On 22 December 2022 the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill. If enacted, the Bill would change the process in Scotland by which individuals may change their sex in law by obtaining a gender recognition certificate under the Gender Recognition Act 2004. This is UK wide legislation in relation to which the Scottish Parliament has devolved powers. The UK government has concluded that the Bill’s provision would modify, and adversely affect, the law applying to matters which are reserved to the UK government, and has decided to use the provisions of section 35 of the Scotland Act 1998 to prevent the Bill’s enactment in its current form. On 12 April 2023 the Scottish government confirmed its intention to challenge the blocking of the GRR Bill by means of judicial review.

The Gender Recognition Act 2004 (GRA) requires an applicant for a gender recognitions certificate (GRC) to have a diagnosis of gender dysphoria, which is supported by a report from a registered medical practitioner or psychologist practising in the field of gender dysphoria, and an additional report from a medical practitioner who may or may not practice in that field. The applicant is also required to have lived in their ‘acquired gender’ for a minimum of two years. The application must be accepted by a Gender Recognition Panel, which is made up of members who have legal and medical qualifications.

The provisions of the Gender Recognition Reform (Scotland) Bill (GRR Bill) would remove both the requirements for a medical diagnosis and for approval by a Panel, and allow applicants to obtain a GRC by a process of self-declaration. This would involve making an application to the Registrar General for Scotland by means of a statutory declaration, which is a formal written statement affirming that something is true to the best knowledge of the person making the statement. The declaration must be signed in the presence of a solicitor, commissioner for oaths or public notary. The Bill would reduce the minimum age for making an application from eighteen to sixteen years, and shorten the periods of time for which applicants are required to have lived in their ‘acquired gender’ before making the application.  The required period for those aged eighteen and over would be three months. For those aged sixteen and seventeen it would be six months. In addition, there would be a mandatory three-month reflection period and a requirement for the applicant to confirm at the end of that period that they wish to proceed with the application.

Section 35 of the Scotland Act 1998 contains provisions under which the Secretary of State for Scotland may make an order prohibiting the Presiding Officer from submitting a Scottish Bill for Royal Assent if the Bill would make modifications of the law as it applies to reserved matters,  and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters. In a publication for Policy Exchange, Dr Michael Foran has argued that if the GRR Bill is enacted, it will fundamentally alter the law relating to equal opportunities across the United Kingdom. Equal opportunities is a reserved matter.

On 17 January 2023 the UK government published its statement of reasons for using section 35 in relation to the GRR Bill. The statement of reasons says that the reserved matter to which the GRR Bill applies is primarily the law relating to equal opportunities, and that it applies through the inter-relationship between the GRA and the Equality Act 2010. It also says that the Bill has practical consequences on the operation of the law relating to other reserved matters, such as the administration of tax, benefits and state pensions managed by integrated systems across the UK, which span both reserved and devolved functions.

The UK government states that the adverse effects of the Bill relate to three overall areas of concern, which are the impact of creating two parallel and very different regimes for issuing and interpreting GRCs within the UK; the impacts that removing current safeguards would have on safety, particularly in relation to women and girls; and the impact on the operation of the Equality Act 2010 in view of the fact that a GRC changes a person’s protected characteristic of sex for the purposes of that Act. The UK government‘s view is that the expansion of the cohort of people able to obtain a GRC which would result from the Bill would exacerbate problems which already exist under the current GRC scheme, and create new ones.

One impact of the existence of different regimes for obtaining GRCs across the UK is that a person’s legal sex in Scotland could be different from his or her legal sex in England, Wales and Northern Ireland.

The statement of reasons says that,

“The change in how a GRC can be obtained under the Bill…expands the category of people who will be regarded as women under the 2010 Act… It will, in Scots law, be a biological woman or a person aged 16 or over who has self-identified as a woman for 6 (or 9 months). This is a substantive change to what a ‘man’ or ‘woman’ is for the purposes of the 2010 Act.”

It goes on to state that,

“…the reformed system will be open to abuse and malicious actors. For example…the required period for living in the acquired gender does not involve any evidence. This would undermine the operation of the Bill’s designation of sex and its interrelation with sex as a protected characteristic in the 2010 Act, eroding confidence in the latter as a credible framework to protect the rights of individuals and advance equality of opportunity for all… Adverse effects identified are of particular concern in relation to the operation of the 2010 Act’s provisions relating to sex-segregated spaces, services, competitive sports and occupational requirements.

These allow for the exclusion of people with the protected characteristic of gender reassignment, including those with a GRC, where their exclusion can be objectively justified. Given the significantly increased possibility of someone with malicious intent being able to obtain a GRC and, as this risk will be widely known, there is a related risk of people no longer feeling safe in any sex-segregated setting and self-excluding from such settings even though they could significantly benefit from them.”

Similar concerns about the GRR Bill were raised by Reem Alsalem, the UN Special Rapporteur on violence against women and girls, in a letter to the UK government written on 29 November 2022, in which she stated,

“However, the ongoing efforts to reform existing legislation by the Scottish Government do not sufficiently take into consideration the specific needs of women and girls in all their diversity, particularly those at risk of male violence and those who have experienced male violence, as it does not provide for any safeguarding measures to ensure that the procedure is not, as far as can be reasonably assured, abused by sexual predators and other perpetrators of violence.”
 
In contrast to Reem Alsalem, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz, wrote a letter to the UK government on 13 December 2022 stating,

“In the current matter, there is no credible evidence supporting the submission that requirements currently in place in Scotland for legal gender recognition are effective or efficacious safeguards to prevent sexual and gender-based violence, or that these requirements are even remotely connected to it; there is also no credible evidence supporting the idea that maintaining them in whole or part or devising other gatekeeping mechanisms will serve that preventive purpose either… Further, these arguments, which seek to limit the human rights of trans, non-binary and other gender diverse persons by artificially connecting them to the emotional charge of a global and urgent human rights concern -women’s freedom from violence- are not only misinformed: these narratives, which often exist under the conceptualisation of “sex-based rights” usually rest on the notion of sex as a fixed
and binary biological given (defined by genitalia, reproductive organs, or chromosomes, or a combination thereof).”
 
The UK’s Equality and Human Rights Commission’s view is that the existing legal framework provides the correct balance that best protects everyone.

On 12 April 2023 in an answer to a written question in the Scottish Parliament, Shirley Ann Somerville, Scotland’s Cabinet Secretary for Social Justice, confirmed the Scottish government’s intention to challenge the blocking of the GRR Bill by means of judicial review.

Sources
Reem Alsalem, Mandate of the Special Rapporteur on violence against women and girls, its causes and consequences, ‘Letter to the UK government, Ref.: OL GBR 14/2022’, 29 November 2022
Equality and Human Rights Commission, ‘Statement following the passing of The Gender Recognition Reform (Scotland) Bill’, 23 December 2022
Equality Hub, Office of the Secretary of State for Scotland, and Government Equalities Office, ‘Policy paper: Statement of reasons related to the use of section 35 of the Scotland Act 1998’, 17 January 2023
Michael Foran,’The Scottish Gender Recognition Reform Bill: The Case for a Section 35 Order’, Policy Exchange, 12 January 2023
Gender Recognition Reform (Scotland) Bill
Victor Madrigal-Borloz, Mandate of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, ‘Letter to the UK government, Ref.: OL GBR 15/2022’, 13 December 2022
Scotland Act 1998
The Scottish Parliament, Chamber and committees, Questions and answers, ‘Question reference: S6W-17198’, Answered by Shirley Ann Somerville, 12 April 2023
 

A number of public opinion polls about the Scottish gender recognition reform proposals have been carried out in Scotland. The majority of respondents in all of them have been opposed to self-declaration of gender identity.

Research by YouGov commissioned by The Times conducted interviews with 1,090 people aged 16 and over in Scotland between 6 and 9 December 2022 about the Scottish government’s proposed reforms to the process of obtaining a GRC. The YouGov summary of the research findings can be found here. The research found that 60% of respondents were opposed to the removal of the requirement for a diagnosis of gender dysphoria, 59% were opposed to  reducing the time applicants must have lived in their ‘acquired gender’ from 2 years to 6 months (made up of a 3 month period, with an additional 3-month reflection period), and 66% were opposed to the minimum age for making an application for a GRC being reduced from eighteen to sixteen years.

MurrayBlackburnMackenzie, an independent policy analysis collective based in Edinburgh,   commissioned a poll from Survation in 2021. Survation interviewed a representative sample of 1,028 Scottish residents aged eighteen and over between 18 and 25 November 2021. Fifty three percent of respondents thought that people should have to obtain a doctor’s approval before having their gender legally recognised as different to their biological sex. Twenty-seven per cent thought that a doctor’s approval should not be needed, and 20% did not know.

The women’s rights organisation For Women Scotland have summarised the results of a range of surveys of public opinion relating to different aspects of gender recognition policy proposals, which can be found here.

