14th June 2020

Dear Ms Foy

We are writing on behalf of Action for Trans Health Durham, a local organisation that works to improve the health of transgender people, to express our concern over the government’s planned response to the Gender Recognition Act consultation and the reforms that it seeks to put in place, as reported by the Sunday Times (14/06/20). We approve of outlawing “gay cure” therapies, although we are concerned that a too heavy handed approach that does not distinguish between intentional and unintentional conversion therapy may discourage therapists from treating LGBT+ clients in general, and we cannot help but notice the lack of explicit inclusion of anti-trans therapies among them. However, there are many regards in which these reforms seem to be unhelpful at best, and dangerously harmful at worst.

We are disappointed that the government has decided to reject proposals for self-identification, and instead to retain the current process of applying for a Gender Recognition Certificate. As we mentioned in our response to the proposal, the current process is overly medicalised and financially prohibitive to many of the most vulnerable members of our community. Moreover, it is often dangerous: in order to obtain the protections provided by the certificate, applicants must have spent two years living “in role” on a full-time basis. This prevents individuals who may have not yet been able to access the medical treatments required to ‘pass’ from exercising discretion about when to present as their identified gender.

We are also concerned about the government’s desire to crack down on “hippie quack doctor[s]” who are “willing to say that you are a woman”. Although the Times report does not specify what is meant by this phrase, it is alarming for several reasons. First, it is highly polemical, and potentially indicative of a general hostility towards trans medical care. Second, it is unclear who falls under this designation, and we are concerned that this measure will prevent trained and responsible medical professionals from providing their rightful services, as well as barring trans people from accessing private practice. ‘Going private’ is often a last resort measure for trans people, who must endure painfully long GIC waiting times, and is a vital resource for many individuals. Third, we are concerned that this measure trades in a common, misleading transphobic trope that paints trans healthcare as pseudoscientific malpractice, while also painting more efficient processes as recklessly fast. This trope masks a desire to dismantle trans healthcare with false concern for those who access it; something which is particularly common in debates around healthcare for trans children, on which topic this government has already shown its transphobic intentions.

Perhaps most concerning is the fact that, while the consultation itself made sure to specify that it was not about access to single-sex public accommodations (something covered by the Equality Act), the government is nevertheless going beyond its original brief and planning to make these facilities inaccessible for trans people who have not had genital surgery. We recognise that single-sex accommodations make many women feel safer in public, and that some individuals feel threatened by trans women or transfeminine people within them. We also recognise the realities of misogynistic violence, against which these spaces notionally protect. However, excluding trans people from accessing them on these bases is problematic in a number of respects.

First, these measures specifically and unjustly target trans women and other transfeminine people. Furthermore, they are bound up in wider transphobic narratives which paint trans women as sexual predators – narratives which find their origins in the same homophobic paranoia which undergirded the now universally-condemned Section 28.

Second, the primary target of these reforms, trans women, are disproportionately subject to the very violence from which these spaces are designed to provide protection - not in the least where these spaces include domestic violence shelters and rape crisis centres. This is the case even when compared to other groups of women. Forcing them to use male facilities will only expose them to further risk.

Moreover, there is no empirical evidence that the inclusion of trans women in these spaces poses a risk to cisgender women, even with self-definition. In this context, we must not sacrifice the actual safety of a vulnerable minority in the name of an illusory feeling of safety. To do so would be to declare that the safety of trans people is less important than the feelings (let alone safety) of cisgender people. These feelings, moreover, are not even shared by the majority of cisgender women: the British Social Attitudes survey 34 indicated that 72% of women are “very” or “quite” comfortable sharing toilets with trans women. Added to this injustice is the fact that trans people would effectively be penalised as a group for offences committed by others. The government would never ban trans women from the road because some people (trans or otherwise) commit traffic violations. Likewise, banning trans women from women’s accommodations on the basis that people have committed sexual assault within them is unacceptable.

Finally, we are aware that these reforms, in being construed as protecting women, pander to a particular feminist approach known as "gender critical" or "trans exclusionary radical feminism". However, the rights of trans women are not opposed to the rights of women more generally, but are in fact included among them - hence also the "gender critical" approach, despite its loud public voice, is a minority one within feminism, and has been critiqued on feminist grounds both for its transphobia, and its use of victimhood narratives. The latter, while potentially misogynistic in themselves are also implicated in racist constructions of white womanhood as under threat from ‘sexually aggressive’ Black men, which are also bound up in perceptions of threat from ‘aggressive’ Black people in general. These regressive policy directions must not be allowed to be passed off as in any way progressive on this front.

Third, there are severe problems with making access to these spaces contingent upon having undergone genital surgery. Access to single-sex accommodations such as changing rooms and toilets is vital for participation in society. The difficulty of obtaining these surgeries make this a de-facto prohibition on many trans people accessing these spaces, and so also this wider participation. Furthermore, although many people find fulfilment in these surgeries, holding this vital access hostage to whether or not one has undergone them amounts to coercion into medical treatment. This is an attack on the bodily integrity and human dignity of trans people, especially the trans women and other transfeminine people who are specifically targeted by this measure, and a violence as profound as any faced in other contexts. Furthermore, not all trans people are able to accommodate surgery in their lives, even if they wish to have it. Forcing them to do so inflicts further harms beyond those involved in coerced surgery itself. Moreover, by inhibiting pre-operative trans people from using single-sex accommodations, these changes will make it significantly harder to successfully complete the two years living in role required to obtain a Gender Recognition Certificate, which requires applicants to use the public accommodations which correspond to their identified gender.

