Harry Miller Judicial Review "Mrs B" Speaks Out and She Has Plenty to Say

'Mrs B" complained to Humberside Police about Harry Miller

She hits out at Mr Justice Julian Knowles for impugning her character

Harry Miller is a "transphobic bigot" and We Are Fair Cop are a "hate group" says "Mrs B"

In her own words "Mrs B" talks to Judicial Cat Editor Stephanie Hayden and has some pretty forthright views

STATEMENT BY “MRS B” CONCERNING THE CASE NO CO/2507/2019 – R v COLLEGE OF POLICING AND HUMBERSIDE POLICE ex parte Harry Miller – JUDGMENT OF JULIAN KNOWLES J ROYAL COURTS OF JUSTICE 14/02/2020

I am the aforementioned Mrs B, whose original complaint via True Vision to Humberside Police brought led to Harry Miller bringing the above claim.

First of all, let me say quite unequivocally that Mr Miller LOST on the main case which was against the College of Policing (“CoP”), a case he was always likely to lose as it is based on irrationality.  I believe Mr Miller is looking to take this the UK Supreme Court (“UKSC”). I look forward to the "UKSC" affirming the judgment in respect of “CoP”.

I will also state very clearly that I stand by EVERY SINGLE WORD that was in my original statement, which was prepared for use by the Defendants in the Judicial Review.

However, I am disappointed Mr Miller won against Humberside Police.  Humberside Police, and their officer, PC MANSOOR GUL, DID NOTHING WRONG.   It is my belief that PC Gul would have take advice from his superiors regarding the THIRTY ONE tweets by Mr Miller before pursuing his course of action.  It is also totally irrelevant what PC Gul said to Mr Miller.  All Mr Miller had to do was hold his hands up and say something on these lines:  “I’m sorry if the tweets have caused offence but I am entitled fully to my opinion.  However, I will tone it down.” 

He clearly did not.  It is also worth noting that PC Gul’s superiors backed him to the absolute hilt, and it is fair to suggest that it is police operating procedure to advise someone that further incidents could lead to criminal proceedings, something Mr Miller - who claims to be a former police officer - should have known.  On 23 January 2019, on his now banned Twitter account (which I shall refer to later), he went on what is euphemistically called “A Twitter meltdown.”  A meltdown in which he was so aggrieved that the police had merely spoken to him.  Not arrested, handcuffed him and thrown him into a cell - merely spoken to.  Now, I am no psychologist, but I would suggest that this meltdown of Mr Miller’s were the rantings of someone with an ego the size of Russia.  Perhaps Mr Miller is not used to someone telling him “no”.  “Spoilt brat syndrome”, someone might unkindly say, or the ultimate display of privileged entitlement. This meltdown was promptly seen by his followers who then proceeded to bombard Humberside Police and its Police and Crime Commissioner, KEITH HUNTER, with the vilest of abuse, leaving some of the civilian staff distressed. Mr Miller is clearly not responsible for the actions of his followers, but he certainly did nothing to stop them.  I would like to know why this was not brought up in court.

Mr Miller, in his witness statement said this:  “I completely reject any suggestion that I am racist, homophobic or transphobic. The suggestion that I am serves to show how ignorant the writer is, and that the writer simply does not know me or anything about me. … The assertion that I would have been making ‘the same comments’ (clearly meaning bigoted comments) about Jewish people 80 years ago, about black and Asian people 40 years ago and gay people 30 years ago is simply gratuitously offensive.”  

First of all, I am of the opinion that Mr Miller is a bigot.  That is evident from his Tweets and his subsequent behaviour.  Secondly, no, I don’t know Mr Miller personally.  That does not mean to say that I am ignorant.  I find that an unreasonable comment to make.  Thirdly, in the public domain, there are comments Mr Miller made that are arguably Islamophobic. 

Mr Miller argues he was acting “lawfully” in making transphobic comments and he is, of course, backed up by the judgment of Mr Justice Julian Knowles. I am, therefore, entitled to ask if, say, racism is “unlawful”?  Anti-Semitism?  Islamophobia?  WHY is transphobia “lawful”?  

I would also like to know why the borderline harassment of DR ADRIAN HARROP and MISS LILY MADIGAN was not brought up.  Both were reported to Humberside Police.  Mr Miller engaged in several vexatious complaints to the General Medical Council over Dr Harrop’s alleged conduct, merely because Dr Harrop is a staunch supporter of transgender rights.  In the case of Miss Madigan, it is absolutely unbecoming for a man of FIFTY FOUR years of age to be so obsessed with a highly vulnerable TWENTY ONE year old female. I suggest it was because Miss Madigan is transgender.  This was, in my opinion, bordering on harassment, especially as it would have been seen by his followers on Twitter and it would have instigated a “pile on” by them on both individuals.  

Mr Miller claims he has “never had any hatred towards the transgender community”.  That, as evidenced by his tweets before and up to the time when his Twitter account was permanently suspended, is not credible. The evidence suggests that Mr Miller is hostile towards transgender people.  Regarding Dr Harrop, he claims, and I quote:  “Harrop is currently the subject of a full GMC enquiry in relation to both online and off-line behaviour towards at least two women and towards me and my family.”  