Sources
Kieran Andrews, ‘Two thirds of voters oppose SNP’s gender reform plans’, The Times, 15 December 2022
For Women Scotland, ‘Public Opinion Polls’, 04 October 2022
MurrayBlackburnMackenzie, ‘Polling shows being supportive of transgender self-expression is not the same as supporting self-declaration for legal gender recognition’, 14 December 2021
YouGov, ‘YouGov / The Times Survey Results, Fieldwork: 6th - 9th December 2022’, 2022
 

 

In December 2022, the women’s rights organisation For Women Scotland brought a judicial review of statutory guidance produced by the Scottish government in relation to gender representation on public boards. The guidance stated that where a person has been issued with a full gender recognitions certificate (GRC) stating that their acquired gender is female, that person’s sex is that of a woman. For Women Scotland argued that the definition of “woman” in the Equality Act 2010 was intended to mean a biological woman. In the Outer House of the Scottish Court of Session Lady Haldane rejected this argument and concluded that, for the purposes of the Equality Act, the word “sex” is not limited to biological or birth sex, but includes the ‘acquired gender’ of those in possession of a GRC. Lady Haldane stated that this conclusion does not give rise to any conflict with legislation where is it clear that sex means biological sex.

Section 1 of the Gender Representation on Public Boards (Scotland) Act 2018 sets out a “gender representation objective” for public boards that fifty per cent of their non-executive members should be women. Section 5 of the Act places obligations on public authorities and those who make appointments to public boards to take such steps as they consider appropriate to encourage women to apply to become non-executive members. Section 7 of the Act requires Scottish Ministers to publish guidance on the Act’s operation and states that the guidance must cover encouraging applications by women in accordance with section 5. The current guidance states,

“…"woman" in the Act has the meaning under section 11[3] and section 212(1)[4] of the Equality Act 2010. In addition, in terms of section 9(1)[5] of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person's sex is that of a woman…”

Section 4 of the Equality Act makes provision for nine “protected characteristics” which include both sex and gender reassignment. Section 11 of the Act states:

“In relation to the protected characteristic of sex (a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman: (b) a reference to persons who share a protected characteristic is a refence to persons of the same sex.”

Section 212 (1) of the Act states that ““woman” means a female of any age.”

In relation to “gender reassignment” section 7 of the Act states,

“(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.”
Having the protected characteristic of gender reassignment does not require the possession of a GRC.

Section 9(1) of the Gender Recognition Act states that where a full gender recognition certificate is issued to a person, the person’s gender becomes the acquired gender for all purposes. However, this provision is qualified by section 9(3) of the Act, which states that it is subject to other provisions made by the Act or any other legislation.

In the Court of Session, For Women Scotland, the petitioners in the case, argued that the Scottish government’s statutory guidance is unlawful and defeats the purpose of the 2018 Act. They argued that it seeks to introduce a new category of “legal sex”, which is not a protected characteristic in terms of the Equality Act, and therefore it intrudes upon a reserved matter. They submitted that inasmuch as there is a conflict between the Gender Recognition Act and the Equality Act, the Gender Recognition Act is impliedly repealed by the later Act. They submitted that the law relating to gender reassignment was now protected under the Equality Act, and that those with a GRC therefore come within the protected characteristic of gender reassignment and not that of sex.

The first respondent in the case was the Scottish Ministers. The Lord Advocate of Scotland supported the Scottish government’s interpretation of the law. The Equality Network in Scotland submitted written interventions in the case and also supported the government’s interpretation.
 
The Equality and Human Rights Commission (EHRC) was involved in the case as an interested party, and broadly supported the Scottish government’s interpretation of the law. The EHRC stated that its position was not that of a conventional respondent, since it was akin to a referee in the sense that it was not part of its function to align itself with one party or another. It took the position it did because it saw it as the “correct refereeing decision”.
 
The LGB Alliance submitted written interventions supporting the position of For Women Scotland. They argued that the protected characteristics of sex and gender reassignment were entirely separate, and that the conflation of sex and gender was prejudicial to the interests of lesbians and gay men.
 
Lady Haldane rejected the argument that the meaning of “sex” in the Equality Act refers to biological sex and dismissed the petition. The reasons she gave were as follows:
 
Firstly, that the word “biological” does not appear in the Act’s definition of the word “sex”.
Secondly, that the 2010 Act was drafted in full awareness of the 2004 Act and its ambit, and that it did not seek to repeal section 9 (1) of the 2004 Act. Thirdly, Lady Haldane took the view that the petitioners had conflated the possession of a GRC with the protected characteristic of gender reassignment.
 
Lady Haldane stated that whilst sex and gender are separate and distinct protected characteristics, they are not necessarily mutually exclusive in the context of the Gender Recognition Act and the Equality Act. She concluded that,
 
“…in this context, which is the meaning of sex for the purposes of the 2010 Act, “sex” is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex. Such a conclusion does not offend against, or give rise to any conflict with, legislation where “sex” means biological sex.”
 
Sources
Equality Act 2010
Gender Recognition Act 2004
Gender Representation on Public Boards (Scotland) Act 2018
Scottish Government, ‘Gender Representation on Public Boards (Scotland) Act 2018: statutory guidance’, 19 April 2022

Case law:
For Women Scotland Ltd [2022] CSOH 90

 

In October 2022 the human rights organisation Sex Matters launched a petition asking the government to use its power under section 23 of the Gender Recognition Act 2004 to clarify the operation of the Equality Act 2010 by specifying that the terms ‘sex’, ‘male’, ‘female’, ‘man’ and ‘woman’ in the Equality Act mean biological sex and not "sex as modified by a Gender Recognition Certificate".  There has been disagreement about the meaning of these terms for the purposes of the Equality Act for some time. In February 2023 the Minister for Women and Equalities wrote to the Equality and Human Rights Commission requesting advice about the benefits or otherwise of amending the Equality Act to clarify the definition of 'sex'. Baroness Kishwer Falkner, the Chairwoman of the Equality and Human Rights Commission, responded indicating that the Commission is broadly in favour of such a clarification.

On 21 February 2023 Kemi Badenoch MP, the Minister for Women and Equalities, wrote to the Equality and Human Rights Commission requesting advice about the benefits or otherwise of amending the Equality Act to clarify the definition of 'sex'. The Minister noted “the increasing contestation of how the term sex is understood in law and in practice” and stated that the cases of For Women Scotland Ltd (2022) (discussed in item 3 above) and Fair Play for Women Ltd. v UK Statistics Authority (2021) had raised legitimate questions about the definition of ‘sex’ in the Act. In the case brought by the women’s rights organisation Fair Play for Women the court confirmed that the census question about the sex of individuals should refer to biological sex or sex as established by a Gender Recognition Certificate, and not to self-defined sex.

The Minister also referred to the issues raised by Scotland’s Gender Recognition Reform Bill and noted Sex Matters’ petition.

On 03 April 2023 Baroness Kishwer Falkner, the Chairwoman of the Equality and Human Rights Commission, responded to the Minister’s letter stating that the Commission’s view is that defining ‘sex’ as meaning biological sex for the purposes of the Equality Act would bring greater legal clarity in eight areas. These are pregnancy and maternity (by extending protections for pregnant women and new mothers to those who identify as men and have a Gender Recognition Certificate), freedom of association for lesbians and gay men, freedom of association for women and men, positive action (e.g. women-only shortlists), occupational requirements which restrict positions on the basis of sex, single sex and separate sex services (which would be easier to maintain), sport, and data collection.
 
Baroness Falkner suggested that the proposed change would bring more ambiguity and potential disadvantage in three areas. These are equal pay provisions, direct sex discrimination and indirect sex discrimination. In all three cases the effect of a biological definition of ‘sex’ would be to transfer rights from trans-identifying males to trans-identifying females.
 
Parliament considers all petitions which obtain more than 100,000 signatures for a debate. The Sex Matters petition had obtained 100,000 signatures by 9 March 2023. Parliament has announced that the petition will be debated on 12 June 2023.
 
Sources
Letter from Baroness Kishwer Falkner, Chairwoman, Equality and Human Rights Commission, to the Rt Hon Kemi Badenoch MP, Minister for Women and Equalities, 03 April 2023
Letter from the Rt Hon Kemi Badenoch MP, Minister for Women and Equalities, to Baroness Kishwer Falkner, Equality and Human Rights Commission, 21 February 2023
Petitions UK Government and Parliament, Closed petition ‘Update the Equality Act to make clear the characteristic “sex” is biological sex’
Petitions UK Government and Parliament, Petition ‘Update the Equality Act to make clear the characteristic “sex” is biological sex’, Deadline: 20 April 2023

Case law
Fair Play for Women Ltd. v UK Statistics Authority [2021] EWHC 940
For Women Scotland Ltd [2022] CSOH 90
 

 

On 29 January the Scottish Justice Secretary announced that the Scottish Prison Service is undertaking a review of the management of transgender prisoners, and stated that during the review no trans-identifying male prisoners with a history of violence against women will be placed in the women’s prison estate.

