Gender Recognition Act: Trans rights versus feminism?

Issue section: 
(427)

Proposed changes to the Gender Recognition Act which would allow trans people to self-declare their gender have reignited debates about trans rights and women’s oppression. Sally Campbell argues that socialists must support the right to self-identify.

In the early hours of Tuesday 22 August Kiwi Herring, a 30 year old trans woman and mother of three, was shot dead by police in St Louis, US. Police had been called after Kiwi had allegedly stabbed her neighbour. After an altercation during which one police officer received a “minor injury”, the police opened fire.

The following day around 100 supporters held a vigil in her honour and marched into the road, blocking a junction. A man drove into the protest, knocking over three people — though none was seriously hurt. One witness reported that he was giving them the finger as he accelerated through the crowd.

Kiwi is the 18th known trans person killed this year. Like her, the majority are black women. Kiwi’s family report that her neighbour was transphobic and had been harassing her for some time.

I start here because in any discussion about trans rights it is crucial to begin with a recognition of the reality of trans oppression. The events described above tell a story of structural racism and transphobia, experienced at the hands of the state and of bigoted individuals. They also tell of trans people and supporters refusing to be silent.

And transphobia is rife. According to the Galop Hate Crime Report 2016, some 79 percent of trans people have experienced a hate crime. Of those 32 percent had experienced a violent hate crime (compared to 25 percent of all LGBT people); 16 percent had suffered sexual violence (9 percent of all LGBT). Various studies have shown that up to 41 percent of trans people have attempted suicide, compared to a figure in the general population of less than 1 percent. Trans people are also overrepresented in the prison system.

Donald Trump threw his weight behind the transphobes recently when he tweeted a ban on trans people in the US military, writing that, “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”

Once again trans people are portrayed as a “burden”, a problem, and one which is couched in medical terms.

All those who want to challenge oppression should recognise the horrific reality of transphobia and support actions that might help make life easier for trans people.

The rise in trans activism in the past few years has forced some of these issues onto the political agenda, with changes in legislation as well as in the language used to talk about gender. This has raised debates about gender, sex, biology and the meaning of liberation which are yet to be resolved and have seen some surprising — and disappointing — dividing lines emerge among feminists, trade unionists and other activists.

A key field for this debate has been around the UK Gender Recognition Act (GRA) of 2004 and the current proposal to consult on changes to the act which would make it easier for trans people to have their gender recognised by law, through self-declaration.

Opposed

Over the summer this became particularly heated after the Morning Star newspaper published an opinion piece by Kiri Tunks, vice president of the National Union of Teachers (in a personal capacity), which strongly opposed the changes to the GRA, claiming they would render the term “woman” meaningless and threaten “safe spaces”, among other things. This was one in a long line of similar arguments, usually put by radical feminists, portraying trans rights as a threat to women’s rights — or even their safety.

It is important to note that when this issue was debated at NUT conference earlier this year, the delegates overwhelmingly backed the notion of self-identification of gender. Similar debates will take place in other unions over the coming period.

The GRA was a relatively progressive piece of legislation when it was passed in 2004, because it allowed trans people to have their desired gender officially recognised without them having to have gone through gender reassignment surgery. This is important, because some trans people will want surgery, while for others transitioning might mean changing one’s name and pronouns, or taking hormones.

However, the act has huge limitations. In order to be granted a Gender Recognition Certificate a trans person must present their case to the Gender Recognition Panel, a judicial body which legally determines what gender an individual is. The person seeking to change their officially recognised gender must be diagnosed with “gender dysphoria” (that their biological sex and gender identity don’t match); to have lived as their desired gender for at least two years; and to intend to live with their new gender for the rest of their lives.

This two-year wait has led to trans women who have not yet had their gender officially recognised being convicted of a crime and placed in a men’s prison — and facing serious and sometimes deadly assault, rape and harassment as a result. On a broader scale it means difficulties accessing services or simply being recognised as your desired gender until you have jumped through the various hoops.

The proposed changes to the GRA to be discussed this autumn would bring it in line with legislation already passed in Denmark and Ireland, whereby those seeking a Gender Recognition Certificate won’t have to be diagnosed or convince a panel, but will be able to self-declare their gender.

Let’s get this in perspective: the proposed change to the GRA won’t end transphobia — laws don’t do that. Such changes in the law generally reflect a struggle from below. But it will remove some of the stress, time and emotional turmoil currently faced by trans people who wish to have their identity formally and socially recognised in the only way the state allows.

For this reason it should be supported.

Unfortunately, some radical feminists and others on the left and in the trade union movement don’t see it this way. For example, Tunks’s article suggests that self-identity will mean the end of women-only safe spaces; that it will abolish the concept of “woman” and that it dangerously undermines the difference between biological sex and gender.

One argument I’ve heard several times is that the change would allow Ian Huntley (the child rapist and murderer) to say he’s a woman so he can go to a women’s prison — and that this would make women unsafe. This is disingenuous. Clearly a violent prisoner who might attack others should not be put in a position to do so. That applies whether trans or not, male or female. The underlying implication that a women’s prison is a “safe space”, by the way, is rather strange. The most galling aspect of this hypothetical argument, though, is that it ignores the fact that trans women who have actually been placed in men’s prisons have faced real violence.

