Can a man really become a woman?
The clear answer to this is no, he cannot. No matter how he presents himself, what he wears, what he believes about himself, or what changes he makes to his body through surgery or medical treatment, a male remains a male. A male cannot become a woman. (Nor can a female become a man.)
Nevertheless, there is a legal mechanism that enables for want of a better phrase ‘males to become women in law’ (and ‘females to become men in law’). The legislation which enables this is the Gender Recognition Act (2004). Under the Act, people who have what is termed ‘gender dysphoria’ are permitted to obtain ‘legal recognition in their acquired gender’. Legal recognition will follow from the issue of a Gender Recognition Certificate by a Gender Recognition Panel. The criteria that individuals must meet and the process they need to go through are set out in the Act.
What does a male have to do in order to legally become a woman?
According to the provisions of the Act he must:
have or, in the situation where he has already had full ‘reassignment’ treatment, have had gender dysphoria;
have lived in the acquired gender, i.e. ‘as a woman’, for the two year period preceding the date of the application;
intend to continue to live in the acquired gender, i.e. ‘as a woman’, until death.
In addition to the completed application form and fee of £140, he must provide the following:
two reports from registered medical practitioners, one of whom must be a specialist in the field of gender dysphoria. The report from the specialist must include details of the diagnosis of gender dysphoria. If the applicant has undergone or intends to undergo ‘reasssignment’ treatment (hormones or surgery), the report must include details of this;
if the applicant has already undergone ‘reassignment’ surgery only one medical report is required;
evidence in the form of bank statements, utility bills, etc that the applicant has ‘lived as a woman’ for the required two-year period.
This link is to the Application Form for a Gender Recognition Certificate, and this link is to the HM Courts and Tribunals Service template for the Medical Report and Guidance Notes.
Those individuals who meet the eligibility criteria and who successfully go through the required process have their details entered into the Gender Recognition Register and receive a Gender Recognition Certificate (GRC). A GRC is a legal document which states that the individual to whom it has been issued has satisfied the criteria for legal recognition in the acquired gender. A GRC enables that individual to have all official documentation, including documents which are used as proof of identity such as driving licence and passport, issued to reflect the acquired gender. Even more significantly, possession of a GRC enables that individual to obtain a new birth certificate which shows the acquired gender.
It is crucial to note that there is no requirement that any ‘reassignment’ treatment be undertaken before a male can legally become a woman. If he has not had any surgery, or if no treatment has been prescribed for him, the specialist completing the medical report must explain why. But there is no formal requirement that a male must have had or that he intends to have ‘reassignment’ treatment before he can legally become a woman. Certainly, if treatment has been prescribed but has not been undertaken, there is no provision within the Act to ‘check up’ on him and make sure he has it. Much less, is there any provision to revoke his Gender Recognition Certificate, which states that he is legally a woman, if he fails to complete the treatment that was described in the application form.
What this means is that a male, complete with his fully-functioning and unaltered male body, can legally be a woman under UK law. He can obtain a new birth certificate, passport, driving licence, etc which state that he is female, together with his new (female) name. His birth certificate will show this new name and will state that on the date of his birth a girl was born, not a boy. There will be no indication on any of these documents that he was born male. The only record of his ‘prior’ maleness and his ‘acquired’ femaleness is the Gender Recognition Register.
The Act sets out provision to protect the privacy of those who obtain a GRC. What this means is that all information in relation to the gender recognition process an individual has gone through is protected information, meaning that it is illegal to disclose it without that individual’s consent. What this means is that we are not allowed to know that this person who is legally a woman is of the male sex. Whilst the fact that he remains a male may be absolutely obvious, what this means is that we are not allowed to question his femaleness and are not allowed to take the precautions that we would normally take when presented with someone who is male.
What does it mean when a male ‘becomes a woman in law’? We often read that he must be ‘treated as a woman in every respect’? Indeed, the Policy Frameworks written by the Ministry of Justice and Her Majesty’s Prisons and Probation Service and by the Scottish Prisons Service state just that. Is this true? Or are there situations where he can still be treated as the male he is?
The law is quite clear about this. There are situations where he is not treated as a woman. There are situations where he can be treated as a male.
These provisions, where a male with a GRC can still be treated as a man, are set out in the Equality Act (2010) and the Gender Recognition Act (2004).
The Equality Act (2010)
The purpose of the Equality Act (2010), as described by the Equality and Human Rights Commission, is to:
Provide a legal framework to protect the rights of individuals and advance equality of opportunity for all. It provides a discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
The Act specifies the following as protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.
What this means is that a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. A also discriminates against B if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. Such discriminatory actions are illegal.
What this means for a male with a GRC is that he cannot be treated differently on the basis that he has the protected characteristic of gender reassignment. However, there are important exclusions to this, where a male with a GRC can be treated differently to ‘other women’. These are sports and single-sex spaces and services for women.
