Self-identification of Gender

Hannah Bardell Excerpts

Wednesday 21st November 2018 Westminster Hall

[David T. C. Davies]

The hon. Lady is right, but if I over-simplify, it is partly so that she can have a chance to speak. We have only 90 minutes, and this is the first time we have debated the issue properly in the House of Commons. I look forward to hearing her longer explanation.

[Hannah Bardell (Livingston) (SNP)]

I congratulate the hon. Gentleman on bringing this debate to Parliament. It is such an important issue, and this is a great opportunity for us to have a respectful debate and discussion, but does he agree that as parliamentarians we have a duty not to over-simplify and to ensure that we properly educate ourselves to have an informed debate and discussion?

[David T. C. Davies]

Absolutely. That is why I have spent quite a lot of time talking to women who have concerns about the issue. Very few Members of Parliament have been willing to educate themselves and come along and meet people who have those concerns. It is notable that when we have had meetings in the House of Commons, very few people have turned up to listen to the concerns of activist feminist groups who feel that the potential change to the law will have a huge impact on their lives. I look forward to the hon. Lady’s support at future meetings we may have—we look forward to seeing her.

The Government are now considering legislation that would do away with the checks that are currently made and allow people to redefine themselves as any gender they wish. As far as I can see, that would mean that once the consultation has ended, if the Government do what the equal opportunities committee is recommending, people will be able to change their gender at any time. There would be no need to live outwardly as that gender, let alone to take hormones or have surgery. A 15-stone bearded man could simply define themselves as female and there would be nothing anyone could do to object. One might think that that does not matter—in fact, it does not, if that is what people want to do. I am a libertarian. I am a believer in freedom of choice. As far as I am concerned, it is absolutely fine, until it becomes an issue for other people and other people’s rights.

People who might outwardly appear to be male and possess a male body would, if they legally redefined their gender, suddenly gain access to women’s toilets, hospital wards, changing rooms, refuges and prisons. They would have the right to undertake roles that people would normally expect to be done by someone of the same sex as those the service is being offered to, such as nurses or carers conducting intimate procedures, prison or police officers carrying out searches or staff working in refuges for victims of domestic violence.

We saw an obvious example a few weeks ago of what can happen, and will happen more regularly, when a convicted male sex offender who had redefined himself as female was able to insist on his right to be put into a women’s prison. Within a matter of days, he had carried out four sexual assaults on women. Another example was given to me by someone who was the victim of long-term sexual abuse as a young person.

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[David T. C. Davies]

No, I have not asserted that at all. I have said that prisons and schools are allowing self-identification of gender at the moment. The law may well change shortly following the consultation, to give that a legal footing and to allow people to legally register their gender as being different from the one they are born with. The practicality is that that is already happening. I have made that point several times.

[Hannah Bardell]

Will the hon. Gentleman give way?

[David T. C. Davies]

Yes, but I am conscious that others may want to speak, and I do not want to use up all their time.

[Hannah Bardell]

Does the hon. Gentleman not agree that it seems strange to cite an example of a failure in the current system as a reason not to make improvements to the system? He mentioned women’s refuges. Linda Rodgers of Edinburgh Women’s Aid noted:

“The reality is that any service has the potential to be abused, and we would deal with that, whatever direction it came from on a case by case basis…I don’t think this should be used as a reason to restrict the rights of a particular group.”

Surely the hon. Gentleman recognises that we should not make policy on the basis of the incidents he mentions or of some individuals who may abuse the system. It should be about equality and fairness for everybody.

[David T. C. Davies]

Absolutely, but the point I am making is reasonable: if people are legally able to redefine their gender, the prison authorities, for example, will not be able to prevent a male who has redefined their gender from going to a female prison. That is already happening and is bound to become a lot easier.

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[Layla Moran]

Hear, hear—I completely agree. It is really important to ensure that we are talking about the right thing. Violence against women is still ubiquitous. It still happens in our society and on our streets, and it should absolutely be called out, but these reforms are entirely separate. We need to come together on this. I am curious about whether the hon. Member for Monmouth has attended meetings in this House on violence against women.

