W340 TMA01 PI: E4044844

Edward Freddie Cook

1)

This essay will critically evaluate the social and legal reasoning in support of and in
opposition to reforming the Gender Recognition Act 2004 (GRA 2004) to simplify the process
for legal gender recognition and argue why reforming the act is the right thing to do both on
a social and legal level.

When discussing if the GRA 2004 should be reformed to simplify the process for gender
recognition, one must examine the potential ramifications. This essay will focus on the GRA
2004, the Gender Recognition Reform (Scotland) Bill 2022 (GRRB 2022) as a template for a
reform bill in English law due to the fact it stems from the consultation analysis reviewing the
GRA 2004, also balancing the desire of the trans community as examined and reported
through Stonewall.

Under the GRA 2004 s 2(1)(a-c), legal gender recognition requires a medical diagnosis of
gender dysphoria and proof of having living in the acquired gender identity from two years,
as well as showing a willingness to live with the acquired gender until death. This is widely
considered to be outdated, unnecessarily invasive, and extremely slow and onerous due to
long wait times. In the Review of GRA 2004 consultation, 60% of respondents agreed with
the reforming to a self-declaratory system.

Under GRRB 2022 s 4 (1)(a)(i-iv) these provisions would be loosened, allowing applicants to
apply from the age of 16, require only three months of experience living in the acquired
gender, and moves from the medical diagnosis to a statutory declaration. However, the
provision of intent to live with the acquired gender until death remains.

These reforms show a marked improvement for the burden placed on trans-people and their
access to rights, both in application duration, and eliminating invasive medical diagnoses
which can take 3-5 years (Nicolle, 2022). However it does not account for gender fluidity,
either by allowing for intention to change gender multiple times, or perhaps more simply to
offer non-binary identification as a legal gender. Legally defining trans-women and trans-
men as individual genders which must be afforded the same rights as their cisgendered
counterparts would also reduce confusion caused by lack of clarity in legal terminology,
furthermore the disparity between gender as recognised in the GRA 2004 and sex in the
Equalities Act 2010 (EA 2010) should be legally outlined so that legal contests have a clear
legal disparity of the two terms, and how specific rights interact with each term.
W340 TMA01 PI: E4044844
Edward Freddie Cook

Additionally, there is debate around the effect of gender recognition reform on single sex
spaces such as toilets and prisons. Alex Sharpe notably defended the position that harm to
cisgendered women would not be increased by inclusion of trans-women in areas such as
female toilets, citing American police departments and human rights commissions which
repeatedly found such instances to be exceedingly rare (Sharpe, 2020). Sharpe does note
that UK equivalent data is still in its infancy, but that studies done on fifteen of the largest
women’s organisations on both national and regional levels revealed no significant issues
and that none used sex-based exceptions to exclude trans-women from accessing their
support (Sharpe, 2020). Sharpe also argues that where absolutely necessary, institutions
could exclude trans-women from single sex spaces if they so wished, and believes the fact
this isn’t happening is indicative of a desire for inclusivity and social acceptance of trans-
women. Sharpe also notes that trans-persons are far more likely to be assaulted in the
bathroom of the gender assigned to them at birth.

The paper also addresses the issue around the failures which led to the case of Karen
White, where a trans-woman with a criminal history including rape, grievous bodily harm,
and gross indecency with a child was placed in a female prison and proceeded to sexually
abuse a number of female inmates. Whilst this was undeniably a horrifying situation, it was
due to failures in following an existing system. In the Review on the Care and Management
of Transgender Offenders published in 2016 it states “allowing transgender offenders to
experience the system in the gender in which they identify will, in the great majority of cases,
represent the most humane and safest way to act” however, in the Care and Management of
Transgender Offenders (CMTO 2016) policy paper paragraph 4.7, it states that “Exemptions
apply to women (whether or not transgender) where the risk posed to other offenders and/or
staff prevents location in the female estate”. This provision was not followed for Karen White
resulting in terrible consequences, but the provision is there and has been used on
numerous occasions.

Sharpe concludes by highlighting that it is the EA 2010 which governs and protects the rights
of single sex spaces for areas such as women’s groups and therefore GRA 2004 reform
would not undermine those protections. Finally, Sharpe talks about how there will not be any
systemic increase in harm to women from GRA 2004 reform due to the highly isolated nature
of incidents such as the admittedly horrific events such as Karen White’s incarceration.

Whilst the case of Karen White can certainly be used as a lesson in systemic oversight in
prison assignment with transgender offenders, it cannot be reasonably used to deny rights to
the overwhelming majority of non-offending transgender persons. This is an issue for penal
reform, not for gender recognition reform (Sharpe 2020).
W340 TMA01 PI: E4044844
Edward Freddie Cook

In response to Sharpe, Asteriti and Bull (2020) criticised his arguments. It should be noted
that from the outset they have diametrically opposing ideas around trans identity. Asteriti
claims that trans-women are a subset of the male sex class whereas Sharpe recognises
them purely by their gender. This underlying difference of belief has ramifications through
every aspect of their rebuttal. Whilst Asteriti and Bull are entitled to their personal views on
the matter, it is out of step with all current prevailing thought and research, and therefore a
lot of their argument points are too. One point however which is notable is where they say
they refute that “’all trans-women are women’ as neither legally accurate nor biologically
correct nor logical” and go on to propose that the definition of female in EA 2010 is based on
sex as opposed to gender. They are correct only in so much as gender, transgenderism, and
its role in being male or female either in line with or in contrast to one’s sex is not legally
defined. This lack of legal definition allows for viewpoints as different as Sharpe’s and
Asteriti’s because both arguments stem from different core definitions central to the debate
with neither having the law explicitly and definitively on their side, leaving too much up to
interpretation (Asteriti 2020).