The Justice Secretary’s announcement stated that “measures to ensure the on-going safety of prisoners” would be introduced while the review takes place. These measures are that,

“No transgender person already in custody with any history of violence against women will be moved from the male to the female estate.

No newly convicted or remanded transgender prisoner with any history of violence against women will be placed in the female estate. Violence against women includes sexual offences against women.”

Since 2014 the Scottish Prison Service’s policy, which was written by the Service and the lobby group Scottish Trans, has been that prisoners should be accommodated in the part of the prison estate with reflects “the gender in which the person in custody is currently living”. This is subject to risk assessment. The policy is based on self-declaration of gender identity, and states that,

“The social gender in which the person in custody is living should be fully respected regardless of whether or not the person in custody provides any evidence of having a gender recognition certificate under the Gender Recognition Act 2004.”
 
The Prison Services’ review was initiated after extensive public debate about two violent biologically male offenders who identify as women and wish to be placed in women’s prisons. 

On 24 January, the BBC reported that a trans-identifying male known as Isla Bryson had been convicted of raping two women. The rapes took place in 2016 and 2019 while Bryson was still known as Adam Graham. Bryson claimed a transgender identity after being charged with the rapes, and after conviction was placed in Cornton Vale women’s prison, separately from other prisoners.

During First Minister’s Questions in the Scottish Parliament on 26 January, Nicola Sturgeon stated that Bryson would not be incarcerated in Cornton Vale. On the same day, the BBC reported that Bryson had been moved to His Majesty’s Prison Edinburgh, which is a men’s prison.

On 28 January the Scottish Daily Record reported that the Scottish Prison Service planned to transfer a trans-identifying offender known as Tiffany Scott, whose former name was Andrew Burns, to a women’s prison. On the same day the BBC reported that Scott is subject to an order for lifelong restriction (OLR). Prisoners subject to such orders are on indefinite sentences and remain in prison until they are no longer considered an "unmanageable risk to public safety". Scott was made subject to the OLR after being found guilty of stalking a thirteen year-old girl while serving a prison sentence for another offence.

The BBC also reported that in 2017 Falkirk Sheriff Court was locked down due to safety fears while Scott was sentenced over a series of violent incidents in Glenochil Prison in Clackmannanshire. They included striking a prison nurse on her back with a hurled chair, punching a prison officer in the face, and spitting at another officer and trying to bite him.

The Scottish Prison Service’s announcement of their review was made the day after the planned transfer of Scott to the women’s prison estate was made public. The transfer did not take place. On 9 January 2023 the Scottish Government published the findings of an urgent case review carried out by the Scottish Prison Service in relation to their decision-making about Bryson’s prison placements.

Sources
BBC News, ‘Rapist guilty of attacking women before gender change’, BBC, 24 January 2023
BBC News, ‘Tiffany Scott: Call to block trans prisoner's move to women's jail’, BBC, 28 January 2023
BBC News, ‘Transgender rapist Isla Bryson moved to men's prison’, BBC, 26 January 2023
Mark McGivern, ‘New trans prisoner storm looms for Nicola Sturgeon over transfer of violent stalker Tiffany Scott’, Daily Record, 28 January 2023
Scottish Government, ‘Justice Secretary statement on protecting prisoners’, 29 January 2023
Scottish Government, ‘Transgender prisoner management: urgent case review correspondence, Letters relating to the Scottish Prison Service’s review into the case of Isla Bryson’, 9 February 2023
Scottish Prison Service, ‘Gender Identity and Gender Reassignment Policy for those in our Custody’, 2014
The Scottish Parliament, ‘First Minister’s Questions’, Thursday 26 January 2023, 12.00 PM
 

 

On 25 January the UK government published a statement which provided an update about its plans to change its policy on the placement of trans-identifying male prisoners in England and Wales. The new policy came into effect on 27 February 2023.

Under the new policy trans-identifying males with male genitalia, and those who have been convicted of a sexual offence or violent offence, will no longer be held in the general women’s estate. The policy allows for exemptions to be considered by Ministers on a case-by-case basis in “the most exceptional circumstances”. Exemptions will be considered for those currently held in the women’s estate who are assessed as low risk.

The new policy applies to all trans-identifying male prisoners, including those who hold a gender recognition certificate (GRC). However, an updated version of the full Prison Service policy published on 31 March 2023 states that those with a GRC may be held in separate accommodation in a women’s prison.

Previous policy in England and Wales was that trans-identifying male prisoners who do not hold a gender recognition certificate (GRC) were initially placed in the male estate but could be moved to the female estate following a risk assessment. Those who hold a GRC were initially placed in the female estate but could be moved to the male estate following a risk assessment.

The Ministry of Justice’s ‘Offender Equalities Annual Report’ for the year 2021/22 stated that there were 230 transgender prisoners in England and Wales in the 2022 data collection. This was an increase on the figure of 197 recorded in 2021. Most (187) reported their legal gender as male. There were an additional 11 prisoners known to have a Gender Recognition Certificate. Most transgender prisoners were in the men’s estate. There were six trans-identified males in the female estate. 

Sources
Ministry of Justice, HM Prison and Probation Service, ‘The Care and Management of Individuals who are Transgender’, 31 March 2023
Ministry of Justice, HM Prison and Probation Service, and The Rt Hon Dominic Raab MP, ‘Update on changes to transgender prisoner policy framework,’ 25 January 2023
Ministry of Justice, ‘Her Majesty’s Prison and Probation Service Offender Equalities Annual Report 2021/22, Ministry of Justice Official Statistics Bulletin’, 24 November 2022
Ministry of Justice, HM Prison and Probation Service, and The Rt Hon Dominic Raab MP, ‘ New transgender prisoner policy comes into force Transgender women with male genitalia will no longer be able to be held in mainstream women’s prisons, under new measures coming into force today’, 27 February 2023
 

 

A question on ‘gender identity’ was included in the census for England and Wales for the first time in 2021. Information about the responses to the question was published on 06 January 2023. Social scientists with expertise in data collection have suggested that the ambiguity of the question has led to the production of inaccurate data. The Office for Statistics Regulation is now examining these concerns.

The Office for National Statistics (ONS) report on the census data defines ‘gender identity’ in the following way:

“Gender identity refers to a person’s sense of their own gender, whether male, female or another category such as non-binary. This may or may not be the same as their sex registered at birth.”

The new census question on ‘gender identity’ was asked of those aged 16 years and over and was a voluntary question.  The question was,

 “Is the gender you identify with the same as your sex registered at birth?”

Respondents to the question had the option of selecting the answer ‘Yes’ or ‘No’ and writing in their ‘gender identity’.

Overall, 45.7 million people (94.0% of the population aged 16 years and over) answered the question.  A total of 45.4 million people (93.5%) answered “Yes”, and 262,000 people (0.5%) answered “No”. The remaining 2.9 million people (6.0%) did not answer the question.

Within the group of 262,000 people who answered ‘No’ to the census question, 118,000 (0.24%) answered “No” but did not provide a write-in response, 48,000 (0.10%) identified as a ‘trans man’, 48,000 (0.10%) identified as a ‘trans woman’, 30,000 (0.06%) identified as ‘non-binary’, and 18,000 (0.04%) wrote in a different gender identity.

The ONS states that the new question was added to the census to provide the first official data on the size of the transgender population in England and Wales; and that the data will help to provide better quality information for monitoring purposes, support anti-discrimination duties under the Equality Act 2010, and aid allocation for resources and policy development.

When the data relating to the census question about gender was released concerns were raised about its accuracy by social scientists with expertise in data analysis, such as Professor Alice Sullivan at Universitiy College London and Dr Michael Biggs at Oxford University. They suggested that, due to the ambiguous wording of the question, it might have been misunderstood by people whose first language is not English, or who are unfamiliar with the concept of gender identity.

Further ONS data released on 04 April has amplified these concerns. In an article in The Spectator on 9 April Michael Biggs suggested that the data gives the impression that one in every 67 Muslims identifies as transgender and that adults with no educational qualifications are almost twice as likely to identify as transgender as university graduates. The London boroughs of Newham and Brent, which have a significant percentage of residents who speak English as a second language, were recorded as having the highest proportion of transgender people in the UK.  Biggs notes that,

“The strongest predictor of the transgender population across 331 local authorities, as measured by the census, is the proportion of people whose main language is not English…those census results are what would be expected if a number of people with poor English were confused by the question and inadvertently classified themselves as transgender.”

On 11 April The Times reported that the ONS had confirmed that it was working with the Office for Statistics Regulation on the data, and had stated that it was “possible” that respondents had misinterpreted the question.