A 2016 report by the Women and Equalities Committee found that the process of gender recognition was bureaucratic and costly. The Government’s LGBT survey, published in July this year, reported that trans women were being deterred from applying for gender recognition for some of the same reasons that I spoke about earlier; it noted that 93% of those who wanted gender recognition had been deterred from applying for it. The respondents to the Government consultation are not people who are thinking about changing their gender on a whim, but people who have grappled with the issue for a very long time. Their concerns are worth listening to.

[Hannah Bardell]

The hon. Lady is making an excellent speech. Does she agree that trans people, who face huge barriers and a medicalised process, are being damaged psychologically by our legal framework? The core of why we are here as elected representatives is to make the lives of our constituents better and to ensure a level playing field. If we do not act and work together, more trans people will commit suicide—we already know the statistics—and young trans people will face more significant barriers. We absolutely must work together to understand and address their concerns and make sure that their voices are heard.

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[Hannah Bardell (Livingston) (SNP)]

It is a pleasure to serve under your chairship, Mr Hosie. I am grateful to the hon. Member for Monmouth (David T. C. Davies), who raised a number of issues. It is important that the debate remains respectful and that we can have a reasonable and decent conversation. I commend the UK and Scottish Governments on their consultations. The Scottish Government consultation received a huge number of responses, more than 60% of which were in favour of the proposals.

On a number of occasions, the hon. Gentleman spoke in over-simplified terms. I must repeat what I said in my intervention: that is not helpful because deepening and expanding the debate about those concerns is vital. The hon. Member for Oxford West and Abingdon (Layla Moran) made an excellent speech. I greatly share her concerns about rolling back on the Equality Act. As her hypothetical example highlighted perfectly, we have to remember that what is essentially identity fraud would be a crime. The fact that 93% of people in the trans community have sought to get support and access services but have been turned away is a shame and a stain on our society.

Yesterday was the Transgender Day of Remembrance—a day when we took a moment to celebrate the incredible contribution that trans people make to our communities, and to reflect and remember our trans siblings who have been killed, committed suicide, faced prejudice or not been able to live or be recognised in a way of their choosing. I firmly believe that today’s debate is about exactly that: living in a way of our choosing, without fear or prejudice, under a legislative framework that supports people to do exactly that.

I started school in the year section 28 was introduced. Section 28 meant that schools and teachers could not talk to students openly about their sexual orientation or gender identity without fear of losing their jobs. So much legislation related to LGBTI rights has been, and still is, based on fear rather than acceptance, but we have come a long way in all parts of the UK. I commend the Minister and her Government on their work, as well as the other Governments around the UK—particularly the Scottish Government, who have gone a little bit further. I hope that at some point the Minister and I can meet to discuss how scrapping the spousal veto in Scotland has meant greater equality for trans people.

Section 28 was scrapped in 2003. By then I was halfway through my university degree. I grew up believing that, if I came out, I could not live a normal life and I would not have equal rights. I am an ardent feminist and an openly gay MP. I am not about to shut the door on the equality of trans people just because people like me now have greater equality. Those of us in the LGBTI+ community, and all of us who believe in equality and enjoy greater equality, must do all that we can to support others who are marginalised and discriminated against. Although the legislation on gender recognition was groundbreaking in 2004, it is now out of date. Medicalising and marginalising people who are trans is absolutely wrong.

We recently celebrated a new chapter in Scotland for LGBTI people. Inclusive education has become a reality—the UK Government are also working on that. I want to take a moment to recognise Liam Stevenson and Jordan Daly from Time for Inclusive Education, plus all the many organisations that have supported us with their briefings today, including Stonewall Scotland, LGBT Youth Scotland and the Scottish Trans Alliance, which worked on the legislation and policies in Scotland alongside John Swinney, Angela Constance and Christina McKelvie.

