Eldur Ísidór 29/05/2019 Eldur Ísidór 29/05/2019

THE SEX VS. GENDER (IDENTITY) DEBATE IN THE UNITED KINGDOMAND THE DIVORCE OF LGB FROM T

It all begins with an idea.

Presented by:

Robert Wintemute, Professor of Human Rights Law, King’s College London

Samtökin 22 - First conference during Reykjavik Pride on 12 August 2023]

I. Context: Conflicts of human rights

- most human rights are not absolute; two human rights can conflict; one human right might

have to be limited to respect “the [human] rights and freedoms of others”, a phrase used in

Articles 8(2), 9(2), and 11(2) of the European Convention on Human Rights

- anti-discrimination laws (like Great Britain’s Equality Act 2010) contain many exceptions

(or exceptions must be read in to respect national constitutional rights or international human

rights):

- sex – the Roman Catholic Church may refuse to hire female priests

- religion – a Catholic school may refuse to hire teachers who are not Catholic

- disability – an airline may refuse to hire a blind person as a pilot

- age – lower and upper age limits are often considered justifiable

- sexual orientation – any religious organisation may refuse to marry same-sex

couples

(a) LGB human rights vs. human rights of Christians, Jews, Muslims, Hindus, Sikhs,

etc.

- was it homophobic to oppose same-sex marriage? not in 2002

- is it Christian-phobic to oppose exemptions from anti-discrimination laws for Christians

engaging in commercial activity?

- does freedom of religion trump freedom from sexual orientation discrimination in relation

to a religious organisation’s decisions about who may be a priest, rabbi, imam, etc. or which

couples it is willing to marry?

Robert Wintemute, "Religion vs. Sexual Orientation: A Clash of Human Rights?", (Fall

2002)

1(2) Journal of Law and Equality (University of Toronto) 125-154

Bull v. Hall, [2013] UKSC 73 (Christian-owned hotel refused to provide a double room to

two men in a civil partnership; exception for religious organisations did not apply)

Lee v. Ashers Baking, [2018] UKSC 49 (Christian-owned bakery refused to put the slogan

“Support Gay Marriage” on a cake; UK Supreme Court disagreed with the Northern Ireland

Court of Appeal and held that the refusal was based on the content of the message, not the

sexual orientation of the customer; the LGB community was divided; Robert Wintemute,

“Message-Printing Businesses, Non-Discrimination and Free Expression: Northern Ireland's

‘Support Gay Marriage’ Cake Case”, (2015), 26 King’s Law Journal 348-356, supported the

gay customer; Peter Tatchell supported the Christian-owned bakery)

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)

303 Creative LLC v. Elenis (heard by U.S. Supreme Court on 5 December 2022)

(b) Jewish-Israeli human rights vs. Palestinian human rights

- is it anti-Semitic/anti-Jewish/“Judeophobic” to defend Palestinian human rights?

Robert Wintemute, “Europe’s Last Colony: 1918 Palestine’s Arab Majority, Jewish

Immigration, and the Justice of Founding Israel Outside Europe”, (2012) 21 Social and Legal

Studies 121-134

Robert Wintemute, "Israel-Palestine Through the Lens of Racial Discrimination Law:

Is the South African Apartheid Analogy Accurate, and What if the European

Convention Applied?", (2017) 28 King’s Law Journal 89-129

ISRAEL-PALESTINE:

IS IT APARTHEID, AND

IS BOYCOTT JUSTIFIED AND LEGAL?

Robert Wintemute, Professor of Human Rights Law, King's College London

Centre for Human Rights and Legal Pluralism

Faculty of Law, McGill University, Montréal, 18 September 2017

- many women around the world (probably the majority) do not agree that “trans women are

women”, and have concerns about some transgender demands, but are afraid to speak

- let’s hear from a prominent Australian feminist who is not afraid to speak:

https://youtu.be/7B8Q6D4a6TM

Germaine Greer: Transgender women are 'not women' - BBC Newsnight

Oct 23, 2015

Germaine Greer talks to Kirsty Wark about her views on transexuality which have had her

un-platformed from a talk at Cardiff University.

- what do (b) and (c) have in common?

