The quest for trans rights has exposed a deep divide in the UK. Scotland may show a way forward
(CNN) -- Edinburgh native James Morton was 24 years old when his employers realized he was trans after he applied for a pension scheme requiring him to provide a birth certificate. He told CNN that a data protection error outed him to colleagues, who began asking Morton about his private parts and "made offensive jokes at my expense," he said.
The traumatic time "very much made me think that I do not want this document (his birth certificate) undermining my privacy," Morton said of his decision to change his gender marker in the eyes of British law.
To do so, Morton applied to a tribunal, which issues a gender recognition certificate (GRC) that would in turn allow him to change his birth certificate. To be successful, an applicant needs to provide the panel proof of living in the "acquired gender" for at least two years and a detailed medical and psychiatric report, outlining a diagnosis of gender dysphoria and any relevant treatment or surgery. There is no requirement to undergo sex reassignment surgery to receive the GRC.
His petition was ultimately approved, but only after what he describes as a pedantic, burdensome process.
In a bid to be in step with some European countries, Scotland's government wants to ease the current pathway, criticized as too expensive and intrusive. The simplified self-declaratory system would shed away the panel and the medical reports. And where it has been a requirement for applicants to prove having lived in accordance with one's gender identity for 24 months, the new system would require just three months. It would also reduce the minimum age of recognition to 16, from 18.
The move has reinvigorated the quest for more rights for the structurally disenfranchised community, blighted by high rates of discrimination, harassment, suicide, and who report facing difficulty obtaining gender-affirming healthcare in the UK.
A consultation began on a new draft law in December, which has the backing of the country's biggest women's groups and major players in the ruling Scottish National Party (SNP), including Scotland's First Minister Nicola Sturgeon. But that law, along with other legislation, has now been placed on hold while officials work to contain the coronavirus pandemic. In an April 1 letter to activists with the Scottish Trans Alliance, the Scottish government expressed its "strong commitment to reform the Gender Recognition Act 2004 and improve the current process for trans people."
Yet campaigners who spoke to CNN are wracked with apprehension after a UK-wide attempt at canvassing public opinion in 2018 manifested a toxic culture war. They say reform will create a more humane and equitable society, whereas critics have pitted one of the world's most maligned minorities against a historically oppressed group: trans women against cis-gender women -- that is, women whose gender identity aligns with the sex assigned to them at birth.
Some opponents of the new draft law, who say that trans women are not women, believe trans women pose a threat in spaces that are for women. "The Scottish government is creating a loophole for predators and pretenders to exploit," Fair Play for Women, a campaign group that opposes the inclusion of trans women in women's sports, wrote about Scotland's draft bill on its website in March.
It warned male prisoners in Scotland could change their gender marker by obtaining a Gender Recognition Certificate (GRC) and access women's prisons in England and Wales, adding that "your son or daughter could apply for a GRC" in their first week of university in Scotland and "have a new birth certificate by the time they start the next semester in the new year."
While the biggest opposition to transgender rights in the US is associated with the Christian right, a number of high profile journalists, radical feminists and academics are among the loudest dissenters to reform in Britain. And like the American legislators who debated so-called "bathroom bills" that restricted access to public accommodations for transgender people, British opponents argue that any new trans rights, such as the act's amendment, undermine existing protections for cisgender women and girls.
Trans rights activists say these are alarmist and transphobic narratives that scuppered reform in Westminster, and they have arrived in Holyrood. Reform in Scotland "now looks more uncertain," Morton said, adding that "the really ferocious anti-trans stuff in England" is having "dangerous impacts" on surrounding countries.
The other culture war
This was the last thing the government of former Prime Minister Theresa May expected to happen when it proposed in 2017 "to streamline and de-medicalize" the process of obtaining a GRC, helping those who wanted to change the gender markers on their birth certificates.
By the time consultations began in 2018, prominent columnists were arguing the de-medicalization of the law could lead to "male-bodied people" changing their gender only to enter spaces for women, like prisons, bathrooms and refuges -- citing the case of Karen White, a transgender woman who committed assaults on fellow inmates after being transferred to a women's prison.
Anti-trans pressure groups such as Transgender Trend branded the reforms a threat to girls, saying it was a "safety issue" and worried about the "implications for parents, schools and professionals in its acceptance of the diagnosis of 'transgender children' as fact."
Mainstream news outlets published articles that echoed those fears. One journalist for The Times wrote that reforming the law would "destroy women's competitions, allowing former-men with greater musculature and testosterone to dominate."
The argument exposed splits among feminists, political parties, academics, and some in the LGBTQ community. Twitter turned into a battlefield.
A small group of protesters blocked the start of London Pride in 2018, holding signs that read "transgenderism erases lesbianism." The action, said Pride organizers, showed "unacceptable" levels of "bigotry, ignorance and hate."
The trans community felt the sting of Britain's broadsheets, which toted stories warning of the "Trans ideologists," reminiscent of homophobic language used in the 80s. "UK newspapers who had barely published anything about trans folk in a decade suddenly exploded into life," Christine Burns, a trans campaigner and author of "Trans Britain: Our Journey from the Shadows," told CNN.
Burns said outlets like the Times and the Sunday Times went from publishing "six trans related pieces in 2016 to over 150 in 2017 and similarly each year since," adding that the copy "barely gave any space to the voice of trans people, who were suddenly portrayed as dangerous, censorious, (and) anti-free speech."
Splits emerged in the country's leading left-of-center newspaper, the Guardian, when it published an editorial saying trans rights were colliding with women's rights. Guardian US journalists wrote an angry rebuttal: "The idea that all trans women should be denied civil rights because a trans woman might someday commit a crime is the essence of bigotry and goes against feminist values."
