The report of the House of Commons Women and Equalities Committee Transgender inquiry contains much to welcome. It highlights the discrimination, harassment and violence experienced by too many transgender people and exposes the need to improve transgender people’s confidence in the criminal justice system. It makes important recommendations to ensure that transgender people receive the healthcare that they need and are treated with dignity and respect throughout the health service. It identifies the failure to implement the 2011 Advancing Transgender Equality Plan and recommends a new strategy. All these represent important steps in improving the lives of transgender people in the UK.
Unfortunately however the report, and the inquiry process that led to it, contain many serious shortcomings. Several of the recommendations of the inquiry, taken together, would undermine women only services. If these recommendations were adopted this would mean that women’s refuges, rape crisis centres and prisons would have no way of preventing someone who was born male and identified as a man from accessing their services so long as he said he identified as a woman. There is already evidence that this is happening in the prison service. None of the specialist women’s services on whose work these recommendations would impact took part in any oral hearings. Concerns that were raised about potential impact on women only services were referred to briefly in the report but there was no attempt to address the arguments behind them.
The report contains a number of additional flaws. It fails to properly define the group whose needs are the subject of the inquiry, it presents as uncontested a number of claims which are either subject to debate or appear demonstrably incorrect and it fails to address a range of concerns raised by individuals and groups submitting evidence, including transgender people themselves.
The inquiry report states that ‘each of us is at birth assigned a sex (male or female) based on our physical characteristics’. It would be more accurate to say that for the vast majority of people, with the exception of intersex people, our sex at birth is recognised based on our physical characteristics. Humans, in common with all other mammals, are sexually dimorphic. The use of the term ‘assigned’ implies that there is something arbitrary about the process by which sex in babies is recognised. The fact that some individuals experience dysphoria so severe that it is necessary for them to transition to the gender with which they identify does not negate the existence of biological sexual differences between women and men.
It is not at all clear how the report is using the term ‘trans’. It appears to encompass people who ‘have a gender identity which differs from their (assigned) birth sex’, people whose identity is ‘located at a (fixed or variable) point along a continuum between male and female’ and people who are ‘non gendered’. The report also refers to people who are ‘gender variant’ that is whose ‘behaviour and interests [..] are outside what is considered “normal” for a person’s assigned (biological) sex’. This last group would seem to include anyone who does not conform to sexual stereotypes, the majority of whom would not consider themselves to be trans. This lack of clarity is a reflection of the wide range of identities, forms of presentation and behaviour that have been described as ‘trans’. However it makes it difficult to know which groups of people are being referred to at various points in the report.
Contested and inaccurate claims
The report states that ‘current estimates indicate that some 650,000 people’ (1% of the population) are “likely to be gender incongruent to some degree”. Two submissions to the enquiry from the Gender Identity Research and Education Service (GIRES) are cited in support of this claim. The second argues that a recent survey by the EHRC found that ‘1% of the population met the criteria to be protected by the ‘gender reassignment’ characteristic’[i]. This refers to a Technical note: measuring gender identity, produced by the EHRC.[ii]
However the findings of the EHRC survey were significantly more complicated than this. Respondents were asked five questions. The first three related to identity, these were: a ‘standard’ gender question (are you male/female?), how they were described at birth (male, female, intersex, prefer not to say) and how they thought of themselves (male, female, in another way). The majority of respondents gave either all ‘male’ answers (49.1%) or all ‘female’ answers (50.1%). Of the other 0.8%, just under 0.4% thought of themselves ‘in another way’. These respondents gave a range of preferred terms including transgender, genderqueer, gender- fluid, some combination of male and female, gender neutral, genderless, a person, human, normal, androgyne and neither/none suggesting that at least some respondents rejected a notion of gender identity altogether. Just under 0.4% gave a combination of male and female in answer to the three questions. However the authors point out that not all of these people can be considered trans. Most of them (24 people) changed their answers between the standard question (are you male/female?) and the second two questions, answering male at first and then female to the other two or vice versa. This means that they answered that they were born male and identified as male or born female and identified as female. Of these 24 people only one said that they had thought about, were taking or had taken any action to change their sex to match their gender identity. This leaves 0.15% of people (ten male at birth and five female) who said that they were described as one sex at birth but identified as the other.