Sources
James Beal, ‘Watchdog to examine ‘implausible’ UK census trans figures Academics say non-English speakers misunderstood convoluted question by ONS’, The Times, 11 April 2021
Michael Biggs, ‘Gender Identity in the 2021 Census of England and Wales: Implausible Results’ SocArXiv, 29 Jan. 2023. Web.
Michael Biggs, ‘Why does the census say there are more trans people in Newham than Brighton?’, The Spectator, 09 April 2023
Office for National Statistics, ‘Data and analysis from Census 21’, CT21_0008_Census 2021, 04 April 2023
Office for National Statistics, ‘Gender identity, England and Wales: Census 2021, The gender identity of usual residents aged 16 years and over in England and Wales, Census 2021 data’, 06 January 2023
Alice Sullivan, ‘What the Census reveals about trans people in Britain’, The Spectator, 29 January 2023
 

 

Michelle Donelan, the Secretary of State for Digital, Culture Media and Sport has announced the government’s intention to ban conversion therapy practices in England and Wales. Previously the government decided to introduce a ban in respect of conversion therapy relating to sexual orientation, but not to do so in relation to ’gender identity’. It has now decided that ‘gender identity’ will be included in a forthcoming Bill.

In a written update on the Online Safety Bill published on 17 January 2023 Michelle Donnellan included an announcement of the government’s intention to publish a draft Bill which will include proposals to ban conversion therapy in relation to sexual orientation and identifying as transgender. The Secretary of State said that the draft Bill would be published shortly and that the government will ask for pre-legislative scrutiny by a Joint Committee in this Parliamentary session. She stated,

“It is right that this issue is tackled through a dedicated and tailored legislative approach, which is why we are announcing today that the Government will publish a draft Bill which will set out a proposed approach to ban conversion practices, this will apply to England and Wales. The Bill will protect everyone, including those targeted on the basis of their sexuality, or being transgender.”

The British Psychological Society’s ‘Memorandum of Understanding on Conversion Therapy in the UK’ defines conversion therapy as,

“…an umbrella term for a therapeutic approach, or any model or individual viewpoint that demonstrates an assumption that any sexual orientation or gender identity is inherently preferable to any other, and which attempts to bring about a change of sexual orientation or gender identity, or seeks to suppress an individual’s expression of sexual orientation or gender identity on that basis.”

This definition, which is endorsed by Stonewall, was published in 2017. Before that date, the Society’s definition focused exclusively on sexual orientation.

The government published a consultation paper called ‘Banning Conversion Therapy’ on 29 October 2021. One of its proposals was the introduction of a new criminal offence. During the 2021-22 Parliamentary Session Wera Hobhouse MP introduced a Private Members’ Bill which aimed to criminalise conversion therapy. On 31 March 2022 ITV published leaked government documents stating that the government would not be introducing a ban. The next day the BBC reported that the government had announced that it would introduce a ban in respect of sexual orientation, but not in respect of “gender identity”.

During the consultation many organisations expressed concerns that the proposal to ban conversion therapy in relation to gender identity would potentially lead to the criminalisation of therapists who seek to explore the factors which may be contributing to their client’s discomfort with their biological sex, rather than simply adopting an ‘affirmative model’ which accepts the client’s claimed ‘gender identity’ without question. Particular concerns about the ‘affirmative model’ were expressed in relation to children. The human rights organisation Sex Matters has published on its website all of the consultation responses submitted by organisations, and has included those who were in favour of the ban as well as those who were opposed to it.

The interim report of the Independent Review of Gender Identity Services for Children and Young People chaired by Dr Hilary Cass (the Cass Review), which was published in February 2022, expressed concerns about the practices of the national Gender Identity Development Service (GIDS) for children at the Tavistock and Portman NHS Foundation Trust.  One of the key concerns it raised was that GIDS predominantly uses an ‘affirmative approach’ which accepts the claimed ‘gender identity’ of children and young people experiencing what the report calls ‘gender incongruence’ without exploring the factors which may be contributing to their discomfort with their biological sex. The report notes that approximately one third of children and young people referred to GIDS have autism or other types of neurodiversity. There is also an over-representation of looked after children within this group, many of whom are likely to have experienced significant childhood trauma. It is also thought that there is an over-representation of young people who are same-sex attracted. The Cass Review found that care staff at GIDS had felt under pressure to adopt an unquestioning affirmative approach.

The Secretary of State’s recent announcement states,

“The legislation must not, through a lack of clarity, harm the growing number of children and young adults experiencing gender related distress, through inadvertently criminalising or chilling legitimate conversations parents or clinicians may have with their children."

Sources
Paul Brand, ‘Exclusive: Government ditches ban on conversion therapy, according to leaked document’, ITV News, 31 March 2022
Michelle Donelan, ‘Online Safety Update Statement made on 17 January 2023’, Statement UIN HCWS500, 17 January 2023
Equality Hub, Government Equalities Office, ‘Closed consultation Banning conversion therapy’, Updated 9 December 2021
Sophie Gallagher and Josh Parry, ‘Conversion therapy: Ban to go ahead but not cover trans people’, BBC News, 01 April 2022
Sex Matters, ‘Banning conversion therapy: responses to the government consultation’
UK Parliament, ‘Conversion Therapy (Prohibition) Bill: Private Members' Bill (Presentation Bill)’ Originated in the House of Commons, Session 2021-22
The British Psychological Society, ‘Memorandum of Understanding on Conversion Therapy in the UK’, 21 October 2017
The Cass Review, 'Independent review of gender identity services for children and young people: Interim report', February 2022
 

The Charity Commission opened a regulatory compliance case into the charity Mermaids in September 2022 after child safeguarding allegations were raised. In December 2022 the Commission opened a statutory inquiry, stating that this was due to newly identified issues about the charity’s governance and management.

Mermaids is a charity which describes its role as supporting “transgender, nonbinary and gender-diverse children and young people until their 20th birthday, as well as their families and professionals involved in their care”.

On 25th September 2022 The Telegraph published a report alleging that Mermaids were giving breast binders to young women without parental consent or knowledge.  Following this report, the Charity Commission started a statutory compliance investigation into Mermaids’ activities. On 2 December 2022 the Charity Commission published a press release stating that the Commission had formalised its engagement with Mermaids on 28 November 2022 by opening a statutory inquiry  under section 46 of the Charities Act 2011, due to newly identified issues about the charity’s governance and management.

The press release stated that Mermaids’ trustees had fully cooperated with the Commission’s investigation, but that their response has not provided the necessary reassurance or satisfied the Commission at that stage.  It stated that the Commission will seek to determine whether Mermaids’ governance is appropriate in relation to the activities it carries out, which involve vulnerable children and young people, as well as their families.

The Commission’s statutory inquiry will examine:

• The administration, governance and management of the charity by the trustees including its leadership and culture;
• Whether the trustees have complied with and fulfilled their duties and responsibilities as trustees under charity law; in particular whether they had sufficient oversight of the charity’s activities and compliance with its policies and procedures and in line with its charitable objects;
• Whether there has been any misconduct and/or mismanagement by the trustees.

On 2 December 2022 Mermaids published a statement in response to the announcement of the Charity Commission’s statutory inquiry on its website. The statement said,

“Earlier this year Mermaids decided to carry out a frank and honest appraisal of our internal culture and how we measure up in terms of equity, diversity and inclusion. As part of this process, we commissioned an independent external report which highlighted a number of significant challenges for us. We know we must do better and we are absolutely committed to doing so, and will be implementing the report’s recommendations as a priority. The charity has an unwavering commitment to safeguarding which is, and always will be, our top priority. We will continue to cooperate fully, openly and with complete transparency with the Charity Commission as its inquiry gets underway.”

Sources
Charities Act 2011
Hayley Dixon, ‘Exclusive: Trans charity Mermaids giving breast binders to children behind parents’ backs’, The Telegraph, 25 September 2022
Mermaids, ‘Statement on Charity Commission Inquiry’, 02 December 2022
The Charity Commission, ’Press release, Regulator announces statutory inquiry into Mermaids’, 02 December 2022
 

On 20 October 2022 a new civil service cross-government staff network called the Sex Equality and Equity Network (SEEN) was launched. Their focus is on challenging sex discrimination and upholding rights and protections that relate to sex, including the protections provided to those with the protected characteristics of sex, pregnancy and maternity, and sexual orientation, as set out in the Equality Act 2010. SEEN state that their core belief is that biological sex is binary and immutable and must not be conflated with, or replaced by, the concepts of gender or gender identity.

SEEN states that,

“As a part of our mission we want all civil servants to feel safe to exercise their legal rights under the European Convention of Human Rights to freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association, provided they manifest their rights lawfully and respectfully and within the Civil Service Code. We wish to encourage a diversity of voices and open and respectful dialogue and tolerance between those with differing beliefs and experiences. SEEN is a secular network and our work will be focused on evidence-based analysis. We are not aligned with any religion or with any external interest group. We are committed to the Civil Service Code’s core values of integrity, honesty, objectivity, and impartiality.”