Fourth, any policy of exclusion such as this will require enforcing. This raises the risk of sexual assault in which a suspected trans person will be forced to ‘prove’ which genitals they have, as well as more general violence towards both trans and other gender nonconforming people who will fall under this suspicion. This will not only be perpetrated by police, but by members of the public who feel empowered to take the law into their own hands. Note that this does not only apply to transfeminine people. These new measures will also result in the increased policing of transmasculine people, who must already sometimes risk using female toilets for menstrual health reasons, but who will be actively forced to use female toilets by law under the new proposals; as well as gender nonconforming women who will be misidentified as ‘male’. In turn, this transforms public accommodations into sites of surveillance and violence, rather than the privacy and safety for which they are designed. Furthermore, these factors together serve to police non-normative gender presentation more generally, which will harm not only trans people, but the wider LGBT+ community, and indeed many people outside it. Finally, this policing will be an occasion for other injustices – for example, where concerns about the presence of men in women’s bathrooms intersect with racist narratives about Black men sexually assaulting white women, perceptions of women of colour as masculine or aggressive, or homophobia towards butch lesbians.

Finally, we are concerned that "single sex accommodations" in this context may extend to further segregation of prisons, where trans people and trans women in particular are especially vulnerable. This is particularly true with regards to sexual violence, against which these accommodations are designed to protect: although much noise has been made in the press about the supposed danger trans women pose to cisgender women in women's prisons, between 2010 and 2018 only seven trans prisoners committed sexual assault in women's jails. Conversely, 11 transgender prisoners were sexually assaulted in 2019 alone, with only one suspected of perpetrating a sexual assault that year (as reported by BBC News, 21/05/20). However, they are also threatened by failures more generally within the prison system - for example, disproportionately poor conditions in Britain's first dedicated unit for high-risk transgender women prisoners have resulted in one prisoner self harming 35 times in just three months (as reported by The Times, 04/01/20).

In criminalising vital access to single-sex accommodations, these reforms place all trans people at legal risk. They make the community as a whole more vulnerable to imprisonment, and the harms involved. This will hit socially and economically marginalised groups within the trans community - including BME people - the hardest, as they will be less able to access the legal provisions required to navigate the proposed changes such as GRCs and genital surgeries.

Moreover, people from these disenfranchised groups are overrepresented in our prisons. This means that incarcerated trans people are less likely to have access to the financial and social resources required to pursue either genital surgeries or a gender recognition certificate, and so will be more likely to be placed in a prison that does not match their gender, thereby exposing them to numerous dangers. This means that these reforms, when implemented in a forensic context, will inflict disproportionate harm on those who are already disempowered.

We also object to the government’s plans for national guidelines for lavatory provision, which seem to be being introduced primarily to prevent local authorities from providing gender neutral toilets. These facilities are vital for many trans people, who might feel too threatened to use the toilets which correspond to their identified gender (something which will not be helped by these reforms more generally), or who may not identify with one of the binary genders. Toilet access is a significant source of minority stress, and legislating to prevent government bodies from alleviating it wrongly shifts this burden to individuals. Moreover, this shift in decision-making powers also prevents local authorities from setting rules that are more appropriate for their local contexts, leading to the possibility of heavy-handed approaches that are not able to accommodate the varying needs in the lives of our communities.

Finally, we are deeply concerned by the government’s dismissal of responses to their consultation due to the high number of responses from trans rights organisations. First, this was a consultation, not a referendum, and the volume of responses in support of various positions is less significant than the quality of those responses and their ability to guide the government in wise decision making. Second, referenda turn on the opinions of the groups that are sufficiently motivated to participate, and non-participation is taken in practice as a declaration of apathy or the deliberate withholding of one’s opinion. As such, the validity of a referendum is not disputed merely because the majority of votes come from a motivated minority within the population at large. Likewise, even if we understand this consultation as a tool for gauging public sentiment based solely on the relative volume of various responses, the proportion of responses from trans rights organisations should not invalidate its results: this just reflects the general make-up of the people sufficiently interested in the issue to engage in the process. Even taken in this way, the findings are therefore not merely to be disregarded as imbalanced. For this reason, it is worrying that the government has seen fit to minimise or even disregard these responses to the consultation, the upshot being that the voices of the people most affected by the proposed reforms have been silenced. Furthermore, we cannot help wonder whether this is a deliberate response to an unwelcome result. If so, then the government is operating in bad faith, and this is troubling in itself.

We are currently seeing rollbacks of trans rights across the globe, as increasingly reactionary and authoritarian governments use the distraction of the COVID-19 pandemic to push through regressive policies. This context makes it particularly significant and deeply worrying that the government has chosen to announce its response now, despite previously considering doing so during the general election and shortly before the pandemic. In this political moment, it is vital that our opposition hold the government to account, and we are calling on you to protect your trans constituents by resisting these proposals.

Yours sincerely

Action for Trans Health Durham

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