Does the law say that trans women are women?

There’s a comment on Audrey Ludwig’s “Blog about Boxes” that seems to me to need a short post of its own. The full comment is

Can I ask a question about something I’ve seen claimed many times (including by senior politicians) – “the law states that transwomen are women.” Does the law actually say this?

The short answer is no: the law doesn’t define the terms “transwoman” or “trans woman” at all. 

The Gender Recognition Act 2004 does change some people’s legal sex. Obviously the law can’t change anyone’s biological sex. The fact that the law can’t mess with material reality is the point Canute was making when he forbade the tide to come in. But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply.

The Equality Act 2010 forbids discrimination (in various different contexts) on grounds of gender reassignment. That means that in those contexts where the Act has effect (employment, provision of public services, education etc.), it’s mostly unlawful to treat a person less favourably than you’d treat other people because they are proposing to undergo, are undergoing or have 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.”  If a person is somewhere on that path, it doesn’t matter whether they’ve got a GRC or not: they’re entitled anyway not to suffer discrimination on grounds of gender reassignment. There are some necessary exceptions, but in general it’s obviously right that there should be a legal prohibition against discrimination on this ground.

But it’s important to note that that doesn’t mean that trans women are entitled to be treated for all purposes as if they were biological women. If a trans woman who doesn’t have a GRC wants to access a female-only space, and is refused access, that’s not discrimination on grounds of gender reassignment, but discrimination on grounds of sex. She’s refused access not because she’s trans, but because she’s both legally and biologically male. That means she can lawfully be refused access any time it’s lawful at all to have a female-only space. In my view, it also means she almost certainly should be refused access in those circumstances. That’s because it’s only lawful at all to provide a single-sex space or service if there’s a good reason for sex segregation; but if trans women are admitted, it will cease to be a single-sex space.

If a trans woman who does have a GRC wants to access a female-only space or service, it’s still likely to be lawful to refuse, because of the exceptions that apply to prohibitions on discrimination on grounds of gender reassignment.

In short, the Equality Act does recognise that although sex is usually a bad and arbitrary reason for treating people differently, there are contexts in which biological sex matters.

30 thoughts on “Does the law say that trans women are women?”

    1. “But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply. Where a full gender recognition certificate is issued to a person, the person’s gender becomes FOR ALL PURPOSES the acquired gender. ”

      Where a full gender recognition certificate is issued to a person, the person’s gender becomes FOR ALL PURPOSES the acquired gender.

      This is in conflict with the EHRC guidance which in practice is unworkable. In a court of law the GRA would likely defeat the EHRC guidance. Especially as a GRC is like a contract between the State and GRC holder all made in good faith.

      1. For all ‘legal’ purposes. In fact, it is not legal to ask a person whether they have a GRC. Therefore it is obvious that the requirement to treat a person with a GRC as if they are the acquired sex applies only to people who are allowed to know whether a person has a GRC (employers, public authorities, etc). The GRA does not impose a duty on private citizens to treat a male as if he were a woman because he says he is. This is just not contemplated in the law and it was clarified in Parliament during the debates on the GRA Bill that it would not be the case. About 90% of ‘transwomen’ (category that does not exist in law) do not have a GRC, so they are legally males. Even those with a GRC are legally female for the purposes of the GRA, not in social interactions not regulated by the GRA at all.

    2. “But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply. ”

      Where a full gender recognition certificate is issued to a person, the person’s gender becomes FOR ALL PURPOSES the acquired gender.

      Biology has no bearing whatsoever in th GRA. A person with a GRC will have a birth certificate stating the “new” sex. Making the EHRC guidance re female only space unworkable in practice.

      1. Karen Pattinson said:

        Where a full gender recognition certificate is issued to a person, the person’s gender becomes FOR ALL PURPOSES the acquired gender.

        s.9 of the Act does indeed state that. That comes just before the sections and subsections that list the exemptions to that ‘for all purposes’ such as sport, succession, pensions and benefits, sex-specific offences (eg rape).

        1. s.9 GRA 2004 will also be subject to the ordinary rule that no Parliament can bind its successor, so any later law where it appears the necessary implication of a provision requires an exception (implied partial repeal) to be granted from section 9, that exception will apply.

          There is a respectable argument that the definitions of woman and man – i.e a human female and human male respectively = in the 2010 Equality Act perform just such a function, although the poor drafting (IMHO) of sections 9(1) and 9(3) GRA 2004 make that a debatable point.