The network is open all to UK civil servants and public sector staff in central government departments, agencies, and their associated public bodies, including arm’s length bodies. It aims to be a source of expertise for staff on the protected characteristics of sex, pregnancy and maternity, and sexual orientation.

A month after their launch SEEN reported that several hundred people from nearly 50 eligible organisations had expressed interest in SEEN membership, and that they had also received many membership enquiries from people to whom they cannot extend membership, including people in local and devolved governments, the NHS and police.

The existence of the network has been criticised within the civil service largely because of its belief that sex is immutable. SEEN has stated,

“Our network celebrates the drive towards greater equality, pluralism and respect for difference over recent decades, and in particular the more tolerant society that this has heralded. We are concerned that this progress is now under threat. Seeing some of the reactions to the launch of SEEN as an officially recognised cross-government staff network has made it clear to us that the Civil Service is not immune to this trend away from mutual tolerance. We have attracted significant criticism and hostility purely for announcing ourselves, and some colleagues have openly discussed getting us banned. Yet our network website (our only communication to date) makes clear our commitments to protection of everyone’s rights, encouraging a diversity of voices, and open and respectful dialogue and tolerance between those with differing beliefs and experiences, as well as the need to respect colleagues’ beliefs (or lack thereof)…The criticism of SEEN’s launch - which contrasts starkly with the hundreds of supportive messages and membership information requests we have received privately - has almost all focused on the nature of our core belief. It is a belief that our courts have ruled to be “worthy of respect in a democratic society” (and so holds the status of a protected belief under the Equality Act), and is shared by people from all backgrounds, of all political leanings, and by theist, atheist and agnostic alike.”

Source
Sex Equality and Equity Network, ‘About SEEN’, undated
 

On 23 March 2023 the World Athletics Council approved new eligibility regulations in respect of athletes who identify as transgender. These regulations came into effect on 31 March 2023. On that date UK Athletics confirmed that it would apply the new World Athletics regulations to competition in the United Kingdom licenced by UK Athletics, or any of the Home Country Athletics Federations (“HCAFs”) from 31 March 2023, subject to transitional arrangements. The HCAFs are Athletics Northern Ireland, England Athletics, Scottish Athletics and Welsh Athletics.

Before the new World Athletics Regulations came into effect biological males who identify as transgender were permitted to compete in women’s categories if their plasma testosterone level was no greater than 5 nanomoles per litre and had remained below that threshold for one year.

The new regulations state that to be eligible to compete in the female classification at a World Rankings Competition and to have recognised any World Record performance in the female classification at a competition that is not a World Rankings Competition, a biologically male athlete who identifies as transgender must meet each of the following “Transgender Female Eligibility Conditions” to the satisfaction of an Expert Panel:

1. They must provide a written and signed declaration, in a form satisfactory to the Medical Manager, that their gender identity is female.
2. They must not have experienced any part of male puberty either beyond Tanner Stage or after age 12 (whichever comes first).
3. Since puberty they must have continuously maintained the concentration of testosterone in their serum below 2.5 nanomoles per litre.
4. They must continue to maintain the concentration of testosterone in their serum below 2.5 nanomoles per litre at all times, whether they are in or out of competition, for so long as they wish to retain eligibility.

The eligibility criteria for biological females who identify as transgender state that, to be eligible to compete in the male classification at a World Rankings Competition or to have recognised any World Record performance in the male classification in a competition that is not a World Rankings Competition, they must provide a written and signed declaration, in a form satisfactory to a Medical Manager, that their gender identity is male.
 
The World Athletics regulations state:
 
“World Athletics wants to give equal opportunities to all athletes to participate in and excel at the sport, and to provide them with fair and meaningful competition conditions, so that they are motivated to make the huge commitment and sacrifice required to excel in the sport, and so inspire new generations to join the sport and aspire to the same excellence.
 
The substantial sex difference in sports performance that emerges from puberty onwards means that the only way to achieve the objectives set out above is to maintain separate classifications (competition categories) for male and female athletes. That difference is due to the physical advantages conferred on male athletes by the testes producing much higher levels of circulating testosterone than ovaries produce from puberty onwards in female athletes.” (paras. 1.1.1 and 1.1.2)
 
Sources
UK Athletics, ‘Transgender Eligibility in Athletics in the United Kingdom, Principle Statement’, 31 March 2023
World Athletics, ‘Eligibility Regulations for Transgender Athletes’, 23 March 2023
 

On 03 April 2023 Swim England announced a new policy which includes a female category open only to biological females and an open category, which includes “athletes with a birth sex of male, trans or non-binary competitors and any competitor not eligible for the female category”. The new policy will be implemented on 1 September 2023.

Under Swim England’s previous policy the eligibility of trans-identifying males to play in women’s sports was decided by an Equality and Participation Panel on a case-by-case basis using criteria sauch as hormone use and surgery.
 
Swim England’s new policy states:

“Peer-reviewed examples confirm the general consensus that post-puberty transgender females retain a biological level of performance advantage post-transition…Whilst Swim England’s existing policy regarding the use of hormonal therapy was found to be effective at reducing performance advantage, it was insufficient to negate it completely and trans females therefore likely retain an advantage over their cisgender peers…As a result, Swim England believes that the restriction of certain competition to birth sex females to be justified and proportionate in the pursuit of fair competition.”

The new policy relates only to Swim England competitions, including those organised by their member Regions, Counties and Clubs.

It will not apply to those who participate in aquatic sports recreationally.

Source
Swim England, ‘Swim England Transgender and Non-binary Competition policy’, 03 April 2023
 

In November 2022 Volleyball England published a new policy which states that a ‘transgender woman cannot play in the female category’. 

Volleyball England have summarised their new policy as follows:

“Volleyball is a gender-affected sport with different categories of competition to ensure fairness and, to some extent, safety. As a result, fairness cannot be reconciled in female competitions with self-identification in the female category. Therefore:

A transgender woman can still play in the male category of competition.

A transgender woman cannot play in the female category of competition.

A transgender man can continue to play in female competition, unless testosterone hormone treatment has commenced.

A transgender man can play in male competition as there is no physical advantage that would make the competition unfair.”

Source
Volleyball England, ‘Volleyball England Policy for Transgender Participation’, November 2022
 

Scottish Rugby published a statement on their website on 24 January 2023 saying that they had amended their ‘Gender Participation Policy’. Their amended policy states that contact rugby in the women’s category is limited to those recorded female at birth.

Scottish Rugby’s amended policy aligns with those of other rugby union governing bodies in the UK and Ireland, which all follow guidance from World Rugby and the UK Sports Council.

Scottish Rugby’s previous policy, which was published in 2018, stated that those identifying as ‘transgender females’ who wished to play in the women’s category must demonstrate to an expert panel that the testosterone in their serum had been no more than 5 nanomoles per litre continuously for a period of at least 12 months, and that it remained at this level for as long as they continued to compete in the female category.

The amended policy will allow trans-identifying female players to continue to play contact rugby in the men’s category provided that the club with which the player is registered undertakes a risk assessment and logs the outcome with Scottish Rugby.

Scottish Rugby stated,

“Our Gender Participation Policy recognises the need to balance considerations of safety and fairness with our underlying desire to be as inclusive as possible. At this moment in time, Scottish Rugby has opted to make a decision which puts safety first, based on the current research. As such, it is in line with World Rugby’s Transgender Policy and the Guidelines produced by the UK Sports Councils’ Equality Group whose recent recommendations we have considered and adhered to when updating this policy.”

The new policy came into effect on 1 February 2023.

Sources
Scottish Rugby, ‘Scottish Rugby Transgender Policy’, 2018
Scottish Rugby, ‘Statement: Gender Participation Policy’, 24 January 2023
UK Sports Council, ‘The UK's Sports Councils Guidance for Transgender Inclusion in Domestic Sport’, September 2021
World Rugby, ‘Transgender Guidelines’, October 2020
 

 

On 9 February 2023 the Independent Press Standards Organisation (IPSO) launched draft guidance on the reporting of sex and gender identity. The draft guidance is designed to be a part of an editorial toolkit to support the decision-making process on stories about sex and gender identity. Academic research about reporting in this area suggests that its current defining characteristic is “chaos”. The IPSO consultation was open to members of the public and ended on Friday 10 March 2023.

IPSO states that developing and publishing guidance is one way in which it supports editors and journalists to raise editorial standards. Its guidance is not mandatory. The new draft guidance on the reporting of sex and gender identity is intended to help understanding of how IPSO’s Editors’ Code of Practice is applied in this area of reporting. The draft guidance focuses on the application of four clauses of the Editors’ Code, which are Clause 1 (Accuracy), Clause 2 (Privacy), Clause 6 (Children) and Clause 12 (Discrimination).