The analogy I have thought of (while in Montréal) is one person complaining to another:

“You’re standing on my foot.” The reaction of the other person: “You hate me and want to

kill me! That’s why you’re complaining about my foot!” The first person replies: “No, I do

not hate you and I do not want to kill you. I just want to discuss how we can get your foot

moved off my foot. The exercise of your rights is affecting my rights.”

This reaction is experienced, in an uncannily similar fashion, by defenders of Palestinian

human rights (the reaction comes from the Zionist movement) and by defenders of women’s

rights (the reaction comes from the transgender rights movement).

In both cases, the “right to exist” is invoked. Any criticism is perceived as an existential

threat to the group. See the reaction to the scheduling of this talk, which “will contribute

directly to the systemic elimination of trans voices and lives worldwide, as well as the

dismantling of human rights as a whole”. By allowing a Professor of Human Rights Law to

speak, “McGill University is actively contributing to the genocide of trans people across the

world”.

II. Process: Freedom of expression: Is arguing that, in some circumstances, a person’s

birth sex should take priority over their gender identity “transphobic hate speech”?

- according to one side, there is and must be a debate about certain transgender demands

affecting the human rights of women and children:

Kathleen Stock, Material Girls: Why Reality Matters for Feminism (Fleet, 2021)

Helen Joyce, Trans: When Ideology Meets Reality (Oneworld, 2021)

https://www.firstthings.com/web-exclusives/2021/09/the-gender-resistance (review of both)

https://www.spiked-online.com/2021/09/16/how-judith-butlers-gender-theories-sidelined-

women/

- according to the other side, there is nothing to debate in relation to transgender rights; any

suggestion to the contrary is “transphobic hate speech”

https://www.stonewall.org.uk/node/100426 (4 October 2018):

“The petition … asks us to acknowledge that there is a conflict between trans rights and ‘sex

based women’s rights’. We do not and will not acknowledge this. Doing so would imply that

we do not believe that trans people deserve the same rights as others. … [W]hat we will not

do is debate trans people’s rights to exist.”

Proudly King's, King's College London's LGBTQI+ Staff Network, e-mail to staff of 17

September 2021: “We have made several statements showing our support … for Trans

inclusion as so-called ‘debates’ reverberate around the UK.”

- in a democratic society, if there is disagreement, there must be debate, even if that means

hurting the feelings of people on one side of the debate

Handyside v. United Kingdom, European Court of Human Rights, 7 December 1976, para.

49:

“Freedom of expression constitutes one of the essential foundations of [a democratic]

society, one of the basic conditions for its progress and for the development of every

[person]. … [I]t is applicable not only to ‘information’ or ‘ideas’ that are favourably

received or regarded as inoffensive or as a matter of indifference, but also to those that

offend, shock or disturb the State or any sector of the population. Such are the demands

of that pluralism, tolerance and broadmindedness without which there is no ‘democratic

society’.”

- what has changed since Handyside?

Greg Lukianoff & Jonathan Haidt, The Coddling of the American Mind (Allen Lane, 2018):

the three Great Untruths of fragility, emotional reasoning, and Us Versus Them (life is a

battle between good people and evil people, ie, people who disagree with you are evil)

Helen Pluckrose & James Lindsay, Cynical Theories: How Universities [Activist

Scholarship] Made Everything about Race, Gender, and Identity – and Why This Harms

Everybody (Swift Press, 2020): the conflict between Postmodern Theory and Liberalism, eg,

Handyside

https://www.economist.com/leaders/2021/09/04/the-threat-from-the-illiberal-left

https://www.economist.com/briefing/2021/09/04/how-did-american-wokeness-jump-from-

elite-schools-to-everyday-life

https://www.theguardian.com/society/2022/nov/01/its-out-of-order-gen-z-speak-up-on-

cancel-culture-and-young-illiberal-progressives

‘It’s out of order’: Gen Z speak up for cancel culture and ‘young

illiberal progressives’

https://www.theguardian.com/commentisfree/2022/nov/04/gen-z-intolerant-poor-illiberal

Gen Z aren’t ‘intolerant’: we’re just poor, fed-up and want real

change

“… While views among Gen Z are nuanced on this issue, and many believe that cancellations

go too far, I think there is some truth to the notion that we have less patience in the realm of

debate. It might be that the way social media structures our social lives – where people can be

