International Day Against Homophobia, Biphobia and Transphobia

Part of the debate – in the House of Commons at 4:30 pm on 16th May 2019.

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Photo of Mhairi Black Mhairi Black Shadow SNP Spokesperson (Pensions), Shadow SNP Spokesperson (Youth affairs), Shadow SNP Spokesperson (Children and Families), Shadow SNP Deputy Spokesperson (Equalities), Shadow SNP Deputy Spokesperson (Disabilities) 4:30 pm, 16th May 2019

I want to start by saying that I am very proud that Scotland is one of the world’s leading LGBTI+ rights countries in the world, and I am proud that I and the Scottish Government were elected on a manifesto commitment to reform the Gender Recognition Act 2004 in particular.

I know that I am not alone in feeling that ignorance is rearing its ugly head again, but it is our job to make sure that we bring people with us. The reality is that most folk do not know a lot about trans people; they do not know a lot about trans issues; and they do not know a lot about the laws that we are seeking to reform. I want to use today as an opportunity to take a little heat out of such discussions and explain and answer some of the concerns that people have about the Gender Recognition Act and trans rights more broadly.

First, the Act provides a process for trans people to obtain a gender recognition certificate, which is basically the equivalent of a new birth certificate, but it reflects who that person is. In order to take part in this process, a person must pay a £140 fee; they must be over 18; they must not be married and if they are married spousal consent has to be given; they must have a diagnosis of gender dysphoria through medical and psychiatric reports; they must prove that they have lived fully for two years in their gender; and then they must present this dossier of evidence to a gender recognition panel, which we know from gathering evidence is a really redundant system and which asks a lot of totally inappropriate and irrelevant questions.

Let me talk about the problems with the GRA as it stands. First, not all folk can afford the £140 fee. That cost can be covered in instances of low income, but medical and psychiatric reports, which can cost an absolute bomb for a lot of people, are not covered. Then there is the idea that someone needs spousal consent if they are married. That is a medieval kind of rule. For someone to prove that they have lived for two years in a certain gender is as redundant as it is hypocritical. Action for Trans Health warned that this requirement can force trans people to conform to outdated norms of gender and behaviour. It also risks outing these individuals, because if they are challenged at some point in those two years, they do not have a gender recognition certificate and could therefore find themselves in a dangerous situation, so it is a totally unjustified ask.

Finally, the requirement of a diagnosis of gender dysphoria is absolutely ridiculous. The World Health Organisation removed trans gender from the international classification of diseases. Another look at this shows that it removed homosexuality only in 1992. Gender dysphoria is defined as distress or discomfort caused by a mismatch between gender identity and the identity assigned at birth. It is important to say that not every trans person experiences gender dysphoria. A comparable hypothetical situation would be if I had to go to a doctor and get a clinical diagnosis of anxiety or depression before someone believes that I am gay. Of course, a lot of gay people experience anxiety and depression in relation to their sexuality, but that is because of the way that the world treats us at the minute; it is not a medical consequence of being gay. The same is true of a trans gender person experiencing gender dysphoria.

The great thing about the Gender Recognition Act when it first came out in 2004 was that it recognised that not all trans people are physically or mentally prepared for surgery for a whole range of nuanced and different reasons. The everyday bigotry and ignorance experienced by trans people creates a vicious cycle of harassment and exclusion. I for one understand why many trans people are too emotionally exhausted to entertain this process to even get a GRC.

Under the reforms that have been put forward in Scotland—this place is looking at similar reforms—an individual would appear in person before a justice of the peace to make a statutory declaration confirming the truth of their application and their intention to live in their acquired gender for the remainder of their lives. The penalty for obtaining this by fraud would be two years in jail. This would bring us into line with international best practice, as we already see in Argentina, Malta, Norway, Denmark, Belgium and the Republic of Ireland. No evidence from any of those countries suggests that the system is abused in any way.

The Scottish Government’s consultation ended in March 2018. There were 15,000 responses, all of which were overwhelmingly in support of the reforms. Close the Gap, Equate Scotland, Rape Crisis Scotland, Scottish Women’s Aid, Women 50:50 and Zero Tolerance support all these reforms, and released a joint statement saying:

“We do not regard trans equality and women’s equality to contradict or be in competition with each other”.

To be clear, there are absolutely no suggestions that we should change the exclusion clause in the Equality Act 2010, and it is the Equality Act that deals with single-sex services, where a lot of the recent concerns that have been surfacing seem to lie. If anyone wants to look this up for research purposes, page 7 of the Equality Act states that exclusion clauses can be used where

“a proportionate means of achieving a legitimate aim” can be shown.

It is important to follow that by saying that Rape Crisis and Women’s Aid already provide trans-inclusive services on the basis of self-ID, and have done so for well over a decade. They appreciate that trans women are running from the same abuse, the same toxic masculinity, and the same sexual and physical violence as other women they serve. We hear concerns such as, “What if an abusive male partner turns up to a refuge centre and starts self-identifying as a woman?” Well, the reality is that they would be treated in exactly the same way as an abusive lesbian partner turning up to a refuge. These questions already have answers. People have a right to express legitimate concerns and questions, but what I am saying just now is that either we are witnessing an open attack on rights that are already established and long have been, or we are seeing a worrying level of ignorance.

The only people responsible for abuse are abusers. We understand that men perpetrate more abuse against women, and we have to understand this trend if we want to challenge it, but that does not legitimise framing discussions on trans rights from the viewpoint that trans women are a threat. It is the same tactic used by the far right. For example, the far right portrays sexual crimes by Muslim men as endemic, yet ignores the fact that most rapists and paedophiles are actually white men. We hear arguments that we cannot have a compassionate social security system because benefits scroungers will just cheat and abuse the system, when the truth is that that does not actually happen a lot. The bigger problem is people not claiming what they are entitled to. Fake stories or individual cases are used to smear entire communities, against wider evidence. The same thing regularly happens to the trans community, and it is happening just now.

For me, being a feminist means dismantling the patriarchy. That patriarchy has hurt every different identity in society in different ways—whether it be all the battles that feminists have been fighting on women’s behalf for generations, or men not feeling able to talk about their mental health or to seek help because they cannot be seen as weak or vulnerable. Even within the LGB community, we see the harm that this patriarchy does. We see guys who feel the need to be effeminate because they are gay, or women who feel the need to become butch because they are lesbian. All these insecurities are instilled in people, and it plays out in different ways.

We live in a highly gendered and patriarchal world. Many people fail to grasp that it is also an incredibly heterosexual and binary world, and this goes hand in hand with the patriarchy. It is quite telling that there seems to be little concern—certainly little vocal concern—for trans men and the situations that they might find themselves in. Being an LGBT ally is more than supporting our existence and rights in theory; rather, it is demonstrating and taking personal responsibility to educate ourselves to understand the everyday barriers and prejudices that we face. We have to find out why the general welfare of trans people is so awful, given that they make up less than 1% of the population. People are right to express legitimate questions and concerns, but if they dig deep enough, I think they will find that the answers are indeed there.