Entrenches

Sheila Jeffreys, an academic based in Australia, has objected to the original 2004 Act from a radical feminist perspective. In a 2008 article she argues that it entrenches gender norms into law and doesn’t draw a clear distinction between gender (which, for Jeffreys, is a social construct and a Bad Thing) and sex (which is a biological fact). Instead it allows a trans person to change their “sex”, which is the legally important concept, on the basis of their desired gender identity.

There is an element of truth to both these points. It is a weakness of the GRA that it only allows for two genders — male and female — and every individual must be identified as one or the other, so there is no provision for those who identify as non-binary or intersex. This is not Jeffreys’ problem with it, however. As far as she is concerned gender is a tool of the patriarchy and should be abolished altogether. She goes so far as to say that trans identity is problematic in itself because it is rooted in the concept of gender, which shouldn’t even exist.

To reject gender diversity now on the basis that our aim is to abolish gender in future is like rejecting the fight for higher wages on the basis that we want to abolish the wages system (don’t laugh — some early British Marxists actually argued this!). It is utterly abstract and damaging to the movement and to individuals.

Secondly, Jeffreys is right that the GRA doesn’t make a clear distinction between sex and gender. But this is to its strength — it allows the act to encompass people who don’t want or can’t have gender reassignment surgery. One trans woman objects to this in an article in the New Statesmen, arguing that only those transsexuals who feel they are “trapped in the wrong body” and change their body accordingly should be allowed by law to have their sex recognised. But the greater visibility of trans lives in recent years has shown that this simply doesn’t reflect the experience of many trans individuals, who don’t feel that the body they were born with stops them being the gender they identify as.

Another argument put by some feminists is that it is our experience of being raised male or female that makes us a “man” or a “woman” — and that trans people don’t have that experience. A trans woman who was raised a boy doesn’t have the experience of oppression that girls have gone through. Going even further, one of the presenters of Radio 4’s Woman’s Hour recently seemed to argue that trans women aren’t really women because they don’t know the history of the women’s movement, like those feminists who have been in the struggle for decades. Is this a criterion for being a woman now?

Of course someone who is raised as a boy will not have the same experience as someone raised as a girl, but how far does this matter? A girl in India will not have the same experiences as a girl in Sweden. A boy raised in poverty will not have the same experience as young Prince George. And a trans person will face the misery of being constantly misgendered until they transition, at which point they will either pass as their desired gender and, if they’re a woman, face the oppression that entails, or they will be identified as trans and face the even more virulent oppression noted at the start of this article.

The bottom line is that it is not the job of the state, or for that matter the trade unions or the women’s movement, to tell trans people what they are. A key demand of the women’s movement has been a woman’s right to autonomy over her body; surely this should apply just as much to trans people’s right to self-identify?

Some trans theorists have responded to feminist arguments by questioning how stable the concept of biological sex really is, firstly by pointing out that there is more variety among humans than is accounted for by a simple binary. This is true. There are people who are born with both sets of genitalia or neither; people with different ratios of chromosomes, and so on. However, the vast majority of human beings are biologically male or female and stating that does not discount those who are not. Gender cannot be reduced to biology — it is formed socially (as is pretty much everything about how humans interact) and its meaning is therefore social too.

Property

But that doesn’t mean gender is simply a “choice”, a lifestyle rooted in identity politics with no “real” material basis. The basis of women’s oppression isn’t biology as such — our biology hasn’t changed in 200,000 years and for most of that time women weren’t an oppressed group. Women’s oppression is rooted in the organisation of class societies over the past 10,000 years, which have relied upon property rights requiring monogamy and patrilineal inheritance, and upon the unpaid labour of women in the home producing heirs or raising, caring for and reproducing workers, current and future.

And over these millennia gender has been policed in all kinds of ways, from execution as a punishment for cross-dressing in parts of medieval Europe to the young boy excluded from school in the US last month because he had long hair.
The rigid concept of the bourgeois family with its hierarchy of man, woman and children and no deviation was imposed in 19th century Britain by a ruling class which sought obedient, healthy and educated workers and wasn’t prepared to pay for the work when they could get women to do it in the home for free. Women were expected to be docile, caring, indoorsy and emotional, while men were to be strong, outgoing, breadwinners. The public morality which accompanied this family form also outlawed homosexuals and various other “deviants” who didn’t fit the gender prescription.

So, far from being antagonistic, trans and women’s oppression are rooted in the same social relations — ones that we all need to challenge. Overcoming damaging gender expectations, winning better access to healthcare and services, gaining autonomy over our bodies, and so on, will benefit all of us.

The trade union movement must take up trans rights as a central part of its liberation campaigning — and where it needs to have arguments it should have them. This applies in the wider movement too. Transcritical feminists and others who are wrong on this question should not be no-platformed — but they must be argued with and challenged. Those who refuse to engage constructively are doing a disservice to the movement. Those, like journalist Julie Burchill, who make offensive comments about trans women — “they are frilly, docile smilers who always wear make-up and never the trousers”, clearly have no interest in fighting oppression.

An injury to one is an injury to all — and a step forward for one oppressed group can feed everyone’s struggle. This has been demonstrated in Ireland where a similar gender recognition act was passed allowing self-identification in 2015. There have been no recorded instances of women being unsafe as a result of the change. Far from doing damage to the women’s movement, the last two years have been a period of growth for the abortion rights campaign and 2015 also saw the referendum in which Irish people vote for equal marriage. The confidence to reject bigotry on all fronts was mutually reinforcing.

There is no evidence that trans rights will damage women; there is every evidence that lack of trans rights does damage trans people.