2. The Legislative and Policy Framework

2. The Legislative and Policy Framework

Chapter Contents

This chapter examines the literature relating to the legislative and policy frameworks within the debate. Firstly, the chapter explores one important question when applying policies and laws related to sex-based rights: What is a ‘woman’? I scrutinise the opposing viewpoints of feminist activists fighting to retain the rights of women as a sex class, and transgender ideologists who, in their effort to improve the rights of transgender people, have adopted the mantra ‘transwomen are women’ as an immutable fact. I then detail the general public’s view of changing the landscape of the category ‘woman’.

The chapter then reviews the context and history of policy and legislation changes, through an analysis of the international mandate of the Yogyakarta Principles, which provides a historical view of the language utilised in the context of transgender ideology and the legislative frameworks of the GRA (2004). Before moving onto the reforms proposed for the United Kingdom’s Gender Recognition Act 2004 (GRA), I set out the protections enshrined in the Equality Act 2010 (EA2010) and detail the potential clashes between the GRA and the EA2010.  Following on, I set out the decisions resulting from the public consultations for gender reform from the governments of England and Wales, then Scotland. Finally, I evidence the tangible interference and influence of transgender ideology on institutional policy capture and the impact on women’s rights and single sex spaces. 

Adult Human Female

In 2018, the hundredth year of Women’s Suffrage (a denial of liberty in which the definition of womanhood was perfectly clear), the question “what is a woman” ironically appeared to be the most contentious discussion. The Oxford English Dictionary definition of woman is biological: ‘Woman, noun, an adult human female’ (“woman | Definition of woman in English by Oxford Dictionaries”, 2019). However, this definition of woman has also been deemed transphobic hate speech, with billboards displaying the definition removed (Woman billboard removed after trans row, 2018). According to the rules of transgender ideology, “transwomen are women”, and any disagreement or questioning, of this absolute, is transphobic (The truth about trans, 2017). Hines (2019) describes the positioning of women as the nexus of the second wave feminist project, which allowed them to demarcate their political community. However, she asserts, the anti-trans feminist rhetoric during this time was largely dismantled in academic analysis of the 1990s, which led to a bonding of gender and sex (Hines, 2019, p. 148). This leads us to the neat and impactful belief in the mantra “transwomen are women” (The truth about trans, 2017), however, as Sullivan (2020) succinctly asserts, “grown up, mature adults do not talk in slogans” (Parliamentlive TV, 2020, 16:37:30 – 16:39:52).

Figure 2 What is a Woman? Online Ethnography Screenshot May 2020

Public figures expressing opposing views to the mantra have been vilified (Allerdice, 2018; Bindel, 2020b; Murray, 2017; Turner, 2018; Yorke, 2017). In 2017, journalist Dame Jenni Murray and author Chimamanda Ngozi Adichie publicly stated their views that “transwomen are transwomen”, asserting socialisation as males impacts transwomen (Murray, 2017; Yorke, 2017), and received a vicious backlash from transgender rights activists (Allerdice, 2018; Turner, 2018). Perhaps the most maligned female critic of transgender ideology in the UK is feminist activist and journalist, Julie Bindel, who in 2004, wrote in The Guardian Weekender criticising transsexuality as a diagnosis based on “outdated” and “dangerous sex stereotypes” (Bindel, 2004). Since then, Bindel has been the target of transgender rights activists who have picketed venues she speaks at, issued threats on social media, and in one incident she was physically attacked after speaking at a feminist event by a man who identified as a woman (Bindel, 2019b; Bindel, 2020b). Arguably, the most pertinent part of Bindel’s article centred on the case of Vancouver Rape Relief v Kimberley Nixon already discussed (Bindel, 2004); she argued that any right for transwomen to gain access to places of safety for female victims of male violence should be prevented (Bindel, 2004). Bindel has apologised for the sarcasm used in her 2004 article but continues to be smeared and denigrated as a transphobic bigot (Bindel, 2019b). Proponents of transgender ideology argue that Bindel’s views are dangerous for transgender people and are contested by many other feminists (Hines, 2019, p. 152).