As far as I am aware, and I am sure Dr Harrop will confirm this, Dr Harrop has NEVER been the subject to any professional disciplinary proceedings nor sanctions. Mr Miller also mentioned that the Soham murderer, Ian Huntley, was transgender.  That story was patently so untrue. Yet no retraction from him?

I also find it most bemusing that Mr Miller was “humiliated, shamed and embarrassed” by the act of the police merely speaking to him.  I ask you, would someone so “humiliated, shamed and embarrassed” by this go straight to the national media and appear on media outlets not just here in the UK but also elsewhere, most notably in Australia?  I also find stories that he has personally suffered frankly unbelievable and without foundation.  After all, Mr Miller is a successful businessman - a millionaire.  He owns his company.  He is also in his mid-fifties. He is hardly likely, therefore, to want or need to look for alternative employment.  The fact that he is on a police database for this incident is of no consequence to him at all.

Nor are proposed changes to the Gender Recognition Act 2004 of any consequence to him.  In short, it has absolutely nothing to do with him.  So why does he feel the need to get involved in the debate around this?  I will state right here and now that the rights of transgender and non-binary people are not now, not then, and not EVER up for debate.  Under the Equality Act 2010, transgender people are fully and legally entitled to use the facilities that match their gender; namely, transgender women use female facilities and transgender men use male facilities.  Again, what has that got to do with Mr Miller or his colleagues in “We Are Fair Cop”?  

He states “I believe that trans women are men who have chosen to identify as women. I believe such persons have the right to present and perform in any way they choose, provided that such choices do not infringe upon the rights of women. I do not believe that presentation and performance equate to literally changing sex; I believe that conflating sex (a biological classification) with self-identified gender (a social construct) poses a risk to women’s sex-based rights; I believe such concerns warrant vigorous discussion which is why I actively engage in the debate. The position I take is accurately described as gender critical. 18. In this context (political reform) I want to raise awareness by stating that which used to be instinctively obvious - a biological man is a man and a biological woman is a woman. To claim otherwise is extraordinary. Extraordinary claims require both extraordinary evidence and extraordinary scrutiny prior to becoming law.”   

Mr Miller (along with his organisation) is not and never has been an expert in Human Biology and certainly not an expert in the field of transgender studies.  Also, it is not as simplistic as that.  None of the sciences are that simplistic.  Studies have proven that transgender people ARE the gender they say. Transgender women are women and always have been.  He also states that they should not infringe on the rights of cisgender women.  Since the Equality Act 2010 came into force, transgender women (even those without a Gender Recognition Certificate) are for all intents and purposes treated as women and, as I have previously stated, allowed to use women’s facilities.  The law doesn’t care one iota for Mr Miller’s opinion.  It is also interesting that he does not once mention transgender males (Female to Male).  Why is that?  

To sum up, I stand by what I say when I call Harry Miller a common, garden bully and bigot. “We Are Fair Cop” are an anti-transgender hate organisation.  Indeed, this is something they have not challenged to my knowledge.  Mainly because it is TRUE.  “We Are Fair Cop” is nothing more than a vanity project, an ego massaging exercise for Harry Miller.  I furthermore stand FULLY with PC Mansoor Gul and his colleagues at Humberside Police and always will.

I am, however, astounded by the language used to describe me by MR JUSTICE JULIAN KNOWLES in this case. The judge went against guidelines in the Equal Treatment Bench Book. Using pronouns based on so called biological sex was against all guidance given to the judiciary and is, in my opinion, indicative of the judge’s leanings on transgender issues. The language he used I found to be offensive and I intend to raise the matter with the Judicial Conduct Investigations Office.  I will set out examples of this below:

To accuse a police force in the United Kingdom of acting like a “Gestapo” or “Stasi” is highly irresponsible.  Especially when there is so little evidence that Humberside Police resorted to those tactics.  Since when has merely visiting someone in broad daylight at that person’s place of work or speaking to him over the phone as to his alleged conduct been “Gestapo”-like?  It is totally hyperbolic.  No one, least of all myself, is saying that Mr Miller is not entitled to his opinion - of course he is.  What he is NOT entitled to is to use that opinion to stigmatise, harass, bully or intimidate others.  

Mr Justice Knowles also says that I had the choice not to read those tweets, never mind report them.  First of all, I have EVERY RIGHT to report to the authorities anything that I find harmful or offensive, especially if it contains transphobic comments.  What is Mr Justice Knowles trying to say?  That the transgender community has no right to report anything they find offensive?  That they have to sit there and take it?  Secondly, those tweets of Mr Miller’s were sent over by a trusted friend of mine.  Of course, I was going to read them.  Although they were not directed at me personally, it is unequivocal that they were targeted at the transgender community.  I mean, who were they targeted at?  I can assure Mr Justice Knowles that my friend found them alarming and appalling as well.

Which leads me nicely onto my next point, that I acted “within the outer margins of rationality”.  Again, do transgender people like me have to sit there and take it?  It may not be known to Mr Justice Knowles that, approximately an hour before he delivered his judgement in this case, a woman by the name of KATHERINE SCOTTOW was CONVICTED at St Albans Magistrates Court contrary to s127 of the Communications Act 2003 following a complaint to the police by a transgender woman, STEPHANIE HAYDEN.  Mr Justice Knowles needs to realise that there are police forces and courts out there who are willing to take a stand against the vitriolic abuse transgender people face on a daily basis.  