At Part 14, 195 the Act (2010) states that sports that are considered to be ‘gender-affected’ are allowed to be single-sex and that single-sex provision in sports is allowed to exclude individuals on the basis of their gender reassignment. To do so is not discriminatory.
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. For example, darts would arguably not be a gender-affected activity. Rubgy, as the evidence shows, most definitely is. What this means is that in order to secure fair competition and/or the safety of competitors it is permissible to have rugby for women only that excludes both men and males who have the protected characteristic ‘gender reassignment’.
These provisions establish the legal right to single-sex sports and to exclude those who are ‘transgender’ from the single-sex sports of the sex they believe themselves to be. You can read more about campaigning for sports for women and girls at https://fairplayforwomen.com/campaigns/sports-campaign/.
The Equality Act (2010) also provides for separate services for males and for females. At Schedule 3, Part 7 the Act states:
A person does not contravene [the Act] so far as relating to sex discrimination, by providing separate services for persons of each sex, if
(a) a joint service for persons of both sexes would be less effective, and
(b) the limited provision is a proportionate means of achieving a legitimate aim
This provision is elaborated upon at length. The following are of note as they establish the legal permissibility of single-sex services and single-sex spaces:
A person does not contravene [the Act], so far as relating to sex discrimination, by providing a service only to persons of one sex, if
The condition is that:
(a) the service if provided for, or is likely to be used by, two or more persons at that same time, and
(b) the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex
The condition is that:
(a) there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and
(b) B might reasonably object if A were not of the same sex as B.
Under the Act, it is permitted to exclude ‘transgender’ people from these spaces and from these services:
A person does not contravene [the Act], so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within [the following] sub-paragraph if the conduct in question is a proportionate means of achieving a legitimate aim.
The matters are:
(a) the provision of separate services for persons of each sex
(b) The provision of separate services differently for persons of each sex
(c) The provision of a service only to persons of one sex
This means that a male, notwithstanding possession of a Gender Recognition Certificate and birth certificate stating that he is female, and notwithstanding his protected characteristic of gender reassignment, may be excluded from single-sex spaces and services for women and girls, where this is a proportionate means to achieving a legitimate aim. In Schedule 23, paragraph 3 of the Act communal accommodation is included in these single-sex services and spaces.
You can read more about the Equality Act at https://fairplayforwomen.com/equality-act-2010_womens-rights/.
The Gender Recognition Act (2004)
In common with the Equality Act (2010), the Gender Recognition Act (2004) at Section 19 makes provision in respect of gender-affected sports. This means that it is legal to exclude a male with a GRC stating that he is legally a woman from single-sex sports for women in order to secure fair competition or the safety of the competitors.
The Gender Recognition Act (2004) specifies further ways in which the fact that a person’s legal gender has become their acquired gender is irrelevant. These are:
• the status of the person as the father or mother of a child (Section 12);
• the disposal or devolution of property under a will or other instrument made before the appointed day (Section 15);
• the descent of any peerage or dignity or title of honour (Section 16).
• gender-specific offences (Section 20).
The provisions in respect of gender-specific offences are important and worth elaborating upon. At Section 20 the Act states:
Where (apart from this subsection) a relevant gender-specific offence could be committed or attempted only if the gender of a person to whom a full gender recognition certificate has been issued were not the acquired gender, the fact that the person’s gender has become the acquired gender does not prevent the offence being committed or attempted.
An offence is a “relevant gender-specific offence” if
(a) either or both of the conditions [below] are satisfied, and
(b) the commission of the offence involves the accused engaging in sexual activity.
The conditions are
(a) that the offence may be committed only by a person of a particular gender, and
(b) that the offence may be committed only on, or in relation to, a person of a particular gender, and the references to a particular gender include a gender identified by reference to the gender of the other person involved.
This is important because many definitions of sexual offences in the law of Scotland and of Northern Ireland remain ‘gender specific’ and refer, for example, to acts committed by a male upon a woman. What this provision means in that a male who has a GRC stating that he is legally a woman cannot avoid criminal liability if he commits a sexual offence. (It should be noted, however, that in a case like this the offence will be recorded in the female crime statistics as having been committed by a woman. You can read more about that at When males are recorded as women.)
It also means that where a female who has a GRC stating that she is legally a man is the victim of a ‘gender specific’ sexual offence, the perpetrator cannot rely on her legally acquired gender to escape criminal liability.
In conclusion: a male with a GRC stating that he is legally a woman is not to be treated as a woman in all circumstances. This person may be treated differently and may be excluded from single-sex spaces and services for women, simply because he is male. To do so is legal and is not discriminatory. Yet, the Ministry of Justice, Her Majesty’s Prisons and Probation Service and the Scottish Prison Service ignore this. Policy is written as if these provisions in law simply do not exist. This is an outrage and it leaves women in prison at risk.