  1. That’s very interesting, thank you. In reference to this line: “a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”. Can this include just wearing gender typical clothes? Does “the process” have to involve medication, surgery etc?

    1. It’s not very clear what “a process … for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex” is supposed to mean, and so far as I am aware there is as yet no case law to tell us. But what is clear is that it’s not meant to be limited to medical treatment with hormones or surgery. Presumably what’s intended is matters of dress, grooming etc. The extreme position would be that all you have to change is your pronouns in order to be able to assert that you have the protected characteristic of gender reassignment. A more moderate position would be that you have to be genuinely seeking to live as a member of the opposite sex, including a genuine (even if not necessarily 100% successful) attempt to “pass” as such.

      In any event, it’s worth noting two things:

      1. You don’t have to modify your body in any way to claim the protected characteristic of gender reassignment.

      2. You don’t have to modify your body in any way to apply for (and be granted) a Gender Recognition Certificate.

      1. The original reason NOT to require that a person undergo surgery in order to be protected was that some people would be unable to undergo surgery because of underlying health conditions. The assumption, though, was that they would WANT to if they possibly could. Now, of course this wording in the act is used by men with beards who have done absolutely nothing to their physical appearance but have simply asserted that they are women.

        1. Having experienced discrimination against me for saying at work, inter alia, that you can’t change sex and the Equality Act doesn’t cover gender identity (Employment Tribunal to come in June next year), I’ve thought quite a bit about this.

          I think the Equality Act does expect something much more than change of clothes or name.

          That’s partly because (A) these would be attributes of gender not sex (many activists are therefore hoist on their own petard). Quite what non-physiological attributes there are of sex, I don’t know. Perhaps hormonal or chromosomal (might there be a gene therapy to change sex someday? Was the Act framed to cover possible future treatments?). But since sex is biological, the attributes must be too (and “sex” in an Act will have it’s natural language, biological, meaning unless otherwise specified).

          It’s also partly because (B) they hardly qualify as a process – the act seem to envisage something quite significant. It would be nonsensical to suggest someone could intend to change clothes and be protected until that was done- you’d just do it. Surely intent is included so that someone could ask for time off work in advance of medical treatments?That you intend to undergo a process means no biological-level change is needed for someone to be protected, but that level of change is still in mind – it must be intended.

          So it seems to me that only changing clothes/name/pronouns with no intention of anything else is not covered by the Equality Act protections. I.e. transsexuals are protected, but gender identity in general is not.

        2. The original 2004 reason might not be relevant anymore, as in 2017 this specific stipulation – that surgery can not be required for changing legal sex – was made by the European Court of Human Rights in the case of Garcon and Nicot v France.

          (It also says that other requirements such as diagnosis can exist).

  2. I’d be interested in where specifically, and also, if not allowed in a space, where they are supposed to go. While not agreed or disagreeing with any views expressed. I would agree that a trans woman has not had Gender reassignment surgery, they should not change in an open female changing room. However, as long as they live as a woman, they should be able to access the women’s changing area and change in a cubicle. They should also (as long as they are living as a woman full time) be able to access ladies toilets, as they use cubicles.

    1. Thank you for your comment. There’s plenty of scope for debate about what should actually be done about single-sex spaces – I have confined myself in this blog to explaining what I understand the law to be.

      1. Well, quite. But come to that – what are these “other” characteristics of sex mentioned in section 7, those that aren’t physiological?

    2. I don’t speak for all men, obviously, but as far as I’m concerned, they are welcome to use the spaces assigned for those of their sex. But whatever, this is not a problem for women to solve.

      1. I don’t want to be changing in the same space as a former man. These are my rights as a woman and this is being totally ignored. People talk about discrimination against trans people but what about discrimination against women being forced to accept this. As a woman I don’t feel comfortable but no one seems to care about my comfort as a woman only the comfort of someone who is having gender reassignment. Where is the logic. Just give them their own space.

    3. They could fight for their own spaces? Just like women did, and continue to do. Why should we have to accommodate? How about men accommodating the GNC males amongst their own cohort? I don’t care what a man thinks in his head, my own three little girls and all the other women who do not want a male in their space, should not be compelled to bear that burden.

      1. Absolutely. I have no problem whatsoever sharing toilets with transwomen (or transmen for that matter).

        I don’t remember any earlier campaign by trans activists to be accepted into male toilets before they started demanding access to female facilities. But this shows it’s maybe more about validation and not ‘convenience’ per se.