The second set of questions related to transition. They were ‘Have you gone through any part of a process (including thoughts or actions) to change from the sex you were described as at birth to the gender you identify with, or do you intend to? (This could include changing your name, wearing different clothes, taking hormones or having gender reassignment surgery)’. Respondents answering ‘yes’ were then asked which best described them, (‘I am thinking about going through this process, I am currently going through this process, I have already been through this process, I have been through this process, then changed back, None of the above, prefer not to say’). A final question asked those who answered yes to the question about transition which term describes how they thought about themselves, (Trans man, Trans woman, Transsexual person, Gender variant person, Cross dressing/ transvestite person, Intersex person, In another way or prefer not to say).
100 people (1% of the sample) gave the answer ‘yes’ when asked if they had gone through any part of the process to change from the sex they were described at birth to the gender they identify with. This figure appears to be the basis on which GIRES make the claim that 1% ‘fit the gender reassignment characteristic’. However 83% of these people gave all ‘male’ or all ‘female’ answers to the previous three questions, i.e. they described themselves as identifying with the same gender as their sex at birth. This suggests some confusion about what the question meant. Only 31% of those who described their gender ‘in another way’ answered yes to this question. Of the ten people who said they were described as male at birth but identified as female only 4 answered ‘yes’ to the question about transition. None of the people who said they were described as female but identified as male answered yes. Again this suggests that there may be some confusion among respondents about what the questions meant: the majority of those who answered ‘yes’ to the question about transition (which included thinking about transition) did not have a gender identity that differed from their birth sex, and only a minority of those who had a gender identity that differed from their birth sex had thought about or taken action to change from their birth sex to the gender they identified with. As a proportion of all respondents 0.17% of people said they were thinking of going through a process of transition, 0.2% were going through a process of transition and 0.17% had been through a process of transition (0.54%) with the rest preferring not to say or answering ‘none of the above’.
The answers to the final question about transgender identities were varied. This question was only asked of those who answered yes to the question about transition; 98 people responded. Of these 7% described themselves as a trans man, 8% as a transwoman, 7% as a transsexual person, 7% described themselves as gender variant, (a total of 29% of those answering or 0.29% of the total respondents). Another 17% described themselves as transvestite or cross dressing, suggesting that the ‘changes’ they referred to were limited to dress rather than a more fundamental transition. 29% described themselves ‘in another way’ including ‘human’, ‘normal’ ‘myself’ and 27% preferred not to say. The EHRC argue that this variety ‘makes these results difficult to interpret’. With this in mind it is hard to be confident that the 1% figure cited by GIRES is accurate.
Other data cited by the GIRES comes from research in the Netherlands and Belgium which identifies two groups, those with an ambiguous identity (which GIRES describe as non binary) and those with an incongruent identity (which GIRES describe as trans). Between 2.2 % and 4.6 % of natal men, and 1.9 % and 3.2 % of natal women reported an ambivalent gender identity. Between 0.7 % and 1.1 % of natal men and 0.6 % and 0.8 % of natal women reported an incongruent gender identity. However a closer analysis of the Netherlands research shows that it does not specifically ask people how they identify – rather it asks both men and women how they ‘experience themselves’ on two scales, one as a man and one as a woman, on five points from not at all to completely. Those with an ambivalent identity reported experiencing themselves equally as a man and as a woman, those with an incongruent identity ‘experienced themselves’ less as the sex they were born in than the other sex. The research does not appear to distinguish between those people who were answering in terms of their identity and those who were answering in terms of how they placed themselves on a scale of masculinity/femininity; (that is in terms of the interests, behaviour and presentation that might be socially expected for men and women), but who identified with their birth sex. Furthermore the researchers point out that the survey only had a 20.9% response rate and that those who chose to participate in a survey on sexuality and relationships might not be representative of the general population which limits the generalisability of the results.