Furthermore, were Twitter acting “on the outer margins of rationality” when they permanently suspended Mr Miller’s account after repeated warnings of hateful conduct?  I think not.  So why was this accusation made towards me?  I am a very rational person.  I do not do things like this lightly.  To suggest I do is patently unfair.  Any rational person would have been appalled by Mr Miller’s tweets.  It does NOT express an “extreme mindset” on my part.

Regarding the use of the acronym “TERF”, it is absolutely laughable that an organisation like “We Are Fair Cop”, an organisation that prides itself on its defence of Freedom of Speech, can be so upset at the use of a mere acronym. Strangely though “We Are Fair Cop” have no complaints about senior members of their organisation using the word “Troon” or posting messages to harass transgender women on a well known website specialising in harassment, abuse, and hate.  Mr Justice Knowles states that this acronym has been used pejoratively.  Why then does the judge not condemn the use of the hateful slur “Troon”?  “We Are Fair Cop” engage in misgendering transgender people which is designed to insult and demean transgender people.  He also accuses me of using “derogatory language” in my dealings with those who are transphobic.  Again, am I not allowed to defend myself and my community from attacks?  Do you expect me, as a transgender woman, to sit there and just ignore it?  

It is also clear that Mr Justice Knowles could have used transphobic language himself.  He mentions that transgender women are born biologically male.  This, at the very least, is a matter of some dispute and it is unfortunate that he made that comment.  Biology, like all the sciences, is open to interpretation.  The most common example of that from history is that of the Nazis who used manipulated biology for their own ends.  In short, it is not an exact science.  I also have reason to doubt that, with respect, Mr Justice Knowles is an expert in Human Biology. He also mentions:  “I am referring to individuals whose biological sex is as determined by their chromosomes, irrespective of the gender with which they identify. This use of language is not intended in any way to diminish the views and experience of those who identify as female notwithstanding that their biological sex is male (and vice versa), or to call their rights into question.”  

That is transphobia in a nutshell.  Again, is Mr Justice Knowles an expert in Human Biology?  There are numerous biologists out there who will disprove his theory.

Mr Justice Knowles states that what I told the police was not accurate.  I would like to inform Mr Justice Knowles that I am NOT in the habit of telling lies to anyone, never mind the police.  That is an outrageous slur on my character, for which he should apologise.  Mr Miller’s comments WERE deeply offensive and his hostility for transgender people is evident.  I am NOT going to sit there and let disgusting abhorrent comments about people like myself go unchallenged. I do NOT give in to bullies or bigots either.  Furthermore, as for anybody else making complaints about Mr Miller, do you honestly think the police would inform me?  Seriously?  

To sum up, I am deeply aggrieved at the comments of MR JUSTICE JULIAN KNOWLES.  To basically impugn my character in the way he did was deeply hurtful to myself. The comments in his judgement show an inherent transphobia which is deeply concerning, especially in the pursuit of justice by transgender and nonbinary people.   

Thank you.

"Mrs B"

As a postscript, I am going to add the words of Laura Whitmore who spoke so movingly about the tragic passing of Caroline Flack.  Laura’s words should be heeded by everyone.

"The problem is, the outside world is not (loving and caring). Anyone who has ever compared one woman against another on Twitter, knocked someone because of their appearance, invaded someone else's privacy, who have made mean, unnecessary comments on an online forum - they need to look at themselves."

“Only you are responsible for how you treat others and what you put out in the world."

Gender Recognition Certificates: Why the Feminists and the Trans Rights Activists Have got it Wrong

Gender Recognition Certificates

Why the Feminists and the Trans Rights Activists Have got it Wrong

An Essay by Stephanie R Hayden

Introduction

In 2016 the Women and Equalities Committee of the House of Commons published a report entitled ‘Transgender Equality’[1]. The committee made a bold recommendation to reform the Gender Recognition Act 2004 (“GRA”) to allow transgender persons to self-declare their legal gender and abolish the need for medical evidence or approval from a judicial body[2]. Since publication of the report a public debate has erupted as to the societal implications of any such change. The debate is primarily between feminists and trans rights activists (whilst a bemused and confused general public look on) and is taking place across social media, within the traditional media, and at public meetings across the jurisdiction. It can be argued that the debate has become toxic, with accusations of transphobia and bigotry towards feminists on one side, together with allegations of violence towards such feminists by trans rights activists. Social media exchanges are alive with debates about whether humans can change sex, whether trans women are really men, and barely a day goes by without some sort of sensationalist story in the main stream media about a transgender issue. The response of Her Majesty’s Government has been to launch a public consultation on possible reforms of the “GRA”[3], which closes on 19 October 2018.