‘blocked’ – has bled out into real-world attitudes. …”

- forgetting that, in a democratic society, an employee has a right to express controversial

beliefs, especially outside their workplace (but especially in their workplace if they are a

university professor), led to:

Maya Forstater v. CGD Europe, Employment Tribunal, 18 December 2019,

http://www.gov.uk/employment-tribunal-decisions/maya-forstater-v-cgd-europe-and-others-

2200909-2019 (Ms. Forstater could not challenge the non-renewal of her contract under the

Equality Act 2010 because her belief that “[b]eing female is an immutable biological fact, not

a feeling or an identity” was “not worthy of respect in a democratic society”, ie, on the same

level as Holocaust denial)

Robert Wintemute, “Belief vs. Action in Ladele, Ngole and Forstater”, (March 2021) 50

Industrial Law Journal 104, https://academic.oup.com/ilj/article-abstract/50/1/104/6079282

(I took the distinction between belief and action from Trinity Western University v British

Columbia College of Teachers, [2001] 1 S.C.R. 772

Maya Forstater v. CGD Europe, Employment Appeal Tribunal, 10 June 2021,

https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_

v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf: “the gender-critical belief” is

“worthy of respect in a democratic society” and protected for all employees by the Equality

Act 2010 (and for public-sector employees by the Human Rights Act 1998)

- the EAT’s judgment probably caused the University of Sussex belatedly to support its

employee, the openly lesbian philosophy professor Kathleen Stock, when students called for

her dismissal, but the pressure caused her to resign:

https://www.theguardian.com/world/2021/oct/28/sussex-professor-kathleen-stock-resigns-

after-transgender-rights-row

https://www.dailymail.co.uk/news/article-10172813/KATHLEEN-STOCK-reveals-really-

like-vilified-beliefs.html (“KATHLEEN STOCK reveals what it’s really like to be vilified for

your beliefs after being driven out of Sussex University by trans hate mob”)

https://www.bbc.co.uk/sounds/play/m001153q (Kathleen Stock on “Woman’s Hour”)

- compare the view that it is “anti-Semitic” to disagree with the statement “Israel is a

democracy” (“no, Israel is an apartheid state practising racial discrimination against

Palestinians”) with the view that it is “transphobic” to disagree with the statement “trans

women are women” (“no, the body of a male-to-female transgender person is and always will

be male”)

III. Substance

A. Areas of agreement that are rarely discussed

- protection of transgender persons against all forms of violence or harassment

- protection of transgender persons against discrimination in employment when birth sex is

not relevant

Case C-13/94, P. v. S. and Cornwall County Council, Court of Justice of the European

Union, 30 April 1996 (P. worked as a manager in an educational establishment)

Bostock v. Clayton County, Georgia, US Supreme Court, 15 June 2020 (“Aimee Stephens

worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan.”)

- since 1997, I have supported the right of any person, regardless of birth sex, to wear any

form of clothing, jewellery or makeup, or choose any hairstyle (that is available to a person of

the opposite sex)

Robert Wintemute, "Recognising New Kinds of Direct Sex Discrimination: Transsexualism,

Sexual Orientation and Dress Codes", (1997) 60 Modern Law Review 334-359

Leung Kwok Hung, [2020] HKCFA 37, Hong Kong Court of Final Appeal, 27 November

2020, https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=132118 (citing MLR

article and finding sex discrimination against a male prisoner who was obliged, unlike a

female prisoner, to have his long hair cut when he entered the prison)

B. Conflicts of human rights: When are there potential conflicts between the rights of

transgender persons and the rights of women and children?

- the political tensions surrounding transgender rights today are the result of what I would call

“abuse of sympathy”, which has led to an “escalation of demands” over the past 20 years;

transgender demands have increasingly failed to take into account “the rights and freedoms of

others”, those of lesbian, bisexual, and heterosexual women, and of children and adolescents

with gender dysphoria who might grow up to be lesbian, gay, or bisexual adults

1. Change of legal sex from birth sex to self-identified gender identity

- escalation of demands

(a) Change of legal sex after genital surgery or sterilisation

Christine Goodwin vs. United Kingdom, ECtHR, 11 July 2002 (the UK must allow a “post-

operative transsexual” to change their legal sex, because around 90% of Council of Europe

member states already did so, and because the applicant “at great personal cost” had done

everything she could do to make her body appear as female as possible)