Transgender rights activists vilify people voicing disagreement with transgender ideology, and women remain the target of the most severe attacks, this continues with ferocity to the time of writing. Author JK Rowling is now experiencing the same treatment (Kirkup, 2020b) after publishing an essay objecting to transgender ideology’s impact on women and girls, in which she disclosed her experience of male violence, and expressed unequivocal support of female-only MVAW spaces (Rowling, 2020). Rowling’s essay and her digital presence on the topic was seen by some academics to be pseudo-feminist and a radicalisation of transphobic ideology (Fitzpatrick et al., 2020). She was subjected to repeated online threats of rape and murder (Massie, 2020; Phillip, 2020). The screenshots below show a fraction of what Rowling experienced after speaking out:

Figure 3 JK Rowling, Online Ethnography Screenshots, June to September 2020

But Rowling was not alone in her view on transgender ideology. Although the British Social Attitudes Survey, 2018, noted 72% of women say they are comfortable using the same toilet as a transwoman (British Social Attitudes, 2018, p. 17), a separate study, asking questions about transwomen retaining male genitalia evidenced different findings. The Populus (2018) online survey of 2074 participants found only 19% believe a self-identifying transwoman with a penis is a woman, and a significant proportion of the 19% did not agree transwomen should be treated as women in all circumstances, including in single sex spaces (Populus, 2018). This is important in our questioning of what a woman is, particularly in relation to female MVAW spaces. The British Societal Attitudes poll, initiated in 1983, samples over 3,000 people every year (British Social Attitudes, 2020), was repeated in 2020, and similarly to the Populus (2018) survey, found that when asked specific questions about medical transition, public views of whether or not someone is a woman do not indicate the blanket acceptance claimed by transgender ideologists (Smith, 2020). The You Gov 2020 poll found: “People tend to be fine with transgender people using facilities for their new gender, but not if they have not undergone gender reassignment surgery”(Smith, 2020). In addition, although support for transwomen in refuges still appears to be relatively high at 47%, the report adds that the question regarding transwomen in rape crisis and refuge spaces “was not asked about transgender women who have not undergone gender reassignment surgery” (Smith, 2020). As already noted, an estimated 80% of transwomen retain their male genitalia (Gender Identity Research and Education Society, 2015; Reed, 2015; Women and Girls in Scotland, 2019 p.6), leading to the conclusion that the survey points to a rejection of self-identified transwomen in female-only spaces.

The question “what is a woman?” is at the heart of this debate. Many feminist and trans activist scholars in the 1990s addressed and challenged anti-transgender feminism and explored the notion of a more plural definition of woman that included difference, in what they saw as a biologically determined model of gender and sex (Hines, 2019, p. 148). But for those disagreeing with transgender ideology, the word ‘woman’ defines every space reserved for females as an oppressed sex class, and fighting male violence against women becomes an impossible task if the category of ‘women’ includes males who identify as transgender, for: “If we cannot define women, we cannot defend them” (Field, 2019). This is not a theoretical position; and it began with the Yogyakarta Principles, which changed the landscape of the legislative and policy framework of the defining women, by focusing on the notions of self-identification and gender identity.

The Yogyakarta Principles (YPs)

The catalyst for the Principles was the International Bill of Gender Rights, a policy ‘wish-list’ created in 1995 (Jeffreys, 2018, p. 5). Jeffreys (2018) points out that “at the time it seemed outlandish, but subsequently these demands were then adopted” (Jeffreys, 2018, p. 5) and acted as a precursor to the YPs. Both the Bill and the Principles sit at the heart of much transgender campaigning (Whittle, 2017). The first demand in the Bill states that “all human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role”, which became the basis for the transgender rights section of the YPs (Jeffreys, 2018, p. 5; Roberts & Stuart, 1996, p. 4).

In 2006 a group of high-profile human rights experts met in Yogyakarta, Indonesia to outline a universal guide to the human rights relating to sexual orientation and gender identity (International Commission of Jurists (ICJ), 2007). This was updated in 2017 with ten more principles, referred to as ‘plus 10’ (International Commission of Jurists (ICJ), 2017). Ostensibly, the YPs were a positive move for states around the world to enshrine rights for Lesbian, Gay, Bisexual and Transgender plus (LGBT+) communities (International Commission of Jurists (ICJ), 2017), acting as a template for nation states to protect those likely to experience oppression (Brown, 2010, p. 828; International Commission of Jurists (ICJ), 2017). Although not legally binding, they have been used to lobby governments, for example, being instrumental in winning same-sex marriage laws in the UK (Whittle, 2017; International Commission of Jurists (ICJ), 2017). The YPs are directly influenced by queer theory, which will be discussed in chapter three (Waites, 2009, p. 141), leading to the erasure of the language protecting women as a sex class (Jeffreys, 2018).  

