Self-identification of Gender

Layla Moran Excerpts

Wednesday 21st November 2018 Westminster Hall

[David T. C. Davies (Monmouth) (Con)]

I beg to move,

That this House has considered proposals to allow self-identification of gender.

I thank you in advance for your chairmanship and guidance, Mr Hosie. Following our conversation earlier this morning, I am fully aware that this is a sensitive issue. I have concerns about self-identification of gender, but they are not in any way directed at anyone who is unfortunate enough to suffer from some form of gender dysphoria. I have met many trans women who share my concerns about this and want nothing to do with the kind of activism that seems to be going on and shutting down debate. The criticisms I have are of Government, Ministers and politically motivated organisations, many of which have access to public funds.

The law at the moment is that anyone who wishes to change their legal gender has to apply to the Gender Recognition Panel. They have to show a number of things, including that they have lived as their preferred gender for two years and have been diagnosed with some form of gender dysphoria. They also have to commit to living as their new gender for the rest of their life. One thing that they do not have to do is undergo any form of medical treatment or surgery. They do not even have to be taking any hormone pills. The vast majority of people who change gender maintain the body in which they are born. As far as I can find from the statistics, only one in five people who have changed gender have had any form of surgery. This is the cause of concern for many people.

Self-definition of gender is already happening. Organisations seem to be ahead of the law, which the Government may or may not be about to change. There is a particular concern about what is going on in schools with children. Guidance is being given to schools by publicly funded organisations such as Mermaids and others encouraging children to question their gender and redefine it if they wish. They can do so without their parents even being told about it. That can quickly set off a chain of events that can begin with children as young as 12 being given puberty blockers, about which there are many medical concerns. At least one doctor in my constituency has been giving these drugs out to children as young as 12. That can then progress on to hormone blockers, which have powerful and irreversible side effects. Once people start on that road, there is a danger that they may end up having more drastic and irreversible surgery, because once one is on that pathway, it becomes difficult to get off it.

Teachers who have tried to question what is going on or who have fallen foul of the activist groups are liable to find themselves being disciplined. A teacher called Joshua Sutcliffe was disciplined by a school in Oxford for committing the offence—a new one on me—of misgendering a group of pupils. He had apparently said, “Well done, girls”, after a maths exam, although one of the girls identified as a boy. For that, the teacher was disciplined.

[Layla Moran (Oxford West and Abingdon) (LD)]

That incident happened in my community. I would like to point out that how the hon. Gentleman is portraying the incident is far simpler than the bigger issues surrounding it. It was not just a single incident; there were a number of incidents with that teacher, not only in that specific case but in other parts of the school. I remind him that these things are sometimes over-simplified. Does he agree that over-simplification of such a sensitive and complex issue sometimes is not helpful?

[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.

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[David T. C. Davies]

No, because as I said at the start, organisations such as prisons and schools are ahead of the law. They are already allowing self-identification of gender. There was certainly a failure of risk assessment with the case I mentioned. Shortly after it happened and the court case concluded, I asked the head of probation and prisons in Wales whether there had been any change to the guidance given to prison authorities about housing transgender prisoners, and I was told that there had not. I subsequently sought an urgent question about that, because, as I hope the hon. Lady would agree, it is appalling that vulnerable female prisoners, many of whom have been victims of male violence, are being put at risk in this fashion. It was not deemed important enough to be discussed in Parliament.

[Layla Moran]

The hon. Gentleman is gracious to give way to me for a second time. May I clarify whether his assertion is that prisons and schools are doing something illegal under the current Gender Recognition Act 2004?

[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.

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[Layla Moran (Oxford West and Abingdon) (LD)]

It is a pleasure to serve under your chairmanship, Mr Hosie. I congratulate the hon. Member for Monmouth (David T. C. Davies) on securing this debate. Although we are perhaps on opposite sides on some of the issues, I agree absolutely that not enough debate has been had in this House on this matter.