(b) Change of legal sex without medical treatment but with safeguards (a diagnosis of

gender dysphoria and a two-year waiting period)

(i) United Kingdom, Gender Recognition Act 2004, s. 2(1),

https://www.legislation.gov.uk/ukpga/2004/7/section/2:

“the [Gender Recognition] Panel must grant the application [for a gender recognition

certificate] if satisfied that the applicant—

(a) has or has had gender dysphoria,

(b) has lived in the acquired gender throughout the period of two years ending with the date

on which the application is made [no medical treatment, such taking hormones or having

surgery, is required],

(ii) Spain, Ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la

mención relativa al sexo de las personas, https://www.boe.es/eli/es/l/2007/03/15/3

Artículo 4. Requisitos para acordar la rectificación.

1. La rectificación registral de la mención del sexo se acordará una vez que la persona

solicitante acredite:

a) Que le ha sido diagnosticada disforia de género.

La acreditación del cumplimiento de este requisito se realizará mediante informe de médico o

psicólogo clínico …

(iii) A.P., Garçon & Nicot v. France, ECtHR, 6 April 2017 (now a European minimum

standard even though only 18 of 47 Council of Europe member states had legislation like the

2004 Act)

- a transgender person seeking a change of legal sex is asking for an exemption from the

general rule that a person’s birth sex is their legal sex for life, because their birth sex never

changes

- exemptions have conditions; we can justifiably attach conditions to crossing the legal border

from male to female, or female to male, just as we attach conditions to crossing an

international border, acquiring a new citizenship, being granted refugee status, being

approved as an adoptive parent, obtaining disability benefits, or being granted the status of

conscientious objector to military service

- in none of these situations is it sufficient to “self-identify” as a visitor, citizen, refugee,

adoptive parent, disabled person or conscientious objector, without an assessment process

- the fee to become a British citizen is 1330 GBP (for many people, after 6 years of

residence); the fee to become legally a woman was reduced in 2021 from 140 GBP to 5 GBP

(after two years of “liv[ing] in the acquired gender”)

(i) Argentina, Ley Nº 26.743 Identidad de Género (24 de mayo de 2012),

http://www.jus.gob.ar/media/3108867/ley_26743_identidad_de_genero.pdf

Artículo 3º.- Ejercicio. Toda persona podrá solicitar la rectificación registral del sexo, y el

cambio de nombre de pila e imagen, cuando no coincidan con su identidad de género

autopercibida.

Artículo 4º.- Requisitos. Toda persona que solicite la rectificación registral del sexo [etc] …

deberá observar los siguientes requisitos:

1. Acreditar la edad mínima de dieciocho (18) años de edad …

2. Presentar ante el Registro Nacional de las Personas o sus oficinas seccionales

correspondientes, una solicitud manifestando encontrarse amparada por la presente ley ...

3. Expresar el nuevo nombre de pila elegido con el que solicita inscribirse.

En ningún caso será requisito acreditar intervención quirúrgica por reasignación genital total

parcial, ni acreditar terapias hormonales u otro tratamiento psicológico o médico.

(ii) Ireland, Gender Recognition Act 2015,

https://www.irishstatutebook.ie/eli/2015/act/25/enacted/en/html

Requirements on application for a gender recognition certificate

10. (1) A person who applies for a gender recognition certificate under section 8 shall furnish

the following to the Minister:

(a) his or her name, address, … and contact details;

(b) the forename and surname by which he or she wishes to be known;

(f) a statutory declaration declaring that he or she—

(i) is not married or a civil partner,

(ii) has a settled and solemn intention of living in the preferred gender for the rest of his or

her life,

(iii) understands the consequences of the application, and

(iv) makes the application of his or her free will.