In view of this it is hard to see how the figure of 650,000 people given in the report is sustainable.
Age at which a gender recognition certificate can be granted
The report cites submissions arguing in favour of lowering the age at which a gender recognition certificate can be granted. It quotes Peter Dunne who argues that ‘recent evidence suggests that young individuals hold a stable gender identity from early childhood’. This claim runs counter to the evidence that the majority of children with ‘Gender Identity Disorder’ will grow up to identify with their birth sex. At no point during the report are the implications of this evidence discussed, indeed the evidence itself is not referred to at any point during the report. This is despite the fact that the submission from the Tavistock clinic, which is referred to at some length elsewhere in the report makes it clear that the majority of children with gender identity disorder will not grow up to be transgender adults.
Single sex services
The report concludes that the discretion to exclude transpeople from accessing or working at single sex services should not apply where a transperson has a Gender Recognition Certificate because a decision to exclude in these cases unlikely to be proportionate. The equality act permits such exclusion in certain circumstances but only if it is a proportionate means of meeting a legitimate aim. The conclusion that exclusion of a transperson with a GRC is unlikely to be proportionate is based on a legal opinion provided by Claire McCann who was an advisor to the committee. However the opinion was based on the assumption that people who had a Gender Recognition Certificate had gone through the process currently required by the Gender Recognition Act. The committee has also recommended changing the Gender Recognition Act to make application for a GRC a process of self certification. This would mean that there would be no requirement for a person to suffer from gender dysphoria, or a requirement to have lived in their acquired gender for two years and no panel process to test whether the application was genuine. A person could be born male, identify, live and present as a man and still be entitled to a GRC so long as they declared that they identified as a woman, even if this was not the case. In such circumstances it is hard to see how a decision to exclude such a person could never be considered proportionate.
Treatment of children
On the treatment of children the report concludes that ‘there is a clear and strong case that delaying treatment risks more harm that providing it. The treatment involved is primarily reversible, and the serious dangerous consequences of not giving this treatment, including self harm and suicide are well attested. Accordingly, we recommend that, in the current review of the service specification and protocol for the Gender Identity Development Service, consideration be given to reducing the amount of time for the assessment that service users must undergo before puberty blockers and cross sex hormones can be prescribed.’
However the written evidence from the Tavistock clinic recognises that ‘Although pubertal suppression, cross-sex hormones and gender reassignment are generally considered safe in the short term, the long-term effects regarding bone health and cardiovascular risks are still unknown’. In an interview with the Guardian Dr Polly Carmichael, the consultant clinical psychologist who leads the Tavistock’s Gender Identity Development Service, argued that: “The blocker is said to be completely reversible, which is disingenuous because nothing’s completely reversible. It might be that the introduction of natal hormones [those you are born with] at puberty has an impact on the trajectory of gender dysphoria.” Her colleague Dr Bernadette Wren argued that “We have shifted to make the treatment available earlier and earlier. But the earlier you do it, the more you run the risk that it’s an intervention people would say yes to at a young age, but perhaps would not be so happy with when they move into their later adulthood.”
This suggests that puberty blocking treatment, far from being reversible and guaranteeing positive outcomes, may in fact lead to further problems later in life as young adults regret the decisions they made as children. Both puberty supressing treatment and cross sex hormone carry long term health risks. Some of the known risks of cross sex hormones include mood swings, increased risk of heart disease, diabetes, cancer and loss of fertility. It is widely recognised that there is insufficient evidence to show what the long term consequences of a life time on hormones might be. There is no evidence in the report that these risks were considered before the committee made its recommendations.