In this paper I am going to argue that both the feminists and the trans rights activists have got it wrong when they argue for or against the principle of self-declaration of legal gender. The “GRA” has nothing to do with who has access to facilities provided for one sex or another. In other words the “GRA” is not about who uses which toilets, changing rooms, or anything else for that matter. Moreover, it is wrong for trans rights activists to argue that obtaining a Gender Recognition Certificate (“GRC”) is just about changing one’s birth certificate and affects no one else. This is legally incorrect, the award of a “GRC” fundamentally alters the citizen’s legal relationship with society[4]and has profound lifelong consequences. It should not be a matter of ‘simply’ filling in a form in much the same way as one challenges a parking ticket. Nevertheless, obtaining a “GRC” should be less of an administrative burden, with potential for reforming the criteria for obtaining legal gender recognition, whilst retaining the objective assessment as a key component to ensure that the “GRC” (and what it means) retains the confidence of society as a whole. Examination of the issues begins by explaining what a “GRC” is, and its legal effect, as well as the legal background to the “GRA”. The Equality Act 2010 is then discussed in relation to single sex exemptions[5], and whether they can (in reality) be applied to a “GRC” holder (or anyone else claiming the protected characteristic of ‘Gender Reassignment’[6]). An evaluation of why it can be argued that feminist objections to “GRA” reform are really about transphobia is then presented. The paper concludes by suggesting that the feminists use their objections to “GRA” reform as a smokescreen for transphobia, and suggests that the way forward is modest administrative reform of the “GRA” with a public education programme of what it means to be transgender in a modern western liberal democracy, and why society should not fear this group as a class, but that (like for example homosexuality rights) transgender people need to accept that society must evolve to understand, and accept, the way that this class of people lead their lives. 

What is a Gender Recognition Certificate, the Background to and Legal Effect of the Gender Recognition Act 2004

A “GRC” gives legal recognition to a person’s acquired gender (i.e. the gender a person lives in as opposed to the gender a person was assigned at birth[7]). To obtain a “GRC” one must be at least 18[8]and apply to a panel. The applicant needs to prove that they have or have had gender dysphoria, has lived in their acquired gender for at least two years at the date of their application, intends to live in their acquired gender until death, and complies with the evidential requirements[9]. The evidential requirements can be summarised as requiring one to produce evidence in the form of two medical reports confirming diagnosis of gender dysphoria (one of which must be from a medical practitioner practising in the field of gender dysphoria). The reports must give details of any surgical or other medical treatment performed for the purpose of modifying sexual characteristics. Evidence must also include a collection of documents proving the applicant has lived in their acquired gender for a minimum of two years, and a statutory declaration that the applicant intends to live in their acquired gender for life[10]. All of the evidence is submitted to a panel comprising of legal and medical professionals who then determine the outcome of the application. If successful, the panel awards a “GRC”. From the date of the “GRC” the holder, for all purposes, is of the gender specified on the certificate[11]. The “GRC” also has the effect of changing legal sex. A holder of a female “GRC” becomes a woman with the holder of a male “GRC” becoming a man[12]. There are some exemptions to this concerning parental status, inheritance of peerages, and gender-specific criminal offences[13]. The “GRA” is prospective[14], in other words the change of gender (and thus legal sex) has no retrospective effect. The effect of a change of gender is also subject to any other provision of the “GRA” or any other enactment or any subordinate legislation[15].

Once granted a “GRC” the holder, if their birth was registered in the United Kingdom, is entitled to a new birth certificate recording the new name and sex[16]. The holder of a “GRC” is entitled to keep the fact that they were of a previous gender confidential. Indeed it is a criminal offence for anyone, in an official capacity having knowledge of the fact, to disclose that a “GRC” holder was previously of the opposite gender to their acquired gender[17]. This is interpreted to include not asking anyone if they hold a “GRC”.

The “GRA” giving legal effect to the “GRC” was enacted on 1 July 2004 and came into force on 4 April 2005[18]. The background to why the “GRA” was enacted starts in 1970 with the judgment of Ormrod J in the case of Corbett v Corbett[19]. This concerned the definition of a woman for the purposes of marriage. In summary Ormrod J held that a woman must be defined in relation to biological characteristics. Even if someone (as was the case in Corbett) had been socially accepted in a reassigned gender role and had surgically altered sexual characteristics commensurate with an acquired gender, it was with reference to biology that the validity of a marriage would be determined. This decision would have profound consequences for all areas of life many of which had no relationship at all with marriage. It became authority for the proposition that legal sex could not be changed regardless of any gender reassignment process. A birth certificate would no longer be altered to reflect an acquired gender. The judgment was followed throughout the common law world. Throughout the 1970s and 1980s the judgment was affirmed by the European Court of Human Rights (“ECtHR”) as falling within the United Kingdom’s margin of appreciation. 

As society entered the 21^stcentury attitudes to many social issues, including transgender people, was fundamentally different to those encountered in the beginning of the final quarter of the 20^thcentury. Society was becoming far more understanding and accepting of those with a transgender identity. Nevertheless the law remained rigid until the case of Goodwin v United Kingdom[20]in 2002. In Goodwin it was held that the failure of the United Kingdom to permit a post-operative male to female transsexual to change a number of official government records listing her as male was a breach of the applicant’s Article 8 and Article 12 rights pursuant to the European Convention on Human Rights (“ECHR”). It was this case that directly led to the enactment of the “GRA”; however, prior to enactment the House of Lords was called upon to determine the case of Bellinger v Bellinger[21]. What was a woman for the purposes of marriage was again the focus of the question to be determined by their Lordships. Considering Corbett[22]their Lordships arrived at the same answer as Ormrod J over 30 years earlier; namely, that it was a person’s biological gender as determined at birth that mattered. In the context of the contemporary debate about “GRA” reform the comments of Lord Nicholls are well worth considering[23].