It is argued that the principles deliberately lay the groundwork to confuse ‘gender’ and ‘sex’ as there is little clarification of the terminology, and the principles employ ‘gender’ instead of ‘sex’, influencing the legislation and policies that followed (Jeffreys, 2008, pp. 328-329). The principles also enshrined the term ‘gender identity’ to incorporate the ideology that a person’s perceived, subjective feelings override their biological sex (Jeffreys, 2008, p. 329); this acts as a reference point for policies and legislation which conclude ‘gender identity’ is a biological characteristic, itself based on disproved notions of the ‘female’ brain (Jeffreys, 2008, p. 329; Jeffreys, 2018; Raymond, 1994, pp. 94, 99; Rippon, 2019, p. xi). Gender identity is subjective, positioning individualised feelings of having a ‘feminine’ or ‘masculine’ personality (International Commission of Jurists (ICJ), 2007, p.6); the Principles hold the expression of this personality has correlating stereotypes of e.g. dress, speech and behaviour (International Commission of Jurists (ICJ), 2007, p. 8). Henceforth, sex is replaced by ‘gender identity’.

These stereotypes are at odds with much feminist theory and activism (Jeffreys, 2008; Jeffreys, 2018). The YPs support the idea of ‘woman’ as a performance of stereotypes and feelings, with declarations of such feelings enabling them to claim the title of ‘womanhood’ and the rights associated with the female sex (Jeffreys, 2018). Greer (1971) contradicted this idea, stating “the sex of a person is attested in every cell of his body” (Greer, 2012, p. 29). There is no need to deny biology to progressively challenge gender stereotypes, and transgenderism as defined in the YPs transgresses no gender norms nor stretches any boundaries (Raymond, 1994, xix), instead simply swapping and reassigning gendered performances onto transgender individuals. But for many they promise a “future where all people born free and equal in dignity and rights can fulfil that precious birth right” (International Commission of Jurists (ICJ), 2007, p. 7).

Pertinent to this research, the principles also call on state parties to “Take all appropriate action” to achieve their goals (International Commission of Jurists (ICJ), 2007, p. 10; Jeffreys, 2018, p. 12). As will be discussed in chapter three, it can be confusing as to why this topic shuts down debates so aggressively, but the statement “all appropriate action” (International Commission of Jurists (ICJ), 2007, p. 10) could point to a justification for silencing or shaming voices who dissent to transgender ideologies. Although the principles do not have any force in law, they are widely accepted and very influential (Jeffreys, 2018, p. 3) with many incorporating them into legislation and using them as a reference point (Whittle, 2017).

The preamble for the YPs asserts that states should seek to eliminate sex-based stereotypes and roles for men and women (International Commission of Jurists (ICJ), 2017, p. 8), but then refer to the word ‘sex’ once, ‘gender’ six times and ‘gender identity’ seven times (International Commission of Jurists (ICJ), 2007). By using language that eliminates women as a sex class, the YPs actively support the enforcement of stereotypical roles for men and women, raising the question: how can sex-based stereotypes be eliminated when ‘gender identity’ is based on their performance (International Commission of Jurists (ICJ), 2017, p. 6)? In the YPs, gender performance equates to a literal change of sex, and anyone who opposes that is discriminating against a minority (International Commission of Jurists (ICJ), 2017, pp. 8-9). At heart, this imposes a binary assertion of stereotypes about how women and men look and behave; for feminists, this is a sexist assertion which impacts on the feminist project (Jeffreys, 2018).

The adoption and acceptance of the YPs by states has led to considerable gains for transgender ideology policy makers in recent years (Williams, 2020. pp. 24, 63). However, there remain clashes with legislative frameworks designed to protect transgender individuals and women.