I am grateful for the opportunity to speak in the debate today, especially because it is Trans Awareness Week. Yesterday was the Transgender Day of Remembrance, a day when we are meant to remember the huge inequalities and the number of transgender people who have died over the years because of the oppression that they faced. I hope the Minister will join me today in solidarity with the community that over the past few months has had inordinate amounts of abuse hurled at it from all quarters. However, today is an opportunity to shed some light rather than heat on this debate, particularly on the issues that underpin some of that heat.

I want to place on the record my thanks to my Liberal Democrat colleague and friend, Helen Belcher, whom I have worked with closely on this matter. I also want to place it on the record that I am wholeheartedly behind the Government’s proposed reforms of the Gender Recognition Act 2004. I believe that they are proportionate and well thought through. It is time that Britain caught up with many other countries around the world—a point I will come to later.

That said, I absolutely appreciate the sincerely held concerns of not just the hon. Gentleman but many other people, including constituents who have contacted me to say that they are worried about aspects of the proposals. My constituent Juliette said:

“I am frightened by the fact that women’s voices are being dismissed and silenced”.

My constituent Nicola wrote:

“It’s taken me several days to build up the courage to email you for fear of being labelled transphobic or hateful and believe me, I am not—I fully support the rights of the trans community to live their life without discrimination”.

It is a damning indictment on not just us, although we politicians need to take responsibility for shying away from what is a controversial and sensitive issue, but on the media, which I do not believe have treated the issue with fairness on either side. In today’s debate and moving forward, we need to try to bring the two sides together, because I do not think there is a conflict between being a feminist and believing in trans rights.

Since my election in 2017, I have ensured that Ministers are aware of my constituents’ views on both sides of the debate. I particularly thank the Minister’s colleague in the other place, Baroness Williams of Trafford, for taking the time to meet me to discuss the issues. I have not attended the meetings organised by the hon. Member for Monmouth simply because I have been listening to my constituents and working on the issue in other ways. I take slight offence at the insinuation that because I have not attended his meetings I do not care deeply about the issue and have not been engaging in the debate.

I appreciate that Ministers are considering responses to the public consultation, but it would be encouraging to hear from the Minister about what steps the Government are taking to reassure people who are worried about the reform, and what active myth-busting is occurring, or is planned, regarding the misconceptions. That will be the crux of my speech.

It is important to put self-identification and self-declaration in the context of the Equality Act 2010. If we understand what that legislation allows, we can then talk about how the law might be reformed or changed. The Act protects people from discrimination on the basis of sex and gender reassignment, and describes the exemptions that allow single-sex spaces. Under the Act, it is a legitimate aim to provide safe spaces for women, but it is not proportionate to exclude all trans women from those spaces simply because they are trans, which is an incredibly important point. Furthermore, the Act protects those who have undergone, are undergoing, or are proposing to undergo a process, or part of a process, of reassigning their gender.

It is probably worth mentioning the sorts of interventions and operations that some trans people choose not to have. First, that is their medical choice to make. Secondly, think for a moment of the extensive operations that would need to happen. Many trans people are put off simply because it is painful, and in some cases expensive. Sometimes they feel unable to have operations because only a certain number of licensed practitioners in the country are allowed to perform them. Some trans people prefer to go abroad to have them, but that is not recognised in this country. There are many complex reasons behind the 93% figure. The proposed reforms would go some way to removing some of those barriers.

[David T. C. Davies]

I hear what the hon. Lady is saying. May I bluntly ask her whether she would be happy sharing a changing room with somebody who was born male and had a male body?

[Layla Moran]

I believe that women are women, so if that person was a trans woman, I absolutely would. I just do not see the issue. As for whether they have a beard, which was one of the hon. Gentleman’s earlier comments, I dare say that some women have beards. There are all sorts of reasons why our bodies react differently to hormones. There are many forms of the human body. I see someone in their soul and as a person. I do not really care whether they have a male body.

In essence, the Equality Act already works on the basis of self-declaration of gender, as it does for religion and sexuality. Coming back to the point that the hon. Gentleman made earlier about society being ahead of the Act, that is actually not the case; society is implementing the Act as it stands.