IPSO’s press release about the draft guidance states that,

“Most complaints to IPSO relate to accuracy (Clause 1). In this guidance, we have identified key themes to help editors navigate topics relating to the reporting of sex and gender identity. The guidance strikes a balance between freedom of expression and the rights of the individual not to face discrimination and intrusion. 

We are seeking views from people interested in this area to ensure we have the widest spectrum of opinion on the draft.”

In relation to accuracy, the draft guidance examines four areas of press reporting, which are: Reporting on policies/guidance; Negotiating different views on how to describe someone’s gender identity; Reporting on conflicting views; and Comment pieces.

In respect of negotiating different  views on how to describe a person’s gender identity, the draft guidance focusses mainly on the decision of the IPSO Press Complaints Committee in the case of A woman v Daily Mail. In this case a woman, who was anonymous, complained that the Daily Mail had breached Clause 1 (Accuracy) and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article in which she had been interviewed about her experiences of being sexually assaulted while she was in prison by a trans-identifying male prisoner, to whom she had referred using male pronouns. The article had quoted her as using female pronouns. She said that this was inaccurate and that it constituted discrimination against her on the basis of her gender critical beliefs. The woman’s complaint was not upheld, largely because she had consented to the change of pronouns before the publication of the article. She said that this consent had not been freely given, as she was a vulnerable interviewee who had been put in a position where she felt she had no choice other than to agree to the amendments. She had feared that if she did not agree the article would not be published, and her story would not be told.

Based on the draft guidance’s use of this case, it appears that the recommended approach is that  journalists may change the pronouns used by an interviewee to refer to a trans-identifying person provided that the interviewee has given prior consent to the change. The draft guidance does not address the question of what constitutes valid consent.

Discussing accuracy more generally, the draft guidance says that journalists and editors should consider the following:

Related to the question of accuracy is what the draft guidance refers to as ‘Reporting of gender diverse defendants’, which it describes as a “contentious topic that features in many debates”.

Referring to the Editors’ Code in this context the draft guidance states that, “The rights of the defendant to be free of unjustified intrusion into privacy and discrimination are enshrined in Clause 2 (Privacy) and Clause 12 (Discrimination) respectively. Journalists and editors should take a view of how to meet the obligations under the Code when reporting on this topic.” It suggests that editors may wish to consider the following:

Journalists’ approaches to reporting on ‘gender diverse defendants’ is the subject of research conducted by Amy Binns and Sophie Arnold of the University of Central Lancashire (UCLAN), who have published a journal article about their research. They examined media reports of 39 UK court cases involving trans-identifying defendants, and looked at a total of 138 reports from established media organisations which were used in 2020, 2021 and the first two months of 2022. All the cases related to allegations of sexual or violent offences, and all involved males who claimed to identify as women or had taken a female name. The researchers did not seek to exclude females identifying as men but found no reports of court cases relating to them. In most cases, the defendant pleaded guilty or was found guilty.

Describing the media reports, Binns and Arnold state,

“Chaos was the defining feature of the media reports, when considered as a body. The same defendant could be referred to as male or female in different reports of the same court case (Brock, 2022) (PA News Agency, 2022), or even change pronouns half way through a report (Christodoulou, 2022). Defendants could be referred to as male by some people involved in a case and female by others (Connell, 2021). In one case, a defendant was referred to as a man in an early stage of a court case (Murphy, 2021a) and as a woman three months later by the same reporter in the same publication (Murphy, 2021b). In another case, a reporter referring to an earlier hearing, prior to the defendant transitioning, “corrected” a witness’s quotes in order to make the pronouns agree with the latest hearing (Novak, 2022).”

The researchers suggest that, overall, journalists’ reports reflect the remarks made in court. They note that journalists appeared reluctant to use male pronouns or refer to someone as male when they had been referred to solely as female in court, even when court records had stated their sex.

Binns and Arnold review evidence from a range of sources which suggests that many members of the public understand the term ‘trans’ as referring to someone who has undergone a process of physical and probably surgical change, which is often not the case. They suggest that in this context,

“Reports of sexual offences will be incomprehensible to a large chunk of the audience if clarity is not given to the defendant’s biological reality, including their pre- or post-operative status. This is because sex crimes are likely to involve the defendant’s genitals.”

The researchers conclude that,

“Courts do not exist to serve as stages on which the players perform an affirmation of a person’s chosen identity. Court reports are not a public record of such a performance, or a form of validation. Court reports serve the public’s right to know (Independent Press Standards Organisation, 2021). They also uphold the purposes of justice, both by serving the principle of open justice and by providing information that may lead to further prosecutions (Hanna, et al., 2020). For all these reasons, accuracy is of overwhelming importance. 

The court room is, by design, a place of confrontation and opposing interests. The rights of the public (as represented by officials), defendants, witnesses and victims are in tension. These tensions and conflicts are inevitably transferred to the journalist attempting to make a fair and accurate report…Representing defendants claiming to be transgender as biological women, or as transwomen without any caveat, is to give an inaccurate report of both an individual crime and a more general picture of offending patterns. This may have long-term effects on safeguarding and women’s rights. It may distress victims. Lack of clarity about the identity of defendants may enable them to commit further crimes in the future and prevent further witnesses to past crimes coming forward. It erodes trust in the media generally and exposes journalists to abuse and ridicule. Journalists and editors have been left to struggle with these issues due to a lack of clear guidance. We would strongly recommend that IPSO, and other regulatory bodies, work with women’s and trans groups on an updated version of guidance regarding transgender reporting to include trans-identified defendants.”   

Binns and Arnold’s article was first published on UCLAN’S website in June 2022. On 1 July 2022 the Press Gazette reported that it had been removed after the university received complaints alleging that it was transphobic. In December 2022 a resolution was tabled for the National Union of Journalists’ conference preliminary agenda for April 2023 which asked the union to mandate the Ethics Council to research and draft new guidance in this area. This resolution which is number 34 in the preliminary agenda, states,

“This DM notes with concern reports in academic papers and elsewhere that very rare court cases involving rape or sexual assault in the UK are often confusing for the reader or viewer because of a lack of regulatory guidance and changing of guidance to court officials. One such recent academic paper identifies that 39 court cases reported in 138 media stories showed great variation in journalistic practice regarding pronouns, use of names and terminology in the reporting of trans-identified defendants.

This DM instructs the Ethics Council to seek specialist guidance and work with anyone with useful expertise to develop guidance on the reporting of such cases to sit alongside our code of conduct.”

IPSO has begun the process of producing updated guidance in advance of the conference. In their article, Binns and Arnold make a number of recommendations for improving media reporting in this area.

Sources
Amy Binns and Sophie Arnold, ‘He or She: Reporting court cases of trans- identified defendants in the UK’, citation-365375922%20(1). ris, Pre-print, July 2022
Independent Press Standards Organisation, ‘Decision of the Complaints Committee 09309-21, A woman v Daily Mail’, 11 February 2022
Independent Press Standards Organisation, ‘Draft guidance on reporting of sex and gender identity’, 9 February 2023
Independent Press Standards Organisation, ‘Editors’ Code of Practice’, 1 January 2021
Independent Press Standards Organisation, ‘IPSO launches public consultation on draft guidance on the reporting of sex and gender identity’, Press release, 9 February 2023
Bron Maher, ‘University removes ‘transphobic’ court reporting guidelines from website’, Press Gazette, 1 July 2022
National Union of Journalists, ‘Preliminary Agenda DM 2023’, 21 December 2022
 

More than 1,200 clinicians signed an open letter sent on 23 February 2023 to the NHS chief executives and chief nursing officers of the four UK nations, and to relevant ministers, calling for the reinstatement of language that uses the word ‘woman’ in NHS communications about women’s health.

The open letter was written by the Clinical Advisory Network on Sex and Gender (CAN-SG), who are a multidisciplinary group of clinicians based in the UK and Ireland who call for greater understanding of the effects of sex and gender in healthcare. The letter concerned changes to information provided on the NHS.UK website which have removed the word ‘woman’ and ‘women’ from information relating to women’s health issues, and in particular cancers affecting women. The signatories include four ex-NHS trust executives; Maura Buchanan, the former Royal College of Nursing President; Sara Reid, the former Assistant Children’s Commissioner for Wales; and two peers.

CAN-SG submitted Freedom of Information (FOI) requests to NHS Digital, which is responsible for the health information content on the NHS.UK website. The responses (which can be found here, and here) confirmed that NHS Digital had taken the decision to remove the words ‘woman’ and ‘women’ from the website information without public consultation, without an equality impact assessment, and without an independent legal opinion regarding its acceptability under the Equality Act 2010. CAN-SG’s letter also notes that the changes were made without any comprehensive analysis of the likely impact on women’s health, awareness, access to treatment, health outcomes or trust in the NHS, without particular attention to the women who are most likely to be disadvantaged and excluded from their own health literature as a result of the changes, and without consideration of how women would feel about the language used.

