that this policy forces women’s services to discriminate against the very group they were set up to serve – namely, females – and puts these services at risk of losing their single sex exemption under the Equality Act. I’ll also argue that women’s single sex services and individual women affected by the SG’s policies have grounds of action against the SG for this unlawful policy. 

The third article will deal with the further effect of all of this on the SG’s Gender Recognition Reform (Scotland) Bill, currently making its way through the Scottish Parliament. I’ll argue that the drastic changes which the Bill proposes to the requirements for attaining the legal fiction that one has changed sex put the Bill beyond the legislative competence of the Scottish Parliament and will lead inevitably to the Bill being struck down as unlawful by the courts.

(One aspect of this which I’ll deal with in the article – and which I haven’t seen raised before – is that the whole issue of “gender recognition” arises because the European Court of Human Rights in 2002 effectively ordered the whole of the United Kingdom to take action as a “contracting state” to provide a mechanism and relevant criteria for people to legally change sex. If, as the SG and its legal advisors evidently believe, it’s lawful for one part of the UK – Scotland – to now have very different criteria for legally changing sex than the rest of the UK, then it surely must be open to, say, English people who could get a GRC under the new Scottish criteria but not under the criteria still applying to the rest of the UK to complain to the European Court that the UK has unlawfully discriminated against them by not meeting its European human rights obligations in a uniform manner across the whole of the “contracting state”.)

But first, by way of introduction, something that struck me most forcefully when doing the research for the workshop giving rise to these articles is how clear judges once were about what “males” and “females” and “transsexuals” are, and about the reasons for granting the legal fiction, in exceptional cases, that human beings can change sex.

I invite you to read what follows and see if, like me, you find yourself at a loss to know how, in less than twenty years, we’ve “progressed” from the eminently sensible judicial statements set out here, and cited by the SG and others as providing the basis for their current views, to those current views themselves; that is to say, to the view that being a woman is just a feeling in your head, or that men who have that feeling in their heads are every bit as much women as those who gave birth to them, or that having “gender dysphoria” need not involve any discomfort or distress whatsoever about your body and indeed is fully consistent with requiring lesbians to suck your “girl dick” or alternatively to die.              

The legal background to some nice clear definitions

Before it was replaced by the UK Supreme Court in October 2009, the Appellate Committee of the House of Lords was the highest appeal court in the UK.

On Thursday 10 April 2003, the Lords gave their decision in the case of Bellinger v Bellinger. The question before the court was whether Mrs Bellinger, a “transsexual” who had been born male, was validly married to Mr Bellinger, also a male. Among other things which proved conclusively that Mrs Bellinger was biologically male was that a chromosomal test, dated 8 April 1999, showed her to have a karyotype 46XY pattern – “an apparently normal male karyotype”, as the court observed.  

In the course of her life, Mrs Bellinger had been through psychiatric assessment of her condition, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the “real life experience”) and then, finally, in a step recognised for suitable cases, “gender reassignment surgery”. As the court described it, this final step had involved “removal of her testes and penis” and “the creation of an orifice which can be described as an artificial vagina”. But, as again described by the court, “she was still without uterus or ovaries or any other biological characteristics of a woman”.

The court had to decide if this made her “female”, and therefore able to marry, in terms of the then extant UK law.

The legal background to their making of that decision was that the European Court of Human Rights had already decided in 2002 that the UK’s law on marriage breached the Article 8 right to privacy and the Article 12 right to marry under the European Convention on Human Rights (ECHR) and that the UK as a “contracting state” had to do something about it.

The English courts had made it equally clear that it was up to the UK legislature, and not judges, to do something about it.

As a result, the House of Lords decided that Mrs Bellinger was not a female under existing UK law, and that the courts therefore had no power to validate the Bellingers’ marriage. In doing so, they again confirmed that the UK was in breach of its ECHR obligations in requiring them to come to that decision, and that legislation was necessary to bring the UK into compliance with the ruling of the European Court.

The result was the UK-wide Gender Recognition Act of 2004.    

The five judges in Bellinger were unanimous in their decision and Lord Nicholls gave the leading opinion of the court. The definitions contained in that decision – the decision, remember, of the UK’s highest court – are refreshingly clear.

The court’s use of “sex” and “gender”

As I’ve pointed out elsewhere on this blog, one of the reasons the law in this area is currently in such a mess is that the terms “sex” and “gender”, which not that long ago were synonymous, have come to have very different meanings in the minds of an increasingly large group of people, and that this slippage has been skilfully exploited by “gender identity” activists.