(iii) Gender Recognition Reform (Scotland) Bill, https://www.parliament.scot/-

/media/files/legislation/bills/s6-bills/gender-recognition-reform-scotland-bill/stage-3/bill-as-

passed.pdf (passed on 22 December 2022; amendments to the Gender Recognition Act 2004

that will only apply in Scotland, not England, Wales or Northern Ireland, if Royal Assent is

granted)

“8C Grounds on which application to be granted by Registrar General for Scotland

(1) The Registrar General for Scotland must grant an application under section

8A(1) if—

(a) the application includes a statutory declaration by the applicant that the

applicant—

(ii) meets the condition in section 8A(2),

(iii) either—

(A) is aged 16 or 17 and has lived in the acquired gender throughout the period of six months

ending with the day on which the application is made, or

(B) is aged at least 18 and has lived in the acquired gender throughout the period of three

months [regardless of age, there is also a “reflection period” of three months] ending with the

day on which the application is made,

(iv) intends to continue to live in the acquired gender permanently, and

(v) understands that it is an offence to knowingly make a statutory declaration under this

section which is false in a material particular, …

- opposition to the Bill: https://forwomen.scot/meetings/ (6 October 2022, Scottish Women’s

Rally, Scottish Parliament, Edinburgh)

- a common response to opponents is that potential problems will not arise because of the

exceptions in the Equality Act 2010 (see III.B.2 below); but is the recognition of a male-to-

female transgender person as female purely symbolic? when birth sex does not matter (for

most employment, for marriage, for a state pension, for driver’s insurance), a gender

recognition certificate is not needed; when birth sex does matter (women-only spaces,

positive action, sports), the person’s birth sex overrides their gender recognition certificate

(iv) Spain, Proyecto de Ley para la igualdad real y efectiva de las personas trans y para

la garantía de los derechos de las personas LGTBI,

https://www.congreso.es/public_oficiales/L14/CONG/BOCG/A/BOCG-14-A-113-

1.PDF#page=1 (8 September 2022)

- opposition to the Proyecto de Ley: https://www.feministasalcongreso.com/;

https://youtu.be/0xil87irAmg (Stop Ley Trans)

(d) Abolition of the recording of birth sex on birth certificates

Yogyakarta Principles, 10 November 2017,

http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf:

Principle 31 claims that, under existing international human rights law, every country in the

world has an obligation to “end the registration of the sex … of the person in identity

documents such as birth certificates”. Until this is done, the third demand (self-

identification) must be adopted: “no eligibility criteria, such as … a psycho-medical

diagnosis, [or] minimum … age …, shall be a prerequisite to change one’s … legal sex”.

With regard to change of legal sex, I would describe the Yogyakarta Principles (I participated

in the drafting of the 2007 version), as a “radical advocacy document”, not a neutral

statement of international human rights law.

- American Medical Association, https://www.ama-assn.org/press-center/press-releases/ama-

announced-policies-adopted-final-day-special-meeting (16 June 2021):

‘Removing sex designation from public birth certificates

Aimed at protecting individual privacy and preventing discrimination, the AMA will

advocate for the removal of sex as a legal designation on the public portion of the birth

certificate. Under the policy, information on an individual’s sex designation at birth would

still be collected and submitted through the U.S. Standard Certificate of Live Birth form for

medical, public health, and statistical use only. The new policy aligns with existing AMA

policy recognizing that every individual has the right to determine their gender identity and

sex designation on government documents.

“Designating sex on birth certificates as male or female, and making that information

available on the public portion, perpetuates a view that sex designation is permanent and fails

to recognize the medical spectrum of gender identity. This type of categorization system also

risks stifling an individual’s self-expression and self-identification and contributes to

marginalization and minoritization,” said AMA Board Chair-Elect Sandra Adamson

Fryhofer, M.D.’

- “Abolishing legal sex status: The challenge and consequences of gender-related law

reform”, https://www.kcl.ac.uk/law/research/future-of-legal-gender-abolishing-legal-sex-

status-full-report.pdf (research project led by Prof. Davina Cooper of the Dickson Poon

School of Law)

- moving from the first demand to the second demand has taken us from Caroline Cossey

(https://youtu.be/F5F15L1ofyE, right to be recognised as legally female after genital surgery

under Christine Goodwin) to Alex Drummond (https://youtu.be/Lj4V-Nme86U, right to have

a beard and male genitals and be recognised as legally female under the 2004 Act)

- reaction of what is probably the majority of women in the UK (the Conservative Party has

recognised that “gender self-identification”, which it rejected in 2020, is a wedge issue that

will help them in “red-wall” Labour-held seats):

https://www.mumsnet.com/Talk/womens_rights/3764049--waves-at-politicians-seeking-to-

understand-womens-rights (9 December 2019, just before the UK election)

