‘Gender Recognition and the Rights of Transgender People’: A Response to The Common’s Briefing Paper

This letter is a guest post by @hatpinwoman, written in response to the House of Common’s Briefing Paper ‘Gender Recognition and the Rights of Transgender People,’ published yesterday, July 16 2020.

 

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To whom it may concern at the House of Commons,

I am writing to you in response to the recently published commons briefing paper entitled “Gender Recognition And The Rights of Transgender People”. It contains both crucial factual errors and statements the veracity of which have not been ascertained.

In order of appearance in the document the points that are contentious are:

i) The documents states that the term transsexual is a “predominantly historical term”. A significant minority within the transgender community continue to call themselves and consider themselves to be transsexual as they have always done. The discarding of the term seems to be extremely premature.

As an especially vulnerable group of people who have a medical diagnosis and follow a path of full or near full transition, their needs and requirements may be considered to be potentially very different to a much larger group who do not have full (or even sometimes any) medical interventions.

ii) The idea that the term acquired gender should be replaced with the term affirmed gender is surely ideological rather than a matter of the law. It is in line with the language used in current models of care which suggest affirmation rather than the more traditional watchful waiting is the correct medical response to patients presenting with dysphoria and a desire for transition.

The replacing of the watchful waiting approach is contentious among some clinicians in the field, and potentially opens the medical profession up to a situation where many patients will be harmed because gender dysphoria is not synonymous with a need to transition. There are, in fact, many reasons why a person might experience dysphoria and many outcomes for such patients. Transition being of benefit to some of them but not all.

The language of “affirmed gender” is a less robust term for the law to use when “affirmed” is so much more wishy-washy than acquired, and it also seems to endorse one specific way of responding to patients with dysphoria. This is surely beyond the remit of Parliament.

iii) The statement from a quote by Transgender Equality that “each of us is assigned a sex at birth” is completely untrue. Our sex is observed and recorded. It is not a random designation, nor is it a rough guess. For the vast majority of people sex is entirely unambiguous. This holds true in Transgender people who are not substantially more likely to have DSDs than the rest of the population. (DSDs are differences, or disorders, of sexual development. Colloquially people may use the term intersex).

We know this because the medical profession has done some research that involves karyotyping patients. Some have found a higher incidence of conditions like Klinefelters syndrome (in which sex would not be ambiguous), others have found no statistically significant difference between incidence of DSDs in trans and non trans people. The consensus thus far is that because the results were consistent enough with the rest of the population it is of limited or even no use in evaluation, diagnosis and treatment.

In outlier cases where it might be of value the largest study I can find on this, to date, states that “patients with DSDs will typically have other clinical or hormonal signs that would point to a DSD diagnosis” (Inoubli et al)

“Assigned sex at birth” is language specifically taken from a small number within the minority of those who have DSDs and it is used in the rare cases where sex does have to be assigned. It seems wrong to take useful language away from a small group of people and generalise it, in a way that makes no sense, to the rest of the population.

iv) The statement , also from transgender equality, that “Trans identity can be “non-binary” in character, located at a (fixed or variable) point along a continuum between male and female; or “non-gendered”, i.e. involving identification as neither” also raises questions about where these fixed or variable points are, how they are measured and what it means to identity as less or more male or female given that the body is clearly one or the other. It seems that Sex and Gender are conflated here which is wrong.

v) the statement “gender dysphoria is not related to sexual orientation” is a highly disputable assertion given that the vast majority of children and young people who develop dysphoria in childhood will not grow up to be trans, but to be gay, lesbian or bisexual.

Additionally current concerns raised by some clinicians at the children’s gender service, GIDS, that gay and lesbian adolescents are being inadvertently transitioned suggest that sexuality is a fundamental consideration when dealing with dysphoria.

Further, clinicians such as Kenneth Zucker, a world renowned expert, notes that “sexual orientation is associated with meaningful differences among GD adolescents and adults”

vi) The statement was made in the report that “Gender Dysphoria is not in itself a mental health condition”. This is concerning.

Gender Dysphoria still appears in DSM-5 which is the latest edition of the Diagnostic and Statistical Manual of Mental Disorders.

The American Psychiatric Association, who are responsible for publishing the DSM, also state that:

“It is important to note that gender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.”

