Transgender Law: a practical guide?

In “A practical guide to Transgender Law” (Law Brief Publishing, 2021), Robin Moira White and Nicola Newbegin have written a short book of ambitious scope: in fewer than 300 pages, they take in subjects as varied as discrimination, asylum, data protection, education, prisons, family law and sport.

The first point to note is that the book lacks a consistent sense of purpose, wandering between summarising the law, setting out statutory and non-statutory guidance and policy material, charting the development of the law and social attitudes in this area, and legal analysis. Perhaps as a result, its structure is choppy and repetitious: it’s not clear, for instance, why the Equality Act 2010 and the Gender Recognition Act 2004 get chapters to themselves as well as separate treatment in chapters on associations, education, employment and sport; or why “Prisons” (Chapter 15) is not treated as part of “Criminal Justice” (Chapter 6). The book is poorly proof-read, with minor errors sprinkled throughout the text and one instance where a section of nearly a page and a half appears in two different places. 

The book’s defects of structure, clarity of purpose and editing might have been forgiven if the authors had been able to offer helpful insights on some of the undoubtedly tricky problems in this area. But the book is equally disappointing in almost all matters of substance. The chapter on data protection and confidentiality (Chapter 7) provides a competent summary of the law, as (for the most part) does Chapter 3 on the GRA; but the rest of the book suffers from a pervasive tendentiousness, coupled with legal analysis that is either weak or simply absent.

The first example comes before the book is even properly under way, in the terminology section at page xviii. The authors dismiss the binding judgment of the High Court in Corbett v Corbett [1970] 2 WLR 1306, apparently on the basis of the biologically illiterate claim that the existence of differences of sexual development undermine the distinctness of the categories “male” and “female”. This is unsupportable. Biological sex is an immutable and as a rule easily observable feature of human beings. In a small minority of those with certain rare DSDs, sex may be incorrectly observed at birth; but that fact no more undermines the male/female binary than the fact that individuals are occasionally prematurely pronounced dead undermines the alive/dead binary. As the Employment Appeal Tribunal has since pointed out in Forstater: “the position under the common law as to the immutability of sex remains the same; and it would be a matter for Parliament… to declare otherwise.” 

Discussing what “man” and “woman” mean in the EqA, the authors say this: 

“The EqA 2010 definition of ‘man’ is a male of any age and ‘woman’ is a female of any age’ (EqA s212). But without a definition of ‘male’ and ‘female’ this does not help. Is a trans male a male or a trans woman female? Is a trans woman something different from a woman? But a gay woman or a black woman are still women, why not a trans woman?” 

There’s a sleight of hand here – whether conscious or not. The argument plays on the words of the question-begging neologism “trans woman” to suggest that “trans” is simply an adjective qualifying the noun “woman”, and therefore a “trans woman” is just another kind of woman. It does not admit to the true nature of what the authors are proposing, which is a radical extension of the meaning of the word “woman” – well beyond the natural meaning of a concept that is familiar in every language and has been for as long as humans have used speech – to include those men who think of themselves as women. For anyone who does not accept that trans-identifying males are women, the proposed parallel with “black woman” or “gay woman” will land badly. (For readers less familiar with these debates, it may be helpful to spell out that the term “trans woman” is frequently claimed not only by those who have taken all available surgical, hormonal and cosmetic steps to look as much like women as it is possible for them to do, but also by others who retain fully intact male genitals and sometimes even a beard, relying on nothing more than clothes and cosmetics to signal their essential womanhood.)

The authors also seek to construct an uncertainty about whether a person’s legal sex might change in the absence of a gender recognition certificate. This is fanciful. Biological sex can’t change, and the common law recognises that; and the mechanism for changing legal sex set out in the GRA is self-evidently exhaustive. 

In the terminology section, at pp. xix-xxi, the authors quote at length from the speeches in the House of Lords in Chief Constable of West Yorkshire Police v A (no.2) [2005] 1 AC 51, acknowledging that Baroness Hale anticipated that the GRA would resolve these questions; but then seem to give up on the daunting task of analysing, by reference to the words of the Act, whether and if so how it has done so, preferring instead a hand-waving assertion that the authors cannot believe that a trans-identifying male who has transitioned early enough never to have developed through male puberty can really be regarded as a man in law simply because he lacks a gender recognition certificate. It is not clear why they think this, or what aspect of their hypothetical case they think is crucial. They seem to set store both by the length of time for which an individual has “lived as” the opposite sex and the degree of success with which he can “pass”.

Whatever their thought processes, they are clearly wrong. The House of Lords in A and Parliament in the GRA chose different solutions to the problem of who should be treated as having changed sex, and what the consequences should be when they were. The House of Lords chose exacting conditions (a complete or all-but-complete cosmetic appearance of the opposite sex: in the words of Lord Bingham, being “virtually and for all practical purposes indistinguishable”), but far-reaching consequences where those conditions were met. Parliament chose a much less demanding standard for issuing a gender recognition certificate, but also limited the effect of a GRC once granted. It is of course Parliament’s choice that is now the law. 