At the same time it is not clear that these treatments will improve outcomes for children presenting with gender identity disorders. The report accepts uncritically the argument from the organisation Mermaids that high levels of mental distress, self-harm and suicide among transgender young people will be alleviated by medical treatment in the form of puberty blockers and cross sex hormones. However there is little evidence that this is the case. The report refers to a Dutch study of 55 young people, cited by the Tavistock clinic in its submission, which appeared to show the benefits of early intervention. However the Tavistock submission makes clear that these findings ‘those young people who achieve good outcomes are more likely to be those who have experienced life-long gender non conformity and who start off with significant social advantages: chiefly, the absence of any serious psychological difficulties and the presence of strong family support’ and that ‘this is not the profile of a high proportion of GIDS clients’. The written evidence from the Tavistock clinic concludes that ‘the research evidence for the effectiveness of any particular treatment offered is still limited’.
The report states that ‘there is a clear risk of harm, (including violence, sexual assault, self harming and suicide) where trans prisoners are not located in a prison or other setting appropriate to their acquired/affirmed gender’. This implies that trans prisoners should be housed in line with their stated gender identity rather than their biological sex, regardless of whether they have a gender recognition certificate. One of the cases cited in support of this conclusion is that of Joanne Latham who committed suicide in November 2015. However it is not at all clear whether Latham’s suicide was the result of being held in a man’s prison – Latham had only recently changed to a female name, had not requested a transfer to a women’s prison and had a history of mental illness. Latham was an extremely violent offender serving a series of life sentences, including for two attack on fellow inmates and was judged so dangerous that he had to be handcuffed to two nurses when seeing a lawyer. He had not had any hormonal treatment or surgery. The inclusion of Latham’s case suggests that the committee is suggesting that an extremely violent offender, who has undergone no process of transition, should be moved to a women’s prison immediately on announcing that they wish to be known as a woman. There is no discussion in the report of the possible dangers this might pose to women prisoners, nor how these should be addressed.
Two bodies representing gender identity specialists who take referrals from prisoners gave written evidence to the committee raising concerns about a number of sex offenders who the organisations believed were claiming to be trans when they did not in fact identify as women. According to the British Psychological Society the reasons for this were:
- As a means of demonstrating reduced risk and so gaining parole;
- As a means of explaining their sex offending aside from sexual gratification (e.g. wanting to ‘examine’ young females);
- As a means of separating their sex offending self (male) from their future self (female);
- In rare cases it has been thought that the person is seeking better access to females and young children through presenting in an apparently female way.
The British Association of Gender Identity Specialists warned of:
‘The ever-increasing tide of referrals of patients in prison serving long or indeterminate sentences for serious sexual offences. These vastly outnumber the number of prisoners incarcerated for more ordinary, non-sexual, offences. It has been rather naïvely suggested that nobody would seek to pretend transsexual status in prison if this were not actually the case. There are, to those of us who actually interview the prisoners, in fact very many reasons why people might pretend this. These vary from the opportunity to have trips out of prison through to a desire for a transfer to the female estate (to the same prison as a co-defendant) through to the idea that a parole board will perceive somebody who is female as being less dangerous through to a [false] belief that hormone treatment will actually render one less dangerous through to wanting a special or protected status within the prison system and even (in one very well evidenced case that a highly concerned Prison Governor brought particularly to my attention) a plethora of prison intelligence information suggesting that the driving force was a desire to make subsequent sexual offending very much easier, females being generally perceived as low risk in this regard’.
The evidence from BAGIS is briefly referred to in passing in the report; ‘the press have reported cis-gendered males claiming to be trans in order to obtain privileges and Dr Barrett of BAGIS suggested that their might also be other more varied and sometimes sinister motives’. It goes on to dismiss these concerns, citing the Prison reform trust who ‘felt that the number of prisoners in this situation and the challenges they posed, might have been exaggerated’. However the Prison Reform Trust’s comments specifically related to press reports of prisoners who wished to ‘live in role’; living as a woman in a men’s prison. Their submission did not address the particular concerns raised by the BAGIS of prisoners who were claiming to be trans in order to transfer to a women’s prison. Aside from this very brief mention there is no discussion of the concerns raised by either of the two organisations, nor of the implications that the committee’s proposals might have on the safety of women prisoners.