“The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilise the female's eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction.”

His Lordship continued[24].

“Recognition of gender reassignment will involve some blurring of the normally accepted biological distinction between male and female. Some blurring already exists, unavoidably, in the case of inter-sexual persons. When assessing the gender of inter-sexual persons, matters taken into account include self-perception and style of upbringing and living. Recognition of gender reassignment will involve further blurring. It will mean that in law a person who, unlike an inter-sexual person, had all the biological characteristics of one sex at birth may subsequently be treated as a member of the opposite sex.”

When one considers the legal effect of being granted a “GRC” and considers the comments of Lord Nicholls (albeit prior to the enactment of the “GRA”), it can be argued that those consequences are far more than being permitted to obtain a new birth certificate. The legal status of whether one is considered male or female by society is profound. If law is accepted as normative, and a reflection of the values of society as a whole, then it must follow that the legal status conferred on the citizen must be objective in nature and not based solely on one’s own subjective identity. Consider at birth that one’s parents do not have any subjective say on the gender and legal sex assigned to a new born child. That is objectively assessed by a medical practitioner and endorsed on behalf of the state by the registrar when a birth is registered. It can therefore be argued that the transgender person should not expect to be able to subjectively determine their legal sex. The fact that one is considered either legally male, or legally female, has implications in terms of marriage and the laws applicable to any such marriage (i.e. whether the Matrimonial Causes Act 1973 or the Marriage (Same Sex Couples) Act 2013 is applicable) and indeed one’s protected characteristics pursuant to the Equality Act 2010. 

Equality Act 2010 Single Sex Exemptions. Can they Apply (in Reality) to a “GRC” Holder (or Anyone Else Claiming the Protected Characteristic of Gender Reassignment)

Regardless of the profound legal consequences of being granted a “GRC” it is apparent that the “GRA” is silent on access to single sex services (for example separate male and female toilet facilities, changing areas, care services etc). This is where the argument of the feminists regarding “GRA” reform is fundamentally misconceived. Nowhere within the “GRA” does it even begin to regulate access to such single sex facilities and services. The “GRA” was never designed to do that. Exemptions to the consequences of being granted a “GRC” were set out on the face of the “GRA”. As indicated earlier these consequences are subject to any other enactment[25], such as the Equality Act 2010 (“EA”).

Prior to enactment of the “EA” it can be argued that the law of England & Wales never regulated access to facilities such as toilets and changing rooms. Generally it was accepted that such facilities were provided on premises and the persons in charge of those premises were free to regulate access to such facilities as they saw fit, save that it was not permitted to discriminate in accordance with discrimination law as it developed (piecemeal) in the latter half of the 20^thcentury. In the Court of Appeal in the case of Croft(prior to the enactment of the “GRA”) Pill LJ held that refusing access to the female toilets to a transsexual person was not necessarily an act of discrimination[26].

“However, I do not accept that a formerly male employee can, by presenting as female, necessarily and immediately assert the right to use female toilets. The status of transsexual does not automatically entitle the employee to be treated as a woman, with respect to toilet facilities. The right does not arise automatically, but it is acquired by making progress in the procedure described by Lord Nicholls. The tribunal has to make a judgment as to when the employee becomes a woman and entitled to the same facilities as other women though that judgment must have regard to the applicant's self-definition and cannot be determined by the views of other employees.

The employee did not have less favourable treatment than a man, who could not claim to use the female toilets. The employee is not being treated less favourably than other women employees unless and until the employee can establish that she should be treated as a woman. The court should have regard to the particular difficulties which arise with respect to toilet facilities, the obligation and the need for separate facilities for men and women, and the fact that acquiring the status of a transsexual does not carry with it the right to choose which toilets to use.”

Since the judgment in Croftwe have had the enactment of both the “GRA” and the “EA”. The “EA” focuses on ‘Protected Characteristics’. For the purposes of this paper the discussion is in relation to the protected characteristics of ‘Gender Reassignment’[27]and ‘Sex’[28]. A person has the protected characteristic of ‘Gender Reassignment’ if they are undergoing, undergone, or proposing a process of reassigning the person’s sex by changing physiological or other attributes of sex[29]. The protected characteristic of ‘Sex’ is in reference to a ‘man’ or a ‘woman’[30]. We know from the case of Corbett[31]that the definition of a ‘man’ and a ‘woman’ is based on biological attributes determined at birth, and that since the coming into force of the “GRA” on 4 April 2005 includes holders of a “GRC” in the relevant gender[32]. Therefore it follows that for the purpose of the protected characteristic of ‘Sex’, as defined by the “EA”, the holder of a “GRC” has the protected characteristic of ‘Sex’ based on their acquired gender and not their previous gender as determined at birth. There appears to be no exemption to this. Indeed the contrary appears to be the case by virtue of the “all purposes” provision in the “GRA”[33]. A “GRC” holder, by definition, is a transsexual within the meaning of the “EA”[34]and has the protected characteristic of ‘Gender Reassignment’ as well as ‘Sex’. For the purposes of this paper where reference is made to a transgender person who does not hold a “GRC” then the only relevant protected characteristic is ‘Gender Reassignment’.

