Defining ‘sex’.

This week it was announced that the government may seek to change the legal definition of ‘sex’ in the Equality Act 2010. Minister for Women and Equalities, Kemi Badenoch, asked the Equalities and Human Rights Commission (EHRC) to consider the “benefits or otherwise” of amending the definition of ‘sex’ to biological, creating a legal distinction between those assigned female at birth and those who have transitioned. It is suggested that this will provide “greater legal clarity” when confirming who can access women-only spaces, such as hospital wards, changing rooms, and domestic abuse refuges, as well as defining who can take part in women’s sports.

This move follows the Gender Recognition Reform Bill that was recently passed by the Scottish Parliament, introducing a system of self-declaration for obtaining a gender recognition certificate (GRC). It removed the need for a psychiatric diagnosis of gender dysphoria and reduced the time someone must have been living as their gender before they can apply, from two years to three months. The reform was intended to streamline the process, and to make it less invasive and less stressful for transgender people.

When the government attack the trans community, it is always under the guise of ‘women’s rights’. Let us be clear, the Tories are not concerned about women’s rights. If they were, they wouldn’t have recently voted against making misogyny a hate crime, against making the menopause a “protected characteristic” under the Equality Act, and against placing stalkers and domestic abusers on a national register. Also, if they genuinely cared about women’s rights, they’d take stronger action to increase the number of convictions for rape cases from an abysmal 1.6% in 2022. Similar to the government, the debate on right-wing talk shows consistently centres around the possibility that male attackers will self-identify as transwomen to infiltrate women-only spaces, particularly bathrooms and changing rooms, to commit physical and sexual attacks on them. Therefore, it needs to be stated loud and clear that “transwomen” is not synonymous with “rapists”, and that a man who is intent on attacking a woman will likely carry out those attacks without feeling the need to dress or identify as a woman. The focus, to prevent attackers, needs to be on educating boys and men and punishing them appropriately (which our rate of convictions indicates that we are failing at). Transpeople pose no threat to cisgender people. In fact, the converse is true, as Galop’s 2020 report found that “half of trans people experienced a transphobic attack in the street in the past 12 months”. Due to these high rates of physical, sexual, and verbal attacks, two-thirds of trans people are now afraid to use public bathrooms. Official 2020 figures from the police confirm that attacks are on the rise, stating that they were investigating seven transphobic attacks a day. In 2019 there were 2,540 transphobic attacks reported to the police but the number is suspected to be much higher as only one in seven trans victims report their attack to the police as they feel that the police are unable to help them.

Commonly overlooked during this debate is the effect that this policy would have on transwomen who would be required to use men-only spaces. Trans-women will be in much greater danger of being physically and sexually assaulted if they are in a men-only space. Similarly, trans-men are likely to feel equally uncomfortable in women’s spaces, particularly if their bodies are changing through the use of testosterone and if they present as a man. Also non-existent in this debate is the effect on non-binary and gender-fluid people. Gender-neutral toilets are not yet a regular feature of public places, with disabled toilets often being used for both purposes, and they are unlikely to be common anytime soon as the government moved, last year, to prevent the sole installation of gender-neutral facilities in non-residential buildings. As a result, non-binary and gender-fluid people often have to assess in which bathroom they will be more accepted, and therefore safer. This causes them social dysphoria and may force them to wait until they find a suitable bathroom, which could cause them internal organ damage. This situation is increasingly common and ostracisising those who live outside the binary will only hurt more people, both physically and mentally.

There is a deeper and far more insidious strand of this policy that speaks to the fascist nature of the current British government. Preventing transpeople from using whichever toilets they deem appropriate is a form of segregation that seeks to reassert the primary position of the binary, labelling anyone who strays from it as a dehumanised ‘other’, and consequently punishing them with fewer rights and freedoms. This binary pertains not only to gender but also to political leanings, race, sexuality, and religion, and the Tories are unafraid to weaponise any one of these and to vilify any minority in their mission to divide and conquer.

Transpeople are often used by the government to distract from the cost-of-living crisis that they refuse to solve, but a more long-term and dystopian aim is also evident. Examining the practical implications of this policy requires us to ask how these women-only spaces are intended to be policed and these rules enforced. Short of asking everyone their gender or which genitals they possess, the logical solution that we are seemingly being steered toward is the use of identity cards. These would, on the surface, be used to confirm one’s assumed gender and their sex at birth but they would also be used to provide us with one, centralised, identity number to be used across all of our government documents (passport, driving license, birth certificate, work and travel visas, pension and bank documents) while serving as our voter ID which is now required to participate in elections. The government would have one central point from which to monitor and control our lives and ensure that we toe the line (ie. obey the law and be submissive citizens or else). When combined with the recent Online Safety Bill that allows the government access to our public and private communications data while also criminalising the use of encrypted messaging apps, this attack on the freedom and rights of transpeople becomes an attack on the freedoms and rights of everyone.

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