Speakers who advocated against trans-inclusive legislation were disinvited to events, which British columnists branded a freedom of speech issue. "People who claimed to be 'silenced' by a 'powerful trans lobby' were allowed free reign to spout their lies on the platforms given to them virtually across the board by the UK press," Burns said.
By the time Boris Johnson entered Downing Street in 2019, the reforms had been kicked into the long grass. "All this pain had been created by announcing these policies that the government had no intention of following through," Burns said.
Critics not appeased
Further north, Scotland's government launched its own consultation on the issue in 2017. Compared to Westminster, there was less misunderstanding in Holyrood due to the closer collaboration of transgender activists, politicians and feminists, Morton said.
A coalition of Scottish women's organizations -- including Engender, Scottish Women's Aid and Rape Crisis Scotland -- welcomed the law's reform saying that they "do not regard trans equality and women's equality to be in competition or contradiction with each other." They added that refuges had already been providing "trans-inclusive services" for the past six years, which "has not given rise to any concerns or challenges.
Campaigners like Morton say the Scottish media has been less divisive. "The Times for example has a Scottish version, there is a large overlap with most of the stories but they tweak it for Scotland so some of the anti-trans stories would run in the English edition and not run in both," he observed.
The Scottish government unveiled the new draft law last year after nearly three-quarters of respondents to the 2017 survey backed a new self-declaratory system. The proposed legislation retains safeguards like a statutory declaration in front of a judge and "criminal proceedings for lying or making false applications," Shirley-Anne Somerville, the Scottish cabinet secretary for social security and older people, writes in the consultation paper -- which ended on March 17.
Yet critics are not appeased. LGB Alliance, a group formed in 2019 to oppose changes to the GRA and stop trans-inclusive teaching in schools, says they have been buying full-page advertisements warning against reforms in Scottish dailies. Their latest, published in the Scotsman, claimed "self-ID gives predators the green light."
In a public letter last year, more than a dozen Scottish National Party (SNP) politicians called on the government to not rush into reforms. "Changing the definition of male and female is a matter of profound significance. It is not something we should rush," they wrote.
Kate Harris, co-founder of the LGB Alliance, told CNN that the crux of her resistance is the distinction between sex and gender. Sex is a classification based on bodily characteristics, internal and external. Gender is the socially constructed roles and behaviors typically ascribed to men and women.
One common shorthand for understanding what it means to be trans is that one's gender identity does not match the sex one was assigned at birth. But that is an anathema for people like Harris.
"There is no evidence in the world that gender identity exists," Harris told CNN. "What has happened is a kind of global tsunami of this peculiar transgender ideology. The facts are very clear, men cannot become women by wishing it so," she said.
She says the proposed law's minimum age of 16 years old is too young, speculating that teenaged lesbians who may be confused about their sexuality are being referred to GIDS, the specialised gender identity clinic for young people, and encouraged to transition.
According to the latest data available, GIDS did see a year-on-year increase in children of almost every age referred to its clinic from 2016 to 2017. Trans rights proponents say this is because awareness of the service is increasing, and stigma against using it is decreasing. GIDS did not respond to multiple CNN requests for comment.
Jane Fae, a trans journalist who works with British charity Trans Media Watch, told CNN that the rise in referrals to GIDS corresponds with an equal increase in the number of people identifying as lesbian, gay, bisexual or trans during a time of more visibility and acceptance for the gay community.
"A useful thing I like to keep in mind when people say there's a huge social contagion driving kids towards medical transition is that 300 people under the age of 18 are newly prescribed puberty blockers each year in the UK and the UK population aged under 18 is 15 million," wrote trans campaigner Shon Faye on Twitter, citing data obtained by the BBC.
Campaigners say access to pubertal suppression can be a matter of life and death for transgender teens. A study, published this year in the medical journal Pediatrics, found that the chances of suicide and mental health problems declined significantly for transgender youth who have access to puberty blockers.
The issue is part of an upcoming High Court judicial review of Tavistock and Portman NHS Foundation Trust, which runs GIDS. The claimants are challenging the legality of giving puberty blockers and sex hormones to anyone under 18 years old experiencing gender dysphoria.
Nor is there quantitative data, say campaigners, on the speculated surge of predatory men in women's refuges especially in countries that already have progressive self-declaratory systems, like Norway, Denmark, Malta, Colombia, Argentina and Ireland.
And while "it makes sense to have debates on issues related" to trans people, like prison environments, the atmosphere is so toxic and transphobic that "no trans person dares start that debate because we just know it will be taken down as evidence and used against [us]," Fae said.
The case of White, who assaulted female inmates, has been repeatedly deployed to stoke fear, when the issue there was "the English prison system failed to follow their own policy to do the proper risk assessment they were meant to do," Morton added.
In the a statement to CNN, the Ministry of Justice said that "following the Karen White case, all prison governors were reminded in writing of the careful safeguards that are in place to protect all prisoners from the challenges posed by some transgender prisoners, including consideration of risks relating to anatomy or previous offending history, and any risks to vulnerable women."
"Violence against women and sexual offending is scary and real," Morton said, "so it can feel overwhelming and frustrating trying to change the way men behave towards women and I think there is an element of 'how can we control trans people' because that seems more controllable."
The inflamed rhetoric is doing little to focus public discourse on what activists say are the real issues -- like more resourcing for refuge services, a spike in rates of women being killed by a former partner, soaring number of transgender hate crimes recorded by the police, and the discrimination of women and trans people by cisgender men, say campaigners.
"Marginalized groups and trans folk need to work together -- fighting among ourselves only lets the real abusers off the hook," said Morton.
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