Hello politicians

Most of you have BADLY underestimated how your incredible willingness to trample over

women’s rights goes down with the general population. You’re in a small echo chamber of

people vigorously agreeing with each other that you’re right and it is just some nasty TERFs

[“trans-exclusionary radical feminists”] who don’t want to be nice to poor oppressed trans

people. But Face facts. The vast majority of voters will feel some sympathy for individuals

with [gender] dysphoria but those VOTERS:

- do not believe there is such a thing as a female penis

- do not want their teenage daughter sleeping at Guide camp in a tent with undisclosed male

bodied persons

- do not think giving untested puberty blockers to young children is ok

- do not want male bodied people changing next to women at the swimming pool or at M&S

- do not believe you can change your biological sex but [by?] power of thought and belief

- do not think male bodied people belong in women’s refuges or women’s prisons

- don’t want their young boys labelled trans because they happen to like pink, glitter and

trying on Disney princess dresses

- don’t much appreciate being labelled as a bigot because of the above

https://www.marianne.net/agora/tribunes-libres/trans-suffit-il-de-s-autoproclamer-femme-

pour-pouvoir-exiger-d-etre-considere (17 February 2020)

Trans: suffit-il de s’autoproclamer femme pour pouvoir exiger

d’être considéré comme telle?

“... Être une femme n’est pas un ressenti. Cela correspond à une réalité physiologique très

spécifique et à un vécu social tout aussi spécifique. Tout cela est réel. Dans nos sociétés, être

une femme, c’est souffrir et être épuisée tous les mois mais devoir travailler comme si de rien

n’était. C’est être considérée comme une proie potentielle dans l’espace public et comme une

travailleuse bénévole dans l’espace privée. Ce statut repose sur la réalité de notre corps. Si je

suis, entre autres, discriminée à l’emploi et sous-payée, ce n’est pas parce que je « me sens

une femme », ni parce que j’ai une « identité » de femme, mais bien parce que chacun saura,

en me voyant, que j’ai un corps de femme. Aucun « ressenti » ne pourra être équivalent à

cette réalité. ...”

Marianne explique:

“Publiée à l'origine par le Huffington post, le jeudi 13 février 2020, la tribune ci-dessous [ci-

dessus] a provoqué une vive polémique. Au point que le site a décidé de la retirer. Même si la

question que ce texte soulève est délicate, il faut pourtant pouvoir débattre de tout, de façon

argumentée et civilisée. Voilà pourquoi nous avons choisi de le remettre en ligne, avec

l'accord de son auteur[] et des signataires. Depuis la première parution de ce texte, leur

nombre a d'ailleurs bondi de 60 à près de 140. Précision utile : il ne s'agit aucunement d'une

prise de position de la part de Marianne, qui reste ouvert aux avis contraires à ce texte. Parce

que - il faut le rappeler à nouveau - le débat est essentiel.”

2. Women-only intimate spaces (including changing rooms, hospital wards, and prisons)

- should women have to see male genitals in women-only intimate spaces (it seems that the

majority of male-to-female transgender persons retain their male genitals)?

Yunusova v. Azerbaijan, ECtHR, 16 July 2020: “135. … the intrusion of a male officer into

the toilet resulting in the first applicant being exposed to him in a state of undress clearly

amounted to an interference with the applicant’s [Article 8] right to respect for her private life

[interference not justified so violation found].”

- the Equality Act 2010 has exceptions for single-sex services and single-sex accommodation

(Schedule 3, paragraphs 26-28, and Schedule 23, paragraph 3) that permit, but do not require,

the exclusion of a transgender person because of their gender reassignment

https://youtu.be/2d6HGu8RT0k (Wi Spa in Los Angeles)

3. Sports competitions for women (a form of positive action)

Equality Act 2010, s. 195:

(2) A person does not contravene section [the Act], so far as relating to gender reassignment,

only by doing anything in relation to the participation of a transsexual person as a competitor

in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

(a) fair competition, or

(b) the safety of competitors.