It is the “EA” that is currently the legislation that effectively governs access to single sex spaces and services in England and Wales (as well as the United Kingdom generally but this paper focuses on the jurisdiction of England & Wales). As discussed earlier there is no general prohibition on who accesses which spaces and services. The provider is free to choose; however the provider must not discriminate on grounds of the protected characteristics of ‘Sex’ and ‘Gender Reassignment’. As such, if a transgender person (either with or without a ‘GRC’) was refused access to (for example) a single sex toilet facility commensurate with their acquired or self-perceived gender then prima faciethis would constitute an act of discrimination and be unlawful. In the pre “EA” case of Croft[35]it can be argued that the court was looking to see if the transgender person was socially accepted as their acquired gender in order to determine whether or not an act of discrimination had occurred. The “EA” does permit limited discrimination against a person with the protected characteristic of ‘Gender Reassignment’ in respect of single sex spaces and services if it can be objectively proved that it is a proportionate means of achieving a legitimate aim[36]. The debate as to what exactly this means appears to depend entirely on the perspective of the person discussing it. The feminists appear to argue that this effectively gives service providers a ‘free hand’ to bar transgender persons from accessing services and facilities commensurate with their acquired or self-perceived gender, the reasoning being that it would be a legitimate aim to protect the privacy and safety of natal women and girls (for example in respect of transgender women accessing services aimed at women). Trans rights activists argue that the exemptions require a high threshold and that there is no evidence to support feminist assertions that safety needs protecting. It can be argued that this debate about access to single sex spaces and services has become toxic. So the question becomes who is right in this debate about access to such facilities? As ever, in anything legal, the answer is not so straightforward. 

This paper takes the view that the default position is that a service provider cannot discriminate against a transgender person accessing single sex services and spaces commensurate with their acquired gender (in the case of a “GRC” holder) or self-perceived gender (in the case of a non “GRC” holder). Taking the example found in the case of Croft[37]and applying the current “EA” to that scenario. Proportionate means making the least intrusive intervention to achieve a legitimate aim. In Croftthe legitimate aim is to provide separate toilet facilities for women and men. A person with the protected characteristic of ‘Gender Reassignment’ is undergoing, undergone, or proposing a process to effectively become the opposite sex to that determined at birth. Therefore, save for very clear cases where there is no evidence that a person has the protected characteristic of ‘Gender Reassignment’ it will be a very ‘brave’ service provider indeed that refuses access to a single sex service or facility. If a transgender person was refused access and litigated the matter, assuming the transgender person can establish the protected characteristic of ‘Gender Reassignment’, the burden of proof in any such litigation would entirely fall to the defendant service provider. The service provider would have to prove a legitimate aim and proportionality. There has not been one reported case since the enactment of the “EA” successfully litigating the single sex exemptions of the “EA”. Indeed the only apparent case litigated since the enactment of the “EA” was decided in favour of the transgender claimant. In the case of Brook[38](2014) a decision of the County Court held that a pub owner had directly discriminated against a transgender customer by refusing to allow her to use the ladies' lavatories and had victimised her by baring her from the pub when she complained. Prior to the enactment of the “EA” the Administrative Court did not entertain the Ministry of Justice effectively ignoring the consequences of a “GRC” on the basis of biological sex. Deputy Judge David Elvin QC held that the decision of the Secretary of State for Justice to continue to incarcerate the holder of a female “GRC” in the male estate was unlawful, interfering with the claimant’s “ECHR” Article 8 rights, as well as being unreasonable on traditional Wednesbury grounds[39].

Taking the totality of the limited case law (both pre and post enactment of the “EA”) as well as the legislative intention of Parliament when enacting the “GRA” it is difficult to envisage a scenario in which the single sex exemption of the “EA” could be enforced save in the most exceptional of cases. Whilst any assessment will always be on a case by case basis the reality is that the burden to be achieved, proportionality and a legitimate aim, is high and the courts will likely approach the matter by looking to uphold the default right of the transgender person with the protected characteristic of ‘Gender Reassignment’ from being discriminated against.

In so far as a transgender person holding a “GRC” is concerned this paper goes one stage further and argues that (in reality) there is unlikely to ever be a scenario when a service provider could seek to enforce the single sex exemptions of the “EA” in respect of a “GRC” holder. Arguably the “GRA” and the “EA” are in conflict. The “GRA” sets out that the holder of a “GRC” is ‘for all purposes’ the sex commensurate with their acquired gender[40], subject to any other enactment or subordinate legislation[41]; however, we know that the “EA” single sex exemptions relate to each (or one) ‘sex’[42]. As discussed earlier ‘sex’ is defined by reference to either biological (Corbett) factors, or statutory (“GRA”) provision. Further, a holder of a “GRC” has the protected characteristic of ‘Sex’ commensurate with their acquired gender. Adopting the traditional literal approach to statutory interpretation it can be argued that the wording of both the “GRA” and the “EA” precludes applying the single sex exemptions of the “EA” to holders of a “GRC”. Further, it if were Parliament’s intention that such exemptions should apply to the holder of a “GRC” then those would have been made clear on the face of the “EA”. It is the argument of this paper that the single sex exemptions of the “EA” were intended to apply to those without a “GRC” having only the protected characteristic of “Gender Reassignment”, and not the protected characteristic of ‘Sex’ commensurate with an acquired gender within the meaning of the “GRA”. Indeed if these single sex exemptions were to apply to the holder of a “GRC” then the “EA” has driven a ‘coach and horses’ through the legislative intention of the “GRA”, which was to grant legal recognition in respect of an acquired gender subject to the exemptions laid down on the face of the “GRA”. Feminists often direct one to ‘guidance notes’; however, such notes have no legal effect. The normal rules of statutory interpretation fall to be applied. One can advance an argument that if a purposive approach to interpreting the single sex exemptions of the “EA” is adopted then, and only then, can it be credibly argued that such exemptions can be lawfully applied to the holder of a “GRC”. If one cannot successfully litigate an exemption in a prison in relation to the holder of a “GRC” then it is most unlikely that a single sex exemption is going to be successfully litigated in respect of anything else. From a practical point of view enforcement in respect of a “GRC” holder would be next to impossible. A “GRC” holder is entitled to keep the fact that they hold a “GRC” confidential. Further, no one can ask anyone else if they hold a “GRC”. A service provider could demand sight of a birth certificate but most holders of a “GRC” would be able to produce a birth certificate stating that their sex was of their acquired gender. That said, the case law is hardly voluminous on the point, and the conflict between the single sex exemptions of the “EA” and the “GRA” are ripe for developing jurisprudence.