  3. I was pointed to this yesterday… Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission – Women and Equalities Committee – House of Commons, published 30 July 2019:

    This states, 7Balancing rights in single-sex services

    Box 5: Single-sex services under the Equality Act 2010

    Exceptions allowing services to be provided only to women (or only to men)

    The first two relevant exceptions (Schedule 3, Paragraphs 26 and 27) allow service providers to provide separate services for men and women, or to provide services to only men or only women in certain circumstances. The symmetrical nature of the ban on sex discrimination means without these exceptions it would be illegal, for example, to hold women-only sessions at a leisure centre or a new fathers’ support group at a nursery.

    Exception allowing single sex services to discriminate because of gender re-assignment

    The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.

    Application of this exception must be objectively justified as a means of achieving a legitimate aim. An example given in the explanatory notes to the Act is that of a group counselling service for female victims of sexual assault where the organisers could exclude a woman with the protected characteristic of gender reassignment if they judge that clients would be unlikely to attend the session if she was there.

    Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment. As with paragraph 28 and other exceptions under the Equality Act, such exclusion must be a proportionate means of achieving a legitimate aim.

    I hope the EHRC will be publishing crystal clear advice in the near future.

    1. I query as to why the onus should be on the service provider. That is a failure of the legislation. The person demanding the right and the access should bear the burden of proof.

  4. Thank you Naomi, this is really clear and useful.

    I think it also needs to be recognised and communicated that the process of “refusing access” is not an individualised decision but an overall policy — whether in self-service type single & separate sex services (changing rooms and toilets) or places like hospital wards, dormitories and hostels where people book in. Policies and signage should make clear who is allowed to go where (and where there are alternative spaces which are not sex segregated).

    Men are not allowed into women’s changing rooms-by the general mechanism of the sign on the door, and the understanding of everyone to respect the sign — in discrimination lawyer terms you may see this as an individual being “refused access” but in practical day-to-day terms it is a general rule -just as the inside of public building are no-smoking areas: every individual who would like to smoke indoors is affected by this but it doesn’t mean every individuals should try it on until someone tells them to put it out.

    Currently we have doctors, and lobby groups telling male people who identify as women that they can and should be trying to ignore the sign (or ‘expand the bandwidth’ of what it means) and use women’s spaces unless they are “refused access” on an individual basis, rather than recognising that the sign means they are refused access.

    I think that it needs to be made clear to people attending gender identity clinics and as part of the GRC process, and to those delivering training to organisations and into schools etc… that using services provided for the opposite sex is not a right, and is not appropriate.

  5. I agree. My blog post set out my view of the law, but I also want to write a bit about what I think is reasonable.

    As you’ve written elsewhere, single sex spaces are a matter of consent. A woman who uses a women-only changing room consents to be in a state of undress in the company of other women. If that space is invaded by a person with a male body, her consent is overriden. She is likely to find that upsetting and humiliating, and reasonably so. Taboos about modesty are deeply-felt.

    What some male commentators on this subject fail to grasp is what a rigorous training in fear women receive from an early age. We are taught that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm.

    We are systematically trained in fear.

    And then we are told that we must lay aside the fears we have obediently learned at a moment’s notice if a person with a male body asserts a female identity. Well, fear doesn’t work like that.

    1. Only a man would not understand this. It continues to astound me that female trans ‘allies’ are able to put their ingrained fear aside in order to appear kind and supportive. What is wrong with them?

      1. Maybe because we don’t want to perpetuate the myth that trans women are dangerous and will attack people in toilets for no reason, or are perverts pretending to be women so they can go into women-only spaces. Those are offensive stereotypes that are not backed up by any evidence.

        The underlying problem with ‘the fear’ is that the government and society make it a woman’s responsibility to keep herself safe rather than creating an impossible environment for men (or any person) who conduct all of the aforementioned acts of disrespectful to violent behaviour.

        People who want to conduct such acts against women will violate social boundaries like women-only spaces to do so, whether they are trans or not. You don’t need to be trans to do horrible things, and trans people are no more likely to do such horrible things that anyone else.

  6. I hear about a ‘case by case basis’ all the time: you may have covered this even if in not quite those words.

    It’s often taken to mean each time an individual presents wishing to do something, but I’ve read it applies to organisations rather than to people. So a women’s hospital ward is the case, not the TW who says they want a bed on it. Is that right?

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