(3) A gender-affected activity is a sport, game or other activity of a competitive nature in

circumstances in which the physical strength, stamina or physique of average persons of one

sex would put them at a disadvantage compared to average persons of the other sex as

competitors in events involving the activity.

- compare the Democrat-Republican divide on this issue in the US

https://www.theguardian.com/sport/2021/jan/22/transgender-athletes-joe-biden-executive-

order

Hilton & Lundberg, “Transgender Women in the Female Category of Sport: Perspectives on

Testosterone Suppression and Performance Advantage”, Sports Medicine (8 December

2020), part 3.3: “approximately 10,000 males have personal best times that are faster than the

current Olympic 100 m female champion”

https://www.bbc.co.uk/sport/58732146 (30 September 2021)

‘Transgender inclusion, fairness and safety often cannot co-exist’ says major review

https://sex-matters.org/posts/updates/women-in-sport/ (retaining female categories and

replacing “male” with “open” categories may be the fairest way to balance inclusion claims)

- CeCe Telfer, women’s hurdles champion (highest ranking as a man was 200 th ):

https://youtu.be/ydeH-0EstiE

- Lia Thomas, women’s swimming champion (highest ranking as a man was 65 th ):

https://youtu.be/tukcaqEpGYo

https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-

716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf

(Fédération Internationale de Natation, FINA, 19 June 2022)

“Male-to-female transgender athletes (transgender women) … are eligible to compete in the

women’s category in FINA [swimming] competitions and to set FINA World Records in the

women’s category in FINA competitions and in other events recognised by FINA if they can

establish to FINA’s comfortable satisfaction that they have not experienced any part of male

puberty beyond Tanner Stage 2 or before age 12, whichever is later. …”

4. Erasure of women from references to pregnancy, menstruation, cervical cancer, etc

to accommodate (in particular) female-to-male transgender persons

(i) registering a person born male as the mother of a child conceived with the person’s

sperm (C.V. & M.E.D. v. France, Applications nos. 13948/21 and 14333/21, A.H. & Others

v. Germany, Application no. 7246/20), and

(ii) registering a person born female as the father of a child conceived with the person’s egg

and gestated in the person’s uterus (Y.P. v. Russia, Application no. 8650/12; O.H. & G.H. v.

Germany, Applications nos. 53568/18, 54741/18; and an application lodged with the ECtHR

after R. (on the application of McConnell) v. Registrar General for England and Wales,

[2020] EWCA Civ 559, https://www.judiciary.uk/wp-content/uploads/2020/04/McConnell-

and-YY-judgment-Final-1.pdf, permission to appeal to the UKSC refused on 9 November

2020)

5. Medical treatment (with puberty blockers and opposite-sex hormones) of children

and adolescents with gender dysphoria

Bell v. Tavistock, [2021] EWCA Civ 1363 https://www.judiciary.uk/wp-

content/uploads/2021/09/Bell-v-Tavistock-judgment-170921.pdf

- in England and Wales, a person under 18 may not purchase alcohol or cigarettes or consent

to a Botox injection or a tattoo, but their parents may consent to their receiving puberty

blockers

IV. Tensions between LGB (lesbian, gay, bisexual) and T (transgender)

- Did LGB and T ever have enough in common to justify their political coalition? Has T

taken over LGB organisations? Does LGB need a divorce from T?

- LGB Alliance, https://lgballiance.org.uk/, as an alternative to Stonewall,

https://www.stonewall.org.uk/ (which focussed on LGB issues from 1989 until 2014, but has

focussed on transgender issues since 2015)

- I am a Trustee of LGB Alliance, which held its first annual conference at the Queen

Elizabeth II Conference Centre on 21 October 2021

https://www.itv.com/news/2021-09-29/row-over-lgb-alliance-stand-at-conservative-party-

conference (stand at Labour Party conference refused; also in 2022)

https://www.dailymail.co.uk/news/article-10118587/Boris-Johnson-wades-culture-war-

backing-controversial-LGB-Alliance-group.html

(see video “Protesters chant outside LGB Alliance conference in London”: “Nazi scum off

our streets”)

https://www.telegraph.co.uk/news/2022/12/02/scottish-parliament-should-

leave-gender-recognition-act/

COMMENT

The Scottish Parliament should leave the

Gender Recognition Act as it is

Five years ago I would have supported the Bill but I’ve listened to

concerns of lesbian, bisexual and heterosexual women and changed

my mind

ROBERT WINTEMUTE2 December 2022 • 8:26pm

Professor Wintemute believes the current Bill will not satisfy the transgender rights

movement in Scotland

In 2004, the UK Parliament passed (for Scotland and the rest of the UK) a

very generous Gender Recognition Act, the first in the world (at the national

level) to allow a change of legal sex without any physical changes to the

transgender person’s body.