Feminist Objections to “GRA” Reform are a Smokescreen for Transphobia

In recent months feminist objections to “GRA” reform have focused entirely on access to single sex services and facilities. They argue that reforming the “GRA” to a self-declaratory model will effectively open the floodgates to any man wishing to declare themselves a woman and thus abuse the provision to access single sex facilities such as toilets, changing rooms, and other women only areas. The argument always appears to focus on the access of transgender women to such areas. The misconception in the argument, as alluded to earlier in this paper, is the failure of the feminists to explain how the “GRA” permits access to such areas. It has already been shown that the “GRA” does not regulate access to single sex services or spaces, there is no regulation, save for the provisions of the “EA”. The “EA” provides for single sex exemptions but, as already discussed, these are limited and (in reality) of little practical use. If the government eventually legislates for reform of the “GRA” it does not matter if a self-declaratory model is adopted, as such reform will not change the provisions of the “EA” or enact any other provision to regulate access to single sex spaces or services. When one follows the feminist argument on social media channels such as Twitter their real aim becomes apparent very quickly. Even in respect of “GRC” holders (who are legally of the sex commensurate with their acquired gender under the “GRA”) the feminists refuse to acknowledge such transgender persons as the legal sex they now are. They wish to class such people as ‘other’ and enforce separate service provision for them. Homosexual feminists are adamant that same sex attraction can never include a transgender person on the basis of their acquired or self-perceived gender. Transgender women in particular are singled out for attention. Their acquired genders are ridiculed with many feminists dismissing such people as ‘trans identified males’. Much reference is made to biology; however, hardly any of them can cite credible research supporting their theory that humans can never change sex. It is not within the scope of this paper to focus on that particular argument save that it is referenced as an example of feminists never being prepared to accept the acquired gender or self-perceived gender of transgender people. In August 2018 there have been examples of feminist activists targeting female public toilets and placing grossly offensive stickers within such facilities proclaiming ‘Women don’t have Penises’. Feminists repeat again and again misconceptions about the “GRA” and the “EA” with particular focus on the misapplication of the single sex provisions as discussed above. One of the aims of this paper has been to attempt to rebut the misconceptions advanced by such feminists. That said the opposite side of the argument; namely, that “GRA” reform effectively becomes a ‘free for all’ in respect of who can, or cannot, obtain a “GRC” must be rebutted with equal robustness.

Conclusion

This paper sets out to argue that both the feminists and the trans rights activists have got it wrong over “GRA” reform. As has been discussed above the “GRA” never was about regulating access to single sex spaces or services. Nothing in the possible reforms changes this position. Feminists arguing that it does are misconceived or merely using possible reform of the “GRA” for their own transphobic purposes. Restrictions to accessing single sex services by transgender persons (with or without a “GRC”) will only be achieved by amending or repealing the “EA”, or enacting standalone legislation dealing with this discreet issue. As it stands the “EA” single sex exemptions are a mess, not fit for purpose, unlikely to ever be successfully enforced if litigated by a person with the protected characteristic of ‘Gender Reassignment’, and practically impossible to enforce against a “GRC” holder unless a court adopts a purposive interpretation of the “EA”. The conflict between the “GRA” and the “EA” is ripe for clarification and reform. 