Gender Recognition (2004) and the Equality Act (2010)               

Gender Recognition Act (2004)
Before proceeding it is important to note the differing definitions of ‘transsexual’ and ‘transgender’; ‘transsexual’ (unlike transgender) is not an umbrella term, as referenced in figure one in the introduction chapter, and refers to people who medically transition (GLAAD, 2020). The purpose of the UK’s Gender Recognition Act (GRA) (2004) is to provide transsexual people with legal recognition of their acquired gender and was hailed as one of the most progressive examples of human rights legislation across the world (House of Commons Women and Equalities Committee, 2015, p. 79; Jeffreys, 2008, p. 328). Notably, the (2004) UK legislation, went further than other countries at the time; for example, in Austria, South Australia, the Netherlands and Spain, gender recognition was only permitted for trans people who had undergone surgery, whereas UK legislation allows transgender people who had neither had surgical or hormonal treatment (Jeffreys, 2008, p. 328).

The original GRA was designed for between two and five thousand transsexual people (Home Office, 2000, p. 3). It was initiated following the case of Goodwin v UK in the European Court of Human Rights (EHCR), which found violations in two Human Rights articles – Article 8, the right to private life and Article 12, the right to marry (Case of Christine Goodwin v. The United Kingdom, 2002). Although the ECHR admitted there would be repercussions from the GRA for third parties, including women, they felt due to the small numbers of transsexual people in the UK, changes would not “pose a threat of overturning the entire system” or be “insuperable” (Case of Christine Goodwin v. The United Kingdom, 2002, pp. 25, 26; Norman, 2018). Following the EHCR decision, the Gender Recognition Act was initiated, which subsequently gave specific legislative rights to transgender people. But in recent years clashes between legislative and policy frameworks have been illuminated, none more so than through the UK’s Equality Act (2010).

Equality Act (2010)
The Equality Act (2010) (EA2010), legally protects people in the UK from discrimination through nine ‘protected characteristics’:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation (Equality Act, 2010, p.15).

The salient protected characteristics (PC/s) for my research are ‘sex’ and ‘gender reassignment’. Generally, the EA2010 does not allow for discrimination against any of the PCs, however, there are exceptions in certain circumstances. The relevant protections for women experiencing male violence remain within the PC of sex and involve the use of single sex exemptions (Whitfield, 2018). These exemptions legally entitle the use of women-only spaces, including for sports, occupations and, most notably for this research, single or separate sex services for refuges or therapeutic groups (Equality Act, 2010, p. 150). Schedule 3 paragraph 26-28 of the Act state, “services can be provided to persons of one sex” and “this provision must be a proportionate means of achieving a legitimate aim” (Equality Act, 2010, p. 150); i.e. that the service would not be effective if offered to both sexes. Additionally, under the occupational requirements set out in Schedule 9 Part 1 of the Equality Act (2010) MVAW services are able to provide female-only staff, again, the test for the application of the requirementmust be“a proportionate means of achieving a legitimate aim” (Equality Act, 2010, pp. 170-171).

For the purposes of the EA2010, single sex exemptions are based on the biological reality of men and women (Forstater, 2019); a man who is legally recognised through a GRC as a woman, does not become a ‘female’ (Equality Act, 2010, p. 150–15; Whitfield, 2018). The law remains sexed and the guidance definitively states: ““man” means a male of any age” and ““woman” means a female of any age” (Equality Act, 2010, p. 132; Komorowski, 2020). Therefore, the Equality Act (2010) legally allows an organisation to provide single sex services and staff to female victims of male violence and to exclude any male, with or without the PC of gender reassignment (Forstater, 2019; Komorowski, 2020; Whitfield, 2018).

At the release of the public consultation on proposed changes to the GRA (2004), in 2018, the government of England and Wales sought to reassure the public that there would be no change to the Equality Act (2010). They conceded there were fears about how the two pieces of legislation would interact and sought to understand these fears through consultation (Women and Equalities Committee, 2018, p. 3). This followed a number of feminist groups consistently raising questions about the government’s intention to change the Act (Williams, 2018; Woman’s Place UK, 2018a), in particular, that any adoption of self-identification of gender would clash with the PC of sex in the EA2010, and the use of single sex exemptions (“Petition: Consult with women on proposals to enshrine ‘gender identity’ in law”, 2018; Williams, 2018).

Despite this statement, it is arguably only because of such grassroots feminist groups that the government clarified there would be no amendment of the EA2010 (Woman’s Place UK, 2018b). The Transgender Equality (2016) report received repeated submissions from transgender lobby groups to amend the EA2010, including adding ‘gender identity’ as a PC and removing the protection that permits the refusal of transgender people to access women-only spaces under the exemptions (Woman’s Place UK, 2018b). A number of trans lobby groups including Stonewall, Gendered Intelligence and the Scottish Transgender Alliance had significant influence over the inquiry, with the committee recommending in their report that the EA2010 be amended (House of Commons Women and Equalities Committee, 2016, p. 23 -24, 27, 32, 83).