Medical treatment with hormones or surgery was not required. The November

2003 report of the Joint Committee on Human Rights described the bill as “a

sensitive and sensible compromise allowing pre-operative transsexual people

to have their acquired gender recognised, with the Gender Recognition Panel

providing a safeguard against premature or frivolous

applications”.

The Panel provides a safeguard in two ways: by checking that the applicant has

a diagnosis of gender dysphoria and that the applicant has lived in “the

acquired gender” for two years.

These twin safeguards prevent misuse of the procedure, especially by persons

born male who are not transgender.

A poll of around 1000 Scottish voters in October 2022 revealed that (excluding

“don’t knows”) a clear majority opposed removing the safeguards in the 2004

Act: 60% opposed removing the requirement of a diagnosis of gender

dysphoria, 67% opposed reducing the waiting period from two years to three

months (with an additional three-month "reflection

period”), and 77% opposed reducing the age at which people can change their

legal sex from 18 to 16.

None of these changes is required by the European Convention on Human

Rights or the Human Rights Act 1998. In 2017, seven judges of the European

Court of Human Rights unanimously upheld a French requirement “to

demonstrate the existence of a gender identity disorder” before an individual

can change their legal sex.

No ‘psycho-medical diagnosis’

In supporting the Gender Recognition Reform (Scotland) Bill, the Scottish

Human Rights Commission has relied on a non-binding 2015 resolution of the

Council of Europe’s Parliamentary Assembly (which did not persuade the

European Court), non-binding reports of a UN Independent Expert (who

seems to support, contrary to the Equality Act 2010, the participation of male-

to-female transgender persons in women’s sports), and a non-binding civil-

society document, the Yogyakarta Principles.

The 2017 version of the Principles boldly claimed, not only that there should

be no “psycho-medical diagnosis”, but also that existing international human

rights law requires every country to “end the registration of the sex of the

person in identity documents such as birth certificates”.

After the current Bill, is the Scottish Government planning to introduce an

Abolition of Legal Sex (Scotland) Bill?

The procedure under the 2004 Act has been described as “difficult,

humiliating, and inaccessible for many trans people, requiring a large amount

of time, money, and evidence to apply”.

Is it? Not if the two-year waiting period and the £5 application fee are

compared with naturalisation as a British citizen, which has a six-year waiting

period (for those not married to a British citizen), a demanding “Life in the UK

Test”, a complicated application form, and a fee of £1330.

By shortening the waiting period to six months, and removing the diagnosis

requirement, the current Bill assigns a low value to the status of being legally

female, compared with the status of being legally a British citizen.

Protect women-only spaces and sports

The current Bill will not satisfy the transgender rights movement in Scotland.

Its next demand is likely to be the abolition of the six-month waiting period, as

in Argentina, where the 2012 law has no waiting period.

If a future UK Government makes the same changes for England and Wales,

the movement’s focus will shift to abolishing the exceptions in the Equality Act

2010 that protect women-only spaces and sports.

Instead of ignoring the views of the majority of Scottish voters, by removing

the safeguards in the 2004 Act, the Scottish Government should make it easier

to book an NHS appointment to obtain the diagnosis of gender dysphoria that

the Act requires.

This would benefit transgender persons, while safeguarding and respecting the

rights of women. Five years ago, I would have supported the Bill. But I have

listened to the concerns of lesbian, bisexual and heterosexual women and

changed my mind.

Robert Wintemute is Professor of Human Rights Law, King’s College London

Eldur Ísidór 29/05/2019 Eldur Ísidór 29/05/2019

Blog Post Title Two

It all begins with an idea.

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Blog Post Title Three

It all begins with an idea.

Eldur Ísidór 29/05/2019 Eldur Ísidór 29/05/2019

Blog Post Title Four

It all begins with an idea.