Their technique is an obvious but very effective one: get people to agree things about “gender” that they would never agree about “sex” – for example that if you don’t conform wholly to either masculine or feminine stereotypes you are of the “non-binary gender” – and then, once you have that agreement, switch back to “sex” and “gender” being synonymous, and demand sex-based rights from the bewildered folks who have agreed with you about “gender”.        

So I’m pleased to say that in Bellinger, there is no room whatsoever for that technique to be employed. Their Lordships were quite explicit that, throughout their decision, “sex” and “gender” were to be regarded as “interchangeable” and thus synonymous:

… human sex or gender (for present purposes the two terms are interchangeable)…

In everything that follows, then, it’s handy to remember that the court in Bellinger were clear that “sex” could be substituted wherever “gender” is used, and vice versa. The present-day slippage between the terms that, for example, the Scottish Government regularly exploits in order to spread confusion and cover up irrationality on these issues is simply inapplicable in this case.  

The court’s definition of “inter-sexual”

This is how the court defined so-called “inter-sex” conditions:

Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual.    

The court’s purpose in thus defining the statistically tiny incidence of such conditions was to avoid from the outset two further terminological confusions which are routinely exploited by gender activists, namely that the condition of being “transsexual” is somehow to be equated with being “inter-sexual”, and that, because determining sex at birth is not always entirely straightforward, sex is “assigned”, and not merely observed, in all cases.   

I say more about this below.     

The court’s definition of “transsexual people”

This, then, is the court’s definition of “transsexual people”:

Transsexual people are to be distinguished from inter-sexual people. Transsexual is the label given, not altogether happily, to a person who has the misfortune to be born with physical characteristics which are congruent but whose self-belief is incongruent.

Note that the label is given “not altogether happily” because of course no-one actually does “trans”, or cross over, to the opposite sex. Rather, as the court makes clear, “transsexual” people – in explicit contrast to “inter-sexual” people – are people who are unambiguously of one sex but who believe themselves to be of the opposite sex.

That is their “misfortune”, and it is one which, as the court later recognises, should elicit our sympathy and compassion.

But note that there is not the slightest suggestion here – nor is there one anywhere else in the court’s decision – that our sympathy and compassion for people like Mrs Bellinger should extend to validation, let alone celebration, of their “misfortune”.

Taking legal decisions based on sympathy and compassion for “misfortune” and making them the foundation for validation and celebration of that “misfortune” is of course another technique skilfully exploited by gender activists.

By all means disagree with those of us who – like the court in Bellinger – see as a “misfortune” your unshakeable belief that your whole body is in fundamental contradiction of who you really are.

But it’s simply dishonest to pretend that this and subsequent decisions in your favour were in fact a validation, let alone a celebration, of your belief.

And of course you’re being even more dishonest if you’re one of the increasingly vocal group who don’t even have that unshakeable belief, and are actually quite happy with your male body, but just want to access women’s spaces or shout “Suck my girl dick!” at lesbians and “TERFs”.            

The court’s use of “assigned” to refer to sex

As indicated above, the court’s decision may also throw some light on how the phrase “assigned at birth”, as applied to both “gender” and “sex”, has come to be in almost universal use now despite it being a straightforward fact of human biology that sex is determined in the womb, and merely observed at birth.       

The court’s use of “assigned” suggests one way in which this otherwise extraordinary locution may have gained acceptance, namely by way of reference to “inter-sexual” conditions where the determination of sex may not be immediately straightforward, as it is in the cases described by the court as “normal”.

Having listed the “indicia” by which sex is determined – including chromosomes, gonads, other internal sex organs, external genitalia and hormonal patterns – Lord Nicholls said this:

In the vast majority of cases these indicia in an individual all point in the same direction. There is no difficulty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual. In such cases classification of the individual as male or female is best done by having regard to all the factors I have listed.

Sharp-eyed readers will have noticed that the court’s definition of “inter-sexual” which I have already given above is taken from this larger passage.

And in this context, of course, the use of “assigned” makes perfect sense, as does the further term “classification”. Remembering that “sex” and “gender” are interchangeable terms for the court, it’s easy to see that “assigning” is being used here in the sense that observing sex is a straightforward matter in the “vast majority of cases” – the ones described by the court as “normal” – but that in the very specific and tiny minority of cases where “inter-sexual” conditions are involved, and there is a deviation from the normal, the task of observation is less straightforward.