It is argued that if self-ID is adopted in law, there can be no reassurance that the EA2010 would not be compromised (Norman, 2018). It can also be reasonably deduced that some trans-inclusive policies currently held by institutions and organisations are in contradiction to the protections held for females, within the EA2010 (Komorowski, 2020). Services including transwomen in female-only spaces forfeit their rights under the EA2010 exemptions (Komorowski, 2020), meaning they “cease to be services segregated or exclusive on the basis of sex, and thus lose their exception from the obligations not to discriminate because of sex” (Komorowski, 2020). This means any criteria applied by services stating what type of transwoman they will accept are entirely arbitrary and are subsequently open to litigation by potential men wishing to abuse the system to gain access (Komorowski, 2020).

A change in the law will risk sex-based rights (Ludwig, 2020), and this has played out in the United States where the US Equality Act, passed in 2019, has redefined the protection of women as a sex class to include gender identity, forgoing the rights of women and creating a clash between sex-based rights and gender identity rights (Burt, 2020,  p. 363). Services built by second wave feminists were based on the reality of biological sex, not on self-determined gender identity (Dobash & Dobash, 1983, pp.2-3, 13). The proposed changes to the GRA (2004) highlighted the conflict between women’s sex-based rights and transgender ideology. 

Proposed Changes to the Gender Recognition Act (2004)

Transgender ideologists argue the GRA (2004) is now labelled outdated, discriminatory, and in need of updating (House of Commons Women and Equalities Committee, 2015, p. 11; Stonewall, 2018). In 2016, the UK government, arguably unwittingly, plunged headfirst into what would become the current furious debate when publishing the Transgender Equality (2016) report proposing gender reform (House of Commons Women and Equalities Committee, 2016, pp. 79-80).

The proposed changes to the GRA (2004) centre on the adoption of self-identification, and a de-medicalisation of the current process (House of Commons Women and Equalities Committee, 2016, pp. 79-80), allowing anyone to self-declare their gender/sex without a formal diagnosis of gender dysphoria, removing the need for a panel to assess their application (House of Commons Women and Equalities Committee, 2016, p. 80). It is likely the UK government was unaware of the backlash it would receive from feminist activists, as many other countries had already changed laws to introduce self-identification of gender, with trans lobby groups claiming there had been no resulting problems (Equality and Rights, 2019; House of Commons Women and Equalities Committee, 2015, p. 13; O’Hagan, 2018; Unison Equality 2020). However, as already shown, this claim is incorrect, in reality, self-ID has acted to the detriment of vulnerable women, who have arguably  been used as guinea pigs by their governments, and left vulnerable to predatory men accessing women’s spaces under the guise of self-ID (Appleton, 2018; Balinksi, 2014; Bindel, Manning & Powell, 2019; Brean, 2018; Hoggard, 2018; Peebles, 2019; Trans Crime UK, 2019). The House of Commons Women and Equalities committee stated on the launch of the reforms that the current process “runs contrary to the dignity and personal autonomy of applicants” (House of Commons Women and Equalities Committee, 2016, p. 3). The Transgender Equality (2016) report did not predict any issues for women as a sex class from the proposals, as women were simply not asked about it. The pattern of silencing and excluding women from the debate continued in the same way in which the original 2004 Act was conducted (Jeffrey’s 2008, p. 328), although somewhat ironically, it was the Women and Equalities committee that decided to exclude women’s groups and the only oral evidence heard at the inquiry, aside from ministers, was from transgender lobby groups (House of Commons Women and Equalities Committee, 2016, p. 91). For many women this was just the start of a long journey in which they would be silenced in this debate (Woman’s Place UK, 2020b). The Scottish government’s consultation phase ran similarly, and the Scottish National Party was forced to halt implementation of the proposed changes after pressure from women’s groups found no equality impact assessments were undertaken for women and girls (Somerville, 2019). 

