Will Gender Self‐Declaration Undermine Women's Rights and Lead to an Increase in Harms?
| Date | 01 May 2020 |
| Published date | 01 May 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12507 |
| Author | Alex Sharpe |
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Modern Law Review
DOI: 10.1111/1468-2230.12507
Will Gender Self-Declaration Undermine Women’s
Rights and Lead to an Increase in Harms?
Alex Sharpe∗
This article considers and rejects claims that reform of the Gender Recognition Act 2004 (GRA)
to allow gender self-declaration will undermine non-trans women’s rights and lead to an increase
in harms to non-trans women. The article argues that these claims are founded on a mistaken
understanding of the proper legal relationship between the GRA and the Equality Act 2010
(EA), and that the harm claim, in any event, lacks a proper evidential basis. The article considers
three legal arguments made by gender critical feminists: that sex-based exceptions under the EA
cannot be invoked against trans women with a Gender Recognition Certificate (GRC), that
the appropriate legal comparator for a trans woman non GRC-holder in a discrimination case is
a non-trans man, and that section 22 of the GRA, which protects the privacy of GRC-holders,
undermines the ability of women’s organisations to regulate access to women-only spaces.
INTRODUCTION
Since the government announced its intention to reform the Gender Recogni-
tion Act 2004 (GRA) to allow for gender self-declaration, a step already adopted
in numerous jurisdictions across Europe and Central and South America,1a
debate has taken place in the UK concerning the wisdom of proposed reform.
This debate has been fought out in the media, including social media, where
it has been framed, falsely, in terms of a conflict between non-trans and trans
women’s rights.2This media framing has been consolidated by the views and
advocacy of one group of feminists who self-describe as ‘gender critical’, and
whose prominence coincides with proposed GRA reform. This group of fem-
inists make two major claims: first, reform will undermine non-trans women’s
rights under the Equality Act 2010 (EA) to exclude trans women from women-
only spaces, such as bathrooms, changing facilities, communal accommodation,
rape crisis centres, and domestic violence refuges, and second, diminution of
∗Professor of Law, Keele University. I would like to thank Davina Cooper, Aleardo Zanghellini,
Peter Dunne and both anonymous referees for their careful readings and for providing constructive
comments on earlier drafts of this article.
1 The following countries have introducedsome for m of gender self-declaration: Argentina (2012),
Denmark (2014), Colombia, Ireland, Malta, Norway (2015), Belgium (2017), Portugal, Chile,
Brazil (2018). The precise process for gender self-declaration varies across jurisdiction.
2 S. Hines, ‘Trans and feminist rights have been falsely cast in opposition’ The Economist 13
July 2018 at https://www.economist.com/open-future/2018/07/13/trans-and-feminist-rights-
have-been-falsely-cast-in-opposition. All URLs cited in this article were last accessed on 7
November 2019.
C2020 The Author.The Moder n Law Review C2020 The Modern Law Review Limited. (2020) 83(3) MLR 539–557
Will Gender Self-Declaration Undermine Women’s Right
these rights will result in harms to non-trans women, including the harms of
violence and sexual violence.3
This article will contest both these claims. It is important to consider the
claim about harm in addition to the claim about rights because gender cr itical
feminists place particular emphasis on potential harms, and this has served to
generate considerable anxiety and fear around the presence of trans women in
women-only spaces. Moreover, in arguing reform will produce harms, they
suggest a causal relationship between rights diminution and harm. Yet, harm
does not necessarily follow from a diminution in rights and in the present
context, as I will argue, it does not, therefore we need to disaggregate these
two claims. My arguments are: first, reform of the GRA will not undermine
non-trans women’s rights to exclude trans women from women-only spaces,
but second, even if reform did undermine these rights, this will not lead to
a significant increase in harms to non-trans women. Before proceeding to
consider these two matters, however, it is first necessary to explain how the
GRA currently operates and how this is likely to change if the proposed reforms
are introduced, and to detail rights currently enjoyed by non-trans women’s
organisations under the EA which are allegedly under threat.4
THE GRA AND PROPOSED REFORMS
The GRA was enacted in 2004 and has had legal effect since 4 April 2005. It
was a response to the European Court of Human Rights’ finding in Goodwin
and I vUK5that the British government could no longer rely on its ‘margin
of appreciation’ in violating Articles 8 and 12 of the Convention. The GRA
3 These feminists have not, as yet, published in academic journals. Rather, these claims
have appeared in the mainstream media, in blogs and on gender critical feminist activist
websites (eg, Fair Play for Women and Woman’s Place UK), a fact rendered explicable
perhaps by a desire to get their arguments out into the public domain quickly and to
gain political traction. Examples include: K. Stock, ‘Ignoring differences between men and
women is the wrong way to address gender’ Quillette 11 April 2019 at https://quillette.com/
2019/04/11/ignoring-differences-between-men-and-women-is-the-wrong-way-to-address-ge-
nder-dysphoria/; K. Stock, ‘Why self-identification should not legally make you a woman’ The
Conversation 1 October 2018 at https://theconversation.com/why-self-identification-should-
not-legally-make-you-a-woman-103372;J. Norman, ‘Is everyone really wrong?’ FiLiA 2 August
2018 at https://filia.org.uk/news/2018/8/23/has-everyone-really-got-it-wrong; R. Freedman
and R. Auchmuty, ‘Women’s rights and the proposed changes to the Gender Recognition Act’
Oxford Human Rights Hub 1 August 2018 at http://ohrh.law.ox.ac.uk/womens-rights-and-the-
proposed-changes-to-the-gender-recognition-act/; K. Stock, ‘Changing the concept of
“woman” will cause unintended harms’ The Economist 6 July 2018 at https://www.economist.
com/open-future/2018/07/06/changing-the-concept-of-woman-will-cause-unintended-har-
ms; R. Reilly-Cooper, ‘Why self-identification shouldn’t be the only thing that defines our
gender’ The Conversation 13 May 2016 at https://theconversation.com/why-self-identification-
shouldnt-be-the-only-thing-that-defines-our-gender-57924.
4 This article does not enter into philosophical debates concerning the definition of the concepts of
sex/gender, other than to note: trans women with a Gender Recognition Certificate are ‘legally
female’ under the GRA, s 9(1); all trans women are women in a psycho-social, existential and
non-trivial sense; and biology need not, and does not, determine how sex/gender are constructed
in law.
5 (2002) 35 EHRR 18.
540 C2020 The Author. The Modern Law Review C2020 The Modern Law Review Limited.
(2020) 83(3) MLR 539–557
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