Using cervical cancer as an example of the importance of clear language targeted at women in public health information, CAN-SG’s letter notes that previous research suggests that 40% of women do not know they have a cervix, and 21% of women over 50 do not know that screening reduces the risk of cervical cancer. The letter notes that,

“Despite this, NHS.UK has removed clear sex based language to support women’s health for cervical cancer and in other women only conditions, but not for men’s health.”

One of signatories to the letter is Professor Sallie Baxendale, a consultant Neuropsychologist at University College London Hospitals NHS Foundation Trust. She told The Telegraph on 06 March 2023 that,

 “I know from 30 years’ experience of working directly with vulnerable people in the NHS just how important it is to use clear language in healthcare settings. The erasure of the word ‘women’ in NHS communications directly targeting women’s health is not clinically indicated, has no evidence base and will only serve to erect yet another barrier to prevent the most vulnerable women in society from accessing appropriate and timely healthcare.”

The CAN-SG letter states that the removal of sex-based language in healthcare communication harms women and undermines health outcomes, and that it is discriminatory and could leave the NHS open to legal challenge. The letter goes on to state:

“We call for a full reinstatement of sex-specific language to communicate to women about their health care issues, across all NHS communications.  We’ve invited those who share our concerns to sign this open letter too.

The NHS must use women’s words for women’s bodies and women’s health problems, and reverse the well-meaning but obfuscating and insulting changes to NHS.UK over recent years.

For any future changes we request you do full equality impact assessments, with proper consideration of consequential harms”.

Sources
Clinical Advisory Network on Sex and Gender, ‘Open Letter to NHS chiefs: The importance of the word “woman” in communication about women’s health’, 23 February 2023
Jo’s Cervical Cancer Trust, ‘Half of women don’t know what the cervix is’, 09 June 2017
Jo’s Cervical Cancer Trust, ‘Further understanding of the perception of cervical screening among women over 50’, 19 July 2019
Ewan Somerville, ‘NHS must reinstate ‘woman’ in cancer and pregnancy webpages, staff demand Health workers write to bosses condemning 'discriminatory' move of shifting to gender-neutral language, saying it 'insults women', The Telegraph, 06 March 2023
 

The University of the Arts London (UAL) published new policies relating to staff experiencing the menopause and staff maternity provision in September and October 2022 respectively. Both policies almost completely avoid the use of the word ‘woman’.

The UAL policy on maternity states,  

“This policy uses the term “maternity” throughout to reflect UK law. However, this policy applies to people of all genders at UAL.”
 
The policy uses the terms ‘expectant parent’ or ‘pregnant person’ throughout. It defines an ‘expectant parent’ as follows:
 
“– the expectant biological (birth) parent of a child. Expectant parents may be of any gender (including trans, non-binary, agender, gender nonconforming, genderqueer and gender fluid individuals)”

The Menopause Support and Guidance policy uses the terms ‘individual’, ‘person’ and ‘people’ when referring to women experiencing menopause except where it refers to a survey carried out by YouGov on behalf of the Chartered Institute of Personnel and Development (CIPD), which uses the term ‘women’. UAL’s policy explains in a footnote that it uses the term ‘women’ in this instance because this was the language used in the CIPD research.

In a paragraph which does not mention the words ‘woman’ or ‘female’, the UAL policy goes on to say,

“Although it is the individual who experience the physical and psychological symptoms of menopause, it is recognised that the menopause can also directly and indirectly affect others both within the workplace and at home. This can include colleagues, family members, people within the LGBTQIA+ community, people transitioning and disabled colleagues. UAL recognise that menopause may also be experienced by colleagues who do not identify as female, so this guidance and support content is intended to support anyone experiencing menopause, regardless of their gender identity.”
 
In January 2020 UAL announced that it had climbed up 230 places in Stonewall’s Workplace Equality Index and was ranked 72^nd in Stonewall’s list of the UK’s top 100 “LGBT-inclusive employers”.  UAL is not included in the top 100 list for 2023.
 
Sources
Dan Austin, ‘University of the Arts London climbs 230 places in Stonewall’s Workplace Equality Index’, 30 January 2020
Stonewall, ‘UK Workplace Equality Index’, 2023
University of the Arts London, ‘Equal Parental Leave Policy: Maternity’, October 2022
University of the Arts London, Menopause Support and Guidance’, September 2022
 

In March 2023 Policy Exchange published a report by Lottie Moore, whose research found fundamental safeguarding principles are being compromised by the approaches of many schools to children experiencing gender distress. Moore’s research found that many schools are failing to routinely inform parents when a child discloses gender distress, many are teaching gender identity beliefs within Relationships, Sex & Health Education (RSHE) as if they are facts, and many are compromising single-sex spaces. The report notes that a gender affirmative approach, which unquestioningly accepts children’s self-described ‘gender identity’, is widespread within schools, and schools are supporting children to socially transition at school without informing parents.
 
The Policy Exchange report, entitled Asleep at the Wheel An Examination of Gender and Safeguarding in Schools, is endorsed by former education secretaries Nadhim Zahawi and Baroness Morris of Yardley and the Chairman of the Commons’ Education Select Committee, Robin Walker MP.  Other MPs who have endorsed the report included Rosie Duffield (who wrote the foreword), Miriam Cates, Mark Jenkinson, and Nick Fletcher. Baroness Hayter of Kentish Town has also endorsed it.
 
In carrying out the research for the report, Policy Exchange sent Freedom of Information (FOI) requests to a random selection of over 300 maintained secondary schools and academies in England. The results showed that:

• Only 28 per cent of secondary schools are reliably informing parents as soon as a child discloses feelings of gender distress.
• 33 per cent of secondary schools did not say they would inform their Designated Safeguarding Lead or a medical practitioner when a child discloses gender distress. 
• Four in ten secondary schools operate policies of gender self-dentification.
• At least 28 per cent of secondary schools are not maintaining single sex toilets, and 19 per cent are not maintaining single-sex changing rooms.
• 60 per cent of secondary schools are allowing children to participate in sports of the opposite sex.
• 69 per cent of secondary schools are requiring other children to affirm a gender-distressed child’s new identity.

In respect of the teaching of Relationships, Sex and Health Education (RSHE) in secondary schools, the research results showed that:

• 72 per cent of schools are teaching that people have a gender identity that may be different from their biological sex.
• 25 per cent are teaching that some people or children ‘may be born in the wrong body.’ 
• 30 per cent are teaching pupils that a person who self-identifies as a man or a woman should be treated as a man or woman in all circumstances, even if this does not match their biological sex.

The report suggests:

“Key to understanding why so many schools are compromising their safeguarding standards on this issue requires exploring the wider climate within the UK’s education system on sex and gender. Over the last decade, external agencies with partisan (and sometimes overtly political) aims have received large amounts of government funding and, accordingly, have gained influence within the education sector. They have used this influence to embed contested gender identity beliefs within schools.”
 
The report makes a number of recommendations for improving school practices in this area. These include requiring schools to automatically inform parents when a child discloses feelings of gender distress at school, unless there is a compelling reason for them not to be informed; requiring schools to publish all Relationships, Sex and Health Education (RSHE) material online, and have a clear process in place for parents to raise any concerns; and requiring schools to maintains single-sex activities and facilities in line with the law and current guidance without exception. This includes toilets, changing rooms and sports of a competitive nature.
 
The report also recommends that the Government urgently commission an independent review of the teaching of RSHE materials and approaches to gender distressed children in schools, with a focus on safeguarding. It suggests that the review must be independent and not carried out by the Department for Education (DfE), as this Department has been so closely involved in the development of the current situation.
 
After the release of the report, the Education Secretary Gillian Keegan wrote to all schools to remind them of their legal duty to publish a relationships or relationships and sex education policy, as well as the need to be transparent with parents as to what they are teaching pupils. The letter also stated that schools must stop entering into contracts that seek to prevent parents from seeing materials. The review into the appropriateness of RSHE teaching, was accelerated by the Prime Minister and the Education Secretary, and will be conducted by the end of the year. The review will be informed by an independent panel of experts. Separately, guidance on how schools should approach gender-distressed children, which is being produced by the Education Secretary and Minister of Women and Equalities, will be published by May half term.
 
Source
Lottie Moore, ‘Asleep at the Wheel An Examination of Gender and Safeguarding in Schools’, Policy Exchange, March 2023
Gov.UK, ‘Review of relationships, sex and health education to protect children to conclude by end of year’, Press Release, 31 March 2023
 

In response to the recommendations made in the interim report of the Cass Review, in October 2022 NHS England published a consultation on its proposals for the interim service specification for specialist gender dysphoria services for children and young people which will replace the single national Gender Identity Development Service (GIDS) based in the Tavistock and Portman NHS Trust.  The changes proposed in the consultation will also apply to services which are the commissioning responsibility of NHS Wales.
 