The concern voiced by some people that reforming the Gender Recognition Act to allow self-declaration would allow men into women’s spaces needs more discussion. Since my election, 12 constituents have contacted me on these issues, and that concern is a feature of all their correspondence. Other things come up, but that is the top concern. For example, Elizabeth says that she fears the

“risk of males choosing to change their legal gender in order to gain access to spaces and opportunities reserved for women”.

That is her main concern.

However, the Gender Recognition Act simply allows a trans person to change their birth certificate and have it reissued. It does not change what is in the Equality Act. I appreciate that the hon. Member for Monmouth did not want to take more interventions earlier, but my question to him would be: are we saying that we want to roll back the 2010 Act in the reforms? Allowing trans women into women-only spaces is provided for under that Act. If that is what is being questioned, it is a rolling back of the Act, and not a reform.

Let us think about what would happen if a man did self-declare as a woman using any of the gender recognition reform proposals, and then tried to enter a women-only space for nefarious purposes. This chap is so intent on doing that that he gets himself a new birth certificate. By the way, it is a fallacy that people can just say, “Oh, I’m going to decide this afternoon to change my gender.” Nothing in the reforms suggests that someone can just decide to do that on a whim one afternoon, or say, “In the morning I’m going to be a woman and in the afternoon I’m going to be a man,” or anything like that.

The proposed reforms are proportionate and considered. They are not knee-jerk and they understand that such decisions are some of the most personal that a human gets to make. It is about who they are and how they fundamentally identify. It is not something that people do lightly. However, let us say that someone did want to do that.

[Lilian Greenwood]

The hon. Lady is setting out a hypothetical situation, but a number of countries already have simple self-declaration administrative processes for gender recognition: Argentina, Denmark, Ireland, Malta, Norway and Colombia. Is she aware of Government single-sex service providers or criminal justice sectors in those countries reporting negative impacts from that implementation?

[Layla Moran]

I thank the hon. Lady for her intervention, because as far as I am aware there are none. A lot of the concern comes from hypotheticals, anecdotes, and often very simplified versions of much more complex events. As a former science teacher, I care a lot about the evidence. What is the evidence about what has happened? I will return to the hon. Lady’s point, which was very well made, in a moment.

Let us assume that someone wants to go into a women-only space for nefarious purposes. That would be quite a stupid thing to do because, apart from anything else, if an offence was committed it would show evidence of premeditation, which would increase the person’s sentence. Also, had the certificate been gained for the sole purpose of entering such a space to commit a crime, that would be a separate crime under the Fraud Act 2006. If someone was intent on harming women, that would be one of the stupider ways of doing it.

Quite apart from that, it is a hypothetical situation that is removed from what the evidence shows. There is no evidence at all to show such harms in countries such as Malta and Norway over the past few years. Importantly, because of how the Equality Act works, we do not even have to look further afield—just look at this country, where the Act already allows self-identification for those who are even considering going through the process. What evidence is there from this country of any problems with self-declaration, which has been going for eight years now? There is none.

This has the signs of a moral panic being whipped up to demonise a community. I am not saying that my constituents are doing that, but there are some people who are intent on rolling back the Equality Act, and I am deeply concerned that they are not being called out for wanting to do so.

[Danielle Rowley (Midlothian) (Lab)]

Does the hon. Lady share my concern that when the hon. Member for Monmouth (David T. C. Davies) cited violence against women, he was conflating two issues? Violence against women is mainly carried out by men; as the hon. Lady rightly points out, it has nothing to do with men identifying as women. If the hon. Gentleman is so concerned about violence against women, that is what he should focus on.

[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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[Layla Moran]

I absolutely agree. Our laws were groundbreaking when they were introduced in 2004, but our law on gender recognition now lags behind those of other countries. It disadvantages trans people on some very questionable grounds.

I am not sure on what basis the people who raise concerns about gender recognition feel that it is wrong. It is one of our values that there should be a level playing field in our society. Society is evolving and becoming more complex, and we are rightly recognising more intricate parts of it.