The terms ‘gender identity’ and ‘self-declaration’ were missing from the original 2004 Act, although transgender lobbyists had been pushing for self-declaration for decades, with many successes in terms of policy capture (Williams, 2020, p. 24). Hence the language of the Yogyakarta Principles is also found in the proposals for reform, and the Transgender Equality (2016) report recommends adoption of the YPs for England and Wales (House of Commons Women and Equalities Committee, 2016, pp. 9-10). In the consultation document for reforming the GRA, the Government for England and Wales followed the original Act, consistently confusing ‘sex’ and ‘gender’ (House of Commons Women and Equalities Committee, 2016, pp. 11 -13). McQueen (2016) states, although the GRA (2004) gives rise to complex and contentious issues, it is ultimately a piece of legislation that supports trans identities (McQueen, 2016, pp. 681, 683) and defends the use of ‘sex’ and ‘gender’ within the legislation, stating trans identities are no threat to radical feminist’s political assertions (McQueen, 2016, pp. 681, 683). The reality of the GRA (2004) – even prior to reform – is that it blurs the boundaries of sex, gender, and identity, and calls into question the biological sex binary, which for those proposing gender reform, is the exact point (McQueen, 2016, p. 673, 682). It is hard to imagine that this part of the debate will ever be settled. Those who believe that there can be delineations to biological definitions of male and female may have no issue with the complex ethical and political questions that arise from the new proposal of self-declaration.

The arguments from lobby groups for reforming the current Gender Recognition Act were compelling for the 2016 women and equalities committee (House of Commons Women and Equalities Committee, 2016). The experience of many people who identify as transgender is woefully inadequate when it comes to accessing healthcare, housing and employment and oral submissions also highlighted the hate crimes experienced by transgender people (House of Commons Women and Equalities Committee, 2016, pp. 9, 12, 37, 39, 59). In relation to single sex spaces for victims of male violence, the Transgender Equality (2016) report details objections to the exemptions laid out in the Equality Act (2010) (Equality Act, 2010, p. 150; House of Commons Women and Equalities Committee, 2016, pp. 27-32). Although some supported these protections (House of Commons Women and Equalities Committee, 2016, pp. 27-28), submissions were weighted in favour of lobbyists who believe the exclusion of transgender women from MVAW services is discriminatory and should be repealed (House of Commons Women and Equalities Committee, 2016, pp. 27-32, 28-32). Morton, of the Transgender Alliance, stated MVAW services “would work to educate” women to accept transwomen and a further submission called the exemptions a “disgrace”(House of Commons Women and Equalities Committee, 2016, pp. 28-29). A discussion regarding the guidance for current exemptions under the Equality Act (2010) revealed confusion about the test for services to exempt transgender people from single sex spaces as a “proportionate means of achieving a legitimate aim” (Equality Act, 2010, p. 150). Barrister, McCann, a supporter of the proposed changes, asserts that the current Equality Act (2010) guidance is “drafted too categorically” (House of Commons Women and Equalities Committee, 2016, p. 30) and views the EA2010 as discriminatory to transwomen accessing spaces as service users and staff, asserting it is unlikely that a court will uphold a service applying single sex exemptions as proportionate if the transwoman has a GRC (House of Commons Women and Equalities Committee, 2016, p. 30 (130). This reading of the single sex exemptions in the Equality Act (2010) is contested by other legal experts (Norman, 2018; Whitfield, 2018), and the Equality and Human Rights Commission do provide guidance under their statutory code of practice unequivocally stating: “the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment”(Equality and Human Rights Commission, 2011, p. 197). This evidences the differing views in the reading of the single sex exemption clauses in the EA2010, and the solution offered up by transgender lobbyists is to amend the Act and remove the protections for women as a sex class, which was subsequently upheld in the report’s recommendations (House of Commons Women and Equalities Committee, 2016, pp. 27, 30).