What this boils down to for any rational person is that “assigning” sex in the vast majority of cases is a matter of straightforward observation of the “indicia” but that in a tiny minority of cases, more rigorous and detailed scrutiny of those same “indicia” may be required in order to make the “classification”.

Self-evidently, none of this has anything to do with “transsexual people” as defined by the court, and, if I’m right that “assigning” in this sense is the basis of the current usage of the term, then “assigned at birth” is yet another ingenious appropriation of a term ripped from its context by gender activists to assume a significance entirely unwarranted by its original use in context.

The court’s definition of “transvestite”

Perhaps the clearest example of what was obvious in 2003, and is now, apparently, much less so for many people in our culture, is this concise definition given by the court:

Nor should a transsexual person be confused with a transvestite. A transvestite is a person who, usually for the purpose of his or her sexual gratification, enjoys dressing in the clothes of the opposite sex.

I recently asked the First Minister’s unofficial spokesperson Mhairi Hunter whether she agreed with me (and by extension with the court in Bellinger) that Eddie Izzard, when he is in “girl mode”, remains a man.

I’m not holding my breath for an answer.

The court’s definition of “gender dysphoria”, also known as “gender identity disorder”

This is how the court defined these synonymous conditions:  

Transsexual people are born with the anatomy of a person of one sex but with an unshakeable belief or feeling that they are persons of the opposite sex. They experience themselves as being of the opposite sex. Mrs Bellinger is such a person. The aetiology of this condition remains uncertain. It is now generally recognised as a psychiatric disorder, often known as gender dysphoria or gender identity disorder. It can result in acute psychological distress.

In 2003, then, and for the UK’s highest court, this was the clear and precise definition of what it was to be “trans”.  

It was “a psychiatric disorder” which could “result in acute psychological distress”.

And having the “misfortune” to suffer from it was the self-evident prerequisite for attaining the legal fiction of changing sex.

The court further defined the disorder by way of describing the treatments for it:

The treatment of this condition depends upon its severity and the circumstances of the individual. In severe cases conventional psychiatric treatment is inadequate. Ultimately the most that medical science can do in order to alleviate the condition is, in appropriate cases, to rid the body of its intensely disliked features and make it accord, so far as possible, with the anatomy craved. This is done by means of hormonal and other treatment and major surgery, popularly known as a ‘sex change’ operation. In this regard medical science and surgical expertise have advanced much in recent years. Hormonal treatment can change a person’s secondary sexual characteristics. Irreversible surgery can adapt or remove genitalia and other organs, external and internal. By this means a normal body of one sex can be altered so as to give the appearance of a normal body of the other sex. But there are still limits to what can be done. Gonads cannot be constructed. The creation of replica genital organs is particularly difficult with female to male gender reassignment surgery. Chromosomal patterns remain unchanged. The change of body can never be complete.

Again, there is no suggestion here that the condition of being “transsexual” is something to be validated or celebrated. Rather, everything described by the court as “treatment” is designed only to “alleviate the condition” and to do so, where appropriate, by increasingly drastic steps.

This progression – the progression undergone by Mrs Bellinger – is then set out by the court:

Surgery of this nature is the last step in what are typically four steps of treatment. The four steps are psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the ‘real life experience’), and finally, in suitable cases, gender reassignment surgery.

Just setting out what I’m sure seemed to the court in 2003 to be a compassionate, factual and uncontroversial definition of the “disorder” of “gender dysphoria”, and the treatments by which it might be alleviated, gives the starkest illustration of how far gender activists have succeeded in moving the discussion of these issues from what was a widely shared — and legally sanctioned — understanding of them less than twenty years ago.

Indeed, I suspect that if I were to go to Glasgow Green tomorrow and read these passages aloud, I’d be reported by any passing gender activists for transphobic hate crime and, bearing in mind the “education” delivered by Stonewall and others to our current Scottish Government, prosecution service and police force in the years since 2003, I’d probably be arrested and charged.

Nonetheless, I’ll take my chances and state here that the authoritative rulings and definitions provided by the UK’s highest court less than twenty years ago concerning the disorder of gender dysphoria and the plight of transsexual people are entirely in line with my own views.

Anything that has been achieved by gender activists since then by way of undoing any of these rulings and definitions to any degree is in my view a disastrous departure from both reality and rationality.

What follows?

I hope that all of the above was of interest by way of providing some of the context for how clear and sensible things were not so long ago.

Please do come back for the three articles that try to make sense of where we are now.