It is incumbent on us as British politicians to protect minority groups and understand the issues that they face. The reforms are a logical next step in our evolving understanding of a very small and vulnerable group of people in this country. Yes, many are children when they first start to discover the situation, but as a former teacher and as the Lib Dem education spokesperson, I believe that schools are doing their utmost to make children feel that it is okay to be different and have a space in which they can discuss the issues. To suggest that that extends to encouraging them to change their gender is a step too far for the role of schools.

I am pleased to support the reforms of the Gender Recognition Act, as well as maintaining my support for women-only services, which remain vital for many. The points made about violence against women and about the need to protect women from men who sexually abuse them are absolutely right, but being a feminist and being a supporter of trans rights are not in conflict; the two can absolutely sit together. We need to look at the evidence, not just about what the law currently says, but—

[David T. C. Davies]

The hon. Lady says that she supports women-only services. By “women-only”, does she mean anyone who defines themselves as a woman?

[Layla Moran]

The hon. Gentleman brings me on to my next sentence. I was about to say that trans women are women. Moreover, trans rights are human rights.

I am very grateful for today’s debate, because it has allowed some of us to broaden and deepen the debate and to start to set the record straight.

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[Dawn Butler]

I am sure the hon. Gentleman’s comments will slightly reassure the transgender community. The UK’s legislation is so out of date that we are no longer considered a world leader on LGBT+ rights. We were once No. 1—right at the very top. We slipped to third, and we are fourth in this year’s rankings. The International Lesbian and Gay Association’s “Rainbow Europe index” report cites a surge in transphobic media coverage as the reason for our falling down that league table.

The Labour party has a proud record of championing equal rights, including LGBT+ rights. It was a Labour Government who brought in the Equality Act 2010 and the Gender Recognition Act 2004, and who abolished section 28 and created civil partnerships. We need to recognise that LGBT+ people still face widespread discrimination, and it is clear that we must do more to enhance their rights and protections. The Gender Recognition Act 2004 is now out of date and needs amending. The issue is about changing sex and gender on birth certificates, and we should talk about the facts. Apart from birth certificates, it is already possible to change one’s name, title and gender marker on all UK identity documents. That has been working well for more than 40 years. In fact, most trans people do not want to go through the indignity of applying for a gender recognition certificate. The Government will have the support of Opposition Members to amend the Gender Recognition Act 2004.

I will go through a few more facts. Deliberately making a false statutory declaration is a serious crime and is punishable by imprisonment. From the heartfelt contributions that we have heard, we know that changing one’s gender is not done lightly. Reform of the Gender Recognition Act 2004 does not affect access to single-sex services and facilities, which has been made clear.

[Layla Moran]

On the issue of prisons, can the hon. Lady confirm that very high-risk trans women are sometimes not held on the female estate because there are no facilities to house them? Depending on a risk assessment, they are sometimes even held in male prisons. That goes to show that the current system already works: if somebody is considered a high risk to the exclusively female population, the system and guidelines already provide for that.

[Dawn Butler]

That is absolutely correct. In the case that was mentioned, there was a failure of the prison authorities, not of the system. The process should have gone through certain panels before the decision was made—it had nothing to do with the principles of the Equality Act 2010. We have good information that a transgender expert who consulted on that particular case was overruled. The failure of Leeds prison authorities to act on the expert’s advice arises from the reaction to Vikki Thompson’s tragic suicide in Leeds, which is maybe why that particular case happened. It was a failure not of the system but of the prison authorities.

Labour recognises the rights of all groups to debate the implications of reforming the Gender Recognition Act 2004. All views should be listened to and supported, and we have listened to various groups that have vastly different opinions. That does not mean that we will be bullied into taking one side or the other. Decisions and law should be made on the basis of facts and take into consideration the majority, not just people who are sensationalising certain aspects of a particular case. As I have said, with 45% of trans students attempting suicide, the Government’s delay in amending the Gender Recognition Act 2004 has contributed to fraught and toxic debate, from which I hope we can move on.