In autumn 2020, the government of England and Wales announced the results of the consultation (Truss, 2020), and rejected the proposals to change the Gender Recognition Act (2004), asserting that the “balance struck in this legislation is correct” (Truss, 2020). This was a huge win for grassroots women’s groups who worked tirelessly to prevent the reforms (Fair Play for Women, 2020); as history evidences, feminist activism can resist in a meaningful way when the agenda is unapologetic, uncompromising, unsanitised and public (Faludi, 1992 p. 494), this proved to be the case in the gender reform debate (Kirkup, 2020a). But the decision was a huge blow to transgender lobbyists who were shocked and upset with the results (Kelley, 2020). The Minister for Women and Equalities confirmed the Equality Act does allow “service providers to restrict access to single sex spaces on the basis of biological sex if there is a clear justification” (Truss, 2020). This clarification gives confidence to MVAW services in applying blanket policies to exemptions, although it is apparent that much clearer guidance is required in this area of law (Murray, Blackburn, Mackenzie, 2020). The Scottish government have yet to announce the results of their consultation and appear to have suspended any analysis which remains a concern (Murray, Blackburn, Mackenzie, 2020). As with England and Wales, the grassroots feminist fightback has been just as tangible north of the border (Daisley, 2020). Like their southern sisters, they are ridiculed and traduced, and despite the public smearing and shaming, refuse to give up the fight (Daisley, 2020). But the implications of the current legislation and the consultations for reform remain current. Whether reforms occur or are shelved, the policy capture towards self-ID illustrates it is a problem that is already here (Williams, 2020, p. 24).

Institutional Policy Capture

When a theory is transformed into an ideology, it begins to destroy the self and self-knowledge. Originally born of feeling, it pretends to float above and around feeling. Above sensation. It organizes experience according to itself, without touching experience. By virtue of being itself, it is supposed to know. To invoke the name of this ideology is to confer truthfulness. No one can tell it anything new. Experience ceases to surprise it, inform it, transform it. It is annoyed by any detail which does not fit into its world(Griffin, 1982 p. 648).

Perhaps expecting GRA reform in the UK (Robinson & Blunt, 2020), many institutions have adopted transgender ideology in policy, but there are many reasons mixed sex spaces do not work for women and girls. In her book Our Bodies, Their Battlefield (2020), Lamb states rape is the ‘cheapest weapon known to man’ (Lamb, 2020, p. 3) and highlights historic references from the Greek classics to the second world war where men have used their genitalia as a weapon against women (Lamb, 2020, pp. 3, 6). Women have every reason to be fearful of some men who use sex as an oppressive weapon, and the impact of transgender ideology on MVAW services resides not only in the safety of women, but equally, in their privacy and dignity.

Toilet provision is a frequent focal point in discussions on transgender inclusivity in policy and practice. The provision of single-sex public toilets for women is seen by many as a feminist victory and a symbol of progress for women’s equality as it enables us to partake in public life (Greed & Bichard, 2012, p. 545 – 547; Jeffreys, 2014b, p. 44). However, advocates for gender-neutral provision argue feminists use the ‘toilet debate’ as a form of gatekeeping to exclude transwomen from their spaces (Jones & Slater, 2020, p.839). The NHS has also come under fire for applying trans-inclusive policies in hospitals, resulting in mixed sex wards within mental health provision (Department of Health UK Gov, 2018, p.157), which have led to serious sexual assaults against women, and the UK government now assert that wards should be “genuinely single sex” (Department of Health UK Gov, 2018, p.157).

Other examples of policy capture which have led directly to MVAW include the female prison estate. It is of concern that the Ministry of Justice (MOJ) policy enables the housing of male prisoners according to their chosen gender (Beard, 2018), particularly as half of all transgender prisoners are sex offenders or dangerous category ‘A’ inmates (Williams, 2017). Predictably, in 2018, a rapist used the MOJ transgender policy, which had been in operation for some time (Beard, 2018), to gain access to the female prison estate. Stephen Woods self-declared his transgender status as ‘Karen White’, and despite his previous convictions for sex offences against women, was given full access to reside in a female prison (Topping, 2018). Woods perpetrated sexual violence towards four women, one of whom is now taking the government to court for failing to protect her (Evans, 2018; Williams, 2020, p. 39).

It is also viewed by feminists as highly dangerous and offensive when rapists like Woods declare they are women, their crimes are recorded and reported as female crimes (Hellen, 2019; IPSO Guidance, 2016). Subsequently, at the point they are brought to justice, the Crown Prosecution Service and judiciary will insist a male rapist is referred to as ‘she’ during the legal process, including by his victim (Equal Treatment Bench Book, 2018). This policy, supported by only 12% of the British public (Biggs, 2020; Populus, 2018), played out at Woods trial when the prosecutor reported: “Her penis was erect and sticking out the top of her trousers”(Biggs, 2020). One could argue this amounts to a mandate for gaslighting rape victims, hearing all court officials referring to the man who raped them as she; and further, that being forced to use this language constitutes a state-sanctioned abusive act, prioritising pronouns over the rights of female victims (Newman, 2020). Yet these are obvious outcomes from the transgender ideological mantra ‘transwomen are women’. Redefining the word woman removes the biological weapon used by the perpetrator, and by referring to a male rapist as ‘she’, these policies directly oppose the language of the law which in rape is defined as “A person (A) commits an offence if: he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis” (Trans Crime UK, 2019; Public Accountability and Inclusion Directorate, 2014; Sexual Offences Act, 2003, Part 1).

