IN 2015, IRELAND became the fourth country in the world to enshrine in law the right to gender recognition based on self-declaration.

The historic move was a vital one for transgender people in this country.

It meant they could change their gender on birth certs, passports and driving licences by making a formal legal declaration, without the need for testimony from psychiatrists.

Two years later, an amendment to the bill made it possible for young people aged 16-17 to do the same if they had parental consent. 

The legal changes have proven to be successful, with 99 people having gender recognition certs granted last year and little objection to the operation of the laws.

But in the UK, moves to bring about a similar law based on gender self-determination have proven to be incredibly divisive. 

Since 2004, UK trans people can have their gender identity recognised if they are over 18, are diagnosed with gender dysphoria, have lived for at least two years in their acquired gender and “intend to live permanently in their acquired gender until death”.

The requirement for a medical diagnosis has been particularly concerning for trans campaigners and has led the push for recognition based on self-declaration. 

But the debate on amending the Gender Recognition Act 2004 (GRA) has been slow and at times has turned toxic, with some opponents and proponents engaging in name-calling amid intense and fractious online campaigns. 

What has been particularly noteworthy about the UK debate has been the involvement of self-identifying feminist groups and activists who have been critical of the GRA and the extension of trans rights.

In general, their argument is that there are circumstances where transgender women should be treated differently to cisgender women, ie women who were given the gender female at birth and live as female.

They have argued that rights to the self-declaration of gender should take account of the fact that women in society face discrimination and harassment.

In practice they have argued that there are women-only spaces or jobs that should be kept specifically for cisgender women. 

One such group, Women’s Place UK, has for example listed five demands that it is pushing for as part of its campaign. Among the demands are:

• The principle of women-only spaces to be upheld – and where necessary extended.
• A review of how the exemptions in the Equality Act which allow for single sex services or requirements that only a woman can apply for a job (such as in a domestic violence refuge) are being applied in practice.
• Government to consult with women’s organisations on how self-declaration would impact on women-only services and spaces.

Scaremongering 

LGBT activists in the UK have however argued that many of these points amount to scaremongering about the consequences of the GRA, or are even based on transphobia.

They argue other countries which allow gender self-determination, such as Ireland or Norway, have not experienced the unintended consequences that those opposed to legal change warn about.

They argue that any specific problems can also be dealt with without restricting the rights of transgender people.

For example, one of the frequent arguments used is that transgender prisoners could be moved to different prisons, something that could put female prisoners at risk if dangerous male prisoners seek to declare as female. But as trans activists have pointed out, there can be myriad problems from sending trans prisoners to a prison that is not set up for their gender identity.

In Ireland transgender prisoners have typically been allocated to a prison according to the gender assigned to them at birth. The Irish Penal Reform Trust said in 2016 that:

In Ireland there are no specific policies regarding the accommodation or treatment of transgender prisoners. The most common practice currently is for transgender prisoners to be placed in prisons based on their genitalia or assigned sex at birth. In interviews we were told that while not a common occurrence, transgender people have on occasion been remanded or sentenced to custody

It also noted:

According to current legislation, it is the courts through issuing a warrant who determine the placement of a prisoner in a male or female facility. We were told that the prison service has no authority to transfer prisoners between the two and that legislative change would be required to alter this situation

It has also been argued that changing the law will not change the lives of people in society, because self-identification is already exists without people realising.

Such as in a public toilet or changing room, where people already use the facilities they identify with without any legal impediment.

LGBT campaigners argue that the new UK law would amount to giving self-identification a legal basis and would help transgender people in the fight against discrimination.  

What’s more, it is also argued that debating whether or not to extend rights to trans people is in itself inherently damaging.

For example, it’s been shown that almost four-fifths of transgender people have considered suicide and that such debate is dangerous and unhelpful. 

Debate

What has been clear from the debate has been the toxic nature of the discourse, quite frequently online.

This week the UK’s National Lottery announced it was reviewing funding to Mermaids, a charity that supports gender nonconformity among children, because of “the nature and volume of the communication” it received from both sides about the funding. 

The ongoing debate has been marked by an animosity between campaign groups that could otherwise be seen to be on the same side.

Both the feminist groups who oppose the GRA and the LGBT groups in its favour both say they represent marginalised groups and are pushing for positive social change.

It could therefore be argued that they are both essentially arguing against gender-based discrimination but come at it from different perspectives. 

But the schism between them has led to the popularisation of the term “terf”, an acronym for the phrase “trans exclusionary radical feminist”.

In essence, someone who is campaigning for feminist ideals whilst excluding transgender women.

Where is the debate now?

In July, the UK’s Gender Recognition Act 2004 entered a consultation phase where the public could give its views on aspects of the law that could be changed. 

That consultation period closed on 22 October with the UK government saying it had received a “high volume of responses”. 

The government has noted that since 2004 “only 4,910 people have legally changed their gender”, despite that fact that statistics show a far greater number of transgender people living in Britain. 

The UK’s Government Equalities Office has tentatively estimated that there are between 200,000-500,000 trans people in the UK.

The department says surveys shown that the current process is “too bureaucratic, expensive and intrusive” and there is therefore an appetite for change.