I appreciate that sexuality and gender identity are two very different things, but I faced challenges in terms of coming to my sexuality. I did not come out until I was 32. I cannot imagine how difficult it must be for somebody who is trans who is trying to operate in a system where their transition is medicalised, where they have to travel hundreds and sometimes thousands of miles—as the hon. Member for Oxford West and Abingdon mentioned, many trans people feel that going abroad is their only choice.

I have met a number of young trans people in my Livingston constituency, some pre-op, some post-op. The challenges they have faced are truly heartbreaking. Even in Scotland, which came second top in inclusiveness on the LGBTI global index, we still have a significant way to go. Living in a country and society where someone’s orientation or identity does not have legal recognition, and where they do not have equal rights, is corrosive to the soul. At the core is the need to reform the legislation—changing our societal view and structures will follow from changing the law on gender recognition.

I recognise that the debate has become very polarised, which is a source of great sadness to me. I do not think it helps when the media sensationalise. There are cases where systems are being abused, and we must recognise and address those concerns, but we must not make policy based on a few individuals who seek to abuse the system. There will always be those who seek to abuse the system. That is regrettable and those people should be dealt with appropriately, but we should not make policy on that basis.

[Danielle Rowley]

As the hon. Lady has rightly pointed out, a small minority would seek to cause others harm. However, more than half of trans people in the UK have attempted suicide and 84% have said that they have experienced suicidal thoughts. Does the hon. Lady agree that a lot more needs to be done to protect and support them?

[Hannah Bardell]

I could not agree more. The hon. Lady makes a very powerful point. It is a stain on our society that many trans people feel so marginalised. In this debate and in the wider discussion, we must do all that we can to raise our voices to show our support and ensure that our policies and our laws properly support and recognise them.

The Scottish Government consultation on reforming the Gender Recognition Act 2004 ran from 9 November 2017 to 1 March 2018. There were 15,697 responses and 60% of respondents were in support of the Government’s proposals. It is important to recognise and understand why 40% were not in favour, but those are the figures none the less.

The hon. Member for Monmouth raised a number of concerns about domestic violence and women’s services. I have a few quotes from organisations in Scotland for him. The chief executive of Rape Crisis Scotland, Sandy Brindley, said that the most important thing to say was that the proposed legal changes

“should make no difference to the provision of women-only services – that’s where some confusion has arisen. There isn’t any Rape Crisis which would ask to see documentation of gender.”

I mentioned Linda Rodgers of Edinburgh Women’s Aid, who said that

“there are concerns out there that our service could in some way be abused”

by allowing people to self-declare their gender. She said she had not heard that from the organisation’s staff or board. She continued:

“The reality is that any service has the potential to be abused, and we would deal with that, whatever direction it came from on a case by case basis...I don’t think this should be used as a reason to restrict the rights of a particular group.”

Many people are concerned about young people. Stonewall has said that accessing legal recognition would have a hugely positive impact on trans young people’s health and experience in education. Like all young people, trans young people get on better at school and college when they are supported to be themselves, which is particularly important given the alarming rates of transphobic bullying happening in Britain’s schools and the impact that that has on trans young people’s mental health. Lowering the age at which young people can obtain legal recognition would also raise awareness of trans young people’s needs and support schools and colleges to address the misconceptions and stereotypes that fuel transphobic bullying.

Stonewall provided a case study from a woman called Susan:

“My daughter deserves to have the legal status and identity that matches who she is. I don’t understand why people can’t accept that everyone has a right to live their life being true to themselves, as long as it doesn’t break the law or impact negatively on anyone else.”

Earlier in the year, I visited Malawi and met a number of trans activists and heard their stories. They live in a country where it is illegal not just to be trans, but to be gay. Trans people have no legal standing in that country. One of the activists had been attacked in their workplace purely on the basis of being trans. They went to the police, and were told to go home, dress in their proper identity and come back—only then could the crime be recorded. That is a world away from where we are. The mental and physical toll on those activists was terrifying.