Reform of the “GRA” to a self-declaratory model will represent a fundamental change in English law as to who is classed as a ‘man’ and a ‘woman. This paper has not even attempted to deal with the consequences of allowing legal recognition of non-binary identities. At the moment there are less than 5000 “GRC” holders. The award of a “GRC” leads to a fundamental shift of the nature of the relationship between the state and a citizen of the sort envisaged by Lord Nicholls in Bellinger[43]. Legal gender recognition is a recognition by the law on behalf of society of an acquired gender. Society cannot be expected to grant legal recognition of gender subjectively. It does not do it at birth, and this paper argues that it should be no different for an individual seeking to obtain legal gender recognition long after birth. Society is quite capable of recognising subjective identities (and indeed does so) without extending this to legal recognition unless there is objective evidence to justify that. Whilst arguably the current system is administratively burdensome, requiring for example two medical reports, and two years of evidence supporting living in the acquired gender role for two years prior to application, such burdens can be reduced. This paper suggests the need for one medical report and for the requirement to have lived in the acquired gender role for one year prior to application (this one year living in the acquired gender role would be commensurate with the requirements for obtaining gender reassignment surgery for example). The key principle must be to retain the credibility of the “GRC”. At the moment the public (save for some exceptions such as feminists) appears to accept the holder of a “GRC” as of the sex commensurate with their acquired gender; however, we must not forget the fact that the “GRC” is but a piece of paper. If ‘anyone’ is able to obtain a ‘GRC’ public confidence will fall and the efficacy of the “GRC” and its legislative purpose; to give legal (and by extension society’s) recognition to an acquired gender will diminish. Should that occur it will not matter if one holds a “GRC”, it will be a useless piece of paper subject to public ridicule.

Ultimately transgender persons should see the need for society to evolve as to understanding and acceptance (in many ways it already has); however, refusing to work with society to achieve a balance of rights, respecting everyone, is not the way forward. The feminist arguments lack credibility; however, the key for trans rights activists is to retain credibility. Not everyone who identifies under the transgender umbrella should be eligible to obtain a “GRC”. The provisions of the “GRA” are for changing sex in the eyes of the law and society. This should not be possible by filling in a form as if one is seeking revocation of a parking ticket. Such an idea trivialises the concept of a “GRC” and the profound consequences that being granted one has on an individual citizen.

Western liberal democracies have evolved to accept transgender persons as well as many others. The aim of the transgender person must be to demonstrate that the class is not a threat to society. This is done by balancing everyone’s rights and accepting that society, through its laws, must have some role in the regulation of who is classed as a man and as a woman. Transphobia is abhorrent; however, transgender persons can win the argument with informed discussion, public education, respect, and a tolerance of those who do not agree with the concept.

The feminists and the trans rights activists have both got it wrong. It is in the interests of society as a whole that the tone of the debate rapidly improves, that feminists stop stating as fact misconceptions in the law, and that trans rights activists realise that legal gender recognition is not just a case of obtaining a new birth certificate.

Stephanie R Hayden

Leeds, United Kingdom

18 August 2018

About the Author

Stephanie is a male to female transgender person holding a Gender Recognition Certificate. She is a Bachelor of Laws and has been in legal professional practice since 2008. Stephanie practices in employment law and regularly appears in the Employment Tribunal. In 2012 she was granted a special right of audience in the High Court to represent a defendant in the case of Hardy v Jones & Others. Stephanie has appeared on BBC News in her previous legal gender to discuss the Royal Bank of Scotland computer crash of 2012 and regularly makes contributions on radio. She has written for both the London Evening Standard and the Daily Star.

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[1]House of Commons Women and Equalities Committee, Transgender Equality, (HC390, 2015).

[2]Ibidparas 44-45.

[3]Government Equalities Office, ‘Reform of the Gender Recognition Act 2004’ https://www.gov.uk/government/consultations/reform-of-the-gender-recognition-act-2004accessed 18 August 2018.

[4]s.9 Gender Recognition Act 2004.

[5]Sch. 3 Part 7 Equality Act 2010.

[6]Ibidpara 28.

[7]s.1 Gender Recognition Act 2004.

[8]Ibid.

[9]s.2 Gender Recognition Act 2004.

[10]s.3 Gender Recognition Act 2004.

[11]s.9 (1) Gender Recognition Act 2004.

[12]Ibid.

[13]ss. 12-20 Gender Recognition Act 2004.

[14]s.9 (2) Gender Recognition Act 2004.

[15]s.9 (3) Gender Recognition Act 2004.

[16]s.10 Gender Recognition Act 2004.

[17]s.22 Gender Recognition Act 2004.

[18]Art 2 The Gender Recognition Act 2004 (Commencement Order) 2005.

[19][1970] 2 WLR 1306.

[20](2002) 35 EHRR 18.

[21][2003] UKHL 21.

[22][1970] 2 WLR 1306.

[23][2003] UKHL 21 at [28].

[24]Ibid at [31].

[25]s.9 (3) Gender Recognition Act 2004.

[26]Croft v Royal Mail Group plc[2003] ICR 1425 at [47] to [48].

[27]s.7 Equality Act 2010.

[28]s.11 Equality Act 2010.

[29]s.7 (1) Equality Act 2010.

[30]s.11 (a) Equality Act 2010.

[31][1970] 2 WLR 1306.

[32]s. 9 (1) Gender Recognition Act 2004.

[33]Ibid.

[34]s. 7 (2) Equality Act 2010.

[35][2003] ICR 1425.

[36]Sch. 3 Part 7 para 28 (2) Equality Act 2010.

[37][2003] ICR 1425.

[38]Brook v Tasker, County Court at Halifax, Unreported, 7 March 2014.

[39]R. (on the application of B) v Secretary of State for Justice [2009] EWHC 2220 (Admin).

[40]s.9 (1) Gender Recognition Act 2004.

[41]s.9 (3) Gender Recognition Act 2004.

[42]Sch. 3 Part 7 para 28 (2) Equality Act 2010.

[43][2003] UKHL 21 at [28].