On 28 July 2022 NHS England announced its intention to close the national Gender Identity Development Service (GIDS) for children at the Tavistock and Portman NHS Foundation Trust by  Spring 2023, and to replace it with regional treatment centres. This decision followed serious concerns about the service which were raised in the interim report of the Independent review of gender identity services for children and young people (the Cass Review), which was published in February 2022. 
 
A consultation on NHS England’s proposals for the interim service specification for the specialist gender dysphoria services for children and young people which will replace GIDS was published in October 2022.
 
The proposed interim service represents phase 1 of an NHS service transformation programme which will take place in response to the Cass Review. It is intended that it will be operational for a limited time only until a new service specification can be formed in 2023/24, following the Cass Review’s final advice. The new service specification will be used by a new configuration of regional service providers which will be operational in phase 2 of the service transformation programme.
 
The NHS consultation uses the term ‘gender incongruence’ to describe a discrepancy between what it calls “birth-assigned sex” and “gender identity”.  It uses the term ‘gender dysphoria’ to mean “a disorder characterized by a strong and persistent cross-gender identification (such as stating a desire to be the other sex or frequently passing as the other sex) coupled with
persistent discomfort with his or her sex”.
 
The consultation notes that in recent years there has been a dramatic change in the nature of referrals of children to GIDS. Previously referrals related predominantly to young people who were biologically male. Now they relate predominantly to young people who are biologically female, who are presenting with gender incongruence in their early teenage years. A significant number of children are also presenting with neurodiversity (i.e., they are on the autism spectrum) and other mental health needs, and many are involved in risky behaviours.
 
The consultation states that currently there is a lack of clinical consensus about what the best model of care for children and young people experiencing gender incongruence and dysphoria should be, and a lack of evidence to support families in making informed decisions about interventions which it describes as having “life-long consequences”.
 
One of the key concerns raised by the Cass Review’s interim report was that GIDS predominantly used an ‘affirmative approach’ which accepts the claimed ‘gender identity’ of children and young people experiencing gender incongruence without exploring the factors which may be contributing to their discomfort with their biological sex. The interim report found limited evidence of mental health or neurodevelopmental assessments being routinely carried out, and it stated that there did not appear to be a standardised approach to assessment within GIDS.
 
In response to these concerns, NHS England’s new interim service specification proposes that clinical teams will become more integrated multi-disciplinary teams that will include experts in paediatric medicine, autism, neurodisability and mental health, as well as gender dysphoria specialists. It also proposes that the clinical leads for the service will be medical doctors.  
 
The consultation notes that the interim report of the Cass Review stated that the social transitioning of children (whereby they adopt names and clothing seen as being aligned with their ‘gender identity’) should not be viewed as a neutral act, but as an ‘active intervention’, because it may have significant effects on the child or young person in terms of their psychological functioning.  In line with this advice, the interim service specification states that the clinical approach with regard to pre-pubertal children will reflect evidence that in most cases gender incongruence does not persist into adolescence; and that for adolescents the provision of approaches for social transition should only be considered where the approach is necessary for the alleviation of, or prevention of, clinically significant distress or significant impairment in social functioning, and the young person is able to fully comprehend the implications of affirming a social transition. 
 
The consultation states that, in line with advice from the Cass Review highlighting the uncertainties surrounding the use of hormone treatments for children, NHS England is currently forming proposals for prospectively enrolling children and young people being considered for hormone treatment into a formal research programme with follow up into adulthood. In the shorter term there will be a focus on the questions regarding the effects of gonadotropin-releasing hormone analogs (GnRHa), which is used to block puberty. While the research is taking place NHS England will only commission the use of GnRHa in the context of a formal research protocol.
 
The Cass Review’s response to the consultation broadly welcomed its proposals while seeking clarification in some areas. In respect of social transition, the Cass Review stated,
 
“Although we agree that pre-pubertal children have different needs to older adolescents, some of the distinctions between these two groups, which are set out in the section on social transition in the service specification, will need to be further informed by the evolving evidence base. At this stage it is important to specify that different groups will need different pathways, but the detail of the clinical approach within these pathways will need to develop collaboratively as the services evolve and the Review progresses”.
 
In relation to the proposed research protocol, the Review stated,
 
“The Review already has a comprehensive research programme underway, but this will not provide all the answers needed, and further work is required if the short- medium- and longer-term impacts of all clinical interventions are to be understood, starting most immediately with the effects of puberty blockers on neurocognitive and psychosexual development, gender maturation and executive function.
 
The Review welcomes the opportunity to support NHS England in developing the detail of its prospective research programme, and improving the reliability and transparency of information and advice available to support children, young people, parents and carers, and clinicians in making potentially life-changing decisions”.
 
Sources
 
NHS England, ‘Implementing advice from the Cass Review Improving and expanding services for children and young people experiencing gender incongruence and gender dysphoria’, 20 July 2022
NHS England, ‘Public consultation: Interim service specification for specialist gender dysphoria services for children and young people’, 20 October 2022
The Cass Review, 'Independent review of gender identity services for children and young people: Interim report', February 2022
The Cass Review, ‘Review Response to NHS England’s Consultation On The Interim Service Specification For Specialist Gender Dysphoria Services For Children and Young People’, Undated
 

In November 2022 Avon and Wiltshire Mental Health Partnership NHS Trust (Avon and Wiltshire) launched Supporting Trans and Non-Binary People - Guidance for Health and Wellbeing Practitioners (the Guidance). This guidance is an amended version of earlier draft guidance in relation to which an Equality Impact Assessment (EIA) was commissioned by the former Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group (BNSSG - now the BNBSSG ICB). The EIA found that the draft guidance could create a negative impact on people who come within the Equality Act’s protected characteristics of sex, age, disability, and religion and belief. The Assessment identified a number of risks to these protected groups and recommended changes to the draft guidance to mitigate those risks. Some of the recommended changes have been implemented in the amended Guidance, but many have not. Avon and Wiltshire were one of the NHS bodies on whose behalf BNSSG commissioned the EIA, and their response to a Freedom of Information Request in December 2022 confirmed that they were aware of this Assessment. The amended Guidance’s section on children and young people discusses puberty blockers without addressing the concerns about these drugs identified in the Cass Review’s interim report, and without acknowledging NHS England’s  consultation in response to the Cass Review, which says that the NHS will only commission puberty blockers in the context of a formal research protocol until the outcome of forthcoming research into their use is known. The Guidance gives the impression that the NHS continues to prescribe puberty blockers outside of the research protocol.

The Guidance is an amended version of Supporting Trans People - Best Practice Guidance for Health and Wellbeing Practitioners (the draft guidance). The draft guidance was originally commissioned in 2018 by Bristol Care Commissioning Group, Bristol Independent Mental Health Network (BIHMN), Devon Partnership NHS Trust and Avon and Wiltshire Mental Health Partnership NHS Trust. Its stated purpose was to help health and care professionals to understand the needs of people who identify as transgender and provide them with better mental health care. The organisation Stand Against Racism and Inequality (SARI) was commissioned to produce it.
 
The EIA report notes that, following publication of the draft guidance in November 2019, the Clinical Commissioning Group received a number of representations from women’s groups and members of the public suggesting that it could have an adverse impact on women and girls.

The Equality Act 2010 makes provision for nine protected characteristics, which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. It is designed to provide protection against discrimination and harassment based on these characteristics.
 
Neither the draft guidance not the amended Guidance acknowledge sex as a protected characteristic in the Equality Act. The draft guidance recommended that the needs of trans-identifying patients “be given priority” when considering whether to admit a trans-identifying patient to a male or female ward. It also suggested “providing education” to other service users in a ward to prevent “ignorant or transphobic comments”.  
 
In relation to children and young people both versions of the guidance discuss the use of puberty blockers without discussing the concerns about these drugs identified by the Cass Review’s interim report.  
 
Sources
Lucy Griffin et al, Complaint letter to Deborah El-Sayed, Bristol, North Somerset and South Gloucestershire Clinical Commissioning Group, 03 February 2020
Healthier Together, ‘Equality Impact Assessment Supporting Trans People: best practice guidance for health and care practitioners’, Version: V1.2, 24 November 2020
SARI Supporting Trans People Toolkit, Freedom of Information request to Avon and Wiltshire Mental Health Partnership NHS Trust, 29 November 2022
Stand Against Racism and Inequality (SARI), ‘Supporting Trans and Non-Binary People Best practice guidance for health and well-being practitioners’, Avon and Wiltshire Mental Health Partnership NHS Trust, 2022
Stand Against Racism and Inequality (SARI), ‘Supporting Trans People Best practice guidance for health and well-being practitioners’, Stand Against Racism and Inequality, undated
The Cass Review, 'Independent review of gender identity services for children and young people: Interim report', February 2022