We absolutely have to recognise that changing gender is not something that anybody would do lightly. Should it be done for nefarious reasons, it would be very rare and should be dealt with appropriately.

[Lilian Greenwood]

The hon. Lady is making a powerful speech. She said that the experience in Malawi is a world away. Sadly, 41% of trans people have experienced a hate crime in the past year. I know from talking to some of my trans constituents that that is consistent with their experience. In reality, do trans women not need precisely the same protection from male violence and access to safe spaces that other women need?

[Hannah Bardell]

I absolutely agree.

I hope the hon. Member for Monmouth and others who have concerns will be reassured by the fact that women’s groups such as Rape Crisis Scotland, Scottish Women’s Aid, Zero Tolerance, Engender, Equate Scotland, Close the Gap and the Women 50:50 campaign have come out in support of the proposed changes in Scotland, as have their equivalent organisations in the UK. We must recognise that there are concerns and we must address them, but we absolutely must hold a mirror up to those who are marginalising and attacking trans people and their rights. There is a groundswell of support for equality and for a change in the law to ensure that gender identification and the processes that trans people have to go through are not discriminatory at their core. We absolutely must change the law to ensure that they are properly supported, that the law reflects that and that our society reflects that.

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[Dawn Butler]

My hon. Friend is absolutely correct. Trans women suffer from abuse, violence, domestic abuse and assault in the streets, just as every other woman does. We need to recognise the intersectionality of women, including trans women; we often do not. Often, only some women are recognised and have a privileged position.

[Hannah Bardell]

The hon. Lady has made an excellent contribution. I just want to share with hon. Members an excerpt from Baroness Helena Kennedy’s excellent book, “Eve Was Shamed”, about the experience of trans prisoners, which illustrates the hon. Lady’s point excellently:

“One of the most distressing cases I ever conducted was defending a young transgender woman who had been raped and vaginally damaged by a former partner. She had gone to the police and reported the violation only to be greeted with ridiculing asides and suppressed laughter. The case pre-dated the Human Rights Act and reforms in rape law and the Equality Act. Her experience at the hands of the police was so wretched that she decided to withdraw the allegation whereupon the police charged her with perverting the course of justice.”

That was a long time ago and things have moved on, but such cases show that there must be no rolling back of rights.

[Dawn Butler]

I thank my hon. Friend—I will refer to her in that way—for that intervention. That feeds nicely into the letter from Heather, who has been trans for many decades. She said:

“Not so long ago, I was assaulted in a club when a stranger came over and roughly grabbed my crotch and breasts ‘to see if I was a woman’. I would call that sexual assault, but the police with stretched resources gave it low priority as it was a ‘lad having a laugh when drunk’. Being pushed over and abused in the street has also become common place again. When it happens now, myself and other trans people have to weigh whether it is worth reporting it to the police at all. Is your indignity worth the time it takes to go through all the police processes, the triggering of old memories of being sexually assaulted and the police’s lack of concern? For the more minor assaults usually it isn’t, but for the rapes and domestic violence support it is, and transwomen need support and safe spaces just as other women do.”

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[Victoria Atkins]

That point was raised in the consultation.

[Hannah Bardell]

The Minister’s point about the time being right is important. She mentioned a number of organisations that she has met, but I am concerned that some organisations suggest that gender identification is a trend. To me, that is deeply offensive, because it is akin to somebody telling me that my sexuality is a trend, which I absolutely refute in the strongest terms. In reality, trans people across the UK face murder, homelessness and violence. It is important that we change the law as soon as possible.

[Victoria Atkins]

I am about to move on to something that the hon. Lady spoke about in her speech. She may not know but I have said on record that I would never dream of using the word “trend” in this context, because its use risks demeaning or minimising the journeys that people are on or have been on. To my mind, that comes back to the point about being caring and careful in the way that we discuss the issue. If I may correct her for the record: the organisations I listed have met my officials.