I have a few questions for the Minister, which I am sure she will appreciate. Will she outline the Government’s planned timetable for reforming the Gender Recognition Act 2004, including the publication of their response to the recently closed consultation? Will she outline the Government’s plans to launch their separate calls for evidence on issues faced by non-binary and intersex people, and can she confirm that this will not delay the much-needed reform of the Gender Recognition Act 2004? In line with the LGBT action plan, will she provide an update on research on the feasibility of the “Tell Us Once” service as a sustainable model for trans people to update their name and gender only once across multiple Departments? I am sure this is the case, but just for clarification, will the Minister confirm that trans people will not lose any rights under the Gender Recognition Act reforms?

I will conclude by quoting a letter from a Labour activist, Heather Peto, but before I do so I want to thank the organisations that fed the views in to us, including Unison, Stonewall, DIVA magazine, my LGBT advisory panel, LGBT Labour and our parliamentary Labour party LGBT group. When we make legislation in this place, it is important that we listen to people’s lived experiences. For too long, laws have been made for people, about people, without their having a place around the table.

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[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.

[Layla Moran]

I want to relay the story of a friend of mine whose spouse was asked to provide that certificate and found it deeply concerning. Their feeling was, “Who am I to stop my partner from defining who they are?” In fact, it stopped them from going through the process. Does the Minister agree that that is problematic and can she confirm that it is being looked at?

[Victoria Atkins]

We will look at the matter of spousal consent and those responses as part of the consultation.

The hon. Member for Livingston (Hannah Bardell) gave a moving account of her personal experience, and other colleagues have given accounts of the experiences of people who have been on, or are on, their journeys, and the challenges, or sometimes the heartbreak, that they face. I know from conversations that I have had with trans people that there is often a great deal of sadness in the process of coming to a decision. That is not necessarily their own sadness, but can be the sadness of those around them. I am very conscious of the experiences of people who have been through that and, for me, the key words on the issue are “caring” and “careful”.

I say “careful” because of some of the concerns expressed today. I absolutely understand those who expressed them—for example, about women’s refuges. As a Home Office Minister, I will take the draft domestic abuse Bill through Parliament in the coming months. I know people are concerned that refuges will no longer be able to provide safe spaces for women. May I please make it clear that that is not the case?

Domestic abuse services, including refuges, have robust risk assessment procedures and may exclude anyone who might threaten a safe environment for victims and their children, as well as signposting sources of support for those people whose needs they might not be able to meet. I am very conscious from my conversations with refuge organisations that they take different approaches, which I welcome. We have to be in a situation in which we can offer support and refuge services to people regardless of their lifestyle, background and so on. I absolutely understand people’s concerns and I hope I have been able to offer reassurance to them.

We are committed to maintaining protections for single-sex services and will consider as part of our response to the consultation whether any further action is needed to reaffirm that approach. To be clear, the single-sex exceptions under the Equality Act 2010 allow a service provider to provide a service for women or men if an organisation needs to define it in a way that does not allow a trans person to access their services, or to provide a service to them in a different way. They are able to do that as long as they can show that it is a proportionate means of meeting a legitimate aim.

The issue of transgender offenders has understandably been raised as well. The case of Karen White in particular has been examined. I want to be clear that the case of Karen White is appalling. There was a series of terrible failings that should never have happened. In the light of that, my ministerial colleagues at the Ministry of Justice are looking again at the decision-making systems that apply to the management of transgender prisoners, as well as how they were applied in that case.

The issue of children is of concern outside the walls of this Chamber. We have no intention of lowering the age at which people may legally change their gender, namely the age of 18. We recognise the increase in referrals of children and adolescents to gender-identity services for people aged under 18, so we have committed to improve our understanding of the impacts on children and adolescents of changing their gender, and to gather evidence on the issues faced by people who were born female and who transition in adolescence. We are not the only country to witness and experience the increase, and we need to understand why it is happening.

I thank my hon. Friend the Member for Monmouth for securing the debate. I hope I have been able to reassure him on some of his concerns, and other hon. Members who hold different views on the concerns they expressed. The Government are absolutely committed to ensuring that everyone in our society can thrive, and to upholding the rights and protections that all our citizens enjoy. We want to support and protect women; we want to support, protect and improve the lives of transgender people; and I hope that those two ambitions have the support of the House.