Commenting in Chapter 3 (Gender Recognition Act 2004) on section 9 of the GRA, the authors say: 

“[A]s far as the law is concerned, the holder of the certificate now has the gender stated on that certificate “for all purposes”. This provision dealt admirably with the original focus of the Act: pensions and the right to marry. It is still important in a number of areas including the fields of data protection and prisons (see relevant specialist chapters). The GRA itself contains a number of exceptions. The position in respect of the Equality Act brought into law only 6 years later is far from certain.”

This passage could be clearer, but the implication seems to be that when the EqA was passed, its interaction with the GRA was somehow overlooked, or inadequately worked out. Nothing could be further from the truth: the expression “Gender Recognition Act” occurs 14 times in the EqA and its explanatory notes, and the expression “gender reassignment” no fewer than 95 times. The relationship between the EqA and the GRA is both deliberate and intricate: no doubt there are some unintended consequences and difficult questions, but – particularly given that much of the relevant phraseology of the EqA is little altered since the Sex Discrimination Act 1975 – what is clear beyond any sensible doubt is that for the purposes of the EqA, “sex” means biological sex, except where modified for legal purposes by the operation of section 9 of the GRA. 

At the end of Chapter 6 (Criminal Justice), the authors deal very briefly with searching under the Police and Criminal Evidence Act 1984. They quote from the Metropolitan Police Service’s “Transgender Policy” which purports to allow trans-identifying officers to conduct searches of suspects of the opposite sex, but notes that since non-binary identities are not covered under the Equality Act, officers and staff who identify as non-binary will not be permitted to search the opposite sex. The authors’ legal analysis of this policy is confined to the single sentence, “Authors’ note: the last answer may need to be revised in the light of Taylor v Jaguar Land Rover.” 

This is inadequate. The policy quoted is unlawful insofar as it applies to intimate searches, since PACE s55(7) requires that “A constable may not carry out an intimate search of a person of the opposite sex.” The authors claim elsewhere in the book that, following Taylor v Jaguar Land Rover 130447/2018, “those with more complex gender identities are now held to be within the protected characteristic of gender reassignment.” There are a number of problems with this statement. First, a decision of an employment tribunal has no weight as precedent, yet White and Newbegin treat Taylor as if it were a binding authority. Secondly, having decided to undergo a process of reassignment and announced that decision, Taylor undoubtedly had the protected characteristic of gender reassignment on a perfectly conventional understanding of s7; so even if the judgment were capable in principle of being binding, it would not have the effect claimed. (Readers wishing to gain a fuller understanding of Taylor are directed to Maya Forstater’s excellent blog on the subject.) Third, and for the Criminal Justice chapter most pertinently, the fact that an individual has the protected characteristic of gender reassignment for the purposes of the EqA does not change their biological or legal sex. The authors do not explain how the EqA duty not to discriminate on grounds of gender reassignment could be thought to override the same-sex searching requirement in PACE. 

In Chapter 8 (Education), the authors say this about toilets in schools: 

Reliance is placed on the School Premises (England) Regulations (2012)… which specify the provision of separate toilet facilities for boys and girls over the age of 8 except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one person at a time. However, there is no definition of sex in the Regulations and whether a trans pupil can lawfully be excluded from the facilities which match their acquired gender is, as yet, untested… the question whether exclusion of a trans girls [sic] from toilets would be a proportionate means of a achieving [sic] a legitimate aim is untested in law. 

Sex is not defined in the Regulations; nor (more relevantly) are the related terms “boys” or “girls”. But these are ordinary English words that require no definition. A child cannot be granted a GRC, so there are no ticklish questions about “legal sex” and “biological sex” to get into here: the child’s sex is and can only be his or her biological sex. If a trans-identifying boy (a “trans girl” in the authors’ preferred terminology) is admitted to the girls’ toilets, those toilets are no longer separate facilities for girls: they have become mixed sex. The Regulations require separate facilities, so boys (however they identify) must be excluded from the girls’ toilets, and girls (however they identify) from the boys’. Moreover, it is not clear what the authors think is the relevance of the question whether exclusion of a trans-identifying boy from the girls’ toilets would be a proportionate means of achieving a legitimate aim: no such test is identified in the Regulations, which simply make separate facilities mandatory.

Chapter 12 is devoted to the question whether gender critical views are a protected belief for the purposes of the EqA. It seems odd that the authors thought this narrow question merited a whole chapter to itself; but odder still, given that they did, that they did not think it worth waiting for the judgment of the Employment Appeal in Forstater v CGD Europe [2021] 6 WLUK 104, which at the time of writing they note was expected within a few weeks. The predictable result is that the entirety of their detailed consideration of the first instance judgment is already out of date.

At Chapter 15 (Prisons), the authors discuss the case of R (on the application of Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin). The case was about the extent to which a man who was in prison for his part in the extended torture and murder of his wife was entitled to be supplied in prison with items said to be necessary to his recently-conceived desire to “live as a woman”. The judgment notes at ¶19 that he did not appear to have a diagnosis of dysphoria, and was reported to be “saying different things to different people”.