The assertion that gender dysphoria is not a mental health condition stands to undermine mental health resources for patients, push them towards the singular treatment of transition which is not always appropriate and even potentially fail to offer them treatment at all.

vii) The assertion that puberty blockers are a “physically reversible intervention” is still in contention given that we do not know the long term effects. How can one assert something is reversible if we do not know the full consequences of a treatment yet? All we can state is that puberty resumes in patients. This does not make it fully reversible unless we can ascertain that their bones, brains, pituitary gland functioning and cognitive abilities are unaffected.

viii) The section about the safeguarding of children (and young people) undergoing treatment for gender dysphoria fails to mention ongoing concerns raised by the staff of GIDS about the standard of care these children are receiving. These concerns have been detailed, for example, in The Times and by the BBC. It is not helpful for MPs to be unaware of this issue.

ix) Where it talks of conversion therapies the report says

“The NHS does “not deliver, promote or refer individuals to any form of conversion therapy.” Conversion therapy is an umbrella term used in relation to:

 …a therapeutic approach, or any model or individual viewpoint that demonstrates an assumption that any gender identity is inherently preferable to any other, and which attempts to bring about a change of gender identity, or seeks to suppress an individual’s expression of gender identity on that basis.”

 This is misleading in its glossing over of things. Conversion therapy is indeed a harmful and heinous practice. Traditionally used to attempt to convert homosexual people to being heterosexual, it was, and is, barbarous.

How this relates to gender identity is unclear. A watchful waiting approach that addresses other issues the patient is experiencing and attempts to ameloriate those is not conversion therapy. It is simply treatment.

Affirmation in a sense is the absence of treatment because it presupposes an outcome: that a patient is trans. The idea that an innate gender identity is responsible for the symptoms in all cases, rather than the symptoms being potentially a product of a variety of things is objectively incorrect.

Any patient who is not trans and is only given affirmation is at risk of medical mistreatment. A growing number of detransitioners are now coming forward to tell their stories which suggests this is precisely what is already happening.

x) When discussing the protected characteristic of Gender Reassignment in the Equality Act, the report states the following about how gender reassignment is defined.

“A notable feature of this definition is that, unlike previous equality legislation, there is no need to be undergoing a medical process of transition. That is because the phrase “proposing to undergo” has a broad meaning.

 The point at which a person is deemed to be “proposing to undergo” was explained by the Solicitor General in 2009 during the Equality Bill’s consideration in committee:

 “proposing” suggests a more definite decision point, at which the person’s protected characteristic would immediately come into being. There are a lot of ways in which that can be manifested— for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away.

 Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That, too, would mean that they were protected.”

I cannot speak to the accuracy of this interpretation but I do wonder at it. We have already seen cases, such as Karen White and Katie Dolatowski, where individuals have been predatory and look to be using transitioning as a cover for this.

We also know, for example, from prior research that there is a “small but concerning minority” of people who will try to transition to gain access to children because they are paedophiles. (Gender Reassignment: 5 years of referrals in Oxfordshire).

The interpretation of gender reassignment as a protected characteristic as explained by the solicitor general does not incidentally or accidentally give these people the protected characteristic of gender reassignment. It seems explicitly to allow them such. A person who dresses or behaves “like someone who is changing their gender” is not someone who, in fact, is necessarily changing their gender.

xi) When discussing single sex exemptions that allow for provision of single sex services and spaces for women the report asserts

“Under the genuine occupational requirement provisions, an employer may impose a “requirement not to be a transsexual person”. The Act’s Explanatory Notes provide the following example:

 A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.

 As with the Explanatory Notes’ description of the services exception (see above), legal commentators argue this example inadequately describes the duties on employers:

 There are very real concerns that such guidance is too categorical and fails to emphasize the lengths an employer …would need to go to in order to demonstrate proportionality as an adequate defence to discrimination.”

This seems to set the bar one is required to meet to offer women single sex services impossibly high. It is not enough, apparently, for common sense and humanity to women to prevail and to consequently allow them to have single sex provisions.

Instead it must be such a hoop for an employer to jump through that one wonders if they would risk doing so.

Yet, many women very much require sex based rights both because being a member of the female sex remains a distinct physical and social experience, and because the group of people most likely to be violent towards them are male.

The fact that it is even in dispute that women might automatically expect their rape service providers will be female (or as per the previous example cited that their female counselling groups will be female only) is astonishing.

No one, except the most churlish among us, would begrudge trans people specific and exclusive resources and particularly when they are at their most vulnerable. One has to wonder why it is the case that women must be expected to forego a similar level of compassion and accommodation. It is unlikely when the bar for justification of these needs is set so high that service providers will feel comfortable insisting on providing female only provisions.