In conclusion, there are arguments for not reforming the GRA 2004, they either stem from a
misunderstanding of transgenderism at its core, the rights afforded to both transgender and
cisgender women separately under the GRA 2004, proposed reform such as GRRB 2022,
and the EA 2010, or they are exclusionary of the whole issue of gender recognition rights
based on acute issues which should be treated independently such as prison oversight and
reform. Reasons supporting reform of the GRA 2004 are far greater and more persuasive
and largely backed on a public and organisational level.

(1196 words)
W340 TMA01 PI: E4044844
Edward Freddie Cook

2.
The most reliable secondary source I used was the Review of the Gender Recognition Act
2004: Analysis of responses to the public consultation exercise. This is the case for a
number of reasons.
Firstly, as a source it informed me of both the social landscape regarding gender recognition
reform in Scotland but quite possibly in England too.
The review is laid out very clearly, covering each issue and each significant response to
each issue in a well formatted, detailed, succinct, but coherent manner.
It is also exceptionally relevant, it is specifically focused on the idea of reforming the GRA
2004 and how the British and broader public would support it in each area. This is essential
for forming laws which everyone can live under.
The review was thoroughly objective, it asked detailed but objective questions to 15,532
individuals from Scotland, the broader UK, and the rest of the world as well as 165 groups
and organisations, this broad base of respondents makes for exceptionally reliable data
aggregation.
When one looks at the data collection method, they show a breakdown of the different types
of groups consulted and in what numbers, such as religious bodies, trans groups, women’s
groups and more. Furthermore, they highlight that they removed instances of duplicate
submissions which were detected by repeated names and email addresses.
The provenance of this research is clear, if not by one sole individual like a journal might be,
but the fact it was commissioned by the Scottish Government means that it is very prominent
as to what body commissioned it.
As mentioned before, this review was conducted in 2018 specifically with regards to
critiquing the GRA 2004 across a broad spectrum of groups and individuals and directly led
to reform proposals, making it of outstandingly relevant in its timeliness.

(298 words)
W340 TMA01 PI: E4044844
Edward Freddie Cook

Reference List:

Gender Recognition Act 2004 [online] available at

https://www.legislation.gov.uk/ukpga/2004/7/contents (accessed 09/11/2022)

Equalities Act 2010 [online] available at

https://www.legislation.gov.uk/ukpga/2010/15/contents (accessed 09/11/2022)

Gender Recognition Reform (Scotland) Bill 2022 [online] available at

https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill/
stage-2 (accessed on 10/11/2022)

Nicolle, L. (31/03/2022) Are transgender people still facing barriers when it comes to
accessing health and social care? Geriatric Medical Journal. [online] available at
https://www.gmjournal.co.uk/are-transgender-people-still-facing-barriers-when-it-comes-to-
accessing-health-and-social-care#:~:text=Under%20the%20NHS%20constitution%2C
%2092,being%20referred%20by%20their%20GP.&text=However%2C%20for%20people
%20looking%20to,is%20three%20to%20five%20years. (Accessed 09/11/2022)

Review of the Gender Recognition Act 2004: consultation analysis [online] available at
https://www.gov.scot/publications/review-gender-recognition-act-2004-analysis-responses-
public-consultation-exercise-report/documents/ (accessed 09/11/2022)

Gender Recognition Act reform: consultation and outcome [online] available at

https://commonslibrary.parliament.uk/research-briefings/cbp-9079/ (accessed 09/11/2022)

Sharpe, A. (11/01/2020) Will Gender Self-Declaration Undermine Women's Rights and Lead
to an Increase in Harms? 83 MLR 539

Asteriti, A. and Bull, R. (2020) Gender Self-Declaration and Women’s Rights: How Self
Identification Undermines Women’s Rights and Will Lead to an Increase in Harms: A Reply
to Alex Sharpe, ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an
Increase in Harms?’ (22/07/2020) 83(3) MLR 539, Modern Law Review [online] available at
https://www.modernlawreview.co.uk/asteriti-bull-sharpe/#ann1 (accessed 09/11/2022)
W340 TMA01 PI: E4044844
Edward Freddie Cook

Parveen, N. (2018) Karen White: how ‘manipulative’ transgender inmate attacked again, The
Guardian (11/10/2018) [online] available at
https://www.theguardian.com/society/2018/oct/11/karen-white-how-manipulative-and-
controlling-offender-attacked-again-transgender-prison (accessed 09/11/2022)

National Offender Management Service (2016), The Care and Management of Transgender
Offenders [online] available at
https://www.insidetime.org/wp-content/uploads/filebase/rules_&_policies/
psi_(prison_service_instructions)/2016/PSI_2016-017_The-Care-and-Management-of-
Transgender-Offenders.pdf (accessed 09/11/2022)

Kelley, N. (2020) Stonewall statement on Gender Recognition Act reform [online] available at
https://www.stonewall.org.uk/about-us/news/stonewall-statement-gender-recognition-act-
reform (accessed 09/11/2022)

Gender Identity Clinic: Waiting Times [online] available at

https://gic.nhs.uk/appointments/waiting-times/ (accessed 10/11/2022)

Freedman, R. (2021) Evidence on Data and Trans Women’s Offending Rates [online]
available at https://committees.parliament.uk/writtenevidence/18973/pdf/ (accessed
09/11/2022)