​​White and Newbegin summarise the essential facts and the outcome like this: 

“Whilst it was recognised by the court that there was no question of her being required “to live as a man”, she was housed in a male prison and was refused items such as a wig (she was bald) and tights. The decision to refuse these items on the basis of increased risk in the prison community was upheld. The prison service said that tights could be used as a ligature and were easily concealed. A wig, it was said could be used in an escape attempt. The judge recognised the sensitivity of the position but upheld the decisions taken.”

Reading that, one might think the prisoner’s requests were modest and reasonable. But the authors’ “such as” turns out to be capacious. At paragraphs 27 and 47 respectively, the judgment describes more fully the problem and the nature of the risks: 

“The particular problem asserted by the claimant is her access to prosthetic items – wigs, breasts and vaginas.”

“In relation to tights there is also a demonstrable security concern. The same applies to intimate prosthetics. With tights it is obvious they can be used for escape purposes and other dangerous illegitimate use. With intimate prosthetics the real issue of hiding items is pronounced. In order to alleviate this, the governor would have to institute regular and repeated intimate searches.

If the authors’ sanitising account of the facts of Green is disquieting, even more so is their failure to mention a key part of the judge’s reasoning in the case. One of the issues was whether Green had suffered discrimination on grounds of gender reassignment, and there was argument about the characteristics of the comparator that should be used to test that question: should the comparator be a man who lacked the protected characteristic of gender reassignment, or a woman who lacked that protected characteristic? The judge did not think that a difficult question. As he put it (at paragraph 68): 

Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland… I find it impossible to see how a female prisoner can be regarded as the appropriate comparator.The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male.

This comparator question is of crucial importance to many of the contentious questions relating to the treatment of trans-identifying people. Both of the authors contributed to the Employment Lawyers Association’s response to the 2018 Government consultation on reform of the GRA, which (answering question 13 on single-sex and separate-sex services) describes the comparator question as going to the heart of the wider ideological debate about the nature of sex and gender. Their failure to discuss this aspect of Green is hard to comprehend.

Examples abound of analysis that is weak, tendentious or entirely missing, but one further instance is worth particular attention. At Chapter 9 (Employment), the authors comment on an example of a possible occupational requirement, given in the Explanatory Note to the EqA, to be a woman and not a transsexual person, even with a GRC, in order to work with victims of rape as a counsellor. They say this: 

[C]are should be taken to note the word “might”. For example, the situation may well depend on how well the trans person “passes”: if it is not possible to tell by looking at / listening to a trans woman that she is transgender then it is far less likely that the genuine occupational requirement would apply as compared with, say, a trans woman who does not pass as well and in a number of respects still looks male. 

The idea that “passing” is something that can or should ever be judged as a condition for employment is fraught with difficulty and embarrassment, both for anyone called upon to make such an invidious judgement, and for the trans person concerned. But even if that difficulty could be overcome, it doesn’t seem fanciful to think that the ability of a rape victim to detect when she is in the presence of a man may be heightened: her perception might not coincide with that of the manager. But more seriously than either of those objections, it should be self-evident that a rape victim who wishes to speak to a female counsellor should be granted that wish without question, and without any threat of subterfuge. It is difficult to imagine a more heartless message to convey to a rape victim than “The person you are sitting with, alone in a room, talking about your experience of rape, will either be a woman, or else a man who passes so well as female that you won’t be able to tell.”

Conclusion 

If the objective of the book was to increase understanding of the law in this area, it must be judged an abject failure. Even a reader with little prior knowledge will be struck by the regularity with which the authors simply give up on the task of analysis: 

“The law is, at present, hopelessly confused… Society (and lawyers and legislators) still have much thinking to do” (p.xxi). 

“The position in respect of the Equality Act… is far from certain” (p.34). 

“Legislation is urgently required to clarify these provisions otherwise case law will be needed to fill the gap” (p.55). 

“There does not appear to be case law on the point…” p.58.

“Whether a school should intervene to act in a way apparently inconsistent with a pupil expressing their gender identity would appear to be legally untested” (p.101). 

“Whether treatment of trans pupils such as excluding them from dormitory-style accommodation would be a proportionate means of achieving a legitimate aim remains untested” (p.102).

“…. these provisions provide no guidance” (p.209).

“… this will remain a controversial area in which further legal challenges may be anticipated.” 

In some of these cases, there is genuine reason for uncertainty; in others, the law is clear enough, and the uncertainty imaginary. In both cases, readers looking for assistance will be disappointed by the authors’ repeated unwillingness even to attempt to provide it. If a pair of guides on a difficult mountain path were as consistently flummoxed as the authors of this book, their clients would be saying their prayers. In truth, there is little of either guidance or practical utility in White and Newbegin’s “practical guide”.

I am (even) more than usually grateful to the several “critical friends” from the Legal Feminist collective – and others beyond: you know who you are –  whose characteristically vigorous and forthright comments and editing and have improved this review beyond recognition from its first draft.