Biggs (2020) notes trans activism’s success in a decade in influencing both governments and organisations, even though transgender people represent a tiny minority who “lack electoral weight and purchasing power” (Biggs, 2020, p. 1). However, new research, The Political Erasure of Sex (2020) reports the policy capture of transgender ideology in the UK census, showing a heavy weight of interference from transgender lobbyists on both the Office of National Statistics and National Records for Scotland, with the aim of stopping the collection of sex aggregated data – gathered in the United Kingdom since 1801 (Jones & Mackenzie, 2020, p. 4). The report finds the shift has occurred “due to undemocratic policy capture, effected by interest groups who believe…that the legal and civic recognition of people’s lived gender identity should be considered more important, and…should overwrite, the recognition of biological sex.”(Jones & Mackenzie, 2020, p. 7).

More recently, For Women Scotland (FWS), a small grassroots collective of women, succeeded in securing a judicial review against the Scottish government to assess the government’s redefinition of the word ‘woman’ in the Gender Representation on Public Boards (Scotland) Act 2018, which they hold to be “outside the legislative competency of the Scottish Parliament under the Scotland Act (1998), and in contravention of Scottish Ministers’ duties under equality legislation” (For Women Scotland, 2020). The Act was created to increase women’s presence on public boards but buried within it is a redefinition of the word ‘woman’ to include any man who self-identifies as one (Daisley, 2020), contradicting the legislative features of the PC of sex within the Equality Act (2010) (Daisley, 2020). The assertion of FWS is this move constitutes self-ID through the back door, and if the Scottish government can redefine the concept of woman in this legislation, they will do so elsewhere (Daisley, 2020); the case is set for spring of 2021. Further evidence indicates between 2017 and 2019, gender self-ID has become a feature of Scottish policy making, without any real regulation or scrutiny on how it impacts other affected groups, namely women (Murray & Hunter Blackburn, 2019, p. 262).

Much of the work on policy capture has been done behind the scenes, ahead of any legislative change (Jones & Mackenzie, 2020 p. 8), as an official tactic of campaigners. An internationally-focused document supported by Dentons law firm (IGLYO in partnership with Trustlaw, Dentons Europe LLP, 2019), advises transgender lobby groups to avoid excessive press coverage, and to use other progressive legislation like same sex marriage as a veil of protection, bringing as little public attention to self-declaration legislation as possible as it is hard to win public support for (IGLYO in partnership with Trustlaw, Dentons Europe LLP, 2019; Kirkup, 2019). These tactics were also found in a statement from the All-Party Parliamentary LGBT+ Group after the England and Wales gender reform proposals were scrapped in 2020. The chair of the committee expressed regret that “the considerable work done in privately agreeing a way forward by the wider LGBT+ lobby both in Parliament and outside…was not adopted” (Robinson & Blunt, 2020). This is perhaps the most telling indication of how transgender policy capture has taken hold: by lobbying privately and shutting down public debate, transgender lobbyists have made considerable gains in policy change. Despite these ‘private agreements’, when gender reform began to gather momentum in the UK, women spoke up, though their voices were largely ignored by MPs, political parties, and institutions (Kirkup, 2020a). The MVAW sector itself remained passive and silent. 

Summary

The legislative frameworks encompassing the rights of transgender individuals and women undoubtedly clash. Although this was predicted by lawmakers at the inauguration of the original GRA in 2004, the clashes have only since been illuminated through transgender lobbyists’ proposals to change both the GRA (2004) and the Equality Act (2010). Perhaps because of the proposals to reform legislation, transgender ideology policy creep has been highlighted, which began years prior to the recent debate through the mandating of the Yogyakarta Principles, and has become mainstream in its application for many institutions. This raises important questions for the MVAW sector, and this research provides an original and unique opportunity to explore those queries. It is important to explore the literature relating to the academic context of the debate, which I turn to next.