Given that this is already notably the case, the interpretation of the single sex exemptions must be more concrete, more intuitive and more decent towards the female sex.

xii) With regards to the spousal veto, the women and equalities committee has, to its credit, apparently spoken to the trans community about their thoughts on this. What it doesn’t appear to have done is also spoken to the (mainly) women who will be affected by the removal of the spousal veto. This is an oversight when the veto is something that both parties have a vested interest in.

xiii) The statement made that “Some argue that biological sex differences are immutable” is somewhat confounding. This seems to imply that there is some kind of reasonable argument that they are mutable, but biological sex cannot be changed and this is surely the foundational point of understanding for this whole debate. Trans people really cannot exist within the law, or transition in any meaningful way, if biological sex is not a concrete thing. Nor can women expect single sex exemptions to have any meaning at all.

xiv) The section entitled “the self identification debate” has a good attempt at covering the issue of the ongoing disagreements between groups, but really wouldn’t inform someone outside of the debate of the tenor of behaviour women have been on the receiving end of.

I personally speak anonymously on this issue because I was threatened with violence, told I would be executed with a guillotine, socially ostracised, and my friends were told they must disown me, for raising issues on this subject. In a manner no more offensive than the one I am writing with here. I have been relatively lucky in terms of the kind of campaign of terror I have received.

The level of rape threats, death threats, letters to employers, attempts at public denigration and shaming, and the misogynistic hostility women have faced while trying to talk about changes in law that concern them, too, has been unacceptable in a democracy. It is not only trolls and internet ruffians who have engaged in this behaviour, either.

Calling women “terfs” and intimidating, maligning and dismissing them on that basis has been horrifyingly widespread. So has the constant impugning of their character to assume that their motivations must necessarily be hateful.

Thank you for your time in reading my response,

Yours sincerely,

Lorelei

 

5 comments

  1. Not only is the bar to provide single sex service too high there is also the threat of loss of funding. Some providers are told they’ll only receive funding if they’re trans-inclusive therefore not allowing women’s services to be fully for women.

  2. This is excellent, Lorelei.

    Your point about conversion therapy (point x) is well made and I think this will be a battleground when the Government puts forward legislation.

    There’s the possibility that any new Bill will be based at least partly on the Private Members Bill introduced by Geriant Davies in the last Parliament. In making conversion therapy illegal, the draft Bill said:

    In this Act, “conversion therapy” is any form of therapy which demonstrates an assumption that any sexual orientation or gender identity is inherently preferable to any other and attempts to—
    (a)change a person’s sexual orientation or gender identity, or
    (b)suppress a person’s expression of sexual orientation or gender identity.

    It’s worth noting that a previous version of this in an earlier Parliament made no mention of gender.

    This would appear to effectively ban counsellors and psychotherapists from doing anything other than affirming whatever gender a patient says they are. That it does so under the cover of banning gay conversion is, I believe, no accident, but carefully contrived.

    The danger is that with gender ‘conversion’ so completely intertwined with sexual orientation conversion therapy, Parliament (and the public) will be swept along in supporting it as a whole because gay conversion does need to be made unlawful. I have little confidence that MPs will be able to tease out the issues.

  3. Wow, what a detailed and considered response. Thank you for sharing it. I am reading the Government Briefing and I have just picked up, under 1.2 Gender Dysphoria the following: “Not all transgender or non-binary people will have gender dysphoria…” This makes no sense. Without the condition of gender dysphoria why would a person be transgender? Unless this briefing paper is considering all those various fetishes and paraphilias now included in the Stonewall definition. Without a proven diagnosis of gender dysphoria this would allow, for instance, AGPs and cross dressers the same access to women’s single sex spaces as transsexuals whenever an exemption was not applied.

  4. Having read the briefing paper for the second time (it does require careful study) one thing that I think is important and that is missing is the reporting for statistical purposes of “gender identification” rather than biological sex, for instance via census. This is important for policy decisions by government departments and also for health reasons. Crimes by men identifying as women are recorded as being committed by women, thus confusing the crime statistics. Men identifying as women, and vice versa, being recorded as the gender they prefer rather than their biological sex when using various services again result in inaccurate statistics and possibly inappropriate health treatment. This does come under the heading of Gender recognition and the rights of Transgender people and needs to be carefully considered.

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